fresh complaint doctrine in Massachusetts

2005In more recent years, we have acknowledged the “sexist,” “outmoded” and “invalid” origins of the fresh complaint rule, see Commonwealth v. Licata, 412 Mass. 654, 658 (1992); Commonwealth v. Lavalley, supra at 646 n.7; but nevertheless continued to adhere to the fresh complaint doctrine: “ ‘Whatever may have been the historical origin of the fresh complaint doctrine, it should now be seen in relation to the common observation . . . that juries tend toward considerable and perhaps inordinate skepticism in rape cases, above all where there is a suggestion of willingness or acquiescence on the par

2005In more recent years, we have acknowledged the “sexist,” “outmoded” and “invalid” origins of the fresh complaint rule, see Commonwealth v. Licata, 412 Mass. 654, 658 (1992); Commonwealth v. Lavalley, supra at 646 n.7; but nevertheless continued to adhere to the fresh complaint doctrine: “ ‘Whatever may have been the historical origin of the fresh complaint doctrine, it should now be seen in relation to the common observation . . . that juries tend toward considerable and perhaps inordinate skepticism in rape cases, above all where there is a suggestion of willingness or acquiescence on the par

2016The fresh complaint doctrine addressed three concerns regarding potential juror bias in a rape prosecution: that jurors may still believe that a true rape victim immediately discloses the assault; that jurors may draw adverse inferences from the absence of evidence suggesting a prompt complaint; and that jurors remain skeptical of rape allegations. 6 Id. at 230 .

2010This rule derives from Commonwealth v. King, supra, in which the Supreme Judicial Court supplanted the fresh complaint doctrine with the first complaint doctrine.

1999In Massachusetts, unlike most jurisdictions, a fresh complaint witness may testify both to the fact of the complaint and the details of the complaint as expressed by the complainant. 7 See id. at 643 & n.4; Commonwealth v. Bailey, supra. In Commonwealth v. Lavalley, supra at 646-647 n.7, and in Commonwealth v. Licata, 412 Mass. 654, 657-658 (1992), we expressed concern about the fresh complaint doctrine.

1997The basis of the fresh complaint doctrine is the presumed natural impulse of one attacked sexually to relate the attack to others in the immediate aftermath, see Commonwealth v. Bailey, 370 Mass. 388, 394 (1976); Commonwealth v. Licata, 412 Mass. 654, 658 (1992), but how can this apply where the intercourse is consensual?

2005“The cases involving child sexual abuse constitute a factually distinct branch of the fresh complaint doctrine that gives special consideration to the natural fear, ignorance, and susceptibility to intimidation that is unique to a young child’s make-up.” Commonwealth v. Fleury, 417 Mass. 810, 814 (1994), quoting Commonwealth v. Amirault, 404 Mass. 221, 229 (1989). “[Wjith regard to child victims, our fresh complaint jurisprudence has adopted the [theory that] a child’s circumstances commonly make it difficult, if not impossible, for the child to make a prompt complaint of sexual assault and, c

2003They are that “[t]here is no absolute rule of law as to the time within which a sexual assault victim must make her first complaint for that complaint to be admissible in evidence as a fresh complaint” and that “cases involving child sexual abuse constitute a factually distinct branch of the fresh complaint doctrine that gives special consideration to the natural fear, ignorance, and susceptibility to intimidation that is unique to a young child’s make-up.” Commonwealth v. Amirault, 404 Mass. 221, 228-229 (1989). “[AJnalysis in such cases should be flexible and attended by due consideration of

1987See Commonwealth v. Sherry, 386 Mass. 682, 691 (1982). 6 The fresh complaint doctrine has been applied frequently in cases of sexual abuse involving children.

1987See, e.g., Commonwealth v. Wilson, 12 Mass. App. Ct. 942, 943 (1981), where the Appeals Court held that complaints made four to eight months after various assaults were reasonably prompt in the circumstances. 10 As this court stated in Commonwealth v. Bailey, 370 Mass. 388, 392 (1976): “A fresh complaint doctrine is justified on the ground that a victim’s failure to make prompt complaint might be viewed by the jury as inconsistent with the charge of sexual assault (see Commonwealth v. Spare, 353 Mass. 263, 265 [1967]), and in the absence of evidence of complaint the jury might assume that none

