When Examination of Fresh Complaint Evidence is Necessary

Submitted by New Jersey Sex Crime Lawyer, Jeffrey Hark

State vs. R.K. New Jersey Supreme Court February 3, 2015.

At issue in this case is:

  • the introduction of an alleged minor victim’s testimony by the state as “Fresh Complaint” evidence as opposed to substantive evidence of a crime and
  • the entitlement of a defendant to admit “bias” evidence of the mother of the minor child at the time of trial.

An examination of ‘fresh complaint evidence‘ is needed.  The fresh-complaint doctrine allows the admission of evidence of a victim’s complaint of sexual abuse, otherwise inadmissible as hearsay, to negate the inference that the victim’s initial silence or delay indicates that the charge is fabricated.

To qualify as fresh-complaint evidence,

  1. the victim’s statement must have been made spontaneously and
  2. voluntarily,
  3. within a reasonable time after the alleged assault,
  4. to a person the victim would ordinarily turn to for support. These requirements are relaxed when they are applied to juvenile victims.

The trial court is required to charge the jury that fresh-complaint testimony is not to be considered as substantive evidence of guilt, or as bolstering the credibility of the victim; it may only be considered for the limited purpose of confirming that a complaint was made. When a defendant fails to object to an erroneous or omitted limiting instruction, it is viewed under the plain-error rule, Rule 2:10-2.

The Proper Boundaries Allowed in Fresh-Complaint Testimony

In this case the Supreme Court ruled that K.G.’s fresh-complaint testimony (a) did more than convey the nature of C.G.’s complaint, (b) was excessively graphic, and included threats made to the victim that were not elicited from the victim herself. New Jersey courts have been consistent in allowing fresh-complaint witnesses to provide enough basic information that the jury will have a sense of the complaint’s context. However, they “have adhered strictly and uniformly to the principle of disallowing excessive details.” State v. Bethune, 121 N.J. 137, 147 (1990). While the facts of ejaculation and masturbation may fall within the boundaries of C.G.’s testimony, K.G.’s description of the “yellow-white stuff” that “came out” was provocative and more descriptive than originally provided. Further, K.G. testified that defendant threatened C.G. Those threats were not elicited from C.G. at trial. The combination of K.G.’s description and the demonstration exceeded the proper boundaries allowed in fresh-complaint testimony. The testimony did more than rebut a charge of fabrication based on silence. The prejudicial omission of the limiting instruction, and the excessive fresh- complaint testimony denied defendant a fair trial. (pp. 17-19)

Why the Allowance of the Fresh Complaint Evidence Was Overturned

The main reason the court also overturned the trial court’s allowance of the Fresh Complaint evidence was because there was no other corroborative evidence introduced to the jury. There was no medical evidence, other otherwise. This was strictly a he said verse she said case. As a result the court stated, ” We further find that the State’s case was premised in its entirety on witness credibility, given defendant’s affirmative denial and the lack of physical evidence. Thus, the prejudicial omission of the limiting instruction, and the excessive fresh-complaint testimony denied defendant a fair trial. Therefore, we reverse on those grounds.

For additional content on this case, please read:

Tender-Years exception to the hearsay rule

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