By David Rangaviz
State v. Fellows, 2013 VT 45
American criminal law has long struggled to deal with the unique aspects of sexual assault cases.
The primary issue is one of corroboration. More often than any other category of cases, sexual assault trials often come down to “he-said/she-said.” The jury watches the testimony, weighs credibility, and decides who to believe. Prosecutors often have to rely on the victim’s testimony as their primary, or perhaps only, evidence. And there are legal, psychological, and social reasons to think they might believe the defendant over the victim.
For one, the burden of proof; the state has to prove its case beyond a reasonable doubt. If the testimony is in equipoise (i.e., both sides are equally credible), the defendant wins.
Second, it is common for victims of sexual assault to delay their reporting to authorities. This can be for any number of reasons—the societal stigma attached to rape, a tendency toward self-blame, a belief that authorities might not believe the allegations, or fear of the attacker. Indeed, for these and other reasons many sexual assaults go entirely unreported. But this delay, as any decent defense attorney will inevitably argue at trial, undercuts the victim’s credibility.
Third, the lack of corroborating evidence tends to benefit the side (the defense) arguing that nothing happened. This is often accompanied by the “CSI Effect,” where juries, raised on a proliferation of police procedural TV dramas, have a baseline expectation that rape allegations will be accompanied by scientific evidence. But when reporting is delayed, physical evidence is often lost or compromised.
Finally, as I discussed in an earlier post, the law of sexual assault has, in many ways, placed the burden on the victim rather than the defendant. There are difficult questions of consent, resistance, force, etc. that can make reporting and testifying a traumatic and emotional experience.
Given these issues, criminal and evidentiary laws have tried to adapt to ease the burden on victims and prosecutors.
For example, as I wrote about in another earlier post, the rules of evidence generally bar character evidence or evidence of a defendant’s prior bad acts, but under federal law such evidence is admissible in sexual assault cases. I should note that Vermont has not adopted this rule.
Another set of examples are rape shield laws—which bar defense counsel from asking the victim about his or her sexual history or “sexual predisposition.” These provide an added layer of protection for victims to encourage reporting of sexual assaults. These laws, again, are exceptions to the general rule allowing defendants to offer evidence of an alleged victim’s pertinent character traits. There is both a federal rape shield law and a Vermont state rape shield law.
More pertinent to today’s case is the issue of corroboration. The easiest way to corroborate a victim’s version of events is by allowing actual corroborating testimony—let other people on the stand to testify that the events happened as the victim says. This runs against another problem: sexual assaults generally occur away from other witnesses.
To cure this, courts have developed doctrines allowing the testimony of those whom the victim tells about the assault.
Now, typically, courts do not allow such “bolstering.” Were it otherwise, trials would turn into parades of witnesses all trying to strengthen the credibility of their side’s star witness without providing any direct evidence of the events. The strength of an individual’s testimony should not turn on how many people the person tells their story to outside of court.
But given the corroboration problems associated with sexual assault cases, bolstering is permitted. Under what is termed the “Fresh Complaint” Doctrine, the prosecution is allowed to introduce evidence that the victim “freshly” complained about the incident to someone directly after the alleged events.
This doctrine is grounded in the common belief that sexual assault complaints should be relatively prompt. Because many victims delay reporting for reasons entirely unrelated to truthfulness, the “fresh complaint” doctrine, ironically, may only serve to perpetuate a debunked myth about victim behavior.
In recognition of the fact that a complaint’s “freshness” does not necessarily indicate its veracity, some courts have tweaked this rule. For example, the Massachusetts Supreme Judicial Court (MSJC) in 2005 adopted the “First Complaint” Doctrine, which allows only the recipient of a victim’s first complaint (regardless of timing) to testify about the fact and details of the complaint. This helps the prosecution by allowing the admission of the first complaint regardless of its timing, while limiting corroboration testimony to a single witness no matter how many people hear the complaint. Limiting repetition not only ends repeated corroboration, but it also reduces the reintroduction of the (often horrifying) details of the assault. According to the MSJC: “A victim who is not fabricating an assault may tell only one other person of the assault, while a liar may spread the tale widely.” The prevailing “Fresh Complaint” Doctrine, in the MSJC’s view, “[a]t worst . . . rewards perpetrators who are especially brutal or threatening during and after an assault, and thereby successfully procure their victims' prolonged silence.”