1987See, e.g., Commonwealth v. Wilson, 12 Mass. App. Ct. 942, 943 (1981), where the Appeals Court held that complaints made four to eight months after various assaults were reasonably prompt in the circumstances. 10 As this court stated in Commonwealth v. Bailey, 370 Mass. 388, 392 (1976): “A fresh complaint doctrine is justified on the ground that a victim’s failure to make prompt complaint might be viewed by the jury as inconsistent with the charge of sexual assault (see Commonwealth v. Spare, 353 Mass. 263, 265 [1967]), and in the absence of evidence of complaint the jury might assume that none

1976Wigmore, supra § 1136, at 307, 307-310 n.l), but in the Commonwealth and a few other jurisdictions the rule is settled that “the whole of the statement ..., including the details, is admissible.” Glover v. Callahan, 299 Mass. 55, 58 (1937); see Commonwealth v. Hanger, supra; Commonwealth v. Ellis, supra; State v. Purvis, 157 Conn. 198, 207-208 (1968); State v. Crissman, 60 Ohio Op. 2d 279, 281 (County Ct. App. 1971); Dunn v. State, 45 Ohio St. 249 , 251 (1887) . 4 A fresh complaint doctrine is justified on the ground that a victim’s failure to make prompt complaint might be viewed by the jury

2016Deoxyribonucleic acid tests proved that D.M. was the baby’s father. 6 Because “a child’s circumstances commonly make it difficult, if not impossible, for the child to make a prompt complaint of sexual assault,” Commonwealth v. Montanez, 439 Mass. 441, 453-454 (2003) (Sosman, J., concurring), citing Commonwealth v. Fleury, 417 Mass. 810, 813-815 (1994), we expanded the fresh complaint rule to permit “a child’s much later report of sexual assault. . . whenever there is a reasonable explanation for the child’s failure to make a prompt complaint.” Montanez, supra. We later applied this reasoning t

2005“The cases involving child sexual abuse constitute a factually distinct branch of the fresh complaint doctrine that gives special consideration to the natural fear, ignorance, and susceptibility to intimidation that is unique to a young child’s make-up.” Commonwealth v. Fleury, 417 Mass. 810, 814 (1994), quoting Commonwealth v. Amirault, 404 Mass. 221, 229 (1989). “[Wjith regard to child victims, our fresh complaint jurisprudence has adopted the [theory that] a child’s circumstances commonly make it difficult, if not impossible, for the child to make a prompt complaint of sexual assault and, c

2007The fresh complaint doctrine permitted a complainant in a sexual assault case to “testify only to the fact that a fresh complaint was made and to whom it was made.” Peters, 429 Mass. at 30 .

2003The court expressed its reservations concerning the fresh complaint doctrine, nonetheless continued to believe that fresh complaint evidence should be admissible. 5 Id. at 30 .

1987See Commonwealth v. Wilson, 12 Mass. App. Ct. 942, 942-943 (1981); Commonwealth v. Brenner, 18 Mass. App. Ct. 930, 931-932 (1984).

1987See Commonwealth v. Comtois, 399 Mass. 668, 672-674 (1987); Commonwealth v. Brenner, 18 Mass. App. Ct. 930, 931-932 (1984); Commonwealth v. Adams, 23 Mass. App. Ct. 534, 536 (1987).

2006See note 6, infra. The trial in this case occurred prior to the Supreme Judicial Court’s decision in Commonwealth v. King, 445 Mass. 217, 242 (2005), cert. denied, 126 S. Ct. 1433 (2006), which modified the fresh complaint doctrine in several significant respects, including that “ostensible ‘delay’ in disclosing a sexual assault is not a reason for excluding evidence of the initial complaint; the timing of a complaint is simply one factor the jury may consider in weighing the complainant’s testimony.” Under the King doctrine, the fresh complaint evidence at issue in this appeal clearly would b

2006Because this case was tried before the decision in Commonwealth v. King, 445 Mass. 217, 218 (2005), cert. denied, 126 S. Ct. 1433 (2006), we apply the fresh complaint doctrine that was in effect prior to that decision, rather than the “first complaint” doctrine that is now in effect.

1991As a result of the consideration of these *525 factors in cases involving the sexual abuse of children, the fresh complaint doctrine “has been considered flexible enough to allow consideration of [reports] many months after the incidents leading to the charges.” 6 Commonwealth v. Lagacy, 23 Mass. App. Ct. 622 , 626 n.6 (1987).

