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Decided on July 25, 2004
Criminal Court, Bronx County

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

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New York Law