State v. MartinezState v. Martinez
FACTS
Simon Ortiz Martinez1 sexually abused his daughter, Y.M., for nearly a decade. 1 Verbatim Report of Proceedings (VRP) (Oct. 24, 2017) at 34. Y.M. testified that the abuse began when she was five years old. Id. Martinez stopped Y.M. from playing Barbies with her brothers and told her to go to his room where he molested her. 3 VRP (Oct. 31, 2017) at 535, 538-40. The molestation continued regularly for several years. 1 VRP (Oct. 24, 2017) at 34; 3 VRP (Oct. 31, 2017) at 545, 574, 598-99.
When Y.M. was nine years old, she was alone in the house with Martinez. Her youngest brother had been hospitalized, and their mother stayed at the hospital with him. 3 VRP (Oct. 31, 2017) at 548. Martinez raped Y.M. that night. Id. at 555-58. Three months later, Martinez raped her again. Id. at 560. Martinez continued to rape and sexually abuse Y.M. regularly until she moved out of the family home in 2014, when she was about 14. 1 VRP (Oct. 24, 2017) at 34, 36, 66-67; 3 VRP (Oct. 31, 2017) at 545, 574, 598-99. Around that time, she told several people about the sexual abuse. 4 VRP (Oct. 31, 2017) at 615, 617. A few
The State charged Martinez with one count of first degree rape of a child, which required it to prove Martinez raped Y.M. when she was no more than 12 years old. 1 VRP (May 8, 2017) at 2;
Martinez moved to exclude Y.M.‘s complaints to these witnesses as untimely since they happened so long after the charging period. 1 VRP (Oct. 24, 2017) at 18-19. The trial judge denied the motion, concluding that complaints are no longer required to be timely to be admissible. 2 VRP (Oct. 26, 2017) at 344. Based on those complaints, Y.M.‘s testimony, and other evidence, the jury found Martinez guilty. CP at 35. Martinez received an indeterminate sentence of 123
ANALYSIS
At common law, victims of violent crimes were expected to raise an immediate “hue and cry” so their community could mount an immediate response. State v. Hill, 121 N.J. 150, 157, 578 A.2d 370 (1990) (quoting 2 SIR FREDERICK POLLOCK & FREDERIC WILLIAM MAITLAND, THE HISTORY OF ENGLISH LAW 578-79 (2d ed. 1923)). The failure to raise a hue and cry could be fatal to a future prosecution or civil action. Dawn M. DuBois, A Matter of Time: Evidence of a Victim‘s Prompt Complaint in New York, 53 BROOK. L. REV. 1087, 1089 (1988) (citing 4 JOHN HENRY WIGMORE, EVIDENCE §1135, at 298-306 nn.2-11 (Chadbourn rev. ed. 1972)).
The general requirement to raise a hue and cry was eliminated in the mid-1700‘s, but, because of deeply sexist expectations, it widely persisted in cases of alleged sexual violence. Kathryn M. Stanchi, The Paradox of the Fresh Complaint
The closely related “fresh complaint” doctrine evolved as a response to the common law requirement of hue and cry. Hill, 121 N.J. at 157. Eventually, the requirement that the prosecution prove a sexual assault victim made a timely hue and cry was replaced with the rule that the State could introduce such evidence in its case in chief to negate any inference that because the victim had failed to tell anyone she had been sexually assaulted, her later claim could not be believed.3 Id. at 159; State v. Kendricks, 891 S.W.2d 597, 601 (Tenn. 1994) (“Because juries were allowed—sometimes even instructed—to draw negative inferences from the [victim‘s] failure to complain after an assault, . . . the [fact of the complaint doctrine] evolved as a means of counterbalancing these negative inferences.” (citation omitted)).
