Criminal Law & Procedure - Prosecutorial Error Versus Credibility of Child Victims of Sexual Assault: A Delicate Balance - Commonwealth v. Alvarez.

• Author: Sims, Eugenia K.

Criminal Law & Procedure--Prosecutorial Error Versus Credibility of Child Victims of Sexual Assault: A Delicate Balance--Commonwealth v. Alvarez, 103 N.E.3d 1202 (Mass. 2018).

While prosecutors are entitled to argue forcefully for a defendant's conviction, well-settled Massachusetts case law has held that closing arguments must be limited to facts in evidence and fair inferences that may be drawn from those facts. (1) If a prosecutor errs by misstating the evidence or referring to facts not in evidence, convictions may be overturned if the error had more than a very slight influential effect on the jury--making it prejudicial to the defendant. (2) In Commonwealth v. Alvarez, (3) the Massachusetts Supreme Judicial Court (SJC) addressed whether a prosecutor's factually incorrect statement, during closing argument and regarding the child victim's credibility, was sufficient to overturn convictions of both rape of a child and assault and battery. (4) Looking at the context of the entire argument, the SJC held that the convictions must be overturned because the child's testimony and credibility was at the "heart of the case," defense counsel made a timely objection, and the trial judge only gave a general mitigating instruction. (5)

Angel Luis Alvarez was charged with three counts of rape of a child and one count of assault and battery upon a child for sexual abuse of his goddaughter Camila. (6) Due to the nature of the crimes, the prosecutor's case rested almost entirely on Camila's testimony. (7) In the prosecutor's closing argument at trial, the prosecutor incorrectly stated: "[Her m]om told you, '[Camila] did come home one day and ask to take a bath, and I thought it was weird, because she had taken a bath that morning.' That's corroboration." (8) Camila's mother had testified as her first complaint witness, but the prosecutor failed to elicit this specific testimony about Camila's alleged desire to take a bath following that first assault. (9)

Defense counsel objected at the end of the prosecutor's closing statement, but neither the prosecutor nor the trial judge could remember if Camila's mother had testified that Camila wanted to take a bath. (10) The judge gave a general instruction to the jury but did not directly address the prosecutor's misstatement of evidence with an explicit curative instruction. (11) The jury convicted Alvarez, who then filed a petition for direct appellate review. (12) On direct appellate review, the SJC overturned the convictions and remanded for a new trial. (13) The majority reasoned that it could not definitively say that the prosecutor's factually incorrect statements in closing argument did not influence the jury; Justice Lowy wrote a separate concurrence; and Justice Cypher dissented, arguing that the prosecutor's misstatement was nonprejudicial. (14)

Issues concerning the credibility of sexual assault victims can be traced back to the common law "hue and cry" doctrine, under which victims of all violent crimes were expected to alert the community immediately after the crime to increase the possibility of catching the offender. (15) Although hue and cry was eventually abandoned as a prerequisite for prosecuting all other violent crimes, it persisted as a requirement for proving rape and made its way into the American court system as the "fresh complaint" doctrine. (16) The fresh complaint doctrine was a specific exception to the rule against the admission of prior consistent statements, and, in effect, permitted "anticipatory rehabilitation" of a witness whose credibility was suspect from the outset. (17) Until 2005, Massachusetts had a fresh complaint doctrine similar to those of other states. (18)

In Commonwealth v. King, the SJC overhauled the previous fresh complaint doctrine in favor of a modified "first complaint" doctrine. (19) Significantly, the SJC eliminated the promptness requirement, and restricted testimony to only the first person the victim told about the assault, instead of allowing everyone the victim told about the assault to testify, which was permitted under the fresh complaint doctrine. (20) In its analysis of why the change to the doctrine was overdue, the SJC noted that in addition to reflecting biases against sexual assault victims, the fresh complaint doctrine also posed difficulties when the victims and witnesses--whose credibility was at issue--were children. (21)

