Commonwealth v. King
JDI Amicus Brief Cover
JDI Amicus Brief Table
of Contents
JDI Amicus Brief
Supreme Judicial Court, September 29, 2005
The SJC issued an opinion that reaffirmed and revised the fresh complaint
doctrine, which permits witnesses to testify at trial about victims’
reports of rape and sexual assault. The Court expanded the rule in two
ways, eliminating the requirement that statements be made “promptly”
and permitting the victim to testify about what he or she said when he
or she first reported the crime. The new rule will be applied prospectively
to cases tried after the issuance of the rescript (rewrite) in this case,
which was expected on October 27, 2005.
Jane Doe Inc. applauds the Court for recognizing that there is a legitimate
and continuing concern that jurors may expect a victim to immediately
report the crime, and that jurors still harbor unwarranted skepticism
of sexual assault victims. With the pro bono assistance of Djuna Perkins
and the law firm of Brody, Hardoon, Perkins and Kesten LLP who authored
the Amicus Brief on behalf of Jane Doe Inc. Jane Doe Inc. was joined by
the Victim Rights Law Center, National Alliance to End Sexual Violence,
California Alliance Against Domestic Violence, Connecticut Sexual Assault
Crisis Services, Inc., Missouri Coalition Against Domestic Violence and
Sexual Violence, Oklahoma Coalition Against Domestic Violence and Sexual
Assault, and the Pennsylvania Coalition Against Rape where we argued to
the court not to eliminate the fresh complaint doctrine.
Central to the decision was the understanding that stereotypes and myths
lead jurists to dismiss or minimize complaints. In Justice Cowin’s
opinion, the Court acknowledges that damaging perceptions of rape victims
exist and that, “… some jurors may continue to believe incorrectly
that “real” victims will promptly disclose a sexual attack.”
She also acknowledged that some jurors ”harbor prejudicial misperceptions
about the nature of rape and rape allegations” giving weight to
irrelevant and misleading information such as what a victim was wearing,
their past sexual experiences and their use of drugs or alcohol. She therefore
concludes that there is need “to counterbalance or address inaccurate
assumptions regarding stereotypes about delayed reporting of a sexual
assault or about sexual assault victims in general.”
The following is a summary of the major points made in the decision:
Freshness: 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.
Piling-on: 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
(all the evidence submitted to a jury by a prosecutor to prove his/her
case). 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, (a motion
made at the start of a trial requesting that the judge rule that certain
evidence may not be introduced in trial).
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.
Admissibility: 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.
Jury Instruction: 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."
SJC Jettisons
‘Fresh Complaint' Rule for Abuse Cases
Click above to read the October 2005 article from Massachusetts Lawyers
Weekly regarding fresh complaint. |