Despite the doctrine‘s problematic roots, it still plays an important function because many jurors still subscribe to the myth that “real” victims report promptly. Beyond its original purpose to combat myths about female rape victims, the doctrine has evolved to include others, including children, men, and same-sex rape
Martinez essentially argues that Ferguson and Goebel are no longer good law because they are inconsistent with our hearsay rules and are harmful because they perpetuate myths about the victims of sexual violence. See Suppl. Br. of Pet‘r at 10-12. We will not overturn prior published opinions unless “‘an established rule is incorrect and harmful,‘” or “the legal underpinnings of the precedent have been eroded.” Pendergrast v. Matichuk, 186 Wn.2d 556, 565, 379 P.3d 96 (2016) (quoting In re Rights to Waters of Stranger Creek, 77 Wn.2d 649, 653, 466 P.2d 508 (1970), and citing W.G. Clark Constr. Co. v. Pac. Nw. Reg‘l Council of Carpenters, 180 Wn.2d 54, 66, 322 P.3d 1207 (2014)). Martinez has not shown that either case is incorrect and harmful, or that their legal underpinnings have eroded. As another high court noted recently, “there is no well developed body of scientific research suggesting that these long-standing biases [against victims who do not make timely reports] have been entirely eliminated.” State v. Daniel W.E., 322 Conn. 593, 618, 142 A.3d 265 (2016). While society has arguably developed a greater understanding that sexual assault victims often do not report their experience, many jurors still mistakenly believe myths about how victims should act after they are assaulted. See, e.g., Hill, 121 N.J. at 164 (noting that while “the
“We are mindful that in some cases efforts to rid the judicial process of sexism by unreasoned reform have proven in practice to be worse medicine than the illness itself.” Hill, 121 N.J. at 164-65 (citing SUSAN ESTRICH, REAL RAPE 81-83 (1987); Janet E. Findlater, Reexamining the Law of Rape, 86 MICH. L. REV. 1356, 1356-57 (1988)). But we reject the suggestion that retaining the rule in its modern form amounts to endorsing the misogynistic myths that the rule evolved from. The fact of the complaint is necessary in current jurisprudence because mistaken beliefs about sexual violence are still pervasive in our society and in our jury boxes. See generally, Kathryn M. Stanchi, The Paradox of the Fresh Complaint Rule, 37 B.C. L. REV. 441, 448-49 (1996). “The fresh-complaint rule responds to those jurors on their own terms.” Hill, 121 N.J. at 164. Meeting jurors where they are “serves to neutralize the sexist expectations of some jurors,” which
We recognize that the fact of the complaint doctrine is inconsistent with the hearsay rules. But the rule is long standing, has been recognized since the hearsay rules were codified, and provides an important supplement to those rules. “A special rule that restores the credibility of sexual assault complainants is not only practical and analytically justifiable, but also necessary” because of persisting cultural stereotypes and bias, both explicit and implicit. Stanchi, supra, at 477. Under our evidence rules, prior consistent statements may be used only when a witness‘s credibility has been attacked.
Martinez has not established we should overrule Ferguson and Goebel. We decline to do so. Because the fact of the complaint doctrine protects victims and
REMAINING ISSUES
Martinez also argues that even under the fact of the complaint doctrine, the reports by Y.M. were not timely because they were made after the charging period ended. See Pet. for Rev. at 8. We review a judge‘s decision to admit evidence for abuse of discretion. State v. Wilson, 60 Wn. App. 887, 890, 808 P.2d 754 (1991) (citing State v. Jones, 95 Wn.2d 616, 628, 628 P.2d 472 (1981)). Martinez offers no authority that establishes reports must be made within the charging period. The doctrine merely requires that “the complaint was timely made.” Ferguson, 100 Wn.2d at 135-36. A complaint is timely if it is made when there is an “‘opportunity to complain.‘” State v. Griffin, 43 Wash. 591, 597, 86 P. 951 (1906) (quoting 4 WILLIAM BLACKSTONE, COMMENTARIES *213). Here, Y.M. reported the sexual abuse while it was ongoing, despite living with her abuser parent. We leave it in the able hands of the trial court to determine what constitutes a timely complaint based on the surrounding circumstances. See Griffin, 43 Wash. at 598-99 (considering the circumstances surrounding delay of a complaint, including lack of threat and opportunities to complain); see also Murley, 35 Wn.2d at 237 (allowing details to “establish whether or not a complaint was made timely“); State v. Graham, 59 Wn. App. 418, 424-25, 798 P.2d 314 (1990) (upholding the admission of expert testimony explaining how often and why child victims wait to report abuse); Wilson, 60 Wn. App. at 890 (upholding admission of evidence of prior assaults to explain why the victim had waited to report). Trial judges have discretion to admit evidence explaining why a victim waited to report facts of sexual violence, and other circumstances, in deciding whether or not to admit fact of the complaint testimony. Child abuse is not a set of multiple discrete acts, it is an ongoing pattern and practice. See Rebecca L. Thomas, Notes, Adult Survivors of Childhood Sexual Abuse and Statutes of Limitations: A Call For Legislative Action, 26 WAKE FOREST L. REV. 1245, 1254 (1991) (citing Frederick H. Lindberg & Lois J. Distad, Post-Traumatic Stress Disorders in Women Who Experienced
Martinez also argues that the trial judge erred in allowing four witnesses to testify regarding Y.M.‘s complaints. See Suppl. Br. of Pet‘r at 2. We review a judge‘s decision to admit evidence for abuse of discretion. Wilson, 60 Wn. App. at 890 (citing Jones, 95 Wn.2d at 628). Martinez relies on Commonwealth v. Arana, 453 Mass. 214, 223, 901 N.E.2d 99 (2009), where the Massachusetts Supreme Court found error in admitting testimony by three witnesses under the fact of the complaint doctrine. Id. at 223. But Massachusetts‘s fact of the complaint doctrine differs from ours—under Massachusetts law, only one witness is allowed to testify about the fact of the complaint. Id. at 220 (citing Commonwealth v. Murungu, 450 Mass. 441, 455-46, 879 N.E.2d 99 (2008)). Washington has no such rule. Martinez does not establish the trial court abused its discretion in allowing four witnesses to testify.
