OCTOBER TERM, 1994
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. To'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. To'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. 156-160,
163-166.
(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
151
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. 156-160.
(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. 163-165.
(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. 165-166.
2. The admissibility of A. To's statements under Rule 803(24) or
any other evidentiary principle is left for the Court of Appeals to
decide in the first instance. Pp. 166-167.
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,
post, p. 167.
BREYER, J., filed a dissenting opinion, in
152
which REHNQUIST, C. J., and O'CONNOR and THOMAS, JJ., joined,
post, p.169.
Joseph W Gandert argued the cause for petitioner. With
him on the briefs were
Tova Indritz and
Carol H.
Marion.
Deputy Solicitor General Wallace argued the cause for the United
States. With him on the briefs were Solicitor General Days,
Assistant Attorney General Harris, Paul R.
Q. Wolfson, and
Deborah Watson.
*
JUSTICE KENNEDY delivered the opinion of the Court, except as to
Part II-B.
Various Federal Courts of Appeals are divided over the evidence
question presented by this case. At issue is the interpretation of
a provision in the Federal Rules of Evidence bearing upon the
admissibility of statements, made by a declarant who testifies as a
witness, that are consistent with the testimony and are offered to
rebut a charge of a "recent fabrication or improper influence or
motive." Fed. Rule Evid. 801(d)(1)(B). The question is whether
out-ofcourt consistent statements made after the alleged
fabrication, or after the alleged improper influence or motive
arose, are admissible under the Rule.
I
Petitioner Tome was charged in a one-count indictment with the
felony of sexual abuse of a child, his own daughter,
* A brief of
amicus curiae urging affirmance was filed
for the State of Ohio et al. by
Lee Fisher, Attorney General
of Ohio,
Richard A. Cordray, State Solicitor, and
Simon
B. Karas, and by the Attorneys General for their respective
States as follows:
Jimmy Evans of Alabama,
Bruce M.
Botelho of Alaska,
Larry EchoHawk of Idaho,
Pamela
Carter of Indiana,
Richard P. Ieyoub of Louisiana,
J. Joseph Curran, Jr., of Maryland,
Joseph P.
Mazurek of Montana,
Frankie Sue Del Papa of Nevada,
Jeffery B. Pine of Rhode Island,
T. Travis Medlock of
South Carolina,
Jan Graham of Utah, and
Jeffrey L.
Amestoy of Vermont.
Bruce Robert Rogoff filed a brief for the National
Association of Criminal Defense Lawyers as
amicus
curiae.
153
aged four at the time of the alleged crime. The case having
arisen on the Navajo Indian Reservation, Tome was tried by a jury
in the United States District Court for the District of New Mexico,
where he was found guilty of violating 18 U. S. C. §§ 1153,
2241(c), and 2245(2)(A) and (B).
Tome and the child's mother had been divorced in 1988.
A tribal court awarded joint custody of the daughter, A. T., to
both parents, but Tome had primary physical custody. In 1989 the
mother was unsuccessful in petitioning the tribal court for primary
custody of A. T., but was awarded custody for the summer of 1990.
Neither parent attended a further custody hearing in August 1990.
On August 27, 1990, the mother contacted Colorado authorities with
allegations that Tome had committed sexual abuse against A. T.
The prosecution's theory was that Tome committed sexual assaults
upon the child while she was in his custody and that the crime was
disclosed when the child was spending vacation time with her
mother. The defense argued that the allegations were concocted so
the child would not be returned to her father. At trial A. T., then
6lf2 years old, was the Government's first witness. For the most
part, her direct testimony consisted of one- and two-word answers
to a series of leading questions. Cross-examination took place over
two trial days. The defense asked A. T. 348 questions. On the first
day A. T. answered all the questions posed to her on general,
background subjects.
The next day there was no testimony, and the prosecutor met with
A. T. When cross-examination of A. T. resumed, she was questioned
about those conversations but was reluctant to discuss them.
Defense counsel then began questioning her about the allegations of
abuse, and it appears she was reluctant at many points to answer.
As the trial judge noted, however, some of the defense questions
were imprecise or unclear. The judge expressed his concerns with
the examination of A. T., observing there were lapses of as much as
40-55 seconds between some questions and the answers
154
and that on the second day of examination the witness seemed to
be losing concentration. The trial judge stated, "We have a very
difficult situation here."
After A. T. testified, the Government produced six witnesses who
testified about a total of seven statements made by A. T.
describing the alleged sexual assaults: A. T.'s babysitter recited
A. T.'s statement to her on August 22, 1990, that she did not want
to return to her father because he "gets drunk and he thinks I'm
his wife"; the babysitter related further details given by A. T. on
August 27,1990, while A. T.'s mother stood outside the room and
listened after the mother had been unsuccessful in questioning A.
T. herself; the mother recounted what she had heard A. T. tell the
babysitter; a social worker recounted details A. T. told her on
August 29, 1990, about the assaults; and three pediatricians, Drs.
Kuper, Reich, and Spiegel, related A. T.'s statements to them
describing how and where she had been touched by Tome. All but A.
T.'s statement to Dr. Spiegel implicated Tome. (The physicians also
testified that their clinical examinations of the child indicated
that she had been subjected to vaginal penetrations. That part of
the testimony is not at issue here.)