This gets to the heart of the matter. There is a somewhat zero-sum quality to these special rules. As the law adapts to the problems of under-reporting and lack of corroborative evidence in sexual assault cases, it begins to deprive defendants of critical legal protections that they are afforded in all other categories of cases. In solving the unique issues associated with sexual assault prosecutions, the difficulty lies in striking the right balance between the rights of victims and the rights of defendants.
Today’s case touches on these same questions. When should a Vermont court be able to hear about a prior bad act in a sexual assault case? How many people should be allowed to testify to corroborate the victim? On what basis should they be allowed to do so? “Freshness” or “Firstness?”
As in all sexual assault cases, the facts are tragic.
In April 2009, Defendant spent a night out camping with his fourteen year-old Daughter. Daughter awoke that night to Defendant fondling her stomach, breasts, and vaginal area. At the time, she pretended nothing happened, but the next day complained to her best friend, who then told Daughter’s older sister, who then contacted her mother, who then called the police. Ultimately, Defendant was charged and convicted of lewd and lascivious conduct. He appeals to the SCOV.
Defendant first claimed error in the trial court’s admission of a prior instance of sexual contact between Defendant and a young girl. Through the testimony of Defendant’s sisters, the jury was allowed to hear that he had engaged in intercourse with Daughter’s mother when she was fourteen and he was twenty. The prosecutor then emphasized this point during the summation, arguing that this prior sexual relationship showed that he acted similarly in this instance in sexually assaulting Daughter—another fourteen year old.
In rejecting this claim of error, SCOV held that Defendant had opened the door to this questioning during the direct examination of Defendant’s sisters. The Vermont Rules of Evidence permit a defendant to offer testimony about a pertinent character trait, but only by use of reputation testimony. In other words, an individual can testify that a defendant has a certain reputation, but cannot describe specific instances of conduct that would prove it. On cross-examination, the state is then permitted to “test” this reputation testimony by asking about specific instances of conduct.
That, according to SCOV, is exactly what happened here. Defense counsel asked the sisters whether Defendant had a reputation for having an interest in young girls for the “last six or seven” years. The sisters testified that he had no such interest. On cross, as SCOV says, “the prosecutor would be entitled to explore the idea that defendant’s impregnation of mother was inconsistent with the reputation that was being asserted to undercut the reliability of the reputation testimony.” Here, the cross-examination was not used to prove another instance of sexual assault, but merely to undermine the character evidence offered by the defense.
The closing argument, however, went much further. The prosecutor basically told the jury that, because Defendant had sexual contact with the mother when she was fourteen, he had such contact with Daughter when she was fourteen. This is, of course, the purest of propensity arguments. In rejecting the claim of error, SCOV hangs its hat on three points: (1) Defendant invited this argument because he was essentially making the inverse claim—by having his sisters testify that he had no reputation for sexual interest in young girls, he was trying to prove his good character and argue that he acted in conformity with that trait in not assaulting Daughter; (2) Defendant never requested a limiting instruction to prevent the jury from drawing the propensity inference; and (3) defense counsel failed to object, reducing the level of scrutiny applied to the closing argument on appeal.