Finally, Martinez argues that the court “compounded the unfair prejudice” by failing to give a jury instruction on the fact of the complaint evidence. Suppl. Br. of Pet‘r at 18. But Martinez did not request such an instruction so any error was not preserved. See
CONCLUSION
Martinez has not shown that Ferguson and Goebel are incorrect and harmful, or that the basis for those opinions has been eroded. Nor has he established reversible error. Accordingly, we affirm.
González, J.
WE CONCUR:
Stephens, C.J.
Johnson, J.
Madsen, J.
Owens, J.
Yu, J.
Montoya-Lewis, J.
Whitener, J.
I disagree with this approach. I would not retain one false and prejudicial myth (that female rape victims always raise a timely hue and cry) to combat another false and prejudicial myth (that rape victims cannot be trusted). That path poses several problems: it perpetuates the rape myth, it adds a judicially created exception to the rule against hearsay despite the fact that the Rules of Evidence (ERs) contain an exclusive list of exceptions, and it results in a blanket rule allowing admission of those out-of-court statements without any of the indicia of reliability that the enacted ERs demand of all other exceptions to the rule against hearsay.
I. THE HUE AND CRY DOCTRINE REFLECTS A LONG HISTORY OF PREJUDICE AND PROBLEMATIC, INACCURATE ASSUMPTIONS ABOUT RAPE VICTIMS
I agree with the majority about the deeply flawed origins of our current “hue and cry” or “fact of complaint” doctrine. Majority at 5-7. In feudal England, “the evidence . . . indicates that rape was not publicly prosecuted at all, that maintaining an appeal was difficult, and that maintaining it to penalty was very unlikely.” Roger D. Groot, The Crime of Rape temp. Richard I and John, 9 J. LEGAL HIST. 324, 330 (1988). Any remedy “depend[ed] more on the power of the victim than the quality of the event,” rendering the “least powerful[] those most likely to be victimized in the first instance, [and] also the least likely to obtain any redress.” Id. Henry de Bracton, a 13th century legal scholar, reasoned that when “a virgin has been so deflowered and overpowered” she should “hue and cry” “whilst the act is fresh” and show “honest men the injury done to her, the blood and her dress stained with blood, and the tearing of her dress.” 2 HENRICI DE BRACTON, DE LEGIBUS ET CONSUETUDINIBUS ANGLIAE 483 (Sir Travers Twiss ed., trans., 1879). “Rape” at that time meant the violent rape of a virgin woman. See State v. Hill, 121 N.J. 150, 158, 578 A.2d 370 (1990) (noting the exclusion of many women, including “women who were not virgins” and “women who did not sustain bloody physical injuries“).
