Brief Fact Summary. The Petitioner, Tome (the “Petitioner”), was charged with felony sexual abuse of a child, his own four-year-old daughter.
Synopsis of Rule of Law. “[T]he introduction of a declarant’s consistent out-of-court statements to rebut a charge of recent fabrication or improper influence or motive [are admissible] only when those statements were made before the charged recent fabrication or improper influence or motive.”
The government offered the statements of these aforementioned witnesses under Federal Rules of Evidence (“F.R.E.”) Rule 801(d)(1)(B). The trial court admitted all the statements over the Petitioner’s counsel’s objection. The trial court found that the statements “rebutted the implicit charge that [the child’s] testimony was motivated by a desire to live with her mother.” Certain of the statements were also admitted under other rules of evidence.
The Tenth Circuit Court of Appeals affirmed, finding that all the relevant statements were admissible under F.R.E. Rule 801(d)(1)(B).
Issue. “[W]hether out of court consistent statements made after the alleged fabrication, or after the alleged improper influence or motive arose, are admissible under [F.R.E. Rule 801(d)(1)(B)]?”
Held. No, the majority found that the statements were inadmissible. Rule 801 of the F.R.E. defines prior consistent statements as nonhearsay only if they are offered to rebut a charge of “recent fabrication or improper influence or motive.” The Advisory Committee settled on treating the consistent statements once they met the requirements of the rule as nonhearsay and admissible as substantive evidence, not just to attack a witness’s credibility. Prior consistent statements are not admissible to counter all forms of impeachment, or to bolster the witness merely because she has been discredited.
Here, the question is whether the child’s statements to various persons “rebutted the alleged link between her desire to be with her mother and her testimony, not whether they suggested that [the child’s] in-court testimony was true.” This “[r]ule speaks of a party rebutting an alleged motive, not bolstering the veracity of the story told.” Also, the consistent statement must have been made before the alleged influence, or motive to fabricate arose. The court reached this conclusion by relying on the Advisory Committee Notes to the F.R.E. Specifically, the majority did “not think the drafters of the Rule intended to scuttle the whole premotive requirement and rationale without so much as a whisper of explanation.”
The majority also disagreed with the governments’ argument that “the common-law premotive rule advocated by petitioner is inconsistent with the Federal Rules’ liberal approach to relevancy and with strong academic criticism, beginning in the 1940’s, directed at the exclusion of out-of-court statements made by a declarent who is present in court and subject to cross-examination.” Specifically, just because certain out-of-court statements “may be relevant does not dispose of the question whether they are admissible.”
The majority observed that “[i]f the Rule were to permit the introduction of prior statements as substantive evidence to rebut every implicit charge that a witness’ in-court testimony results from recent fabrication or improper influence or motive, the whole emphasis of the trial could shift to the out-of-court statements, not the in-court ones.” This case demonstrates this proposition. “In response to a rather weak charge that [the child’s] testimony was a fabrication so the child could remain to her mother, the Government was permitted to present a parade of sympathetic and credible witness who did no more than recount [the child’s] detailed out-of-court statements to them.” The statements shed “minimal light on whether [the child] had the charged motive to fabricate” although they “might have been probative on the question whether the alleged conduct had occurred.” Additionally, the government emphasized the aforementioned statements for their probative value not their tenden
cy to “rebut the impact of the alleged motive.”
The court refused to alter evidentiary rule sole because litigants “might prefer different rules in a particular class of cases.”
Dissent. Justice Stephen Breyer (“J. Breyer”), Justice William Rehnquist (“J. Rehnquist”), Justice Sandra Day O’Connor (“J. O’Connor”) and Justice Clarence Thomas (“J. Thomas”) filed a dissenting opinion. The dissenting justices stressed that the issue in this matter concerned relevancy not hearsay. These justices would have found that F.R.E. Rule 801(d)(1)(B) has nothing to do with relevance. Instead, it “carves out a subset of prior consistent statements that were formerly admissible only to rehabilitate a witness (a nonhearsay use that relies upon the fact that the statement was made)”. Further, that the rule specifically states that this type of statement was not hearsay.
These justices do not know how the majority concluded that “in the existence of several categories, the majority can find the premise, which it seems to think is important, that the reason the drafters singled out one category.