Witness credibility is an important factor not only when a jury determines whether to convict, but also when a prosecutor misstates evidence or commits some other error during closing argument. (22) Under harmless error analysis, the four factors for determining if the error is nonprejudicial are: whether the defendant made a timely objection; whether the error was about a collateral issue or went to the heart of the case; whether the judge gave any curative instructions; and whether the error could have made a difference in the jury's conclusions. (23) An error is characterized as nonprejudicial if it did not influence or only slightly influenced the jury. (24) In a case where the majority of the evidence revolves around the victim's testimony and credibility, the weight of the victim's credibility directly relates to the case's strength. (25)

In Commonwealth v. Alvarez, the SJC applied the four-part harmless error analysis to the prosecutor's misstatement in her closing argument that Camila's mother's testimony corroborated Camila's testimony. (26) The SJC held that the error went to the heart of the case--Camila's credibility and testimony. (27) The majority noted that there was almost no corroboration to Camila's testimony, apart from Camila's mother's testimony as the first complaint witness. (28) The majority compared the prosecutor's misstatement and the judge's lack of adequate curative instruction to similar cases, noting that it had found prejudicial error in those other cases despite the seriousness of the alleged crimes. (29) The majority overturned Alvarez's convictions, reasoning that it could not say with assurance that the prosecutor's misstatements could not have influenced the jury's verdict. (30)

In applying the four-part harmless error analysis, the majority unnecessarily dwelled on the lack of corroboration to Camila's testimony. (31) The majority's reliance on there being almost no corroboration weakens its argument, because corroboration is not necessary to support Alvarez's conviction. (32) If the jury found Camila credible, then no additional corroboration was needed, and conversely, a lack of corroboration should have no effect on Camila's personal credibility. (33) The fact that the prosecutor made misstatements was sufficient, and it was unnecessary for the majority to delve into whether the statements were corroborative, if true--doing so only furthers the myth that the testimony of victims like Camila is inherently untrustworthy without supporting evidence. (34)

Considering the majority's emphasis on corroboration, in her dissent, Justice Cypher rightly raised concerns over the history of devaluing the testimony of sexual assault victims. (35) Rather than specifically addressing the four-part harmless error analysis, Justice Cypher maintained that the misstatements required reversal only if they "prejudiced [Alvarez] in light of the entire argument, the trial testimony, and the judge's instructions to the jury." (36) This included the persistency and flagrancy of the remarks--or lack thereof--as well as the strength of Camila's testimony. (37) She concluded that when taken in the proper context, with the proper weight given to Camila's testimony, the prosecutor's error did not influence or only slightly influenced the jury, and therefore Alvarez's convictions should have been affirmed. (38)

But Justice Cypher's dissent also contained gaps in its analysis of the case-in- chief. (39) Justice Cypher stated that, in the harmless error analysis of a prosecutorial misstatement, victims' testimony in nonsexual assault cases are given more weight than the testimony of victims of sexual assault crimes. (40) While this may very well be true, the dissent relied on two distinct categories of cases: cases with adult victims and witnesses, nonsexual assault charges, and prosecutorial error leading to upheld convictions; and cases with child victims and witnesses, sexual assault charges, and prosecutorial error leading to reversed convictions. (41) The dissent failed to adequately address the fact that there is another variable at play in Alvarez--Camila is a child victim. (42) To fully bridge the gaps in the analysis, the dissent needed a linking case--for example, one with a child victim witness, no sexual assault, and the conviction upheld despite prosecutorial misstatement and no curative instructions--to truly show that Alvarez's holding came down to Camila's testimony specifically as a sexual assault victim, and was not the result of her being both a child and a sexual assault victim. (43)

The SJC grappled with striking a balance between the credibility of a sexual assault witness and the need for fair trials. Both the majority and the dissent missed the full picture; the majority, by overanalyzing unnecessary corroboration--or lack thereof--and the dissent, by failing to link the factually distinct groups of cases on which it relied. Further, even if a linking case with the exact parameters necessary does not yet exist, the dissent's analysis would still benefit greatly from including a brief section discussing the credibility of children as a whole, and acknowledging the effect this has on Camila's credibility in the case. By failing to analyze all variables present, the dissent discredited its otherwise strong analysis regarding the impact of rape myths on the judicial system and the different weights given to victim-witnesses' testimony.

(1.) See Commonwealth v. Rutherford, 71 N.E.3d 481, 486-87 (Mass. 2017) (reaffirming standard for prosecutors'...