This feudal legal doctrine based on the hue and cry myth was nevertheless incorporated into the law in this country. But it was never a myth that was applied equally to all rape victims. Specifically, the law provided no protection at all to most nonwhite rape victims—not even a timely hue and cry would provide a legal remedy for Native American or enslaved women for much of this country‘s history. See SUSAN BROWNMILLER, AGAINST OUR WILL: MEN, WOMEN AND RAPE 140, 151-53 (1975); Jill Elaine Hasday, Federalism and the Family Reconstructed, 45 UCLA L. REV. 1297, 1332-33 (1998) (“Slaves had no legal protection against rape, and slave women were sold into concubinage or prostitution at ‘fancy girl’ markets devoted specifically to that purpose.” (footnote omitted)). And of course the hue and cry doctrine was never applied to male rape victims. In fact, sexual violence against males was not even covered by early rape laws.1
Then, at some point, the hue and cry doctrine changed from a rule requiring the prosecution to prove a timely hue and cry as an element of its rape case, to a rule allowing the prosecution to bolster its case with timely hue and cry hearsay evidence to prove the truth of the matter asserted. The rationale for the rule, though, remained the same: that the testimony of a female rape victim is
In Washington, we first used this rationale to uphold admission of such hearsay evidence not long after statehood. State v. Hunter, 18 Wash. 670, 672, 52 P. 247 (1898) (“[W]e think the better rule is to restrict the evidence to the fact of complaint, and that anything beyond that is hearsay of the most dangerous character.“). We upheld the trial court‘s decision to admit the fact that the complaint was made, but we ruled that the trial court must exclude the name of the accused and other specifics. State v. Griffin, 43 Wash. 591, 594-95, 86 P. 951 (1906). We also held that the complaint could be admitted only if it were timely made. State v. Ferguson, 100 Wn.2d 131, 135-36, 667 P.2d 68 (1983). We used the same rationale to justify this version of the hue and cry doctrine as the rationale used eight centuries ago: “a female naturally complains promptly of offensive sex liberties upon her person.” Murley, 35 Wn.2d at 237.
In fact, we explicitly quoted Blackstone and endorsed his false and unfounded assumption about who was a believable complainant:
“If the witness be of good fame; if she presently discovered the offense, and made search for the offender; if the party accused fled for it; these and the like are concurring circumstances which give greater probability to her evidence. But, on the other side, if she be of evil fame, and stand unsupported by others; if she concealed the injury for any considerable time after she had opportunity to complain; if the
place where the fact was alleged to be committed, was where it was possible she might have been heard, and she made no outcry; these and the like circumstances carry a strong, but not conclusive, presumption that her testimony is false or feigned.”
Griffin, 43 Wash. at 597-98 (quoting 4 WILLIAM BLACKSTONE, COMMENTARIES *213) (emphasis added).
We now know that the historic assumption that a woman will “hue and cry” promptly has no basis in reality. Child victims—like the victim in this case—frequently delay reporting sexual abuse out of “fear of the perpetrator, love and respect for a family or friend perpetrator, and fear that they will not be believed.” Kathryn M. Stanchi, The Paradox of the Fresh Complaint Rule, 37 B.C. L. REV. 441, 460 (1996). Adults may delay “because they fear no one will believe them, or because they feel embarrassed or guilty about the sexual assault.” Id. at 459-60. Some victims remain silent forever: as the majority recognizes, only 310 out of 1,000 rapes are even reported to police.2
Thus, the hue and cry rule stems from false assumptions about how “real” rape victims behave. All nine justices agree on this point. The question is what to do about that: maintain the hue and cry exception to the ERs as the only common
I choose the latter path as the one that more fully protects the dignity of the complainant and the reliability of the process.
II. WE SHOULD DISCARD THIS ANTIQUATED COMMON LAW DOCTRINE AND ENFORCE THE ERS TO MORE FULLY PROTECT THE DIGNITY OF COMPLAINANTS AND THE RELIABILITY OF THE PROCESS
A. The ERs Exclude Hearsay with Some Explicitly Listed Exceptions; a Hue and Cry Exception Is Not among Them
The majority acknowledges that the hue and cry rule is separate from any enumerated hearsay exception and is “inconsistent with the hearsay rules.” Majority at 9. But it does not recognize the importance of this fact: it is important because the list of exceptions to the rule against hearsay was designed to be exclusive.
“Relevant testimony may be excluded from trial if it is hearsay,” defined as “‘a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.‘” State v. Garcia, 179 Wn.2d 828, 845, 318 P.3d 266 (2014) (quoting
But we long ago recognized a single common law exception to this antibolstering rule: out-of-court statements were admissible to rebut charges of “recent fabrication.” Murley, 35 Wn.2d at 238. Under that exception, a witness‘s prior consistent statements could be admitted after the witness‘s testimony had been attacked as recently fabricated. Id. The prior consistent statements were admissible for only a limited purpose: “for the sole purpose of re-establishing the witness’ credibility.” Id.
