Tuesday, August 27, 2013
A statement is not hearsay if...The declarant testifies at trial or hearing and is subject to cross-examination concerning the statement, and the statement is...(b) consistent with declarant's testimony and is offered to rebut an express or implied charge against declarant of recent fabrication or improper influence or motive....
In United States v. Tome, 513 U.S. 150 (1987), the Supreme Court noted an important limitation on the admission of such prior consistent statements:
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.
Accordingly, in Tome, statements made by a daughter after her parents divorced were not admissible as prior consistent statements when the divorce was alleged to be the improper influence or motive. The same was true with the recent opinion of the Court of Appeals of Ohio, First District, in State v Trusty, 2013 WL 4400547 (Ohio App 1 Dist. 2013).In Trusty, James Trusty was charged with gross sexual imposition. This crime was allegedly committed against M.G., the 11 year-old niece of Trusty's wife, Cathy.
At trial, Trusty sought to establish through the cross-examination of the state's witnesses that M.G. had fabricated the allegations in response to the divorce between Trusty and M.G.'s aunt. The divorce had occurred a year after the improper touching and a year before the church retreat where M.G. had disclosed the allegations. Despite counsel's questioning, Trusty was not able to establish that the divorce was acrimonious or that M.G. had been involved in the divorce proceedings.
After Trusty tried to claim that M.G. had fabricated her allegations in response to the divorce, the prosecutor introduced into evidence a private letter that M.G. had written at the church retreat in which she claimed that Trusty forced her to inappropriately touch him. This letter was introduced as a prior consistent statement that largely mirrored M.G.'s trial testimony, and defense counsel did not object to its admission.
After Trusty was convicted, however, he appealed, claiming, inter alia, that the letter was not admissible as a prior consistent statement, and the Court of Appeals agreed, concluding that
For a statement to qualify under this narrow exception to the hearsay rules, the witness must have made the consistent statement before the alleged fabrication, influence or motive occurred....
In this case, M.G. wrote the letter containing the allegations after the divorce, not before. Thus, the state could not use the letter as a “prior consistent statement” to rebut Trusty's claim that she had fabricated the allegations as a result of the divorce. See Evid.R. 801(D)(1). As a result, we reject the state's argument that the letter was admissible under Evid.R. 801(D)(1), and we conclude that the letter was inadmissible hearsay.
That said, the court found that Trusty's failure to object to admission of the letter was fatal to his appeal because he was unable to establish plain error in its admission.