A. T.'s out-of-court statements, recounted by the six witnesses,
were offered by the Government under Rule 801(d)(1)(B). The trial
court admitted all of the statements over defense counsel's
objection, accepting the Government's argument that they rebutted
the implicit charge that A. T.'s testimony was motivated by a
desire to live with her mother. The court also admitted A. T.'s
August 22d statement to her babysitter under Rule 803(24), and the
statements to Dr. Kuper (and apparently also to Dr. Reich) under
Rule 803(4) (statements for purposes of medical diagnosis). The
Government offered the testimony of the social worker under both
Rules 801(d)(1)(B) and 803(24), but the record does not indicate
whether the court ruled on the latter ground. No
155
objection was made to Dr. Spiegel's testimony. Following trial,
Tome was convicted and sentenced to 12 years' imprisonment.
On appeal, the Court of Appeals for the Tenth Circuit affirmed,
adopting the Government's argument that all of A. T.'s out-of-court
statements were admissible under Rule 801(d)(1)(B) even though they
had been made after A. T.'s alleged motive to fabricate arose. The
court reasoned that "the pre-motive requirement is a function of
the relevancy rules, not the hearsay rules" and that as a "function
of relevance, the pre-motive rule is clearly too broad ... because
it is simply not true that an individual with a motive to lie
always will do so."
3 F.3d
342, 350 (1993). "Rather, the relevance of the prior consistent
statement is more accurately determined by evaluating the strength
of the motive to lie, the circumstances in which the statement is
made, and the declarant's demonstrated propensity to lie."
Ibid. The court recognized that some Circuits require that
the consistent statements, to be admissible under the Rule, must be
made before the motive or influence arose, see,
e.
g., United States v.
Guevara, 598 F.2d
1094, 1100 (CA7 1979);
United States v.
Quinto,
582 F.2d
224, 234 (CA2 1978), but cited the Ninth Circuit's decision in
United States v.
Miller, 874 F.2d
1255, 1272 (1989), in support of its balancing approach.
Applying this balancing test to A. T.'s first statement to her
babysitter, the Court of Appeals determined that although A. T.
might have had "some motive to lie, we do not believe that it is a
particularly strong one." 3 F. 3d, at 351. The court held that the
District Judge had not abused his discretion in admitting A. T.'s
out-of-court statements. It did not analyze the probative quality
of A. T.'s six other out-of-court statements, nor did it reach the
admissibility of the statements under any other rule of
evidence.
We granted certiorari, 510 U. S. 1109 (1994), and now
reverse.
156
II
The prevailing common-law rule for more than a century before
adoption of the Federal Rules of Evidence was 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, but it was inadmissible if made
afterwards. As Justice Story explained: "[W]here the testimony is
assailed as a fabrication of a recent date, ... in order to repel
such imputation, proof of the
antecedent declaration of the
party may be admitted."
Ellicott v.
Pearl, 10 Pet.
412, 439 (1836) (emphasis added). See also
People v.
Singer, 300 N. Y. 120, 124-125,89 N. E. 2d 710, 712
(1949).
McCormick and Wigmore stated the rule in a more categorical
manner: "[T]he 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." E. Cleary, McCormick
on Evidence §49, p. 105 (2d ed. 1972) (hereafter McCormick). See
also 4 J. Wigmore, Evidence § 1128, p. 268 (J. Chadbourn rev. 1972)
(hereafter Wigmore) ("A consistent statement, at a
time
prior to the existence of a fact said to indicate bias ... will
effectively explain away the force of the impeaching evidence"
(emphasis in original)). The question is whether Rule 801(d)(1)(B)
embodies this temporal requirement. We hold that it does.
A
Rule 801 provides:
"(d) Statements which are not hearsay.-A statement is not
hearsay if-
"(1) Prior statement by witness.-The declarant testifies at the
trial or hearing and is subject to crossexamination concerning the
statement, and the statement is ...
157
"(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."
Rule 801 defines prior consistent statements as nonhearsay only
if they are offered to rebut a charge of "recent fabrication or
improper influence or motive." Fed. Rule Evid. 801(d)(1)(B). Noting
the "troublesome" logic of treating a witness' prior consistent
statements as hearsay at all (because the declarant is present in
court and subject to crossexamination), the Advisory Committee
decided to treat those consistent statements, once the
preconditions of the Rule were satisfied, as nonhearsay and
admissible as substantive evidence, not just to rebut an attack on
the witness' credibility. See Advisory Committee's Notes on Fed.
Rule Evid. 801(d)(1), 28 U. S. C. App., p. 773. A consistent
statement meeting the requirements of the Rule is thus placed in
the same category as a declarant's inconsistent statement made
under oath in another proceeding, or prior identification
testimony, or admissions by a party opponent. See Fed. Rule
Evid.80l.
The Rules do not accord this weighty, nonhearsay status to all
prior consistent statements. To the contrary, admissibility under
the Rules is confined to those statements offered to rebut a charge
of "recent fabrication or improper influence or motive," the same
phrase used by the Advisory Committee in its description of the
"traditiona[l]" common law of evidence, which was the background
against which the Rules were drafted. See Advisory Committee's
Notes,
supra, at 773. Prior consistent statements may not be
admitted to counter all forms of impeachment or to bolster the
witness merely because she has been discredited. In the present
context, 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, not whether they suggested that A. T.'s in-court
testimony was true. The Rule
158
speaks of a party rebutting an alleged motive, not bolstering
the veracity of the story told.