This court consciously included and expanded this exception when we drafted our modern ERs: we made such prior consistent statements admissible for
That should be the end of our inquiry. Under the evidence rules enacted by this court, “[h]earsay is not admissible except as provided by these rules, by other court rules, or by statute.”
Further, unlike the drafters of the federal rules, the drafters of our State evidence rules “decided not to adopt any catch-all” hearsay exception to avoid a
Hue and cry is not the only common law evidence rule that we abandoned when we adopted formal evidence rules, so we can‘t assume it was abandoned by accident. For example, the “res gestae” doctrine, dating back to early statehood, see State v. Freidrich, 4 Wash. 204, 214, 29 P. 1055 (1892); State v. Smith, 26 Wash. 354, 67 P. 70 (1901), is also missing from our evidence rules. We adopted a few specific and separately listed exceptions in place of that res gestae doctrine; it “evolved into several present day hearsay exceptions, usually identified as the present sense impression, the excited utterance, and statements of present bodily condition, mental states, and emotions.” State v. Pugh, 167 Wn.2d 825, 839-40, 225 P.3d 892 (2009) (citing 2
Finally, since 1979, we made these evidence rules “govern proceedings in the courts of the state of Washington” (with specific exceptions inapplicable here).
To be sure, our court has discussed the hue and cry doctrine even after we adopted the evidence rules. Ferguson, 100 Wn.2d 131; see also Pugh, 167 Wn.2d at 842 (comparing the pre-evidence rules version of hue and cry doctrine with “res gestae” evidence). But Ferguson did not address the postrule legitimacy of the doctrine itself. Instead, defendant/petitioner Ferguson seems to have assumed that
B. Our Evidence Rules Exclude Hearsay Due to Its Unreliability; Hue and Cry Hearsay Is Not Exempt from This Problem
The majority reasons that given “the nature of sexual assault cases, where there is often little to no physical evidence,” admission of “hue and cry” hearsay evidence is “vital [as] a preemptive tool.” Majority at 10.
This conclusion does not address the potential problem with most out-of-court statements, though: their lack of reliability. See, e.g., Purdom, 106 Wn.2d at 750 (“Repetition generally is not a valid test of veracity.” (citing Harper, 35 Wn. App. 855)). Relevance alone does not answer this question, either: “That certain out-of-court statements may be relevant does not dispose of the question whether they are admissible.” Tome, 513 U.S. at 164. The hue and cry rule continues to allow the court to admit out-of-court statements, for the truth of the matter asserted, without a general determination by the rules or an individual determination by the trial court that the statements are reliable.
C. Other States Have Abolished or Modified the Doctrine
Different states have acknowledged some of these problems and taken different approaches to addressing them. Almost 20 years ago, the Tennessee Supreme Court recognized that the doctrine had its “genesis in the profoundly sexist expectation that female victims of sexual crimes should respond in a prescribed manner or risk losing credibility.” State v. Kendricks, 891 S.W.2d 597, 604 (Tenn. 1994). Similarly, New Jersey‘s Supreme Court has recognized that the doctrine is based on a “pseudo-Freudian analysis of the ways a ‘normal’ woman would react to sex and to rape.” Hill, 121 N.J. at 162.
Tennessee then abolished the doctrine as applied to children—like the child victim in this case—because “unlike the presumptions regarding adult victims, juries do not necessarily presume that children fabricate, nor do they presume that a child will complain immediately.” State v. Livingston, 907 S.W.2d 392, 395 (Tenn. 1995). Massachusetts limited testimony “to that of one witness—the first person told of the assault” so as to “accomplish the primary goal of the doctrine” while avoiding excessive prejudice. Commonwealth v. King, 445 Mass. 217, 242-43, 834 N.E.2d 1175 (2005). California and Vermont chose to admit complaints for limited nonhearsay purposes, in accordance with their respective rules of evidence. People v. Brown, 8 Cal. 4th 746, 760-61, 883 P.2d 949, 35 Cal. Rptr. 2d 407 (1994) (characterizing “complaint” of a crime as nonhearsay conduct); State v. Madigan, 2015 VT 59, ¶ 28, 99 Vt. 211, 228-29, 122 A.3d 517 (2015) (rejecting “the ‘fresh-complaint rule’ as an independent evidentiary doctrine because the doctrine has been largely supplanted by rules of evidence” but noting that that
We should follow the guidance of these states to seek solutions other than upholding the hue and cry rule in its current form. I would take the clear and direct path that California and Vermont chose and apply our duly enacted ERs—as we do in all other situations. That would mean that a timely complaint of rape would be admissible as substantive evidence to rebut express or implied charges of recent fabrication.