1990Compare Commonwealth v. Lagacy, 23 Mass. App. Ct. at 625 -626 & n.7 (twenty-one year old victim’s delay of three weeks approaches the outer extreme of admissibility).

2016Deoxyribonucleic acid tests proved that D.M. was the baby’s father. 6 Because “a child’s circumstances commonly make it difficult, if not impossible, for the child to make a prompt complaint of sexual assault,” Commonwealth v. Montanez, 439 Mass. 441, 453-454 (2003) (Sosman, J., concurring), citing Commonwealth v. Fleury, 417 Mass. 810, 813-815 (1994), we expanded the fresh complaint rule to permit “a child’s much later report of sexual assault. . . whenever there is a reasonable explanation for the child’s failure to make a prompt complaint.” Montanez, supra. We later applied this reasoning t

2016Deoxyribonucleic acid tests proved that D.M. was the baby’s father. 6 Because “a child’s circumstances commonly make it difficult, if not impossible, for the child to make a prompt complaint of sexual assault,” Commonwealth v. Montanez, 439 Mass. 441, 453-454 (2003) (Sosman, J., concurring), citing Commonwealth v. Fleury, 417 Mass. 810, 813-815 (1994), we expanded the fresh complaint rule to permit “a child’s much later report of sexual assault. . . whenever there is a reasonable explanation for the child’s failure to make a prompt complaint.” Montanez, supra. We later applied this reasoning t

2000See Commonwealth v. Licata, 412 Mass. 654, 660 (1992); Commonwealth v. Scanlon, 412 Mass. 664, 673-674 (1992).

1992We conclude that, apart from the rules surrounding the doctrine of fresh complaint, see Commonwealth v. Licata, 412 Mass. 654, 656-660 (1992); Commonwealth v. Scanlon, 412 Mass. 664, 673-675 (1992); Commonwealth v. Dion, 30 Mass. App. Ct. 406 (1991); Commonwealth v. Gardner, 30 Mass. App. Ct. 515 (1991); Commonwealth v. Hyatt, 31 Mass. App. Ct. 488 (1991), the evidence was admissible under traditional eviden-tiary rules. 4 We have previously written that “[t]here is one situation where evidence of a statement by a victim of a sexual assault may be admissible even though the complaint was not r

1987See Commonwealth v. Wilson, 12 Mass. App. Ct. 942, 942-943 (1981); Commonwealth v. Brenner, 18 Mass. App. Ct. 930, 931-932 (1984).

1987See, e.g., Commonwealth v. Wilson, 12 Mass. App. Ct. 942, 943 (1981), where the Appeals Court held that complaints made four to eight months after various assaults were reasonably prompt in the circumstances. 10 As this court stated in Commonwealth v. Bailey, 370 Mass. 388, 392 (1976): “A fresh complaint doctrine is justified on the ground that a victim’s failure to make prompt complaint might be viewed by the jury as inconsistent with the charge of sexual assault (see Commonwealth v. Spare, 353 Mass. 263, 265 [1967]), and in the absence of evidence of complaint the jury might assume that none

1987See Commonwealth v. Crowe, 21 Mass. App. Ct. 456, 480 (1986).

1986“A complaint of a sex crime made by a victim within a reasonable period of time after the commission of the offense is admissible as corroboration of the victim’s testimony under the fresh complaint doctrine.” Commonwealth v. Crowe, 21 Mass. App. Ct. 456, 480 (1986), and cases cited.

1987See, e.g., Commonwealth v. Wilson, 12 Mass. App. Ct. 942, 943 (1981), where the Appeals Court held that complaints made four to eight months after various assaults were reasonably prompt in the circumstances. 10 As this court stated in Commonwealth v. Bailey, 370 Mass. 388, 392 (1976): “A fresh complaint doctrine is justified on the ground that a victim’s failure to make prompt complaint might be viewed by the jury as inconsistent with the charge of sexual assault (see Commonwealth v. Spare, 353 Mass. 263, 265 [1967]), and in the absence of evidence of complaint the jury might assume that none

1976Wigmore, supra § 1136, at 307, 307-310 n.l), but in the Commonwealth and a few other jurisdictions the rule is settled that “the whole of the statement ..., including the details, is admissible.” Glover v. Callahan, 299 Mass. 55, 58 (1937); see Commonwealth v. Hanger, supra; Commonwealth v. Ellis, supra; State v. Purvis, 157 Conn. 198, 207-208 (1968); State v. Crissman, 60 Ohio Op. 2d 279, 281 (County Ct. App. 1971); Dunn v. State, 45 Ohio St. 249 , 251 (1887) . 4 A fresh complaint doctrine is justified on the ground that a victim’s failure to make prompt complaint might be viewed by the jury

1986See Commonwealth v. McGrath, 364 Mass. 243, 246-250 (1973); Commonwealth v. Sherry, 386 Mass. 682, 690-691 (1982); Commonwealth v. King, 387 Mass. 464, 473-474 (1982).

