Tome v. United States, 513 U.S. 150 

Supreme Court of the United States

1995

Chapter

6

Title

Evidence A Contemporary Approach

Page

174

Topic

Hearsay

Quick Notes

o    Tome got divorced.  A court awarded joint custody, but Tom had primary custody.  The mother tried to petition for primary custody, but she was refused.  She was awarded custody for the summer and then contacted the authorities with allegations that Tome had committed sexual abuse against their 4 year old daughter.   Tomes defense said the allegations were concocted so the child would not return to her father.

o    Both the District and Court of appeals allow the 6 witnesses to testify to the girls out-of-court statements under Rule 801(d)(1)(B).  

o    However the out-of-court prior consistent statements were made after the alleged fabrication, influence or motive.

Common-Law Rule (Prior consistent statement)

o    That a prior consistent statement introduced to rebut a charge of recent fabrication or improper influence or motive was admissible if the statement had been made before the alleged fabrication, influence, or motive came into being

o    It was inadmissible if made afterwards.

McCormick and Wigmore (Prior consistent statement)

o    The applicable principle is that the prior consistent statement has NO relevancy to refute the charge UNLESS the consistent statement was made BEFORE the source of the bias, interest, influence or incapacity originated."

Basically, Tome's ex-wife had a motive to encourage her daughter to lie after she lost the custody hearing.  If the daughter's statements had been made prior to that, they would be admissible because they could be presumed to be true, but after the custody hearing, the daughter statements would be suspect.

Rule 801 (d) Statements which are not hearsay.

         A statement is not hearsay if

o    (1) Prior statement by witness.

o    The declarant testifies at the trial or hearing and

o    is subject to cross-examination concerning the statement, and

o    the statement is

o    (A) inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or

o    (B) consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or

o    (C) one of identification of a person made after perceiving the person; or

Book Name

Evidence: A Contemporary Approach.  Sydney Beckman, Susan Crump, Fred Galves.  ISBN:  978-0-314-19105-2.

Issue

o         Whether out-of-court consistent statements made after the alleged fabrication, or after the alleged improper influence or motive arose, are admissible under the rule?

Procedure

Trial

o         A.T.s out-of-court statements were admitted under Rule 801(d)(1)(B).  Tome was convicted and sentenced to 12 years imprisonment. 

Appellant

o         Affirmed. 

Supreme

o         Reversed.

Facts

Discussion

Key Phrases

Rules

Pl Tome (Appellant)

Df United States (Appellee)

Description

o    Tome got divorced.

o    A court awarded joint custody, but Tom had primary custody.

Petition

o    The mother tried to petition for primary custody, but she was refused.

Summer Custody

o    She was awarded custody for the summer and then contacted the authorities with allegations that Tome had committed sexual abuse against their 4 year old daughter.

Changed with sexual abuse

o    Tom was charged was charged in a one-count indictment with the felony of sexual abuse of his four year hold daughter.

Prosecution Argued

o    Tome committed the abuse when the daughter was in his custody.

Defense Argued

o    The allegations were concocted so the child would not return to her father.

Child was 6 1/2  at trial

o    One and two word answers.

o    Defense asked 348 questions.

o    She was reluctant to discuss past conversations about the allegations of abuse.

o    40 to 55 second paused between question and answers.

o    She was losing concentration.

Government produced 6 witnesses

o    Babysitter said A.T.s statement was she did not want to return to her father because he gets drunk and he thinks Im his wife.

o    Babysitter said mother heard the conversation.

o    Social worker recounted details A.T. told her.

o    3 pediatricians related A.T.s statements.

Government offer A.T.s 6 out of court statements

o    The statements rebutted the implicit charge that A.Ts testimony was motivated by a desire to live with her mother.

Defense objected

o    The allegations were concocted so the child would not return to her father

Common-Law Rule (Prior consistent statement)

o    That a prior consistent statement introduced to rebut a charge of recent fabrication or improper influence or motive was admissible if the statement had been made before the alleged fabrication, influence, or motive came into being

o    It was inadmissible if made afterwards.

McCormick and Wigmore (Prior consistent statement)

o    The applicable principle is that the prior consistent statement has NO relevancy to refute the charge UNLESS the consistent statement was made BEFORE the source of the bias, interest, influence or incapacity originated."

Court - Rule 801(d)(1)(B) DOES embodies this temporal requirement

Section A

Troublesome logic of treating a witnesss prior consistent statements has hearsay

o    The declarant is present in court and subject to cross-examination.

o    Once the preconditions (801) were satisfied, the prior consistent statements were treated as nonhearsay and admissible as substantive evidence, not just to rebut an attack on the witnesss credibility.

In this case

o    The question is whether A. T.'s out-of-court statements rebutted the alleged link between her desire to be with her mother and her testimony?

o    Not whether they suggested that A. T.'s in-court testimony was true.

Rule

o    The Rule speaks of a party rebutting an alleged motive, not bolstering the veracity of the story told.

Governments Theory

o    An out-of-court consistent statement, whenever it was made, tends to bolster the testimony of a witness and so tends also to rebut an express or implied charge that the testimony has been the product of an improper influence.

Court No, Congresss rule it too narrow.

Section B

Advisory Committee Notes

o    Our conclusion that Rule 801(d)(1)(B) embodies the common-law premotive requirement is confirmed by an examination of the Advisory Committee's Notes to the Federal Rules of Evidence.

o    The notes give no indication that rule 801(d)(1)(B) abandoned the premotive requirement.

Section C

Governments Arg Common law premotive rule is inconsistent with FRE relevant Approach

Court The Government misconceives the design of the hearsay rules

o    Hearsay evidence is often relevant.

How Hearsay differs with other testimony

o    "The only way in which the probative force of hearsay differs from the probative force of other testimony is in the absence of oath, demeanor, and cross-examination as aids in determining credibility."

Relevance is not the sole criterion of admissibility.

o    That certain out-of-court statements may be relevant does not dispose of the question whether they are admissible.

Section D

Important considerations for criminal cases

o    If 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.

Present Case Illustrates

o    Tome weakly charged that A. T.'s testimony was a fabrication created so the child could remain with her mother.

o    The Government was permitted to present a parade of sympathetic and credible witnesses who did no more than recount A. T.'s detailed out-of-court statements to them.

o    Although those statements might have been probative on the question whether the alleged conduct had occurred, they shed but minimal light on whether A. T. had the charged motive to fabricate.

o    The Government did not once seek to use them to rebut the impact of the alleged motive.

Reversed

Rules

Rule 801 (d) Statements which are not hearsay.

         A statement is not hearsay if

o    (1) Prior statement by witness.

o    The declarant testifies at the trial or hearing and

o    is subject to cross-examination concerning the statement, and

o    the statement is

o    (A) inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or

o    (B) consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or

o    (C) one of identification of a person made after perceiving the person; or

Class Notes