Academic journal article The Review of Litigation

Tell Me No Timing Rule and I'll Tell You No Lies: Why a Child's Prior Consistent Statements Should Be Admissible without a Pre-Motive Requirement-A Critique of Tome V. United States

Academic journal article The Review of Litigation

Tell Me No Timing Rule and I'll Tell You No Lies: Why a Child's Prior Consistent Statements Should Be Admissible without a Pre-Motive Requirement-A Critique of Tome V. United States

Article excerpt

Introduction

The discovery by psychologists that children do not have the same sense of time as adults was a breakthrough for all those who work with children in the legal system.1 Now, after several decades of managing the implications of this discovery, children must report and testify to events according to an adult's sense of time.

The Supreme Court's decision in Tome v. United States2 interpreted Federal Rule of Evidence 801(d)(1)(B), which governs the admissibility of prior consistent statements, as possessing a temporal requirement.3 Specifically, the Supreme Court held in Tome that a statement must be made before a motive to fabricate exists in order to qualify as non-hearsay, thus implying that only pre-motive statements have rebuttal value.4 This so-called "timing rule" or "pre-motive requirement" is not only inconsistent with much of the case law prior to the adoption of the Rules of Evidence,5 it is also a departure from the Rules' trend toward liberal admissibility.6

The impact of Tome on the growing body of law regarding child witnesses is particularly acute. While the majority cases that involve child testimony are not tried in federal court,7 several state courts have followed the Tome Court's interpretation of the Rule on prior consistent statements.8 Indeed, the extent of the impact in these states does not end with criminal cases. The vast majority of cases requiring child testimony are local, civil proceedings in which the court determines if a parent or guardian of a child should retain physical or legal custody. Particularly in cases of sexual abuse, for which there is typically no physical evidence or third party witnesses, the testimony of child victims is often the pivotal evidence that allows the State to remain involved in order to prevent future abuse.

The Rule on prior consistent statements affords attorneys for the state in both criminal and civil proceedings with a valuable means of clarifying children's often unclear or incomplete testimony.9 The typical scenario goes as follows: A child makes an unsolicited statement to a babysitter, friend, teacher, or relative indicating that a caretaker is abusing him or her. The person who receives the statement makes a report to local authorities. Then, social workers, police officers, multiple medical personnel, and attorneys interview the child. A year or more later, often after disruption of the child's family life, he or she is placed on a witness stand and is asked to recall key facts quickly and clearly in the presence of family members and, often, the alleged abuser. Children, and indeed most adults, do not perform well as witnesses under these circumstances. On crossexamination, the child's testimony is impeached by the implication that the child has a motive to lie. At this point in the proceedings, the attorney for the state introduces the out-of-court consistent statements made by the child to the friend, teacher, social worker, or others to rebut the charge of improper motive.10

The scenario is complicated if the parents are divorced. This situation raises a concern that the child's statements are being influenced by the parents' conflict or the child's preference to live with one parent more than the other. Given the complexity of these and other scenarios and the common view of children as witnesses, the reliability of any child's statement may be called into question.

The Tome Court considered these scenarios in deciding to limit the use of prior consistent statements and concluded that the risks of admission were too great:

If the Rule were to permit the introduction of prior statements as substantive evidence to rebut every implicit charge that a witness' [sic] 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 incourt ones. The present case illustrates the point. …

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