This limitation is instructive, not only to establish the
preconditions of admissibility but also to reinforce the
significance of the requirement that the consistent statements must
have been made before the alleged influence, or motive to
fabricate, arose. That is to say, the forms of impeachment within
the Rule's coverage are the ones in which the temporal requirement
makes the most sense. Impeachment by charging that the testimony is
a recent fabrication or results from an improper influence or
motive is, as a general matter, capable of direct and forceful
refutation through introduction of out-of-court consistent
statements that predate the alleged fabrication, influence, or
motive. A consistent statement that predates the motive is a square
rebuttal of the charge that the testimony was contrived as a
consequence of that motive. By contrast, prior consistent
statements carry little rebuttal force when most other types of
impeachment are involved. McCormick § 49, p. 105 ("When the attack
takes the form of impeachment of character, by showing misconduct,
convictions or bad reputation, it is generally agreed that there is
no color for sustaining by consistent statements. The defense does
not meet the assault" (footnote omitted)); see also 4 Wigmore §
1131, p. 293 ("The broad rule obtains in a few courts that
consistent statements may be admitted
after impeachment of
any sort-in particular after any impeachment by
cross-examination. But there is no reason for such a loose
rule" (footnote omitted)).
There may arise instances when out-of-court statements that
postdate the alleged fabrication have some probative force in
rebutting a charge of fabrication or improper influence or motive,
but those statements refute the charged fabrication in a less
direct and forceful way. Evidence that a witness made consistent
statements after the alleged motive to fabricate arose may suggest
in some degree that the incourt testimony is truthful, and thus
suggest in some degree
159
that that testimony did not result from some improper influence;
but if the drafters of Rule 801(d)(1)(B) intended to countenance
rebuttal along that indirect inferential chain, the purpose of
confining the types of impeachment that open the door to rebuttal
by introducing consistent statements becomes unclear. If consistent
statements are admissible without reference to the timeframe we
find imbedded in the Rule, there appears no sound reason not to
admit consistent statements to rebut other forms of impeachment as
well. Whatever objections can be leveled against limiting the Rule
to this designated form of impeachment and confining the rebuttal
to those statements made before the fabrication or improper
influence or motive arose, it is clear to us that the drafters of
Rule 801(d)(1)(B) were relying upon the commonlaw temporal
requirement.
The underlying theory of the Government's position is that 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. Congress could have adopted that rule
with ease, providing, for instance, that "a witness' prior
consistent statements are admissible whenever relevant to assess
the witness' truthfulness or accuracy." The theory would be that,
in a broad sense, any prior statement by a witness concerning the
disputed issues at trial would have some relevance in assessing the
accuracy or truthfulness of the witness' in-court testimony on the
same subject. The narrow Rule enacted by Congress, however, cannot
be understood to incorporate the Government's theory.
Our analysis is strengthened by the observation that the
somewhat peculiar language of the Rule bears close similarity to
the language used in many of the common-law cases that describe the
premotive requirement. "Rule 801(d)(1) (B) employs the precise
language-'rebut[ting] ... charge[s] ... of recent fabrication or
improper influence or motive'-
160
Opinion of KENNEDY, J.
consistently used in the panoply of pre-1975 decisions."
Ohlbaum, The Hobgoblin of the Federal Rules of Evidence: An
Analysis of Rule 801(d)(1)(B), Prior Consistent Statements and a
New Proposal, 1987 B. Y. U. L. Rev. 231, 245. See,
e. g.,
Ellicott v.
Pearl, 10 Pet., at 439;
Hanger v.
United States, 398 F.2d
91, 104 (CA8 1968);
People v.
Singer, 300 N. Y.
120, 89 N. E. 2d 710 (1949).
The language of the Rule, in its concentration on rebutting
charges of recent fabrication or improper influence or motive to
the exclusion of other forms of impeachment, as well as in its use
of wording that follows the language of the commonlaw cases,
suggests that it was intended to carry over the common-law
premotive rule.
B
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. We
have relied on those well-considered Notes as a useful guide in
ascertaining the meaning of the Rules. See,
e. g.,
Huddleston v.
United States, 485 U. S. 681, 688
(1988);
United States v.
Owens, 484 U. S. 554, 562
(1988). Where, as with Rule 801(d)(1)(B), "Congress did not amend
the Advisory Committee's draft in any way ... the Committee's
commentary is particularly relevant in determining the meaning of
the document Congress enacted."
Beech Aircraft Corp. v.
Rainey, 488 U.
S. 153, 165-166, n. 9 (1988). The Notes are also a respected
source of scholarly commentary. Professor Cleary was a
distinguished commentator on the law of evidence, and he and
members of the Committee consulted and considered the views,
criticisms, and suggestions of the academic community in preparing
the Notes.
