In child sex abuse case, the court permitted the prosecution to elicit testimony about  prior consistent statements disclosing the abuse and precluded defendant’s mother from testifying to complainant’s prior inconsistent statement.The majority found no abuse of discretion in these evidentiary rulings.The testimony concerning the reports of sexual abuse was admissible for the  non-hearsay purpose of explaining to the jury how and when the sexual abuse came to light resulting in investigation and defendant’s eventual arrest.

The defendant’s  mother’s testimony was inadmissible hearsay.

 

Factual Background: The complainant lived with her  mother after the defendant, her father,  moved out.  The complainant visited defendant on weekends.  Her younger brother and defendant stayed in the basement, while her sister and the complainant stayed upstairs.  The complainant said the defendant abused her in 3rd and 4th grades, always in the basement.  She kept abuse secret because she was scared of the defendant.  Eventually she told her half brother that the backyard smelled weird - “like penis” -The half  brother repeated this disclosure to the complainant’s half sister who told their  mother.  The abuse was only discussed this one time.

 

The defendant was charged with predatory sexual assault of child.  The indictment alleged that between April 2008 to June 2009 he committed  two or more acts of sexual conduct. 

 

At trial defense counsel objected to the testimony of the half brother and mother concerning the complainant’s disclosure of the abuse. The complainant’s mother testified to half brother’s telling the complainant  to disclose abuse.  Mother also testified that son had told her the complainant had given defendant a blow job and the complainant said it was true.

 

The trial court admitted the  testimony not for its truth, but to explain the half brother’s actions in reporting the incident.  The trial judge issued instruction saying that the testimony was  not offered for its truth.

 

 On cross, counsel asked the complainant whether she told her aunt “that you only tell what your mother tells you to say.”  The complainant could not recall the statement.  The defendant’s only witness was his mother who overheard the complainant say at family picnic “she only tells what her mother tells she can say” in the context of discussing her mother’s potential pregnancy.  The defense offered this testimony to impeach but trial court excluded the testimony on hearsay grounds.

 

The Appellate Division ruled that the prior consistent statements by the complainant were elicited not for the truth but to explain how the victim disclosed abuse.  The preclusion of the defendant’s mother’s testimony was upheld and deemed unpreserved on constitutional grounds or motive to fabricate.

 

The Court of Appeals with Justice Read writing for the majority observed that the type of “bolstering” testimony repeating he complainant’s disclosure was  not usually prejudicial because it merely repeats testimony already offered.  But the majority recognized that it was possible to create a more forceful presentation by the repetition of such testimony.  Here, the complainant’s  statements did not qualify as “prompt outcry” or any other hearsay exception.   Nonetheless there was no error in their admission because the statements did not recount details of sex abuse, but were only offered to explain the investigative process and to complete the narrative of how the abuse came to light. In prior cases, where the introduction of similar statements had lead to reversal,  the statements had been admitted as  prompt outcry even though the statements  did not properly qualify.  

 

The preclusion of evidence of the complainant’s prior inconsistent statement was also upheld as those statements involved a collateral matter relating to the complainant’s mother’s pregnancy and did not support the defense claim that it was relevant for impeachment purposes.  It was only relevant if offered for its truth, to suggest that the complainant was under the influence of her mother when she reported sexual abuse.  

 

Justice Smith in a  concurring opinion noted that he  would expand the prompt outcry exception.  He did not understand why the complainant’s  statements were admissible to complete the narrative.  He welcomed a rule that increases the chance of a child’s out-of-court statements being admitted to enhance credibility.

 

In dissent Justices Lippman and Rivera bemoaned that the majority had eviscerated hearsay rules and allowed the wholesale circumvention of the prompt outcry rule. 

 

CAL Observes: In child sex abuse cases delayed disclosure presents a variety of problems for the defense which this ruling serves to exacerbate.  The passage of time is often used to explain the loss of memory and a lack of physical evidence supporting a complainant’s account.  This ruling now allows the  prosecution to bolster a complainant’s testimony with details concerning the circumstances surrounding the disclosure.  Counsel representing defendants in child sex abuse cases must familiarize themselves with the host of evidentiary land mines which have developed in this context.