Fresh-Complaint Evidence Leads to Reversal

State v. R.K. (2015)

by David S. Marshall

The Supreme Court of New Jersey has reversed a conviction for child abuse and endangerment of a child after the trial judge improperly admitted fresh-complaint testimony and allowed a witness to improperly bolster the credibility of the child complainant.

In State v. R.K., the defendant was charged with sexual assault, endangerment of a child, and child abuse after his stepdaughter accused him of repeated sexual assaults. The stepdaughter first brought the allegations to her mother and sister.

There was no physical evidence of the alleged abuse, so the case turned on the testimony of the witnesses and the stepdaughter’s credibility. The State presented testimony from the mother and sister under the fresh-complaint doctrine.

The fresh-complaint doctrine allows admission in evidence of an out-of-court complaint of sexual abuse “to negate the inference that the victim’s initial silence or delay indicates that the charge is fabricated.” Fresh-complaint evidence may only be used to confirm that a complaint was made; it may not be considered as evidence that the defendant committed the crime.

Washington has a similar rule for fresh-complaints. In Washington courts such statements are called “hue and cry” and, as in New Jersey, may not be used as proof of the matters asserted in them. Rather, Washington law allows the jury to hear of them only to prevent its thinking that the complainant did not make a complaint promptly.

The mother of the complainant in the R.K. case vividly described the abuse that the stepdaughter told her had occurred. Then, the mother demonstrated a masturbatory motion that the girl had made during the complaint. Later, the sister testified that she believed the girl’s allegations and that the girl would not have made them up.

The jury failed to reach a verdict on the sexual assault charge but found the defendant guilty of endangerment of a child and child abuse.

The defendant appealed, arguing that the mother’s testimony was excessive, particularly the reenactment of the “graphic physical demonstration.” The defendant also argued that the sister’s testimony improperly bolstered the stepdaughter’s credibility by claiming the child would not make things up.

The court found that the fresh-complaint testimony here was inadmissible because it did more than convey that a complaint had been made, and it was excessively graphic. The mother’s detailed description of the child’s complaint, in combination with the demonstration, was prejudicial to the defendant.

The appellate court also agreed with the defense that the sister had improperly bolstered the complainant’s testimony. In New Jersey as in Washington State, a witness may not give her opinion about the credibility of another witness because witness credibility is an issue for the jury.

The court reversed the convictions and remanded for a new trial.