From the Boston Bar Journal: Commonwealth v. Aviles and the Continuing Evolution of the First Complaint Doctrine

Thursday, April 19, 2012

This article has been republished from the Boston Bar Journal. Click here to read the full article.

By Anne Pogue Donohue, Middlesex District Attorney’s Office

Recently, in Commonwealth v. Aviles, 461 Mass. 60 (2011), the Massachusetts Supreme Judicial Court announced a significant reformulation of the “first complaint” doctrine in sexual assault cases. The SJC created the “first complaint” doctrine seven years ago, when it abandoned the “fresh complaint” doctrine. See Commonwealth v. King, 445 Mass. 217 (2005), cert. denied, 546 U.S. 1216 (2006). Prosecutors could no longer have multiple witnesses testify about what a sexual assault vic­tim told them about the assault; instead, a prosecutor would be limited, generally, to introducing the testimony of only the first person to whom the victim disclosed the assault. In other words, the prosecution could introduce only the victim’s “first complaint.” The purpose of the “first complaint” doctrine, as had been the purpose of the “fresh complaint” rule it replaced, was to support a victim’s credibility by countering the widely-held assumption that a victim who is not fabricating her allegations would have made a contemporaneous complaint of the assault. Another purpose of the “first complaint” doc­trine was to avoid unfairly enhancing a victim’s credibility by allowing multiple repetitions of the victim’s complaint as had been permitted under the “fresh complaint” doctrine.

As the SJC confronted difficulties in applying the first complaint doctrine, two concurring opinions appeared. They suggested that at least some of the justices were thinking about changing the doctrine yet again, or possibly even abandoning it altogether. See Commonwealth v. McCoy, 456 Mass. 838, 854-856 (2010) (Marshall, C.J., Botsford and Gants, JJ., concurring); Commonwealth v. Dargon, 457 Mass. 387, 405-406 (2010) (Marshall, C.J., Botsford and Gants, JJ., concurring). These ruminations culminated in Aviles, where the SJC affirmed the vitality of the first complaint doctrine but significantly modified the standard of review on appeal.

In Aviles, the eight-year-old victim told her mother in 2002 that the defendant (who was her mother’s boyfriend) had “touched” her, but she did not provide any further detail. The victim and her mother moved out of the house. Three years later, after seeing the defendant’s photograph on TV, the victim told her grandmother the details of the sexual assault three years earlier. The grandmother then told the victim’s mother, who in turn contacted the police. The defense theory was that the victim fabricated the allegations against the defendant, with whom the victim and her mother were living, because she wanted to go live with her grandmother.

The defendant moved in limine to restrict the complaint testimony to the victim’s initial report to her mother that the defendant had “touched” her, thereby excluding any evidence relating to the victim’s more detailed disclosure three years later to her grandmother. The trial judge agreed that the substance of the victim’s statement to the grandmother was inadmissible under the first complaint doctrine. However, she allowed the witnesses to testify that the victim had made a disclosure to the grandmother after seeing the defendant’s photograph on television, and that the disclosure led the mother to the police. 

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