1976See Commonwealth v. McGrath, 364 Mass. 243, 247 (1973).

2009The trial of the case began on September 14, 2005, just prior to the release of our decision in Commonwealth v. King, 445 Mass. 217 (2005), cert, denied, 546 U.S. 1216 (2006), which refashioned the fresh complaint doctrine as the “first complaint” doctrine.

2008In Commonwealth v. King, 445 Mass. 217 (2005), cert. denied, 546 U.S. 1216 (2006), we modified our “fresh complaint” doctrine to one of “first complaint.” We, and many other courts in the United States, had adopted the fresh complaint doctrine because of the belief that failure of a rape victim to make a prompt complaint of a sexual assault was similar to an inconsistent statement that contrasted with the complainant’s trial testimony about the rape.

2005In more recent years, we have acknowledged the “sexist,” “outmoded” and “invalid” origins of the fresh complaint rule, see Commonwealth v. Licata, 412 Mass. 654, 658 (1992); Commonwealth v. Lavalley, supra at 646 n.7; but nevertheless continued to adhere to the fresh complaint doctrine: “ ‘Whatever may have been the historical origin of the fresh complaint doctrine, it should now be seen in relation to the common observation . . . that juries tend toward considerable and perhaps inordinate skepticism in rape cases, above all where there is a suggestion of willingness or acquiescence on the par

2005In more recent years, we have acknowledged the “sexist,” “outmoded” and “invalid” origins of the fresh complaint rule, see Commonwealth v. Licata, 412 Mass. 654, 658 (1992); Commonwealth v. Lavalley, supra at 646 n.7; but nevertheless continued to adhere to the fresh complaint doctrine: “ ‘Whatever may have been the historical origin of the fresh complaint doctrine, it should now be seen in relation to the common observation . . . that juries tend toward considerable and perhaps inordinate skepticism in rape cases, above all where there is a suggestion of willingness or acquiescence on the par

2002The fresh complaint doctrine survives, notwithstanding its shaky footing in the law of evidence, because it “has a measure of prophylactic or negative value: a victim of such an offense might be expected to cry out in complaint to third persons; if the victim did not do so, his or her testimony that a criminal event occurred may become clouded.” Commonwealth v. Dion, supra at 412 .

1992We conclude that, apart from the rules surrounding the doctrine of fresh complaint, see Commonwealth v. Licata, 412 Mass. 654, 656-660 (1992); Commonwealth v. Scanlon, 412 Mass. 664, 673-675 (1992); Commonwealth v. Dion, 30 Mass. App. Ct. 406 (1991); Commonwealth v. Gardner, 30 Mass. App. Ct. 515 (1991); Commonwealth v. Hyatt, 31 Mass. App. Ct. 488 (1991), the evidence was admissible under traditional eviden-tiary rules. 4 We have previously written that “[t]here is one situation where evidence of a statement by a victim of a sexual assault may be admissible even though the complaint was not r

1999Commonwealth v. Montanino, 409 Mass. 500, 508 (1991).

1994“The preliminary decision whether a complaint is sufficiently fresh to be presented to the jury lies in the sound discretion of the trial judge and should be made according to whether the complaint was ‘reasonably prompt’ in the particular circumstances of the case.” Montanino, supra at 508 , citing Commonwealth v. Sherry, 386 Mass. 682, 691 (1982).

2001Over a century ago, in Commonwealth v. Cleary, 172 Mass. 175 (1898), Justice Oliver Wendell Holmes criticized the fresh complaint doctrine as a “perverted survival of the ancient requirement that [a woman] should make hue and cry as a preliminary to bringing her appeal” and “an arbitrary rule in the particular case.” Id. at 176 .

