The Massachusetts Appeals Court revisited the doctrine of the first complaint witness in the recent decision of Commonwealth v. Aviles, decided on August 16, 2010. In Aviles, the defendant appealed his conviction of rape and indecent assault and battery arguing that the trial judge committed error of law in admitting evidence of multiple complaint witnesses. This ruling represents an important decision for criminal defense lawyers, defending sex crimes.
As a Massachusetts criminal defense lawyer, charges of sexual assault generally raise an evidentiary issue known as the first compliant doctrine. Under the first complaint doctrine, defined by the Massachusetts Supreme Judicial Court, in Commonwealth v. King, 445 Mass. 217 (2005), the prosecutor is only permitted to have the first person to whom the victim told of the alleged assault to testify at trial.
The rationale for the doctrine is to refute the notion that silence is a sign of lack of credibility of the victim. In other areas of criminal law, a victim would not be permitted to testify that she told someone else about a crime as the testimony would be inadmissible hearsay. Accordingly, the first complaint doctrine is essentially a special exception to the hearsay rule. The SJC in King limited the evidence to one witness out of concern that permitting numerous complaint witnesses to testify would deprive the defendant of a fair trial and unfairly enhance the credibility of the victim.
In Aviles, the victim alleged that the defendant touched her on four or five occasions. The defendant told the victim that he would hurt her if she told anyone. The victim believed the defendant’s threats and did not disclose the incident to anyone until she told her mother three years later that the defendant touched her. The incident was still not reported until the victim saw the defendant’s picture on television while at her grandmother’s house and said that the defendant raped her. Following that incident, the police were called. The defendant objected to any testimony of the defendant’s grandmother being told to the jury under the first complaint doctrine. The judge ruled that the testimony was admissible to explain the delay in reporting the incident and how it came that the victim brought the matter to the attention of the police.
The court held that the exclusion of the testimony regarding who the victim disclosed the rape to would have created a false impression that she fabricated the allegations. The court also held that even if the testimony was not properly admitted that there was no substantial miscarriage of justice, as the court held that the objection to this testimony was not preserved by the trial counsel.
The court reviewed the error under the more forgiving substantial miscarriage of justice standard because the court held that the defendant did not preserve the objection. As a Massachusetts criminal defense lawyer, it is hard to see how the defense lawyer’s objections could have been more specific and detailed. The decision was a 2-1 decision of the Appeals Court and it is anticipated that a motion for further appellate review would be allowed as the decision raises significant issues regarding objections in criminal cases and the first complaint doctrine.