
By: David Bloomberg
Re: Hearsay

(File:  HEARSAY.ZIP)

From: George Hero <romulus.ehs.uiuc.edu!compuserve.com!73437.2541>
To: WITCHHUNT <MIT.EDU!witchhunt>

Attached is a recent Supreme Court case regadring hearsay testimony
in a child abuse case.

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                  SUPREME COURT OF THE UNITED STATES

                               Syllabus

                         TOME v. UNITED STATES

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

   No. 93-6892.   Argued October 5, 1994 - Decided January 10, 1995

Petitioner Tome was charged with sexually abusing his daughter A. T. when
she was four years old.  The Government theorized that he committed the
assault while A. T. was in his custody and that the crime was disclosed
while she was spending vacation time with her mother.  The defense
countered that the allegations were concocted so A. T. would not be
returned to her father, who had primary physical custody.  A. T.
testified at the trial, and, in order to rebut the implicit charge that
her testimony was motivated by a desire to live with her mother, the
Government presented six witnesses who recounted out-of-court statements
that A. T. made about the alleged assault while she was living with her
mother.  The District Court admitted the statements under, inter alia,
Federal Rule of Evidence 801(d)(1)(B), which provides that prior
statements of a witness are not hearsay if they are consistent with the
witness' testimony and offered to rebut a charge against the witness of
``recent fabrication or improper influence or motive.''  Tome was
convicted, and the Court of Appeals affirmed, adopting the Government's
argument that A. T.'s statements were admissible even though they had
been made after her alleged motive to fabricate arose.  Reasoning that
the premotive requirement is a function of relevancy, not the hearsay
rules, the court balanced A. T.'s motive to lie against the probative
value of one of the statements and determined that the District Court had
not erred in admitting the statements.

Held:  The judgment is reversed, and the case is remanded.
3 F.3d 342, reversed and remanded.

   JUSTICE KENNEDY delivered the opinion of the Court, except as to Part
II-B, concluding:
   1.  Rule 801(d)(1)(B) permits the introduction of a declarant's
consistent out-of-court statements to rebut a charge of recent
fabrication or improper influence or motive only when those statements
were made before the charged fabrication, influence, or motive,
conditions that were not established here.  Pp. 4-9, 12-16.
   (a)  Rule 801(d)(1)(B) embodies the prevailing common-law rule in
existence for more than a century before the Federal Rules of Evidence
were adopted: 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 but was inadmissible if made afterwards.  The
Rule's language speaks of rebutting charges of recent fabrication and
improper influence and motive to the exclusion of other forms of
impeachment, and it bears close similarity to the language used in many
of the common-law premotive requirement cases.  Pp. 4-9.
   (b)  The Government's argument that the common-law rule is
inconsistent with the Federal Rules' liberal approach to relevancy
misconceives the design of the Rules' hearsay provisions.  Hearsay
evidence is often relevant.  But if relevance were the sole criterion of
admissibility, it would be difficult to account for the Rules' general
proscription of hearsay testimony or the traditional analysis of hearsay
that the Rules, for the most part, reflect.  The Government's reliance on
academic commentators critical of excluding a witness' out-of-court
statements is also misplaced.  The Advisory Committee rejected the
balancing approach such commentators proposed when the Rules were
adopted.  The approach used by the Court of Appeals here creates the
precise dangers the Advisory Committee sought to avoid: It involves
considerable judicial discretion, reduces predictability, and enhances
the difficulties of trial preparation because parties will have
difficulty knowing in advance whether or not particular out-of-court
statements will be admitted.  Pp. 12-14.
   (c)  The instant case illustrates some of the important considerations
supporting the foregoing interpretation.  Permitting 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 would shift the trial's whole emphasis to
the out-of-court, rather than the in-court, statements.  It may be
difficult to ascertain when a particular fabrication, influence, or
motive arose in some cases.  However, a majority of common-law courts
were performing this task for over a century, and the Government has
presented no evidence that those courts or the courts that adhere to the
rule today have been unable to make the determination.  Pp. 15-16.
   2.  The admissibility of A. T.'s statements under Rule 803(24) or any
other evidentiary principle is left for the Court of Appeals to decide in
the first instance.  P. 16.

KENNEDY, J., announced the judgment of the Court and delivered the
opinion of the Court with respect to Parts I, II-A, II-C, and III, in
which STEVENS, SCALIA, SOUTER, and GINSBURG, JJ., joined, and an opinion
with respect to Part II-B, in which STEVENS, SOUTER, and GINSBURG, JJ.,
joined.  SCALIA, J., filed an opinion concurring in part and concurring
in the judgment.  BREYER, J., filed a dissenting opinion, in which
REHNQUIST, C. J., and O'CONNOR and THOMAS, JJ., joined.

====
Additional Comments:

From: romulus.ehs.uiuc.edu!m-net.arbornet.org!aaron (Aaron Larson)
To: MIT.EDU!witchhunt

Thanks to George Hero (73437.2541@compuserve.com) for posting the
Supreme Court syllabus from a hearsay case.  It should be noted that this
was a syllabus -- not the actual case.  The syllabus is prepared by the
clerk of the court as a summary of the decision, and is not actually part
of the decision.  It should also be noted that this was a 5-4 decision, and
may be subject to later revision or reversal.  (Note that Scalia and Thomas
were on different sides, and that Scalia didn't join a portion of the majority
decision and (all-too-typically) wrote his own concurring opinion.)


