Lapas attēli
PDF
ePub

plaint is part of the res gestae or is a spontaneous exclamation, the details contained therein are admissible even though hearsay. But if a complaint is just that, i.e. if there is no spontaniety or excitement involved in its making, most jurisdictions hold that the standard exceptions to the hearsay rule do not apply and the details contained in the complaint are not admissible. This exclusion, especially in rape cases, is based on the danger of allowing a designing female the opportunity of corroborating her testimony by statements to third persons, and the difficulty of disproving the facts contained therein by the accused." For these reasons, it is evident that the circumstances surrounding the complaint, especially its timing, are factors which will determine in most cases whether or not proof of what was actually stated in the complaint will be allowed into evidence.10

A word of caution to trial counsel is necessary at this point. When it is clear that the complaint was not part of the res gestae nor a spontaneous exclamation, great care must be exercised to make sure that only the fact of the complaint, and not the details contained therein, be presented to the court for its consideration. Prejudicial error may be introduced by proving too much. The recommended practice on direct examination is merely to ask whether the victim made the complaint that an outrage had been perpetrated and to receive in answer only a simple yes or no.11 The defense must also be on guard lest some of the witnesses' answers go beyond mere corroboration of the victim.

The delay between the alleged commission of the offense and the time the complaint was made may have effect in other areas. Some civilian jurisdictions exclude evidence not only of the details of the complaint but also the complaint itself if made any considerable length of time after the commission of the offense.12 Other authorities hold that mere lapse of time will not exclude evidence of the complaint, but is a cir

7. State v. King, 122 A. 578 (1923); Kenney v. State, 79 S.W. 817 (Tex. Crim. Rep.) (1903).

8. Harris v. United States, 269 F. 481, (1920), People v. Mayes, 6 P. 691 (1885); Oleson v. State, 11 Neb. 276, 9 N.W. 38 (1881); State v. Harrison, 127 S.E. 55 (1925).

9. People v. Gage, 28 N.W. 835 (1886).

10. Use of the fresh complaint rule does not, however, bar admission of details in every instance. A prosecuting witness whose testimony has been impeached may be rehabilitated by evidence of similar statements made as part of the complaint. Since the purpose is to show that the witness is telling the same story on the stand, the details of the complaint are thereby admissible. See Wigmore, Evidence (3d ed., 1940), § 1138 and notes thereunder.

11. Note 9, supra.

12. Lyles v. United States, 20 App. D.C. 559 (1902); People v. O'Sullivan, 10 N.E. 880 (1887); State v. Griffin, 86 P. 951 (1906).

cumstance to be considered by the fact finders.13 It is generally conceded that there are certain circumstances which will excuse delay in making a complaint. Examples of such circumstances are those in which the victim is in the physical control of the attacker for a length of time, or when silence is induced by threats, or when the victim is among strangers to whom such confidences cannot be given. These situations are weighed by the jury in determining the validity of the complaint.14 Also to be considered in this regard is the manner in which the complaint was made. Since the complaint must be shown to have been rendered voluntarily, it has been held that some statements made in answer to questions are not really complaints and therefore not admissible.15 Other courts have decided that the fact that the complaint came in response to questions does not of itself render it inadmissible, but is a circumstance to be weighed by the jury. The nature of the questions themselves, the conditions under which they were asked, and the relationship of the victim and the person asking the questions must also be considered.16

A SURVEY OF MILITARY LAW

The Manual for Courts-Martial, United States, 1951, provides:

In prosecutions for sexual offenses, such as rape, carnal knowledge, sodomy, attempts to commit such offense, assault to commit rape or sodomy, and indecent assaults, evidence that the alleged victim of such an offense made complaint thereof within a short time thereafter is admissible."

