Insert Caption
 

Now comes the defendant in the above-entitled matter and moves that the Court instruct the jury before each fresh complaint witness testifies that it may consider fresh complaint evidence only to the extent that it corroborates evidence given by the alleged victim.  Further, because the Rape Counselor [insert the counselor's name each time you see "Rape Counselor"] has already begun testifying, the defendant moves for a curative instruction before her testimony continues.

In support of this motion, the defendant states that Rape Counselor's testimony falls into two categories: (1) testimony which adds details of events to which Child Doe [insert name] did not testify more generally and (2) testimony which adds details so "graphic, colorful, or gruesome" as to have important effect on jury.

The first category of Rape Counselor's testimony is not permissible.  The second category of Rape Counselor's testimony may be excluded.

The testimony complained-of by the defendant is, in essence [transcript not yet available], the following:

Child Doe:                [Insert testimony]
Rape Counselor:     [Insert testimony as expanded by RC]

Child Doe:                [Insert testimony]
Rape Counselor:     [Insert testimony as expanded by RC]

Child Doe:                [Insert testimony]
Rape Counselor:     [Insert testimony as expanded by RC]
 

The complained-of testimony by Rape Counselor is the following:

[Insert]

[This is graphic and gruesome as well as contradictory testimony; compare:
RC:  Did you ever touch your dad's body?  CD: No.]
 
[This too is graphic and gruesome.]

As grounds for the motion, Defendant states that the jury "may consider fresh complaint evidence only to the extent that it corroborates evidence given by the alleged victim. . . . Evidence of a fresh complaint witness cannot stand by itself and establish the factual assertions in evidence." Comm. v. Scanlon, 412 Mass. 664, 673 (1992).

We have [also] cautioned that fresh complaint evidence cannot be used as hearsay to fill gaps in the prosecution's case.  Bailey, supra at 396.  Thus, where a witness testifies regarding details of an event that the [victim] has not testified to more generally, we have stated that such testimony is not permissible.  See Commonwealth v. Kirouac, 405 Mass. 557, 565 (1989).

Fresh complaint witness may testify in sexual assault prosecution to "details" where testimony contains "no new information" and is "merely a short summary of testimony victim himself or herself gave about criminal events."  Comm. v. Snow, 30 Mass.App.Ct. 443, 446,  rev. den. 410 Mass. 1102 (1991) (quoting Comm. v. Bailey, 370 Mass. 388, 393 (1976)).

Further, witnesses may not testify to details which add substantially to complainant's account in sexual assault prosecution, and details which are so graphic, colorful, or gruesome as to have important effect on jury may be excluded.  Id., citing to Comm. v. Kirouac, 405 Mass. at 564.