People v Romero
Annotate this CaseDecided on July 25, 2004
Criminal Court, Bronx County
THE PEOPLE OF THE STATE OF NEW YORK
against
JUAN ROMERO, Defendant(s).
2003BX045505
Ethan Greenberg, J.
This case involves a charge that the defendant Juan Romero, a driving school instructor, committed an act of criminal sexual abuse against a female student. Defendant Romero now moves in limine to exclude pursuant to Crawford v. Washington, ___U.S. ___, 124 S. Ct. 1354 (2004) the proposed "prompt outcry" testimony of the complainant's mother. If permitted to testify, complainant's mother would say that her daughter told her what defendant had done within a half hour or so of the alleged incident.
Crawford has in fundamental fashion changed the law with respect to the relationship between the Constitution's Confrontation Clause and the law of hearsay. It will take some time before trial courts will be certain how to apply Crawford in a wide variety of relatively common situations, such as that presented here. The law in this area is not yet as clear as it ought to be or will be.
Nevertheless, for the reasons detailed below, this Court holds that evidence of a prompt outcry made by a woman to her mother after a sexual attack is not "testimonial" in nature as that term is used in Crawford; such evidence may therefore be admitted consistent with the Sixth Amendment's Confrontation Clause and with Crawford. Moreover, because under New York law prompt outcry evidence is permitted only where the declarant/complainant is herself a testifying witness at trial (and thus subject to cross-examination), defendant will have the opportunity to confront his accuser. Accordingly, even if prompt outcry evidence is regarded as testimonial, defendant's Sixth Amendment right to confront the witnesses against him will be protected.
Analysis
1. "Prompt Outcry"
The doctrine of "prompt outcry" (or "fresh complaint") permits the prosecution in a sex crime case to show that the victim promptly reported the crime to another person. Such testimony is admitted not in order to directly prove that the sex crime was in fact committed; rather, the evidence is admitted as relevant to the victim's credibility in order to answer doubts that might otherwise arise as to the victim's truthfulness:
The contemporary rationale for permitting prompt outcry evidence [*2]
is that some jurors would inevitably doubt the veracity of a victim who
failed to promptly complain of a sexual assault, such conduct being
'natural' for an 'outraged female'. . . .
People v. McDaniel, 81 NY2d 10, 16 (1993).
Because outcry evidence is admitted for the limited purpose of evaluating the victim's credibility, prompt outcry evidence may only be admitted where the declarant/victim is herself a testifying witness at trial. Baccio v. People, 41 NY 265, 269 (1869) (quoting 3 Greenleaf on Evidence § 213 (5th ed)) ("'where she is not a witness in the case, it is wholly inadmissible'"); In Re Angel F., 166 AD2d 890 (4th Dept. 1990); Richardson on Evidence, §292.
The outcry must in fact be "prompt." However, the question whether a victim's statements about a sex crime were made soon enough to be regarded as "prompt" will depend on the facts and circumstances of each case. Thus a victim's complaint may properly be viewed as a "prompt outcry" even if made after a substantial period of time has passed, provided that the complaint was nevertheless made at the "first suitable opportunity." See, e.g. McDaniel, supra
(child/victim reported sexual attack by mother's boyfriend to child's mother on day following incident; this report constituted a "prompt" outcry because victim could not be expected to report attack while attacker still possibly in the home); People v. Shelton, 1 NY3d 614 (2004).
Where prompt outcry evidence is permitted, the prosecution may show only that the victim made a prompt complaint; the prosecution can not go on to elicit the details of the complaint. People v. Deitch, 237 NY 300, 304 (1923); People v. Rice, 75 NY2d 929, 932 (1990); McDaniel, 81 NY2d at 16. This limitation is imposed because (as already noted) prompt outcry evidence is admitted only for its bearing on the declarant's credibility, and not to prove the truth of the declarant's out-of-court statements.
2. Crawford
The Confrontation Clause of the Sixth Amendment guarantees the right of a defendant in a criminal case to confront the witnesses against him. Crawford v. Washington, 124 S. Ct. 1354 (2004) overturned the previously well-settled rule of Ohio v. Roberts, 448 U.S. 56 (1980) and dramatically altered the law regarding the Confrontation Clause and the rules of evidence regarding hearsay. Crawford holds that the Sixth Amendment bars the use of a "testimonial" statement made by a witness who does not appear at a criminal trial, unless the witness is unavailable to testify at trial and was subject to cross-examination at the time the statement was made. 124 S.Ct at 1373-74.
