Post-Crawford: Time to Liberalize the Substantive Admissibility of a Testifying Witness's Prior Consistent Statements

40 Pages Posted: 18 Jul 2008

See all articles by Lynn McLain

Lynn McLain

University of Baltimore - School of Law

Date Written: 2005


The United States Supreme Court's 1995 decision in Tome v. United States has read Federal Rule of Evidence 801(d)(1)(B) to prevent the prosecution's offering a child abuse victim's prior consistent statements as substantive evidence. As a result of that decision, the statements will also be inadmissible even for the limited purpose of helping to evaluate the credibility of a child, if there is a serious risk that the out-of-court statements would be used on the issue of guilt or innocence.

Moreover, after the Court's March 2004 decision in Crawford v. Washington, which redesigned the landscape of Confrontation Clause analysis, other avenues of substantive admissibility for the child's prior statements - the excited utterance hearsay exception, the residual "catch-all" hearsay exception, or the states' "tender years" hearsay exception - are all in jeopardy unless the child testifies at trial and is subject to cross-examination concerning the statement. The combination of Tome and Crawford has been a "one-two punch" for child abuse prosecutions.

Post-Crawford is the ideal time to revive and refine Judge Bullock's proposal that Rule 801(d)(1)(B) should be amended. The amendment should permit the substantive use (subject to the court's exercise of discretion under Rule 403) of all of a witness's prior consistent statements that would be helpful to the fact-finder in assessing the credibility of the witness's trial testimony given whatever method of impeachment of the witness had occurred. That test, like the test of helpfulness of lay or expert opinion evidence under Rules 701 and 702, ought to be a flexible one; there should be no hard and fast rule requiring that an admissible prior consistent statement precede an alleged impeaching fact.

Keywords: evidence, criminal law, child abuse, Tome, Crawford, victim, admissibility

JEL Classification: K14, K19

Suggested Citation

McLain, Lynn, Post-Crawford: Time to Liberalize the Substantive Admissibility of a Testifying Witness's Prior Consistent Statements (2005). University of Missouri-Kansas City Law Review, Vol. 74, No. 1, 2005, Available at SSRN:

Lynn McLain (Contact Author)

University of Baltimore - School of Law ( email )

1420 N. Charles Street
Baltimore, MD 21218
United States

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