Supreme Judicial Court, December 6, 2011
The standard of review for the admissibility of first complaint evidence is modified from prejudicial error to an abuse of discretion standard.
A jury in Superior Court found the defendant guilty of indecent assault and battery under 14 and rape and abuse of a child under 16. The defendant appealed and the Appeals Court affirmed the convictions. The Supreme Judicial Court accepted the defendant’s application for further appellate review to consider: (1) the admission of “second complaint” testimony and (2) the admission of a prior consistent statement under the doctrine of verbal completeness.
1) First Complaint Doctrine
The trial judge permitted first complaint testimony from the victim’s mother but this testimony was limited to the victim’s 2002 disclosure that the defendant “touched” her. During the trial, the victim testified to the incidents, the 2002 disclosure and that in 2005 she told her grandmother about an alleged rape that occurred in 2002. She had not disclosed this assault to her mother. The defendant objected to the admissibility of the victim’s testimony about the 2005 disclosure. Even though the victim did not explain the details of the incident, the Court held it was an error to admit this evidence under the first complaint doctrine. This “second complaint” testimony lends credence to the victim’s account and therefore “undermines the purpose and limitations of the first complaint doctrine.”
The Court explained “‘[i]f testimony, other than that specifically and properly designated as first complaint testimony, serves no purpose other than to repeat the fact of a complaint and thereby corroborate the complainant's accusations, it is inadmissible.’ However, if the testimony is relevant and admissible for reasons that are independent of the first complaint doctrine, the judge may admit it ‘after careful balancing of the testimony's probative and prejudicial value.’” Quoting Commonwealth v. Arana, 453 Mass. 214, 229 (2009).
The Court found that there were independent reasons for admitting this testimony. During his cross-examination of the victim, defense counsel created a motive for fabrication based on the victim not wanting to live with the defendant. The disclosure in 2005 was nearly three years after the incident and three years after the victim moved out of the defendant’s home; therefore, this evidence served to rebut the defense’s theory of fabrication. Since this testimony was relevant and would have been admissible on redirect examination, the error of its admissibility under the first complaint doctrine did not create prejudicial harm.
Next, the Court reexamined the first complaint doctrine. It determined that the doctrine should be retained, but that the standard of review for the admissibility of first complaint evidence needed to be modified. Since its introduction, the first complaint doctrine was considered an “evidentiary rule.” Commonwealth v. King, 445 Mass. 217 (2005). Any violation was an error and the appellate courts needed to consider whether the error was prejudicial (objection raised) or whether it created a substantial risk of a miscarriage of justice (no objection raised). In Aviles, the Court acknowledged it was time to change the standard of review:
“As our post-King jurisprudence has developed, it has become apparent that trial judges need greater flexibility to deal with the myriad factual scenarios that arise in the context of purported first complaint evidence. Rules, because of their inherent inflexibility, tend to break down when it becomes necessary to address factual circumstances not yet contemplated by the established rubric. Rather than considering the first complaint doctrine as an evidentiary ‘rule,’ it makes greater sense to view the doctrine as a body of governing principles to guide a trial judge on the admissibility of first complaint evidence. The judge who is evaluating the facts of a particular case is in the best position to determine the scope of admissible evidence… .”
The Court then announced the new standard of review for the admissibility of first complaint evidence: “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.”
2) Verbal Completeness Doctrine
The defendant alleges that the judge committed reversible error by admitting the victim’s prior consistent statement from her grand jury testimony into evidence. The Court held that when defense counsel introduced only a portion of the grand jury testimony into evidence, he opened the door for the admission of the remainder of the statement under the doctrine of verbal completeness and therefore there was no error.1
1 The law concerning the verbal completeness doctrine is addressed more completely in this decision.