This Court has previously noted at greater length the chief difficulty with Crawford, see People v. Moscat, 3 Misc.3d 739 (Crim. Ct. Bx Co. 2004); as Chief Justice Rehnquist forcefully pointed out in his concurring opinion in Crawford, the Crawford decision does not define what a "testimonial" statement is, beyond saying that: "Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a fomal trial; and to police interrogations." 124 S. Ct. at 1374. The Supreme Court's decision not to provide a definition of "testimonial" statements has created considerable confusion in many common situations in which the law used to be fairly well-settled and clear.
This case is one such situation. Previously, prompt outcry evidence was routinely admitted where appropriate, and few, if any, observers perceived any potential Confrontation Clause problem. See e.g. McDaniel, supra. That was so in important part because under the [*3]prior rule of Ohio v. Roberts it was assumed that a statement that fell within a "firmly rooted" hearsay exception like the prompt outcry rule did not implicate the Confrontation Clause. See generally People v. Sanders, 56 NY2d 51, 63 (1982); Martin & Capra, New York Evidence Handbook, Relationship Between the Hearsay Exception and the Right to Confrontation, §8.8 at 856 (2d Ed.).
Now, however, Crawford has made it unclear whether prompt outcry evidence may violate the Sixth Amendment. Crawford teaches that the Sixth Amendment bars the use of testimonial statements at trial, even if they fall within a firmly rooted hearsay exception. So the question now arises: Is prompt outcry evidence "testimonial" in nature as that term is used in Crawford? More specifically, is the proposed evidence in this case - - namely, that complainant told her mother that her driving instructor had just sexually abused her - - testimonial?
3. "Prompt Outcry" Not Testimonial
Upon consideration, this Court finds that prompt outcry evidence like that offered in this case is not testimonial in nature as that term is used in Crawford.
As noted, Crawford does not give a definition of testimonial statements. It does, however, give a list of kinds of statements that are clearly testimonial in nature. The list consists of a) statements made during testimony given at a prior hearing, trial or grand jury proceeding, and b) statements made during a police interrogation. The statements listed in Crawford all share certain features. First, they are all, relatively speaking, formal statements. Second, they are all made either in a litigation or (in the case of police interrogations) in contemplation of an imminent criminal prosecution. Thus the declarant in each case is conscious that he (or she) is bearing witness and that his words will likely impact legal proceedings. It therefore makes sense to characterize such statements as "testimonial"- - because they are in the nature of "'ex parte in-court testimony or its functional equivalent'." Crawford at 1364.
The same can not be said of the prompt outcry evidence offered in this case. Here, the People offer to prove that a woman told her mother that she had just been sexually attacked by her driving teacher. The woman's statement was by no means formal; she was talking to her own mother in private. And the woman was not contemplating litigation; she was simply seeking her mother's aid, comfort and love. The statement was made between two private citizens without the involvement of any law enforcement officials, and before any court process had begun. This Court therefore finds that the woman's statements to her mother are not testimonial in nature. See People v. Geno, 2004 WL 893947, ___ NW2d ___, (Mich Ct of Apps. 2004) (statement by child/victim of sex crime to Director of Social Work Center that defendant had hurt her "down there" not testimonial in nature.) Accordingly, the motion in limine will be denied.
This conclusion is reinforced by certain limitations that New York law places on prompt outcry evidence. To begin with, prompt outcry evidence is offered not for its truth, but only as relevant to the complainant's credibility; and, for that reason, the People are allowed to elicit only the fact that a prompt complaint was made, and not the details of the complaint. People v. Deitch, supra. Thus prompt outcry evidence is even more clearly not testimonial in nature because outcry evidence must essentially be stripped of any narrative content. And where - - as in the case of outcry evidence - - evidence of statements is offered for purposes other than establishing the truth of the matter asserted, the Confrontation Clause is not implicated. Crawford, 124 S. Ct. at 1369, n. 9; People v. Reynoso, __ N.Y.2d __, 2004 WL 1263712 (2004). [*4]
Even more important, it has long been settled as a matter of New York law that prompt outcry evidence can be offered only where the declarant/victim herself testifies at trial. Baccio v. People, supra. Thus, by definition, in any case where the People offer prompt outcry evidence, the defendant will have the chance to confront and cross-examine his accuser. Accordingly, to the extent prompt outcry evidence might be considered "testimonial" in nature, the requirements of the Sixth Amendement's Confrontation Clause will nevertheless be met. In this case, for example, defendant Romero will have the opportunity to cross-examine both the complainant and her mother.
The motion in limine is denied. The People will be permitted to introduce the proposed
prompt outcry evidence, provided that an appropriate preliminary evidentiary showing is made.
This Opinion constitutes the Decision and Order of the Court.
Dated: July 25, 2004______________________
Bronx, New YorkEthan Greenberg, J.C.C.
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