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Now comes the defendant in the above-entitled matter and moves that "fresh complaint" evidence beyond the scope of the primary evidence given by the alleged victim be precluded.

As grounds, Defendant states [inserts the facts].  See Comm. v. Kirouac, 405 Mass. 557, 559-562 and n.4 (1989).

"In comparison to the witness in Kirouac, [Child Doe] was loquacious and responsive."  Comm. v. Flebotte, No. 92-P-366, slip op. at 4 (Appeals Court, June 28, 1993).  All other allegedly corroborative testimony was given not only after improper questioning by one non-social-worker and six social workers, but also after the child attended several group meetings of sexually abused children who shared their stories of abuse.  As a result, the child's so-called memory was not her own but a product of fabrication and poor interviewing techniques.

One policeman, Det. Jon Doe, who was, at least, the third, if not the fourth, person to interview the child, cautioned against further interviewing of the child because of the multiple interviews which had taken place and because anatomical dolls were used not only on intake (which is controversial).  Thereafter two more social workers used them despite warnings to the contrary.   

. . . fresh complaint testimony was admissible only insofar as it
corroborate[s] the primary complaint of the putative victim. . . .

The court in Licata revisited the question whether a fresh complaint witness may speak to details not mentioned in the primary testimony and decided that supplementary details contained in fresh complaint testimony were acceptable within the limits of corroborative purpose.  So it was that the court said in Licata, at 660, that the trial judge has discretion to exclude needless repetition of details, particularly of an inflammatory sort.

For a witness to testify about "fresh complaints" which describe offenses not mentioned by the primary victim witness is beyond the scope of permissible fresh complaint testimony.  See Bailey, 370 Mass. at 396; Comm. v. Scanlon, 412 Mass. 664, 670 (1992), Tingley, 32 Mass.App.Ct. at 710. . . .

It was less than satisfactory to deal with what one might call the overflow fresh complaint testimony by telling the jury to disregard it if, so far as they remembered, it did not corroborate [the victim's] testimony. . . . [I]t is better to conduct a voir dire examination of the witness so that the judge may prune out extraneous matter before the jury hears it.  Particularly in sexual assault cases, the extraneous evidence may have a gripping quality and asking the jury to disregard it may be tantamount to asking the jury to ignore that an elephant has walked through the jury box.
 

In this case, the child has been interviewed by more than eight social workers, was prepared to testify for trial for ten months -- from September 1989 until May 1990 -- when a message was sent by the eighth social worker to the DA's office saying that the child was ready to testify.  By the time of the divorce trial, the child had been prepared during over 50 visits.  By January 1993, the child had been seen by the social worker who was working closely with the DA's office over 100 times.

No sexual evaluation was ever performed in this case because the initial disclosure was wrongly accepted as true without question and because the DA's office informed the social workers that the DA's office did not need the evaluation to convict.

                              Respectfully submitted,

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MOTION TO SEQUESTER WITNESSES

                              Respectfully submitted,

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                              Respectfully submitted,