Supreme Judicial Court (January 16, 2008)
The First Complaint Doctrine has two additional exceptions that allow a judge, in his/her discretion, to permit someone other than the "first complaint witness" to testify: 1) when the encounter that the victim has with the first person does not constitute a complaint; and 2) when there is a complaint, but the listener has an obvious bias or motive to minimize or distort the victim's remarks.
In Commonwealth v. King, the SJC modified the "fresh complaint" doctrine to "first complaint" so that one complaint witness - the first person told of the sexual assault - can testify. In King, the SJC articulated certain circumstances warranting judicial discretion to permit substitute witness testimony in lieu of the first complaint witness "where the first person told of the alleged assault is unavailable, incompetent, or too young to testify meaningfully."
In this case, the first complaint witness was the defendant's sister, who at trial omitted details relative to the victim's complaint that she has already testified to on voir dire. Her trial testimony indicated a vague conversation with the victim, rather than a "complaint," and the witness appeared to protect the defendant. The SJC ruled that where there is no actual complaint, or where the witness has a motive to distort or minimize the victim's remarks, the judge may substitute a later complaint witness as the first complaint witness. The substituted witness should, barring compelling circumstances, be the next complaint witness. The trial judge is required to make preliminary determinations in these situations, usually through voir dire, and the standard of review is an abuse of discretion.