The Notes disclose a purpose to adhere to the common law in the
application of evidentiary principles, absent express provisions to
the contrary. Where the Rules did depart from their common-law
antecedents, in general the Commit-
161
tee said so. See,
e. g., Notes on Rule 804(b)(4),
28 U. S. C. App., p. 790 ("The general common law requirement that
a declaration in this area must have been made
ante litem
motam has been dropped, as bearing more appropriately on weight
than admissibility"); Rule 804(b)(2),
id., at 789 ("The
exception is the familiar dying declaration of the common law,
expanded somewhat beyond its traditionally narrow limits"); Rule
804(b)(3),
ibid. ("The exception discards the common law
limitation and expands to the full logical limit"). The Notes give
no indication, however, that Rule 801(d)(1)(B) abandoned the
premotive requirement. The entire discussion of Rule 801(d)(1)(B)
is limited to the following comment:
"Prior consistent statements traditionally have been admissible
to rebut charges of recent fabrication or improper influence or
motive but not as substantive evidence. Under the rule they are
substantive evidence. The prior statement is consistent with the
testimony given on the stand, and, if the opposite party wishes to
open the door for its admission in evidence, no sound reason is
apparent why it should not be received generally." Notes on Rule
801(d)(1)(B), id., at 773.
Throughout their discussion of the Rules, the Advisory
Committee's Notes rely on Wigmore and McCormick as authority for
the common-law approach. In light of the categorical manner in
which those authors state the premotive requirement, see
supra, at 156, it is difficult to imagine that the drafters,
who noted the new substantive use of prior consistent statements,
would have remained silent if they intended to modify the premotive
requirement. As we observed with respect to another provision of
the Rules, "[w]ith this state of unanimity confronting the drafters
of the Federal Rules of Evidence, we think it unlikely that they
intended to scuttle entirely [the common-law requirement]."
United States v.
Abel, 469 U. S. 45, 50 (1984).
Here, we do not think the drafters of the Rule intended to scuttle
the
162
Opinion of KENNEDY, J.
whole premotive requirement and rationale without so much as a
whisper of explanation.
Observing that Edward Cleary was the Reporter of the Advisory
Committee that drafted the Rules, the Court has relied upon his
writings as persuasive authority on the meaning of the Rules. See
Daubert v.
Merrell Dow Pharmaceuticals, Inc.,
509 U. S. 579
(1993);
Abel, supra, at 51-52. Cleary also was responsible
for the 1972 revision of McCormick's treatise, which included an
examination of the changes introduced by the proposed federal rules
to the common-law practice of impeachment and rehabilitation. The
discussion, which occurs only three paragraphs after the treatise's
categorical description of the common-law premotive rule, also
lacks any indication that the proposed rules were abandoning that
temporal limitation. See McCormick § 50, p. 107.
Our conclusion is bolstered by the Advisory Committee's stated
"unwillingness to countenance the general use of prior prepared
statements as substantive evidence." See Notes on Rule 801(d)(1),
28 U. S. C. App., p. 773. Rule 801(d), which "enumerates three
situations in which the statement is excepted from the category of
hearsay,"
ibid., was expressly contrasted by the Committee
with Uniform Rule of Evidence 63(1) (1953), "which allows
any out-of-court statement of a declarant who is present at
the trial and available for crossexamination." Notes on Rule
801(d)(1),
supra, at 773 (emphasis added). When a witness
presents important testimony damaging to a party, the party will
often counter with at least an implicit charge that the witness has
been under some influence or motive to fabricate. If Rule 801 were
read so that the charge opened the floodgates to any prior
consistent statement that satisfied Rule 403, as the Tenth Circuit
concluded, the distinction between rejected Uniform Rule 63(1) and
Rule 801(d)(1)(B) would all but disappear.
That Rule 801(d)(1)(B) permits prior consistent statements to be
used for substantive purposes after the statements are admitted to
rebut the existence of an improper influence or
163
motive makes it all the more important to observe the
preconditions for admitting the evidence in the first place. The
position taken by the Rules reflects a compromise between the views
expressed by the "bulk of the case law ... against allowing prior
statements of witnesses to be used generally as substantive
evidence" and the views of the majority of "writers ... [who] ha[d]
taken the opposite position."
Ibid. That compromise was one
that the Committee candidly admitted was a "judgment ... more of
experience than of logic."
Ibid.
"A party contending that legislative action changed settled law
has the burden of showing that the legislature intended such a
change."
Green v.
Bock Laundry Machine Co., 490 U. S.
504, 521 (1989) (applying that presumption in interpreting Federal
Rule of Evidence 609). Nothing in the Advisory Committee's Notes
suggests that it intended to alter the common-law premotive
requirement.
C
The Government's final argument in favor of affirmance is 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
declarant who is present in court and subject to cross-examination.
This argument misconceives the design of the Rules' hearsay
provisions.
Hearsay evidence is often relevant. "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." Advisory
Committee's Introduction to Article VIII, 28 U. S. C. App., p. 771.
That does not resolve the matter, however. Relevance is not the
sole criterion of admissibility. Otherwise, it would be difficult
to account for the Rules' general proscription of hearsay testimony
(absent a specific
164
exception), see Fed. Rule Evid. 802, let alone the traditional
analysis of hearsay that the Rules, for the most part, reflect.
