Hue and Cry: The Fresh Complaint Rule in Sexual Assault Cases 

Sexual assault accusations are sometimes made months or years after the event. This can lead jurors to doubt the accusation. If it were true, why didn’t the complainant speak at the time? The law has developed a rule to help prosecutors overcome this source of skepticism. It is an exception to the hearsay rule, an exception called sometimes the “fresh complaint” rule and sometimes the “hue and cry” rule. 

The Basics of Hearsay

In general, hearsay evidence is prohibited at trial. Hearsay is any out-of-court statement made to prove the truth of the matter asserted. Hearsay is prohibited because attorneys cannot cross-examine the person who made the statement (the “declarant”) unless they come to court to testify—rather than having their statements repeated in court by a witness who did not observe what the declarant says they observed.

But the rule against hearsay has many exceptions. The exceptions generally arise from a belief that certain kinds of statements are so likely to be true that cross-examination testing their truthfulness is unnecessary. For example, the dying declaration exception is one of the oldest. It rests on a belief that a person who knows they are about to meet their Maker won’t lie.

What is a “Fresh Complaint”?

The fresh complaint rule, also called the “hue and cry” rule, is another hearsay exception. The rule allows the first report of a sexual assault to be as admitted in evidence. The statement must be “freshly” made. In other words, the complaint must be made soon after the incident. There can’t be a long silence between when the incident occurred and when the complaint was made.

The statement is admissible not to prove the matter asserted (that the crime occurred) but to support the credibility of the person’s other testimony that the crime occurred. (This is the kind of fine distinction that only a lawyer can love.) The statement is not meant to prove the act occurred, but that the victim’s testimony is more credible because a complaint was “freshly” made.

The full content of a fresh complaint is not admissible under this exception. Usually the only part admissible is that the complainant said they had been sexually assaulted. No details—not even the identity of the assailant—are admissible. In child sex abuse cases, though, we at the Marshall Defense Firm have found that there is usually little question as to whom the complaint was made about—so not allowing the alleged assailant’s identity to be included makes no practical difference.

If You or a Loved One is Accused

At the Marshall Defense Firm, we have mastered the rules of evidence as well as the psychological, medical, and other legal aspects of sexual misconduct cases. We have plenty of experience defending people against both civil and criminal abuse claims. 

These cases deserve a compassionate, vigorous, and expert defense. We can give you that defense. Contact us at 206.826.1400 or solutions@marshalldefense.com to schedule a consultation.