2001Over a century ago, in Commonwealth v. Cleary, 172 Mass. 175 (1898), Justice Oliver Wendell Holmes criticized the fresh complaint doctrine as a “perverted survival of the ancient requirement that [a woman] should make hue and cry as a preliminary to bringing her appeal” and “an arbitrary rule in the particular case.” Id. at 176 .

1994See Commonwealth v. Bailey, 370 Mass. 388, 391 (1976); Commonwealth v. Gardner, 30 Mass. App. Ct. 515, 523 (1991).

1992We conclude that, apart from the rules surrounding the doctrine of fresh complaint, see Commonwealth v. Licata, 412 Mass. 654, 656-660 (1992); Commonwealth v. Scanlon, 412 Mass. 664, 673-675 (1992); Commonwealth v. Dion, 30 Mass. App. Ct. 406 (1991); Commonwealth v. Gardner, 30 Mass. App. Ct. 515 (1991); Commonwealth v. Hyatt, 31 Mass. App. Ct. 488 (1991), the evidence was admissible under traditional eviden-tiary rules. 4 We have previously written that “[t]here is one situation where evidence of a statement by a victim of a sexual assault may be admissible even though the complaint was not r

1993See Commonwealth v. Ellis, 319 Mass. 627, 630 (1946) (statements did not cease to be voluntary merely because they were given in response to leading questions); Commonwealth v. Hanger, 357 Mass. 464 (1970) (upholding voluntariness of complaint made in response to questions).

1976Wigmore, supra § 1136, at 307, 307-310 n.l), but in the Commonwealth and a few other jurisdictions the rule is settled that “the whole of the statement ..., including the details, is admissible.” Glover v. Callahan, 299 Mass. 55, 58 (1937); see Commonwealth v. Hanger, supra; Commonwealth v. Ellis, supra; State v. Purvis, 157 Conn. 198, 207-208 (1968); State v. Crissman, 60 Ohio Op. 2d 279, 281 (County Ct. App. 1971); Dunn v. State, 45 Ohio St. 249 , 251 (1887) . 4 A fresh complaint doctrine is justified on the ground that a victim’s failure to make prompt complaint might be viewed by the jury

1993See Commonwealth v. Ellis, 319 Mass. 627, 630 (1946) (statements did not cease to be voluntary merely because they were given in response to leading questions); Commonwealth v. Hanger, 357 Mass. 464 (1970) (upholding voluntariness of complaint made in response to questions).

1976Wigmore, supra § 1136, at 307, 307-310 n.l), but in the Commonwealth and a few other jurisdictions the rule is settled that “the whole of the statement ..., including the details, is admissible.” Glover v. Callahan, 299 Mass. 55, 58 (1937); see Commonwealth v. Hanger, supra; Commonwealth v. Ellis, supra; State v. Purvis, 157 Conn. 198, 207-208 (1968); State v. Crissman, 60 Ohio Op. 2d 279, 281 (County Ct. App. 1971); Dunn v. State, 45 Ohio St. 249 , 251 (1887) . 4 A fresh complaint doctrine is justified on the ground that a victim’s failure to make prompt complaint might be viewed by the jury

2005See, e.g., People v. Brown, 8 Cal. 4th 746, 755-756 (1994); State v. Troupe, 237 Conn. 284, 294-298 (1996); State v. Hill, 121 N.J. 150, 161-162 (1990); State v. Kendricks, 891 S.W.2d 597, 600-601 (Tenn. 1994).

2005See, e.g., People v. Brown, 8 Cal. 4th 746, 755-756 (1994); State v. Troupe, 237 Conn. 284, 294-298 (1996); State v. Hill, 121 N.J. 150, 161-162 (1990); State v. Kendricks, 891 S.W.2d 597, 600-601 (Tenn. 1994).

2005See, e.g., People v. Brown, 8 Cal. 4th 746, 755-756 (1994); State v. Troupe, 237 Conn. 284, 294-298 (1996); State v. Hill, 121 N.J. 150, 161-162 (1990); State v. Kendricks, 891 S.W.2d 597, 600-601 (Tenn. 1994).

2005See, e.g., People v. Brown, 8 Cal. 4th 746, 755-756 (1994); State v. Troupe, 237 Conn. 284, 294-298 (1996); State v. Hill, 121 N.J. 150, 161-162 (1990); State v. Kendricks, 891 S.W.2d 597, 600-601 (Tenn. 1994).