EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Friday, November 27, 2020

Supreme Court of Washington Grapples With the "Hue and Cry" Hearsay Exception

Washington continues to apply a "hue and cry" or "fact of the complaint" exception to the rule against hearsay for "evidence in a sex offense case that the victim made a timely complaint after the assault." State v. Trujillo, 2002 WL 339412 (Wash.App. 2002). The Supreme Court of Washington called this exception into question at least as early as 1949 in State v. Murley, 212 P.2d 801 (Wash. 1949), when it held that

An exception to these exclusionary rules is that in criminal trial for sex offenses the credibility of the complaining witness, irrespective of whether it is assailed or unassailed, may be supported by evidence of her timely prior out-of-court complaint. This exception stems from the feudal doctrine of hue and cry. This doctrine rests on the ground that a female naturally complains promptly of offensive sex liberties upon her person and that, on trial, an offended female complainant's omission of any showing as to when she first complained raises the inference that, since there is no showing that she complained timely, it is more likely that she did not complain at all the therefore that it is more likely that the liberties upon her person, if any, were not offensive and that consequently her present charge is fabricated. Thus, formerly, to overcome the inference, it became essential to the state's case-in-chief to prove affirmatively that she made timely hue and cry.

And yet, the exception has never been abrogated.

The most recent example can be found in the November 19th opinion of the Supreme Court of Washington in State v. Martinez, 2020 WL 6789075 (Wash. 2020), where the majority upheld the exception. But, in a dissent, Justice McCloud observed that

Different states have acknowledged some of these problems and taken different approaches to addressing them. Almost 20 years ago, the Tennessee Supreme Court recognized that the doctrine had its “genesis in the profoundly sexist expectation that female victims of sexual crimes should respond in a prescribed manner or risk losing credibility.” State v. Kendricks, 891 S.W.2d 597, 604 (Tenn. 1994). Similarly, New Jersey's Supreme Court has recognized that the doctrine is based on a “pseudo-Freudian analysis of the ways a ‘normal’ woman would react to sex and to rape.” Hill, 121 N.J. at 162, 578 A.2d 370.

Tennessee then abolished the doctrine as applied to children-like the child victim in this case-because “unlike the presumptions regarding adult victims, juries do not necessarily presume that children fabricate, nor do they presume that a child will complain immediately.” State v. Livingston, 907 S.W.2d 392, 395 (Tenn. 1995). Massachusetts limited testimony “to that of one witness-the first person told of the assault” so as to “accomplish the primary goal of the doctrine” while avoiding excessive prejudice. Commonwealth v. King, 445 Mass. 217, 242-43, 834 N.E.2d 1175 (2005). California and Vermont chose to admit complaints for limited nonhearsay purposes, in accordance with their respective rules of evidence. People v. Brown, 8 Cal. 4th 746, 760-61, 883 P.2d 949, 35 Cal. Rptr. 2d 407 (1994) (characterizing “complaint” of a crime as nonhearsay conduct); State v. Madigan, 2015 VT 59, P 28, 199 Vt. 211, 122 A.3d 517 (2015) (rejecting “the ‘fresh-complaint rule’ as an independent evidentiary doctrine because the doctrine has been largely supplanted by rules of evidence” but noting that that evidence “is often, though not always, admissible under our modern rules of evidence”).

We should follow the guidance of these states to seek solutions other than upholding the hue and cry rule in its current form. I would take the clear and direct path that California and Vermont chose and apply our duly enacted ERs—as we do in all other situations. That would mean that a timely complaint of rape would be admissible as substantive evidence to rebut express or implied charges of recent fabrication. ER 801(d)(1)(ii). It could also be admissible as an excited utterance, ER 803(a)(2), a statement for purposes of medical treatment, ER 803(a)(4), a statement of present mental state, ER 803(a)(1), etc. But all such admissibility decisions would have to be based on an individual finding that it satisfied one of those exceptions—exceptions that must be applied to every other out-of-court statement offered for the truth of the matter asserted in every other serious violent criminal case.

-CM

https://lawprofessors.typepad.com/evidenceprof/2020/11/fresh-complaint-wa-2020-wl-6789075.html

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