In many civilian jurisdictions, the admissibility of a fresh complaint is limited to rape cases, or at least to those offenses in which lack of consent to the act alleged is an element.18 Wharton states:

The rule [allowing proof of fresh complaint], however, does not extend to the crime of taking indecent liberties with a child, or to other offenses. The reason for receiving such evidence is not present in cases of assault, other than rape cases.19

Wigmore contends that:

Similarly, the fact of complaint should not be admissible on a charge of seduction, nor ordinarily on a charge of rape under age of consent, except for children; but should be admissible for other offenses

13. State v. De Wolf, 20 Am. Dec. 90 (1830); Henderson v. State, 123 N.W. 459 (1909).

14. McIntosh v. Commonwealth, 58 S.W. 2d 584 (1933). 15. State v. Impolito, 162 A. 526 (1932).

16. Commonwealth v. Ellis, 67 N.E. 2d 234 (1946); Lewis v. State, 184 So. 53 (1938); State v. Holm, 224 P2d 500 (1950). 17. MCM, 1951, Par. 142c.

18. Pepoon v. Commonwealth, 66 S.E. 2d 854 (1951). 19. Wharton, Criminal Evidence (11th ed. 1912) § 437.

usually involving force."

The framers of the Manual, however, clearly did not accept such limitations, for they authorized proof of fresh complaint "in prosecutions for sexual offenses" and included within that term the crimes of sodomy and carnal knowledge of which lack of consent is not an element. Furthermore, that the above quoted provision of the Manual had the force of law and therefore applied the doctrine to all offenses mentioned therein was the decision of the Court of Military Appeals in United States v. Mantooth.21

As far as the facts surrounding the complaint are concerned, it has been held that there is no requirement that the complaint be made to someone in authority. Neither does the fact that the complaint under consideration was the second complaint resulting from the alleged attack render it inadmissible.22 There is no necessity that the complaint be made in the presence of the accused.23 And, unless the complaint is also introduced as a spontaneous explanation, there need be no showing of grief, shock or lamentation on the part of the complainant.24

The military requirements for admission of evidence of a complaint are generally the same as those of civil jurisdictions. The Manual states that evidence of fresh complaint is received solely for the purpose of corroborating the testimony of the victim.25 As pointed out above, where the victim doesn't testify there is nothing to corroborate and therefore the rule does not apply.26 No military court has yet held, as have some civilian tribunals, that complaints from victims who through extreme youth or infirmity are unable to testify at trial are nonetheless admissible.

Regarding the admissibility of details, the Manual provides that evidence of the complaint is to be restricted merely to proof that the complaint was made." The identity of the offender, however, may be included as part of this proof. This is more than some civilian jurisdictions permit. In addition, the Manual states that the details of the offense related in the complaint may only be received if the complaint is also admissible under the spontaneous exclamation exception to the hearsay rule.

No rule has yet been provided on the question of how long a complaint may be delayed after an

20. Note 3, supra.

21. 6 USCMA 251, 19 CMR 377 (1955).

22. United States v. Stell, 4 CMR 490 (1952).

23. United States v. Copeland, 21 CMR 838 (1956).

24. Note 22, supra.

25. Note 17, supra.

26. United States v. Mounts, 1 USCMA 114, 2 CMR 20 (1952).

27. Note 17, supra.

offense has occurred. An Army Board of Review has stated:

Although the time element is important, it is not in itself decisive on the question of spontaniety. No inflexible rule as to the length of interval between the act charged and the declaration can be laid down as established.28

Though not ruled on by the Court of Military Appeals, other Board of Review decisions have held that complaints made three hours 29 and five hours 30 after the event are not thereby rendered inadmissible. The fact that the complaint was made at first opportunity is often given more weight than the time lapse.31

What happens when the victim, having an opportunity to complain of the alleged wrong, fails to do so? A failure to make a complaint is not direct proof of the innocence of the accused, but such evidence may tend to affect the credibility of the prosecuting witness. In civilian jurisdictions, the weight of authority supports the practice of allowing the defense to produce evidence of lack of complaint in rape cases.82 In sex cases other than rape, however, and especially those in which lack of consent is not an element, most courts have been reluctant to extend the doctrine. Wigmore states:

The failure to make complaint should not be admissible on a charge under age of consent, unless where the complainant is a child of tender years; nor (unless in the same exceptional case) on a charge of sodomy; nor perhaps on a charge of taking indecent liberties." Similarly, the Court of Military Appeals in United States v. Mantooth, supra, found no difficulty in allowing evidence of lack of complaint to be admitted in evidence in cases involving a charge of rape. Extending this practice to other offenses was a different matter. The court pointed out:

