Tome v. United States, 513 U.S. 150 (1995)

Relevant Facts: Df and his child’s mother were divorced, and each retained joint legal custody, but the Df retained primary physical custody.  The mother tried to change that order unsuccessfully.  She then contacted authorities with allegations of sexual abuse by the father while the child was in his custody.  The testimonial capacity of the child was called into question by the judge.  The govt produced six other witnesses regarding seven out of court statements made by the child describing the assaults.  The trial court admitted all of these statements under 801(d)(1)(B), b/c the statements were made after the alleged fabrication arose.

Legal Issue(s): Whether out of court consistent statements made after the alleged fabrication or after the alleged improper influence or motive arose, are admissible under FRE 801(d)(1)(B)?

Court’s Holding:  The conditions of admissibility were not established here therefore the statements should have been excluded.

Procedure: Df was charged with felony sex abuse of child, his own daughter. Jury conviction; Ct of App Affirmed; Reversed and remanded.

Law or Rule(s): 801(d)(1)(B)–prior consistent statements are not hearsay, only if they are offered to rebut a charge of “recent fabrication or improper influence or motive.”

Court Rationale: A witness’ consistent statement, under the Rule, is thus placed in the same category as a declarant’s inconsistent statement made under oath.  Prior consistent statements may not be admitted to counter all forms of impeachment or to bolster the witness merely b/c she has been discredited.  The language of the Rule, concentrating on the rebutting charges of recent fabr, improper influen or motive, to the exclusion of other forms of impeachment, as well as in its use of wording which follows the language of the CL cases, suggests that it was intended to carry over the CL premotive rule. IF 801 were read so as to include any prior consistent statement that satisfied 403, the distinction btwn rejected Rule 63(1) and 801(d)(1)(B) would disappear.  The conditions that 801 allows prior consistent statements to be used makes it all the more important to observe the preconditions for admitting the evidence in the first place.  Hearsay is often relevant, and relevance is not the sole criterion for admissibility.  Balancing each statement involves considerable judicial discretion; reduces predictability; and enhances the difficulty in trial preparation b/c the parties will not know in advance which statements will be admitted.  801 permits introduction of a declarant’s out of court consistent statements to rebut a charge of recent fabric, improper influen or motive only when those statements were mad e before the charged recent fabrication or improper infleun or motive.

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