Ibid. ("The approach to hearsay in these rules is that of
the common law .... The traditional hearsay exceptions are drawn
upon for the exceptions ... "). That certain out-ofcourt statements
may be relevant does not dispose of the question whether they are
admissible.
The Government's reliance on academic commentators critical of
excluding out-of-court statements by a witness, see Brief for
United States 40, is subject to like criticism. To be sure, certain
commentators in the years preceding the adoption of the Rules had
been critical of the common-law approach to hearsay, particularly
its categorical exclusion of out-of-court statements offered for
substantive purposes. See,
e. g., Weinstein, The
Probative Force of Hearsay, 46 Iowa L. Rev. 331, 344-345 (1961)
(gathering sources). General criticism was directed to the
exclusion of a declarant's out-of-court statements where the
declarant testified at trial. See,
e. g., id., at 333
("[T]reating the out of court statement of the witness himself as
hearsay" is a "practical absurdity in many instances"); Morgan,
Hearsay Dangers and the Application of the Hearsay Concept, 62
Harv. L. Rev. 177, 192196 (1948). As an alternative, they suggested
moving away from the categorical exclusion of hearsay and toward a
caseby-case balancing of the probative value of particular
statements against their likely prejudicial effect. See Weinstein,
supra, at 338; Ladd, The Relationship of the Principles of
Exclusionary Rules of Evidence to the Problem of Proof, 18 Minn. L.
Rev. 506 (1934). The Advisory Committee, however, was explicit in
rejecting this balancing approach to hearsay:
"The Advisory Committee has rejected this approach to hearsay as
involving too great a measure of judicial discretion, minimizing
the predictability of rulings, [and] enhancing the difficulties of
preparation for trial." Advisory Committee's Introduction,
supra, at 771.
165
Given the Advisory Committee's rejection of both the general
balancing approach to hearsay and of Uniform Rule 63(1), see
supra, at 162, the Government's reliance on the views of
those who advocated these positions is misplaced.
The statement-by-statement balancing approach advocated by the
Government and adopted by the Tenth Circuit creates the precise
dangers the Advisory Committee noted and sought to avoid: It
involves considerable judicial discretion; it reduces
predictability; and it 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.
See Advisory Committee's Introduction,
supra, at 771.
D
The case before us illustrates some of the important
considerations supporting the Rule as we interpret it, especially
in criminal cases. 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. The present case illustrates the point. In response
to a rather weak charge that A. T.'s testimony was a fabrication
created so the child could remain with her mother, 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. 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. At closing argument before the jury,
the Government placed great reliance on the prior statements for
substantive purposes but did not once seek to use them to rebut the
impact of the alleged motive.
We are aware that in some cases it may be difficult to ascertain
when a particular fabrication, influence, or motive
166
arose. Yet, as the Government concedes, a majority of common-law
courts were performing this task for well over a century, see Brief
for United States 39, and the Government has presented us with no
evidence that those courts, or the judicial circuits that adhere to
the rule today, have been unable to make the determination. Even
under the Government's hypothesis, moreover, the thing to be
rebutted must be identified, so the date of its origin cannot be
that much more difficult to ascertain. By contrast, as the Advisory
Committee commented, see
supra, at 164, the Government's
approach, which would require the trial court to weigh all of the
circumstances surrounding a statement that suggest its
probativeness against the court's assessment of the strength of the
alleged motive, would entail more of a burden, with no guidance to
attorneys in preparing a case or to appellate courts in reviewing a
judgment.
III
Courts must be sensitive to the difficulties attendant upon the
prosecution of alleged child abusers. In almost all cases a youth
is the prosecution's only eyewitness. But "[t]his Court cannot
alter evidentiary rules merely because litigants might prefer
different rules in a particular class of cases."
United
States v.
Salerno, 505 U. S. 317, 322
(1992). When a party seeks to introduce out-of-court statements
that contain strong circumstantial indicia of reliability, that are
highly probative on the material questions at trial, and that are
better than other evidence otherwise available, there is no need to
distort the requirements of Rule 801(d)(1)(B). If its requirements
are met, Rule 803(24) exists for that eventuality. We intimate no
view, however, concerning the admissibility of any of A. T.'s
out-of-court statements under that section, or any other
evidentiary principle. These matters, and others, are for the Court
of Appeals to decide in the first instance.
167
Our holding is confined to the requirements for admission under
Rule 801(d)(1)(B). The Rule 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 recent fabrication or
improper influence or motive. These conditions of admissibility
were not established here.
The judgment of the Court of Appeals for the Tenth Circuit is
reversed, and the case is remanded for further proceedings
consistent with this opinion.
It is so ordered.
JUSTICE SCALIA, concurring in part and concurring in the
judgment.
I concur in the judgment of the Court, and join its opinion
except for Part II -B. That Part, which is devoted entirely to a
discussion of the Advisory Committee's Notes pertinent to Rule
801(d)(1)(B), gives effect to those Notes not only because they are
"a respected source of scholarly commentary,"
ante, at 160,
but also because they display the "purpose,"
ibid., or
"inten[tJ,"
ante, at 161, of the draftsmen.
I have previously acquiesced in, see,
e. g., Beech Aircraft
Corp. v.
Rainey, 488 U. S. 153 (1988), and
indeed myself engaged in, see
United States v.
