Supreme Judicial Court (September 29, 2005)
The SJC announced a new common law rule of evidence called the "first complaint" doctrine which revamps several components of what has been known as "fresh complaint" evidence. The new rule will be applied prospectively to cases tried after the issuance of the rescript in this case, which is expected to be October 27, 2005.
The SJC has revised the "fresh complaint" doctrine and renamed it the "first complaint" doctrine. Under the "first complaint" doctrine, without regard to "freshness," the witness to a sexual assault victim's first complaint of the crime may testify about the fact of the first complaint, the details of the crime, and the circumstances surrounding the making of that first complaint. The victim may also testify to the details of the first complaint, as well as why the complaint was made at that particular time.
Under the new doctrine, ostensible "delay" in disclosing a sexual assault is not a reason for excluding evidence of the initial complaint. There no longer exists a requirement that a sexual assault victim's complaint be made seasonably or promptly after the assault. The timing of a complaint is simply one factor the jury may consider in weighing the complainant's testimony.
No more than one witness will be permitted to testify as to the complaint, and it will be limited to the first person the victim told of the assault. That witness may testify to the details of the victim's first complaint of sexual assault and the circumstances surrounding that first complaint as part of the prosecution's case-in-chief. If the first witness is unavailable, incompetent, or too young to testify meaningfully, the judge may exercise discretion to allow one other complaint witness to testify. In such circumstances, the prosecution must justify the substitution before trial in a motion in limine.
Victim Provided Details:
Overruling Commonwealth v. Peters, the SJC announced that the victim may also testify to the details of the first complaint ( i.e., what the victim told the first complaint witness) and also why the complaint was made at that particular time.
"Circumstances of the Complaint:"
A first complaint witness may testify to the circumstances surrounding the initial complaint, i.e., the witness may testify to his or her observations of the victim 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 victim's allegations or assess the specific defense theories as to why the complainant is making a false allegation.
First complaint testimony, including the details and circumstances of the complaint, will be considered presumptively relevant to a victim's credibility except in cases where neither the occurrence of a sexual assault nor the victim's consent is at issue. For example, it will not be admissible where the sole issue is the identity of the perpetrator.
The SJC provided a specific instruction to be given to the jury contemporaneously with the first complaint testimony, and again during the final instructions. The instruction is as follows:
"In sexual assault cases we allow testimony by one person the complainant told of the alleged assault. We call this 'first complaint' evidence. The complainant may have reported the alleged sexual assault to more than one person. However, our rules normally permit testimony only as to the complainant's first report. The next witness will testify about the complainant's 'first complaint.' You may consider this evidence only for specific limited purposes: to establish the circumstances in which the complainant first reported the alleged offense, and then to determine whether that first complaint either supports or fails to support the complainant's own testimony about the crime. You may not consider this testimony as evidence that the assault in fact occurred. The purpose of this 'first complaint' evidence is to assist you in your assessment of the credibility and reliability of the complainant's testimony here in court. In assessing whether this 'first complaint' evidence supports or detracts from the complainant's credibility or reliability, you may consider all the circumstances in which the first complaint was made. The length of time between the alleged crime and the report of the complainant to this witness is one factor you may consider in evaluating the complainant's testimony, but you may also consider that sexual assault complainants may delay reporting the crime for a variety of reasons."