Tome v. United States

Decision Date10 January 1995
Docket Number936892
Citation115 S.Ct. 696,130 L.Ed.2d 574,513 U.S. 150
PartiesMatthew Wayne TOME, Petitioner v. UNITED STATES
CourtU.S. Supreme Court
Syllabus *

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 (CA 10 1993) 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. __, __.

(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. __.

(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. __.

(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. __.

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.

Joseph W. Gandert, Albuquerque, NM, for petitioner.

Lawrence G. Wallace, Washington, DC, for respondent.

Justice KENNEDY delivered the opinion of the Court, except as to Part IIB.

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-of-court 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, 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 six and one half 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 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 ...

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