Commonwealth v. McCoy

Marshall, C.J.

(concurring, with whom Botsford and Gants, JL, join). I agree that the evidentiary errors regarding the first complaint doctrine did not create a substantial risk of a miscar *855 riage of justice in this case. I write separately to question our continuing need for that doctrine.

When we adopted the first complaint doctrine in Commonwealth v. King, 445 Mass. 217 (2005), cert, denied, 546 U.S. 1216 (2006) (King), we sought to address juror tendency to rely on “inaccurate assumptions” and stereotypes about delayed reporting by sexual assault victims, id. at 240, while ensuring that the defendant receives a fair trial free from unduly prejudicial “piling on” of witnesses’ testifying to the alleged victim’s account, id. at 245. In my judgment, the experience in the five years since King has resulted in confusion and inconsistent evidentiary rulings. Moreover, that experience casts doubt on whether the doctrine is necessary to accomplish its stated objectives. I would reconsider the necessity of the first complaint doctrine and either abandon it or narrowly confine it.

First, since King there has been confusion over the application of the first complaint doctrine as to, inter alla, who is the first complaint witness and whether another complaint witness can be substituted as the first complaint witness, see Commonwealth v. Murungu, 450 Mass. 441, 445-446 (2008); whether there can be two “first” complaint witnesses, see Commonwealth v. Kebreau, 454 Mass. 287, 296 (2009); when evidence regarding the investigative process by police crosses the line into impermissible first complaint evidence, compare Commonwealth v. Stuckich, 450 Mass. 449, 457 (2008), with Commonwealth v. Arana, 453 Mass. 214, 226-227 (2009); and when evidence of an alleged victim’s complaint that is otherwise admissible should nonetheless be excluded due to the concerns of piling on, see Commonwealth v. Arana, supra at 229 ; Commonwealth v. McGee, 75 Mass. App. Ct. 499, 503-504 (2009). 1

As to the necessity of the doctrine, our cases since King have *856 demonstrated that, even in the absence of the first complaint doctrine, there are a myriad of ways of admitting potentially powerful evidence that “includes, or implies, the fact that a report was made,” Commonwealth v. Arana, supra at 224 , which can counterbalance juror stereotypes. Id. at 220-221 (first complaint doctrine does not “prohibit the admissibility of evidence that, while barred by that doctrine, is otherwise independently admissible”). See, e.g., Commonwealth v. Kebreau, supra at 297-300 (evidence not admissible under first complaint doctrine otherwise independently admissible). For example, evidence of a complaint may in some circumstances be admissible as a spontaneous utterance. See King, supra at 241 . Evidence of a complainant’s demeanor and physical condition while making a complaint is not hearsay and may be admissible. See ante at 846. Admissible evidence concerning a police investigation or medical treatment may inform the jury that the alleged victim had made a complaint. See ante at 847-848. If a complainant’s credibility is challenged, a prior account of the sexual assault may be admissible as a prior consistent statement to rebut the defendant’s accusation of recent contrivance or bias. See, e.g., Commonwealth v. Kebreau, supra at 298-299 ; Mass. G. Evid. § 613 (b) (2010). Such evidence may be, and often is, far more effective in establishing the credibility of the alleged victim than first complaint evidence introduced by the Commonwealth.

As to the second concern addressed in King — the “piling on” of testimony from witnesses about a complainant’s account of a sexual assault — that too may be addressed by evidentiary rules applicable in all cases. If evidence repetitive of the alleged victim’s complaint is admissible as, inter alla, a prior consistent statement, an excited utterance, or a hospital record, it is within the trial judge’s sound discretion to exclude such evidence. See Mass. G. Evid., supra at § 403. For all of these reasons, I conclude that abandonment or confinement of the first complaint doctrine is now warranted.

Massachusetts is outside the mainstream in allowing the prosecution to admit comprehensive details about the alleged victim’s complaint before there has been any attack on his or her credibility. See Annot., Restrictions on Disclosure of Contents of Complaint Alleging Sexual Offense Under Common-Law “Fresh Complaint” Doctrine — Post-1950 Cases, 40 A.L.R.6th 1 , 17 (2008) (“Two jurisdictions, Massachusetts and Minnesota, espouse the distinct minority view that all details of the alleged victim’s complaint of a sexual offense are admissible” as part of prosecution’s case-in-chief). A majority of jurisdictions recognize some version of the “first” or “fresh” complaint doctrine. However, the overwhelming majority allow only the limited fact that *856 a witness made a complaint to be admitted as part of the prosecution’s casein-chief. The details of the complaint are excluded unless the alleged victim’s credibility is attacked. See Annot., supra. See, e.g., State v. Kendricks, 891 S.W.2d 597, 602, 603 (Tenn. 1994).