Section 413.    First Complaint of Sexual Assault

(a) Admissibility of First Complaint. Testimony by the recipient of a complainant’s first complaint of an alleged sexual assault regarding the fact of the first complaint and the circumstances surrounding the making of that first complaint, including details of the complaint, is admissible for the limited purpose of assisting the jury in determining whether to credit the complainant’s testimony about the alleged sexual assault, not to prove the truth of the allegations.

(b) Admissibility of Additional Reports of a Sexual Assault Under an Alternative Evidentiary Basis. When otherwise admissible testimony or evidence other than the first complaint includes or implies that a report of a sexual assault was made, it may be admitted only if the trial judge determines that (1) it serves an evidentiary purpose other than to corroborate the testimony of the alleged victim and (2) its probative value outweighs its prejudicial effect.

NOTE

Subsection (a). This section is taken nearly verbatim from Commonwealth v. King, 445 Mass. 217, 218–219, 834 N.E.2d 1175, 1181 (2005), cert. denied, 546 U.S. 1216 (2006). In Commonwealth v. King, the Supreme Judicial Court replaced the doctrine of “fresh complaint” with that of “first complaint.” Id. at 241–248, 834 N.E.2d at 1196–1201. See also Commonwealth v. Aviles, 461 Mass. 60, 71, 958 N.E.2d 37, 47 (2011) (reaffirming the first complaint doctrine and explaining that it is not an “evidentiary rule” but rather a “body of governing principles to guide a trial judge on the admissibility of first complaint evidence”).

“The doctrine seeks to balance the interest of two competing concerns: that a complainant (who . . . may be still a child) has her credibility fairly judged on the specific facts of the case rather than unfairly by misguided stereotypical thinking; and that the defendant receive a trial that is free from irrelevant and potentially prejudicial testimony.”

Commonwealth v. Arana, 453 Mass. 214, 228, 901 N.E.2d 99, 110 (2009).

“Under the new doctrine . . . the recipient of a complainant’s first complaint of an alleged sexual assault may testify about the fact of the first complaint and the circumstances surround­ing the making of that first complaint. The witness may also testify about the details of the complaint. The complainant may likewise testify to the details of the first complaint (i.e., what she told the first complaint witness), as well as why the complaint was made at that particular time. Testimony from additional complaint witnesses is not admissible.”

Commonwealth v. King, 445 Mass. at 218–219, 834 N.E.2d at 1181.

Role of the Trial Judge. The following sections of this Note amplify the doctrinal framework set forth in the guideline. Regarding this “body of governing principles,” the Supreme Judicial Court has explained that the trial judge “is in the best position to determine the scope of admissible evidence, keeping in mind the underlying goals of the first complaint doctrine, our established first complaint jurisprudence, and our guidelines for admitting or excluding relevant evidence.” Commonwealth v. Aviles, 461 Mass. at 73, 958 N.E.2d at 49. The exercise of discretion as to whether evidence is admissible under the first complaint doctrine is fact specific and requires the trial judge to conduct a careful and thorough analysis based on the principles set forth in this Note. “Once a judge has carefully and thoroughly analyzed these consid­erations, and has decided that proposed first complaint evidence is admissible, an appellate court shall review that determination under an abuse of discretion standard.” Id.

Applicability of First Complaint Doctrine. The first complaint doctrine is not applicable to cases in which neither the fact of a sexual assault nor the consent of the complainant is at issue. Commonwealth v. King, 445 Mass. at 247, 834 N.E.2d at 1200.

“First complaint testimony, including the details and circumstances of the complaint, will be considered presumptively relevant to a complainant’s credibility in most sexual assault cases where the fact of the assault or the issue of consent is contested. However, where neither the occurrence of a sexual assault nor the complainant’s consent is at issue [i.e., identity of the perpetrator], the evidence will serve no corroborative purpose and will not be admissible under the first complaint doctrine.”

Id. at 247, 834 N.E.2d at 1200.