Owens,
484 U. S. 554,
562 (1988), similar use of the Advisory Committee Notes. More
mature consideration has persuaded me that is wrong. Having been
prepared by a body of experts, the Notes are assuredly persuasive
scholarly commentaries-ordinarily
the most
persuasive-concerning the meaning of the Rules. But they bear no
special authoritativeness as the work of the draftsmen, any more
than the views of Alexander Hamilton (a draftsman) bear more
authority than the views of Thomas Jefferson (not a draftsman) with
regard to the meaning of the Constitution. It is the words of the
Rules that have been authoritatively adopted-by this Court, or by
Congress if it makes a statutory change. See 28 U. S. C.
168
Opinion of SCALIA, J.
§§ 2072,2074 (1988 ed. and Supp. IV). In my view even the
adopting Justices' thoughts, unpromulgated as Rules, have no
authoritative (as opposed to persuasive) effect, any more than
their thoughts regarding an opinion (reflected in exchanges of
memoranda before the opinion issues) authoritatively demonstrate
the meaning of that opinion. And the same for the thoughts of
congressional draftsmen who prepare statutory amendments to the
Rules. Like a judicial opinion and like a statute, the promulgated
Rule says what it says, regardless of the intent of its drafters.
The Notes are, to be sure, submitted to us and to the Members of
Congress as the thoughts of the body initiating the
recommendations, see § 2073(d); but there is no certainty that
either we or they read those thoughts, nor is there any procedure
by which we formally endorse or disclaim them. That being so, the
Notes cannot, by some power inherent in the draftsmen, change the
meaning that the Rules would otherwise bear.
In the present case, the merely persuasive force of the Advisory
Committee Notes suffices. Indeed, in my view the case can be
adequately resolved without resort to the Advisory Committee at
all. It is well established that '" "the body of common law
knowledge"'" must be '" "a source of guidance" ,,, in our
interpretation of the Rules.
Daubert v.
Merrell Dow
Pharmaceuticals, Inc., 509 U. S. 579, 588 (1993)
(quoting
United States v.
Abel, 469 U. S. 45, 52 (1984)
(quoting Cleary, Preliminary Notes on Reading the Rules of
Evidence, 57 Neb. L. Rev. 908, 915 (1978))). Rule 801(d)(1)(B) uses
language that tracks common-law cases and prescribes a result that
makes no sense except on the assumption that that language indeed
adopts the common-law rule. As the Court's opinion points out, only
the premotive-statement limitation makes it rational to admit a
prior corroborating statement to rebut a charge of recent
fabrication or improper motive, but not to rebut a charge that the
witness' memory is playing tricks.
169
JUSTICE BREYER, with whom THE CHIEF JUSTICE, JusTICE O'CONNOR,
and JUSTICE THOMAS join, dissenting.
The basic issue in this case concerns not hearsay, but
relevance. As the majority points out, the common law permitted a
lawyer to rehabilitate a witness (after a charge of improper
motive) by pointing to the fact that the witness had said the same
thing earlier-but only if the witness made the earlier statement
before the motive to lie arose. The reason for the time
limitation was that, otherwise, the prior consistent statement had
no
relevance to rebut the charge that the in-court testimony
was the product of the motive to lie. The treatises, discussing the
matter under the general heading of "impeachment and support"
(McCormick) or "relevancy" (Wigmore), and not "hearsay," make this
clear, stating, for example, that a
"'prior consistent statement has no relevancy to refute [a]
charge [of recent fabrication, etc.,] unless the consistent
statement was made before the source of the bias, interest,
influence or incapacity originated.'" Ante, at 156 (quoting
E. Cleary, McCormick on Evidence § 49, p. 105 (2d ed. 1972)
(hereinafter McCormick)).
The majority believes that a hearsay-related rule, Federal Rule
of Evidence 801(d)(1)(B), codifies this absolute timing
requirement. I do not. Rule 801(d)(1)(B) has nothing to do with
relevance. Rather, that Rule 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). It then says that members of that
subset are "not hearsay." This means that,
if such a
statement is admissible for a particular rehabilitative purpose (to
rebut a charge of recent fabrication or improper influence or
motive), its proponent now may use it substantively, for a hearsay
purpose (i.
e., as evidence of its truth), as well.
170
The majority is correct in saying that there are different kinds
of categories of prior consistent statements that can rehabilitate
a witness in different ways, including statements (a) placing a
claimed inconsistent statement in context; (b) showing that an
inconsistent statement was not made; (c) indicating that the
witness' memory is not as faulty as a cross-examiner has claimed;
and (d) showing that the witness did not recently fabricate his
testimony as a result of an improper influence or motive. See
United States v.
Rubin, 609 F. 2d 51, 68 (CA2 1979)
(Friendly, J., concurring). But, I do not see where, 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 (category (d)) was that category's special
probative force in respect to rehabilitating a witness. Nor, in any
event, do I understand how that premise can help the majority reach
its conclusion about the common-law timing rule.
I doubt the premise because, as McCormick points out, other
categories of prior consistent statements (used for rehabilitation)
also, on occasion, seem likely to have strong probative force.
