Appeals Court (May 3, 2007)

For a complainant to simply testify that she told someone about a sexual assault, and where and when, does NOT invoke the fresh complaint doctrine. Fresh complaint (first complaint) testimony is by definition, testimony from a third party about the alleged victim's conversation.

The victim was the sole witness for the Commonwealth at the defendant's trial for two counts of indecent assault and battery. The prosecutor elicited testimony from the victim that a few years after the incident the victim confided in a friend about the assaults. The defendant objected to the testimony arguing that there was fresh complaint testimony before the jury without foundation thus; the victim was in effect providing self-corroboration of her testimony. The defendant requested the judge strike the testimony and give a curative instruction to the jury. The trial judge denied the defendant's motions reasoning that no evidence of fresh complaint was offered, nor did the victim provide any substance of the conversation with her friend. The defendant was convicted of two counts of indecent assault and battery and appealed.

The Appeals Court affirmed the defendant's convictions reasoning, there can be no fresh complaint if there is no fresh complaint witness. The fresh complaint (now the first complaint) doctrine is not operative until fresh complaint testimony from someone other than the complainant is properly introduced.

Note: The Supreme Judicial Court has revamped the fresh complaint doctrine, replacing it with "first complaint." Commonwealth v. King, 445 Mass. 217 (2005).