Identifying the First Complaint. That the complainant’s first report of a sexual assault is abbreviated in nature does not change its status as the first complaint. See Commonwealth v. Stuckich, 450 Mass. 449, 455–456, 879 N.E.2d 105, 112–113 (2008). While ordinarily there will be only one first complaint witness, two first complaint wit­nesses may testify in circumstances “where each witness testifies to disclosures years apart concerning different periods of time and escalating levels of abuse, which constitute different and more serious criminal acts committed over a lengthy period.” Commonwealth v. Kebreau, 454 Mass. 287, 288–289, 909 N.E.2d 1146, 1149–1150 (2009). See Commonwealth v. Aviles, 461 Mass. 60, 71 n.9, 958 N.E.2d 37, 47 n.9 (2011) (distinguishing Kebreau and limiting first complaint to initial disclosure of “touching” where subsequent disclosure of rape could have been disclosed by complainant as part of her first complaint). The fact that the complainant tells some­one that he or she is upset, unhappy, or scared is not a first complaint. See Commonwealth v. Murungu, 450 Mass. 441, 446, 879 N.E.2d 99, 103 (2008). “Law enforcement officials, as well as investigatory, medical, or social work professionals, may testify to the complaint only where they are in fact the first to have heard of the assault, and not where they have been told of the alleged crime after previous complaints or after an official report.” Commonwealth v. King, 445 Mass. at 243, 834 N.E.2d at 1198.

The first complaint evidence could be in the form of a recorded 911 emer­gency telephone call or letter; a live witness is not required. Commonwealth v. Stuckich, 450 Mass. at 455–456, 879 N.E.2d at 112–113.

Limiting Instruction Required. Whenever first complaint evidence is admitted, whether through the complainant or the first complaint witness, the court must give the jury a limiting instruction. Commonwealth v. King, 445 Mass. at 219, 247–248, 834 N.E.2d at 1181, 1200–1201. The instruction must be given contemporaneously with the first complaint testimony and again during the final instruction. Id. at 248, 834 N.E.2d at 1201.

Determination of Who Is the First Complaint Witness. The determination of who is the first complaint witness is a preliminary question of fact for the trial judge. Commonwealth v. Stuckich, 450 Mass. at 455–456, 879 N.E.2d at 111–113. See Section 104(a), Preliminary Questions: Determinations Made by the Court.

Scope of the Doctrine. The first complaint doctrine applies only if the complainant is available for cross-examination about the first complaint. Com­monwealth v. King, 445 Mass. at 247 n.27, 834 N.E.2d at 1200 n.27. “The timing by the complainant in making a complaint will not disqualify the evidence, but is a factor the jury may consider in deciding whether the first complaint testimony supports the complainant’s credibility or reliability.” Id. at 219, 834 N.E.2d at 1181. The first complaint doctrine applies even to cases in which there is a percipient witness (in addition to the victim) to the sexual assault. See Commonwealth v. Hartnett, 72 Mass. App. Ct. 467, 470, 892 N.E.2d 805, 810 (2008). An alleged victim’s inability to recall the details of the first complaint goes to the weight and not the admissibility of the testimony by the first complaint witness. See Commonwealth v. Wallace, 76 Mass. App. Ct. 411, 415, 922 N.E.2d 834, 837–838 (2010).

The first complaint witness may “testify to the details of the complaint itself. By details, we mean that the witness ‘may testify to the complainant’s statements of the facts of the assault.’” Commonwealth v. King, 445 Mass. at 244, 834 N.E.2d at 1198, quoting Commonwealth v. Quincy Q., 434 Mass. 859, 874, 753 N.E.2d 781, 795 (2001). The witness

“may testify to the circumstances surrounding the initial complaint, [including] his or her observations of the complainant during the complaint; the events or conversations that culmi­nated in the complaint; the timing of the complaint; and other relevant conditions that might help a jury assess the veracity of the complainant’s allegations or assess the specific defense theories as to why the complainant is making a false allegation” (citation omitted).

Id. at 246, 834 N.E.2d at 1199–1200.

The alleged victim is permitted to testify to what he or she told the first complaint witness and why the complaint was made (1) when the first complaint witness or a court-approved substitute first complaint witness testifies at trial to those details, (2) when the first complaint witness is deceased, or (3) when the judge decides there is a compelling reason for the absence of the first complaint witness that is not the Commonwealth’s fault. Id. at 245 & n.24, 834 N.E.2d at 1199 & n.24.

