State v. Marshall

LAVERY, J.,

concurring. I agree with the majority that the judgment of the trial court should be affirmed. I, however, believe that the constancy of accusation doctrine should be used with considerable caution, and that in this case it was abused by the state.

Here, the state introduced the statements of the accusing child witness through the testimony of six constancy witnesses. This type of constancy of accusation evidence is both cumulative and can easily prejudice the defendant.

Our Supreme Court recently examined the constancy of accusation doctrine in State v. Troupe, 237 Conn. 284, 303, 677 A.2d 917 (1996), and narrowed the existing doctrine to include only “testimony regarding the fact of the complaint.” In Troupe, the court stated: “[A] defendant has an interest in not being unreasonably burdened by such accrediting or supporting evidence, which . . . generally is not admissible in the trial of crimes other than sexual assault. Concerns about such evidence are magnified if the victim has reported the *82alleged offense to a number of persons, all of whom are permitted to testify about the details of the complaint. In such circumstances, there is an enhanced risk that the jury may be unduly swayed by the repeated iteration of the constancy of accusation testimony. Indeed, one commentator has opined that testimony by multiple witnesses about the facts of the victim’s complaint may so unfairly bolster the victim’s credibility that, in such cases, ‘cross-examination of the victim is not a sufficient protection from prejudice.’ C. Tait & J. LaPlante, Connecticut Evidence (Sup. 1995) § 11.22.1, p. 196.” Id., 302-303.

In the present case, the victim testified three separate times, including twice on videotape under the constancy of accusation doctrine, concerning the sexual assault. Furthermore, the two videotaped interviews of the victim child witness were done by the state’s attorney in preparing the victim for trial two years after the initial allegations were made.

“Long standing precedent set by our Supreme Court demands that the following criteria be met before a witness can testify under what has consistently been labeled the constancy of accusation exception to the hearsay rule: (1) the court must balance the probative force of the testimony against its prejudicial effect; (2) the crime charged must be sex related; (3) the witness must be one to whom the victim complained about the offense; (4) the accusation must have been made at a time when it was natural for the victim to have made it; and (5) the victim must first testify, in court, as to the facts of the alleged occurrence.” State v. Bethea, 24 Conn. App. 13, 17, 585 A.2d 1235 (1991), cert. denied, 218 Conn. 901, 588 A.2d 1076 (1991). Here, the two videotaped interviews of the victim were not made at a time when it was natural for the victim to have made them, but were staged by the state two years after the *83victim’s original allegations. This type of evidence is an abuse of the constancy of accusation doctrine.

Nevertheless, given the strength of the state’s case, I concur with the majority in affirming the judgment of the trial court.