What, for example, about such statements introduced to rebut a
charge of faulty memory (category (c) above)? McCormick says about
such statements: "If the witness's accuracy of memory is
challenged, it seems
clear common sense that a consistent
statement made shortly after the event and before he had time to
forget, should be received in support." McCormick § 49, at 105, n.
88 (emphasis added). Would not such statements (received in
evidence to rehabilitate) often turn out to be highly probative as
well?
More important, the majority's conclusion about timing seems not
to follow from its "especially probative force" premise. That is
because probative force has little to do with the concerns
underlying hearsay law. Hearsay law basically turns on an
out-of-court declarant's reliability, as tested through
cross-examination; it does not normally turn
171
on the probative force (if true) of that declarant's statement.
The "timing" circumstance (the fact that a prior consistent
statement was made after a motive to lie arose) may diminish
probative force, but it does not diminish reliability. Thus, from a
hearsay perspective, the timing of a prior consistent statement is
basically beside the point.
At the same time, one can find a
hearsay-related reason
why the drafters might have decided to restrict the Rule to a
particular category of prior consistent statements. Juries have
trouble distinguishing between the rehabilitative and substantive
use of the kind of prior consistent statements listed in Rule
801(d)(1)(B). Judges may give instructions limiting the use of such
prior consistent statements to a rehabilitative purpose, but, in
practice, juries nonetheless tend to consider them for their
substantive value. See 4 J. Weinstein & M. Berger, Weinstein's
Evidence, 801(d) (l)(B)[Ol], p. 801-188 (1994) ("[A]s a practical
matter, the jury in all probability would misunderstand or ignore a
limiting instruction [with respect to the class of prior consistent
statements covered by the Rule] anyway, so there is no good reason
for giving one"). It is possible that the Advisory Committee made
them "nonhearsay" for that reason, i.
e., as a concession
"more of experience than of logic." Advisory Committee's Notes on
Fed. Rule Evid. 801(d)(1)(B), 28 U. S. C. App., p. 773 (also noting
that the witness is available for cross-examination in the
courtroom in any event). If there was a reason why the drafters
excluded from Rule 801(d)(1)(B)'s scope other kinds of prior
consistent statements (used for rehabilitation), perhaps it was
that the drafters concluded that those other statements caused jury
confusion to a lesser degree. On this rationale, however, there is
no basis for distinguishing between premotive and
postmotive
statements, for the confusion with respect to each would very
likely be the same.
In sum, because the Rule addresses a hearsay problem and one can
find a reason, unrelated to the premotive rule, for
172
why it does so, I would read the Rule's plain words to mean
exactly what they say: If a trial court properly admits a statement
that is "consistent with the declarant's testimony" for the purpose
of "rebut[ting] an express or implied charge ... of recent
fabrication or improper influence or motive," then that statement
is "not hearsay," and the jury may also consider it for the truth
of what it says.
Assuming Rule 801(d)(1)(B) does not codify the absolute timing
requirement, I must still answer the question whether, as a
relevance matter, the common-law statement of the premotive
rule stands as an absolute bar to a trial court's admission of a
postmotive prior consistent statement for the purpose of rebutting
a charge of recent fabrication or improper influence or motive. The
majority points to statements of the timing rule that do suggest
that, for reasons of relevance, the law of evidence
never
permits their admission.
Ante, at 156. Yet,
absolute-sounding rules often allow exceptions. And, there are
sound reasons here for permitting an exception to the timing rule
where circumstances warrant.
For one thing, one can find examples where the timing rule's
claim of "no relevancy" is simply untrue. A postmotive statement
is relevant to rebut, for example, a charge of recent
fabrication based on improper motive, say, when the speaker made
the prior statement while affected by a far more powerful motive to
tell the truth. A speaker might be moved to lie to help an
acquaintance. But, suppose the circumstances
also make clear
to the speaker that only the truth will save his child's life. Or,
suppose the postmotive statement was made spontaneously, or when
the speaker's motive to lie was much weaker than it was at trial.
In these and similar situations, special circumstances may indicate
that the prior statement was made for some reason other than the
alleged improper motivation; it may have been made not
because
of, but
despite, the improper motivation. Hence,
postmotive statements can,
in appropriate circumstances,
directly refute the charge of fabrication based on
173
improper motive, not because they bolster in a general way the
witness' trial testimony, see
ante, at 159, but because the
circumstances indicate that the statements are not causally
connected to the alleged motive to lie.
For another thing, the common-law premotive rule was not as
uniform as the majority suggests. Cf.
United States v.
Abel, 469 U. S.
45, 50 (1984) (stating that where the common law was
unanimous, the drafters of the Federal Rules likely intended
to preserve it). A minority of courts recognized that postmotive
statements could be relevant to rebut a charge of recent
fabrication or improper influence or motive under the right
circumstances. See,
e. g., United States v.
Gandy,
469 F.2d
1134, 1135 (CA5 1972);
Copes v.
United States,
345 F.2d
723, 726 (CADC 1964);
State v.
George, 30 N. C.
324, 328 (1848). I concede that the majority of courts took the
rule of thumb as absolute. But, I have searched the cases (and the
commentators) in vain for an explanation of why that should be so.
See,
e. g., McCormick § 49, at 105, and n. 88 (citing
cases).