D. There Are Other Ways To Deal with Juror Prejudices
The majority acknowledges that this rule “evolved from” “misogynistic myths” but maintains it to “[m]eet[] jurors where they are.” Majority at 8-9.
Creating a rule that allows admission of potentially unreliable evidence in order to counteract juror prejudice also sets a dangerous precedent for dealing with other juror prejudices. Certainly, “[i]ndividual jurors bring to their deliberations ‘qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable.‘” McCleskey v. Kemp, 481 U.S. 279, 311, 107 S. Ct. 1756, 95 L. Ed. 2d 262 (1987) (quoting Peters v. Kiff, 407 U.S. 493, 503, 92 S. Ct. 2163, 33 L. Ed. 2d 83 (1972) (lead opinion of Marshall, J.)). And those qualities likely include prejudice—the same sorts of prejudice that attorneys,
Instead, we have adopted other cautionary tactics (though certainly with less than perfect results). Still, I would apply those cautionary tactics that are clearly permissible and pose no unreliability problems, such as a robust voir dire process, introductory juror videos, and detailed jury instructions.6 Voir dire, in particular, “is necessary to discover bias in prospective jurors and to assist the trial court in its responsibility to remove prospective jurors who will not be able to follow its instructions on the law.” State v. Davis, 141 Wn.2d 798, 825-26, 10 P.3d 977 (2000). As Justice Marshall explained in the context of racial prejudice, “[g]iven the history and continuing legacy of racism in our country,” it was “not at all ‘inconceivable’ that the voir dire process” where a defendant is accused of “an interracial sexual attack and murder” could “have legitimately extended over six weeks” to “obtain a fair and impartial jury.” Press-Enter. Co. v. Superior Court, 464 U.S. 501, 521-22, 104 S. Ct. 819, 78 L. Ed. 2d 629 (1984) (Marshall, J., concurring in the judgment). The same extension of juror questioning would be6
III. ADMITTING Y.M.‘S HEARSAY STATEMENTS WAS NOT HARMLESS
Erroneous evidentiary rulings require reversal and a new trial when “‘within reasonable probabilities, had the error not occurred, the outcome of the trial would probably have been materially affected.‘” State v. Smith, 106 Wn.2d 772, 780, 725 P.2d 951 (1986) (quoting State v. Cunningham, 93 Wn.2d 823, 831, 613 P.2d 1139 (1980)).
The trial court allowed the State to present the facts of not one, not two, but four hearsay complaints. Day after day, the jury heard from numerous witnesses that Y.M. previously reported that she “had been raped,” 3 Verbatim Report of Proceedings (VRP) (Oct. 30, 2017) at 436, that “she had been being abused and that she didn‘t want to go home,” id. at 455, that she “was molested and raped,” 3 VRP (Oct. 31, 2017) at 508, that she “was raped,” 4 VRP (Oct. 31, 2017) at 615, that she had “been raped,” 4 VRP (Nov. 1, 2017) at 740, and that her father had “been raping her,” id. at 742.
Within reasonable probabilities, Y.M.‘s out-of-court statements materially affected the outcome of the trial. The State‘s entire case revolved around the credibility of Y.M.‘s testimony. The State used the out-of-court statements about
But as stated above, “[r]epetition generally is not a valid test of veracity.” Purdom, 106 Wn.2d at 750 (citing Harper, 35 Wn. App. 855). The erroneous admission of these statements likely affected the outcome of the trial and Martinez‘s conviction should be reversed.
CONCLUSION
“When the prosecution of rape incorporates rape myths, it promotes sex discrimination and undermines women‘s confidence in the legal system.” Morrison Torrey, When Will We Be Believed? Rape Myths and the Idea of a Fair Trial in Rape Prosecutions, 24
The hue and cry doctrine incorporates ancient rape myths into modern legal doctrine and allows the jury to consider potentially unreliable out-of-court statements for the truth of the matter asserted. I would condemn the hue and cry exception to the rule against hearsay, hold that Y.M.‘s out-of-court statements were inadmissible hearsay, reverse Martinez‘s conviction, and remand for a new trial.
Gordon McCloud, J.