Yet there exists sorts of sexual offenses following which any variety of fresh complaint would be extraordinary-at least unexpected. Voluntary sodomy or adultery would, for example, scarcely evoke a complaint from one of the willing participants; nor would incest under some circumstances. Concerning the victim of a statutory rape-or carnal knowledge, the crime with which we are concerned-one court has commented incisively that "the natural bent of her mind thereafter would be to enable her immoral associate to escape the consequences of his criminal act-to shield rather than to aid in punishing him." Loose v. State [120 Wis 115, 97 NW 526]. Moreover, 28. United States v. Paulding, 25 CMR 489 (1957). 29. Note 22, supra.

30. United States v. Gordon, 24 CMR 443 (1957). 31. Note 23, supra.

32. Mosley v. State, 1 So. 2d 593 (1941); State v. Haston, 166 P. 2d 891 (1946); People v. Fremont, 117 P. 2d 891 (1941). 33. Note 3, supra.

insofar as evidence of fresh complaint is admissible because it tends to establish a want of consent, it would seem to be superfluous in cases where an absence of consent constitutes no element of the crime. In spite of these reservations the court felt that since the Manual failed to eliminate proof of fresh complaint from certain types of sexual offenses, there should likewise be no difference in the treatment of situations in which such complaint was absent. Proof of lack of complaint is therefore allowed in cases of sodomy and carnal knowledge, in which consent is not an element of the offense charged. On the other hand, the court has held that the prosecuting witness should be given an opportunity to explain his or her failure to complain. Thus, in a case of alleged rape involving a victim who had failed to complain to a sentry who came upon the scene of the incident, the victim's explanation that she was afraid that the sentry might be a friend of her attacker and would be of no assistance to her was accepted as reasonable.34

To permit the defense to produce evidence that the alleged victim did not complain does not settle all problems in this area. In several cases the question has been raised whether instructions on the effect of or absence of complaint are permitted or even required. In United States v. Mantooth, supra the accused was charged with carnal knowledge of a female under the age of consent. The evidence indicated that no force had been used and that the girl had probably willingly consented to the act. As might be expected from a case of this type, there was no showing of any complaint or outcry from the girl. At the trial the defense requested instructions on the fact that no complaint had been made. The request was refused by the law officer. The Court of Military Appeals held that this refusal was not error under the facts of this case. The court went further by implying that even if force had been used on this underaged female, an instruction on the effect of her failure to complain was not necessarily demanded. The reasoning behind this decision was that in cases involving offenses in which consent is not an issue, the need to focus attention on an absence of complaint is diminished, regardless of whether force was or was not used. By instructing on the presence or absence of such a complaint, the finders of fact might erroneously be led to believe that the absence of the victim's consent is a requirement of the offense. Also, in cases involving children there is often some reluctance to reveal that an attack 34. United States v. Washington, 2 USCMA 177, 7 CMR 53 (1953).

has occurred. This may be due to the victim's immaturity or to the fact that a child may be less resentful of the use of force from an older person than would an adult. The court conIcluded that in such situations the law officer might be justified in instructing on the victim's failure to complain, but that his failure to do so, even on request, was not error.

The recent case of United States v. Goodman 35 again led the Court of Military Appeals to a consideration of the need for instructions on the absence of complaint. In that case the accused was alleged to have committed separate acts of sodomy on two non-consenting victims. The victims, both of whom were asleep at the time, claimed to have immediately resisted upon being awakened by the accused's acts. Neither made prompt report of the incident, however. Following the conclusion of evidence at the trial, defense counsel requested an instruction on the effect of the prosecuting witnesses' failure to complain. This request was refused by the law officer on the ground that evidence of lack of complaint was more properly a matter for argument by counsel. The Court of Military Appeals, one member dissenting, held that prejudicial error was thereby committed. The court considered the Mantooth case, but the majority opinion limited the basis of that decision solely to the offense of carnal knowledge of a female below the age of consent. The Court conceded that the offenses of sodomy and carnal knowledge are similar in that neither require lack of consent as an element. However, the particular offense under consideration, involving as it did the use of force on adult victims, was more closely related to the crime of rape. The rationale behind the fresh complaint doctrine, i.e. the natural tendency of the victim of rape to make an outcry concerning the attack could be applied equally well to this type of sodomy case. In addition, the reasons that an underaged victim would not likely complain-set forth in Mantooth, supra-were not present in Goodman. The majority concluded that instructions on the effect of lack of complaint were necessary if requested in the case of sodomy without consent. In his dissent, Judge Quinn held that the law officer did not err by refusing to give the requested instructions, stating that the effect of an absence of complaint was a matter more properly argued by counsel.