One can imagine a possible explanation: Trial judges may find it
easier to administer an absolute rule. Yet, there is no indication
in any of the cases that trial judges would, or do, find it
particularly difficult to administer a more flexible rule in this
context. And, there is something to be said for the greater
authority that flexibility grants the trial judge to tie rulings on
the admissibility of rehabilitative evidence more closely to the
needs and circumstances of the particular case. 1 J. Weinstein
& M. Berger, Weinstein's Evidence , 40H01], pp. 401-8 to 401-9
(1994) ("A flexible approach ... is more apt to yield a sensible
result than the application of a mechanical rule"). Furthermore,
the majority concedes that the premotive rule, while seemingly
bright line, poses its own administrative difficulties.
Ante, at 165-166.
This Court has acknowledged that the Federal Rules of Evidence
worked a change in common-law relevancy rules in the direction of
flexibility. See
Daubert v.
Merrell Dow
174
Pharmaceuticals, Inc., 509 U. S. 579 (1993).
Article IV of the Federal Rules, which concerns relevance,
liberalizes the rules for admission of relevant evidence. See
id., at 587. The Rules direct the trial judge generally to
admit all evidence having "any tendency" to make the existence of a
material fact "more probable or less probable than it would be
without the evidence." Fed. Rules Evid. 401, 402. The judge may
reject the evidence (assuming compliance with other rules) only if
the probative value of the evidence is substantially outweighed by
its tendency to prejudice a party or delay a trial. Rule 403. The
codification, as a general matter, relies upon the trial judge's
administration of Rules 401, 402, and 403 to keep the barely
relevant, the time wasting, and the prejudicial from the jury. See,
e. g., Abel, supra, at 54 ("A district court is accorded a
wide discretion in ... [a]ssessing the probative value of
[proffered evidence], and weighing any factors counseling against
admissibility"); 1 Weinstein's Evidence,
supra, , 401[01]
(discussing broad discretion accorded trial judge); 22 C. Wright
& K. Graham, Federal Practice and Procedure § 5162 (1978 and
1994 Supp.).
In
Daubert, this Court considered the rule of
Frye
v.
United States, 293 F.1d
13 (CADC 1923), which had excluded scientific evidence that had
not gained general acceptance in the relevant field. 509 U. S., at
585-586. Like the premotive rule here at issue, the
Frye
rule was "rigid," setting forth an "absolute prerequisite to
admissibility," which the Court said was "at odds with the 'liberal
thrust' of the Federal Rules."
Id., at 588.
Daubert
suggests that the liberalized relevancy provisions of the Federal
Rules can supersede a pre-existing rule of relevance, at least
where no compelling practical or logical support can be found for
the pre-existing rule. It is difficult to find any strong practical
or logical considerations for making the premotive rule an absolute
condition of admissibility here. Perhaps there are other
circumstances in which categorical common-law rules serve the
purposes of Rules 401, 402, and 403, and should, accordingly,
175
remain absolute in the law. But, for the reasons stated above,
this case, like
Daubert, does not present such a
circumstance. Thus, considered purely as a matter of relevancy law
(and as though Rule 801(d)(1)(B) had not been written), I would
conclude that the premotive rule did not survive the adoption of
the Rules.
Irrespective of these arguments, one might claim that,
nonetheless, the drafters, in writing Rule 801(d)(1)(B), relied on
the continued existence of the common-law relevancy rule, and that
Rule 801(d)(1)(B) therefore reflects a belief that the common-law
relevancy rule would survive. But, I would reject that argument.
For one thing, if the drafters had wanted to insulate the
common-law rule from the Rules' liberalizing effect, this would
have been a remarkably indirect (and therefore odd) way of doing
so-both because Rule 801(d)(1)(B) is utterly silent about the
premotive rule and because Rule 801(d)(1)(B) is a rule of hearsay,
not relevancy. For another thing, there is an equally plausible
reason why the drafters might have wanted to write Rule
801(d)(1)(B) the way they did-namely, to allow substantive use of a
particular category of prior consistent statements that, when
admitted as rehabilitative evidence, was especially impervious to a
limiting instruction. See
supra, at 171.
Accordingly, I would hold that the Federal Rules authorize a
district court to allow (where probative in respect to
rehabilitation) the use of postmotive prior consistent statements
to rebut a charge of recent fabrication or improper influence or
motive (subject of course to, for example, Rule 403). Where such
statements are admissible for this rehabilitative purpose, Rule
801(d)(1)(B), as stated above, makes them admissible as substantive
evidence as well (provided, of course, that the Rule's other
requirements, such as the witness' availability for
cross-examination, are satisfied). In most cases, this approach
will not yield a different result from a strict adherence to the
premotive rule for, in most cases, postmotive statements will not
be significantly probative.
176
And, even in cases where the statement is admitted as
significantly probative (in respect to rehabilitation), the effect
of admission on the trial will be minimal because the prior
consistent statements will (by their nature) do no more than repeat
in-court testimony.
In this case, the Court of Appeals, applying an approach
consistent with what I have described above, decided that A. T.'s
prior consistent statements were probative on the question of
whether her story as a witness reflected a motive to lie. There is
no reason to reevaluate this factbound conclusion. Accordingly, I
would affirm the judgment of the Court of Appeals.
Comments
Be the first to comment
Leave a Comment