Overall, SCOV concludes that the testimony, along with the closing argument, did not result in “plain error” necessary to reverse the trial verdict. Again, Vermont has not adopted the federal exception authorizing prior bad act evidence in cases of sexual assault. Here, however, SCOV gets to the same place, all by relying upon repeated errors by defense counsel. The first error was strategic: offering testimony that Defendant had a reputation for not having sexual interest in young girls when counsel undoubtedly knew that this would open the door to a past instance of molestation of a young girl, who also happened to be the victim’s mother, of exactly the same age. If there was logic to opening the door to such damning evidence, one must strain to see it. Counsel also erred in failing to object during cross-examination or closing, even after the prosecutor explicitly pushed the propensity argument. Finally, counsel erred in failing to request a limiting instruction, allowing the jury to make the impermissible inference that the prosecutor had advanced in closing.
Ultimately, the errors of defense counsel built upon one another into a mosaic justifying SCOV’s affirmance under a lesser standard of review—a standard only applicable because counsel failed to object in the first place. Perhaps the court should have looked into whether Defendant was denied the effective assistance of counsel. Oh well, that is why we have post-conviction review.
Moving on, Defendant next claimed error in the testimony of Daughter’s best friend, who described her conversation with Daughter on the day after the incident, which included the details of the assault. The trial court admitted this testimony under the “fresh complaint” doctrine and an exception to the hearsay rules.
The SCOV, sidestepping the merits of this question entirely, concludes that the admission of the testimony was harmless beyond a reasonable doubt. According to the SCOV: “The only possible useful information gained from [Daughter’s] testimony was (1) the details of the incident, and (2) the fact that [she] told [her best friend] about the incident the day after it occurred.” As to the details, Daughter herself described the assault in much greater detail in her own testimony as did the nurse practitioner who examined her—so little was gained on that front. As to the timing of the report, the nurse practitioner similarly testified that she received a call about the incident that same day, so the testimony was duplicative on that score. Finally, the SCOV concludes that the best friend’s testimony was not a prominent part of the state’s case, as shown by the fact that the prosecutor barely mentioned the testimony in either opening or closing argument.
And with that the SCOV affirms Defendant’s conviction. But . . .
There is, of course, one other useful reason for the best friend’s testimony that the SCOV does not identify—namely, that it corroborates the testimony of Daughter. The fact that it is duplicative of her testimony does not render it meaningless or unnecessary—it makes it critical in the jury’s assessment of the victim’s credibility. The testimony was offered precisely because it was duplicative. This is the point of “fresh complaint” evidence; it is an exception that allows the State to bring in testimony that does nothing but bolster and corroborative other witnesses. Testimony that reiterates an assault victim’s description of the event does not lend itself to an easy assessment of harmlessness. By merely asking whether the testimony was duplicative, the SCOV avoids discussing the whole point for offering the testimony.
The exacting standard of review—harmless “beyond a reasonable doubt”—only further demonstrates the weakness of the SCOV’s reasoning.
In this case, the state was allowed to admit the testimony of: the victim, her best friend, a clinical psychologist, the nurse practitioner, her counselor, her teacher, her sister, and a trooper who conducted the initial interview with Defendant. SCOV does not describe in detail the extent of the testimony of each witness, but one can safely assume that each witness (testifying for the prosecution, as they were) corroborated the victim’s version of events. Should so much second-hand testimony be permitted? Should every person that an alleged victim tells about an assault be allowed to testify?
By avoiding the merits, SCOV opts not to get into issues of “fresh complaint,” “first complaint,” or what corroboration doctrine makes the most sense as a matter of Vermont law. Any course has its faults. Application of the fresh complaint doctrine relies upon the often-erroneous assumption that those who report earliest are inherently more credible than those who report later while the first complaint doctrine limits corroboration to only one prosecution witness. The SCOV should strive to find a rule that properly balances the rights of victims and defendants. Right now, there is no clear rule.
For many lawyers, the dearth of precedent is what makes practicing in Vermont courts so interesting—make the best argument and you win, precedent (or lack thereof) be damned! But the absence of law also means that courts must expound on legal issues when given the chance. Setting aside whether the SCOV reached the right result here, with almost no Vermont precedent on the subject of sexual assault victim corroboration, the SCOV undoubtedly missed an important opportunity to provide necessary guidance to lower courts.
I think I hear a parade.