The Mantooth and Goodman cases present an interesting contrast. In those cases the Court (Continued on page 277)

35. 13 USCMA 663, 33 CMR 195 (1963).

THE INJURY REPORT

LTJG DONALD E. CAMPBELL, USNR*

FEELS GOOD to drive my old car again, Baker thought as he sped through the growing dusk of a New Hampshire winter evening. His ship, an aging destroyer, had pulled into port only a few hours before. After a six month tour of duty in the Med he was very happy to be on his way home. A two week leave, presents for Mom and Dad, and stories to tell. If he drove through the night he could be home in time for bacon and eggs.

Suddenly, however, just as he was rounding a sharp turn it happened. It all happened so fast. He saw lights, heard the screech of brakes-then nothing. .

A moment later, or so he thought, a nurse was talking to him. He was in a hospital. Bandages were on his arm and face. What had happened?

The following day Captain Pearson, Baker's commanding officer, received a message from Mercy Hospital stating that Baker had been injured in an automobile accident and was being transferred to a nearby naval hospital. The skipper was very concerned; Baker was a valuable man. He knew, however, that as Baker's commanding officer, he had some official reports to make.

The JAG Manual requires that in every case of injury to a member of the naval service (other than by enemy action) resulting in physical inability to perform his duties for a period in excess of twenty-four hours, or where payment of disability benefits may be claimed, the injury will be investigated and reported by a fact-finding body.1

THESE REPORTS ARE IMPORTANT

These reports provide the basis upon which a conduct and line of duty status determination is made. These determinations are made under rules specifically prescribed for resolving whether the disease or injury of an individual was incurred while he was conducting himself properly in his role as a member of the naval service.

Such determinations may have a pro

*Lieutenant (junior grade) Donald E. Campbell, USNR, is presently assigned to the Investigations Division in the Office of the Judge Advocate General. He holds a B.S. degree from the University of Maryland and the LL.B. degree from the University of Maryland School of Law. Lieutenant Campbell is a member of the Maryland bar, the U.S. Court of Military Appeals and holds membership in the American Bar Association.

1. JAG Manual sec. 08018.

2. JAG Manual sec. 0806.

found effect upon the member and his dependents and may involve substantial expenditures by the United States.

Conduct and line of duty determinations are made primarily for the purpose of providing the legal basis for administration by the Navy of Federal statutes affecting the rights, benefits, and obligations of members of the Navy, e.g., his term of service," pay and allowances, and leave accrual. In addition, the determinations and related data are made available to the Veterans Administration and other government agencies for consideration in determining the rights and benefits of individuals under statutes administered by those agencies. Accordingly, the importance of conducting a thorough and impartial investigation in accordance with the requirements of applicable regulations and the importance of timely reporting cannot be overemphasized. An investigation should be promptly commenced. Undue delay in conducting it reduces the reliability of the information obtained and may make the compilation of a meaningful report impossible.

THE COMMANDING OFFICER'S RESPONSIBILITIES Normally, the officer in command of the unit or activity concerned is primarily responsible for initiating an investigation into an incident resulting in injury to a member of his command." Some commanding officers are under the impression that the naval hospital in which the injured man is hospitalized conducts the investigation. This is not true. The naval hospital never makes a conduct-line of duty investigation except as to personnel assigned there for duty. Activities required to make investigations under these regulations are often geographically far removed from the scene of incidents for which they have investigative responsibility. Typical situations are those in which personnel are injured at a place distant from the activity to which they are assigned or in which mobile activities are required to move from the locality of an incident prior to the opportunity to conduct an appropriate investigation. In such cases, officers in command may

3. 10 USCA § 972, implemented by SECNAV INST 1626.4, para. 4; NAVCOMPT MANUAL, para. 044019.

