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Univ. of South Carolina School of Law

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Saturday, April 9, 2011

Not The First Time: Massachusetts Case Reveals Differences Between First And Fresh Complaint Rules

An article in the Worcester Telegram & Gazette notes that

Last Tuesday, the state Appeals Court threw out a man’s rape conviction because jurors were allowed to hear from a high school guidance counselor in whom the victim confided — some time after she told her mother about it. 

The court ruled that such testimony violates the state’s “first complaint” doctrine, which states that only the first person to whom a victim tells his or her story can testify about the alleged abuse. 

Legally speaking, we presume the Appeals Court got it right. But the underlying doctrine makes no sense to us. 

The “first complaint” doctrine dates to September 2005, when the state’s Supreme Judicial Court announced “a new common law rule of evidence.” 

The rule is intended to prevent additional witnesses from piling on testimony and giving greater credibility to the victim than might be warranted. It gives judges discretion in cases where that first witness is “unavailable, incompetent, or too young to testify meaningfully.” 

But that’s small comfort to victims and their families. It is difficult and painful enough for a victim of sexual assault to report the crime to anyone. It is hardly surprising that the first person a victim turns to is usually a parent. The fact that he or she then summons the courage to tell a counselor, pastor or close friend shouldn’t bar such people from testifying. 

Anyone with firsthand information on a case — hearing the story directly from the victim — should be heard in court. There is no reason to limit such testimony. Hearing witnesses, and weighing their words, lies at the heart of our legal system. It’s what judges, lawyers and jurors are supposed to do. 

In the current case, the first complaint doctrine means that Steven Haggett, convicted in 2009 of rape of a child with force and indecent assault and battery, may soon make bail, even though he could face a second trial on the charges against him. 

Legalism has triumphed over common sense in this case. The SJC’s ill-considered 2005 decision has made Massachusetts less safe than it should be, and frustrated justice

A look at that 2005 opinion, however, reveals that the issue is a bit more complicated.

First, of all the current opinion at issue is Commonwealth v. Haggett, 2011 WL 1108213 (Mass.App.Ct. 2011). In Haggett, the alleged victim first told her mother that the defendant sexually assaulted her and then repeated those allegations to her teacher and guidance counselor. The trial court allowed testimony concerning all three allegations, and the Massachusetts Appeals Court found that the admission of these latter two allegations was reversible error because these allegations were inadmissible under Massachusetts' "first complaint" rule.

As noted in the aforementioned article, this rule was created in 2005 in Commonwealth v. King, 834 N.E.2d 1175 (Mass. 2005). In King, the Supreme Judicial Court of Massachusetts discarded the old "fresh complaint" doctrine, which held that if an alleged victim of a rape or sexual assault told someone about the event reasonably promptly after the event, then evidence of the statement  could be admitted, but only to corroborate the alleged victim's in-court testimony and not to prove independently that the sexual assault occurred."

In its place, the court created the "first complaint" rule, which differed from the "fresh complaint" doctrine in two ways:

 

Under the doctrine as we modify it today, ostensible "delay" in disclosing a sexual assault is not a reason for excluding evidence of the initial complaint; the timing of a complaint is simply one factor the jury may consider in weighing the complainant's testimony....Accordingly, we will no longer refer to this evidence as "fresh complaint" evidence, as "freshness" has no bearing on its admission...Rather, consistent with our focus on the evidence pertaining to the facts and circumstances surrounding the complainant's initial report of the alleged crime (discussed infra ), we will henceforth refer to such evidence as "first complaint" evidence.
Second, in the future, we will no longer permit in evidence testimony from multiple complaint witnesses, limiting the testimony to that of one witness-the first person told of the assault. The testimony of multiple complaint witnesses likely serves no additional corroborative purpose, and may unfairly enhance a complainant's credibility as well as prejudice the defendant by repeating for the jury the often horrific details of an alleged crime....Evidence that a complainant repeatedly complained of a sexual assault to several different persons in most instances will likely do no more to refute an inference of fabrication than permitting one first complaint witness to testify. A victim who is not fabricating an assault may tell only one other person of the assault, while a liar may spread the tale widely. Permitting a single first complaint witness to testify will accomplish the primary goal of the doctrine, which is to refute any false inference that silence is evidence of a lack of credibility on the part of rape complainants.

This second change explains why the allegations to the teacher and guidance counselor were inadmissible. But, it is important to note that if King hadn't created the "first complaint" rule, none of of these three allegations. This is because the alleged victim in Hagget did not promptly report the alleged sexual assault to her mother and then waited again before reporting the alleged act to the guidance counselor and teacher.

-CM

http://lawprofessors.typepad.com/evidenceprof/2011/04/first-complaint-httpwwwtelegramcomarticle20110404news1040403221020.html

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