Substitution of a Witness. Where feasible, the first person told of the alleged sexual assault should be the initial or first complaint witness to testify. Commonwealth v. King, 445 Mass. at 243–244, 834 N.E.2d at 1198. In Commonwealth v. Murungu, 450 Mass. 441, 445–448, 879 N.E.2d 99, 103–105 (2008), the Supreme Judicial Court identified two exceptions to the first complaint doctrine. A person other than the first recipient of information from the complainant is allowed to testify as the first complaint witness (1) if the victim’s disclosure to the “first person does not constitute a complaint,” or (2) if the victim complains first to an individual who “has an obvious bias or motive to . . . distort the victim’s remarks.” Id. at 446, 879 N.E.2d at 103. The court explained that in Commonwealth v. King, it had not “set forth an exhaustive list of appropriate substitutions.” Id. at 445, 879 N.E.2d at 103. “Other exceptions are permissible based on the purpose and limitations of the first complaint doctrine.” Id. See also Commonwealth v. Hanino, 82 Mass. App. Ct. 489, 491, 975 N.E.2d 876, 880 (2012) (feigning).

Even when the complainant has disclosed information about the sexual assault to a person with no obvious bias against the complainant, the trial judge has discretion to allow the Commonwealth to substitute another witness as the first complaint witness in circumstances “where [that person] is unavailable, incompetent, or too young to testify meaningfully . . . .” Commonwealth v. King, 445 Mass. at 243–244, 834 N.E.2d at 1198. See, e.g., Commonwealth v. Roby, 462 Mass. 398, 407–408, 969 N.E.2d 142, 150–151 (2012) (where two child victims initially first told each other about defendant’s inappropriate touching, it was proper to allow first adult [and first noncomplainant] told about the sexual assaults to testify as first complaint witness); Commonwealth v. Thibeault, 77 Mass. App. Ct. 419, 421–423, 931 N.E.2d 1008, 1011–1012 (2010) (child’s mother could be substituted as witness for child’s father where father was first person to whom child complained but he appeared to have fled the Commonwealth and could not be located at time of trial).

Impeachment of First Complaint Witness. The court has discretion to permit the Commonwealth to impeach the first complaint witness by means of prior inconsistent statements in circumstances in which the court determines that the witness is feigning a lack of memory as to significant details of the first complaint. See Commonwealth v. Hanino, 82 Mass. App. Ct. 489, 497–498, 975 N.E.2d 876, 883–884 (2012) (testimony of two police officers regarding statements made to them by first complaint witness and inconsistent with witness’s in-court testimony was admissible for limited purpose of impeaching witness’s in-court testimony and thus was not impermissible, multiple complaint hearsay).

Subsection (b). This subsection is derived from Commonwealth v. Dargon, 457 Mass. 387, 399–400, 930 N.E.2d 707, 719–720 (2010); Commonwealth v. Arana, 453 Mass. 214, 224–229, 901 N.E.2d 99, 107–111 (2009); and Commonwealth v. Stuckich, 450 Mass. 449, 457, 879 N.E.2d 105, 113 (2008).

“Evidence of a subsequent complaint is not admissible simply because a separate evidentiary rule applies (e.g., the statement is not hearsay, or it falls within an exception to the hear­say rule). If independently admissible evidence . . . serves no purpose other than to repeat the fact of a complaint and there­fore corroborate the complainant’s accusations, it is inadmissible. However, if that evidence does serve a purpose separate and apart from the first complaint doctrine, the judge may admit it after careful balancing of the testimony’s probative and prejudicial value.” (Quotations and citations omitted.)