4. 37 USCA § 802; NAVCOMPT MANUAL, para. 044252.

5. BUPERS Manual article C-6104; MARCORPERSMAN para. 9050b.

6. JAG Manual sec. 0207.

refer the matter to another officer qualified to order the appropriate fact-finding body if the investigation can be more expeditiously accomplished by this different activity. Normally, in such situations the Commandant of the Naval District in which the incident occurred, or comparable authority, should be requested to take responsibility for conducting the investigation."

8

In most cases of injury the informal oneofficer investigation is appropriate; any officer in command may order this investigation. The commanding officer may orally appoint an officer to be the investigating officer; no written confirmation is required although the commanding officer may make the appointment or confirmation in writing if he desires."

DUTIES OF THE INVESTIGATING OFFICER

In the example at the beginning of this article, it is the task of the investigating officer to determine "what happened." From the facts stated it is possible that Baker fell asleep at the wheel while driving; if so, use of the injury report is precluded. Or, a deer might have darted onto the highway in front of Baker's vehicle, causing Baker to lose control of his car. In this case, an injury report would be appropriate.

The basic task of the investigating officer is to ascertain the facts concerning the matter under investigation and to report those facts to the officer who ordered the investigation. In the one-officer informal investigation the method of proceeding is discretionary with the investigating officer, but he should use the method which will best elicit the facts.

Witnesses are the source of statements which form the bulk of evidence in most investigations. The investigating officer should not accept as complete any statement from a witness which does not clearly and adequately explain the circumstances surrounding the incident as known to that witness. The investigating officer should fully question the witness so as to develop a clear picture of the incident and the facts leading up to it or having any direct bearing on it. In other words, the investigating officer must obtain from the witness all the information that he knows concerning the subject under investigation.10 The investigating officer should obtain written statements from all the witnesses, but if this is not practicable, then he may obtain their ver

7. JAG Manual sec. 0207.

8. JAG Manual sec. 0206b.

9. JAG Manual sec. 0208a (2).

10. Evidence in an Informal Investigation, Allen, Vol. XVII, No. 6, JAG Journal, 132, August 1963.

sion of the incident by depositions, affidavits, letters, or telephone calls.

In any matter in which the police have conducted any type of investigation, the investigating officer should try to secure a copy of the police report and attach it as an enclosure to the investigation. In an investigation involving injury incurred in a motor vehicle accident, the investigating officer will often find that the police report is the most helpful source of information. This is not to say that the police report will supply all the information concerning the accident that is necessary, but it will usually supply the information that will give the investigating officer notice of the different channels he must pursue in order to conduct a thorough investigation. For instance, if a police investigation of an automobile accident concludes that the accident resulted from the driver falling asleep at the wheel, the investigating officer must obtain additional information to determine if the driver experienced premonitory symptoms of falling asleep. If the driver experienced such premonitory symptoms, use of the injury report form is precluded by the possibility of a finding of misconduct. Also, if there is evidence in the police report, or from any other source, that the driver had been drinking, the investigating officer must determine if the driver's ability to drive was impaired. This can be accomplished by interviewing persons who observed the driver prior to the accident, as well as the police officer and doctors who observed him after the accident. If a blood alcohol test was conducted the report of the results should be enclosed as evidence. Such evidence is very persuasive.

In all cases of injury it is important that the report contain a finding as to the number of days lost." The injury report form contains a block in which to place the number of days lost (or date returned to duty). Nevertheless, reports of investigations frequently fail to contain an affirmative finding in this regard. Indeed, it is often impossible to infer the fact from the evidence in the record. Medical records which reflect the extent of injury and the prognosis are a necessary enclosure to an injury report. This information supplies the necessary evidence to document the time lost by the injured person as well as the diagnosis and prognosis that must be entered in item 7 of the injury report form.

Other information such as photographs, diagrams, copies of leave papers, and copies of pertinent service record entries that might be

11. Effects of Time Lost, Garraty, Vol. XV, No. 7, JAG Journal, 123, September 1961.

« iepriekšējāTurpināt »