Commonwealth v. Dargon, 457 Mass. at 399–400, 930 N.E.2d at 719–720. See also Commonwealth v. Aviles, 461 Mass. 60, 67, 958 N.E.2d 37, 45 (2011) (admission of testimony of both complainant and first complaint witness pertaining to subsequent disclosure inadmissible under first complaint doctrine, but error not prejudicial as evidence was properly admitted to rebut the defendant’s suggestion that complainant’s accusations were fabricated); Commonwealth v. McCoy, 456 Mass. 838, 851, 926 N.E.2d 1143, 1157–‌1158 (2010) (admission of mother’s testimony that she and victim had conversation about assault, even without details of conversation, was error when testimony did not serve “any additional purpose”); Commonwealth v. Lawton, 82 Mass. App. Ct. 528, 536–538, 976 N.E.2d 160, 168–169 (2012) (victim’s statements to SAIN [Sexual Abuse Intervention Net­work] interviewer not offered as additional com­plaint testimony, but were independently relevant to contradict impeachment of victim and to rebut defendant’s theory of suggestibility); Commonwealth v. Starkweather, 79 Mass. App. Ct. 791, 799–803, 950 N.E.2d 461, 468–471 (2011) (applying Dargon and Arana analysis to several aspects of police involvement and investigation); Commonwealth v. Monteiro, 75 Mass. App. Ct. 489, 495, 914 N.E.2d 981, 986 (2009) (admission of testimony indicating that com­plainant had made reports of sexual abuse to his mother, the Department of Social Services, and the district attorney’s office, without any more details, in circumstances where the father was the first complaint witness, was error).

The question whether testimony concerning multiple complaints is permissible “is fact-specific and requires, in the first analysis, a careful evaluation of the circumstances by the trial judge.” Commonwealth v. Kebreau, 454 Mass. 287, 296, 909 N.E.2d 1146, 1155 (2009). In Commonwealth v. Ramsey, 76 Mass. App. Ct. 844, 849, 927 N.E.2d 506, 510 (2010), the Appeals Court explained that medical records that included statements by the alleged victim pointing to the defendant as the perpetrator of the sexual assault and statements of hospital personnel repeating the allegations, conclusory statements of rape, and a diagnosis of incest, which the judge found admissible under the hospital records exception to the hearsay rule, should not have been admitted at trial because the judge had not determined that the evidence served a purpose other than to corroborate the victim and had not carefully balanced its probative value and prejudicial effect.

“In [Commonwealth v.] Arana, [453 Mass. 214, 227, 901 N.E.2d 99, 109 (2009)], further evidence of complaint was admis­sible in order to rebut the defendant’s allegation that the complain­ant fabricated the accusations to provide a basis for a civil law­suit. In Commonwealth v. Kebreau, 454 Mass. 287, 299, 909 N.E.2d 1146, 1156 (2009), such evidence was admissible because the defense exploited discrepancies in the testimony of one of the victims and had ‘opened the door on cross-examination’; thus ‘the Commonwealth was entitled to attempt to rehabilitate the witness.’”

Commonwealth v. Ramsey, 76 Mass. App. Ct. at 850 n.12, 927 N.E.2d at 511 n.12. See also Commonwealth v. Saunders, 75 Mass. App. Ct. 505, 509, 915 N.E.2d 229, 232 (2009) (defense counsel cross-‌examined victim about reports she allegedly made that someone other than defendant got her pregnant; this opened the door to permit the Commonwealth to offer evidence of statements made by the victim about the defendant’s conduct to persons other than the first complaint witness).

SAIN Evidence. A SANE (sexual abuse nurse examiner) is permitted to testify about the SAIN (Sexual Abuse Intervention Network) evidence kit used in the examination of a person alleged to be the victim of a sexual assault and the sexual assault examination process, provided it is either to provide background for the nurse’s testimony about the examination of the alleged victim or to lay a foundation for the admission of physical evidence. See Commonwealth v. Dargon, 457 Mass. at 398 n.13, 930 N.E.2d at 719 n.13. On the other hand, in Com­monwealth v. Monteiro, 75 Mass. App. Ct. 489, 493–494, 914 N.E.2d 981, 985 (2009), the Appeals Court found that the inclusion of testimony from a police detective who watched a tape of the SAIN interview and who described the interview process and indicated that as a result he continued with his investigation was error because it suggested that the SAIN interviews take place when persons are thought to be victims of sexual assault and implied that the detective found the complainant credible. In addition, the printed forms that are filled out by the SAIN interviewer (Forms 2 and 3) based on questions put to the alleged victim are not admissible, because the printing suggests that a sexual assault took place. See Commonwealth v. Dargon, 457 Mass. at 398 n.13, 930 N.E.2d at 719 n.13.