Foreword: bright lines and hard edges: anatomy of a criminal evidence decision.

• Author: Burns, Robert P.
• Position: Supreme Court Review

1. INTRODUCTION

   As this issue of the Journal of Criminal Law and Criminology was going to press, the United States Supreme Court decided the case of Tome v. United States.(1) The case addressed an important issue in criminal evidence law: the admissibility of the prior consistent statements of witnesses who testify at trial and are subject to cross-examination concerning those prior statements.(2) The Court held that such prior statements are admissible as substantive evidence under Rule 801(d)(1)(B)(3) of the Federal Rules of Evidence only if the declarant made them at a time prior to the time at which the charged "motive to fabricate" arose.(4) The decision is significant for federal criminal prosecutions and for the many states whose evidence codes contain a version of Rule 801(d)(1)(B).(5) The decision was 5-4,(6) and as in its most recent previous interpretation of a hearsay provision of the Federal Rules, Williamson v. United States(7), the Court held that apparently relevant evidence offered by the prosecution was inadmissible, at least on the stated theory. Some may see the case as the second consecutive "defense-oriented" decision on hearsay law, though for reasons described below, such a view fails to cut at the joints of what is significant about the case.(8)

   This Article describes the case and the justifications the majority and the dissent offer for their positions. After situating the decision in the ongoing debate about the admissibility of prior statements of witnesses, this Article argues that the thrust of the dissent was basically correct although neither the majority nor the defense articulated its strongest arguments. It then suggests that the decision itself is quite narrow and should not have a great effect on future criminal trials, though a Supreme Court decision may always have a penumbra that carries the holding regrettably far beyond its specific facts. Finally, this Article describes a troubling premise that seems to animate the majority's reasoning and express the hope that this premise is not a portend of things to come.

2. TOME V. UNITED STATES

   A. BACKGROUND

   Tome v. United States(9) involved a criminal prosecution for the felony of criminal sexual abuse of a child.(10) The defendant, Matthew Tome, a Navajo, was accused of sexually abusing his four year old daughter on the Navajo tribal lands in New Mexico. The case was tried to a jury under the Federal Criminal Code in the United States District Court for the District of New Mexico. When Tome and the child's mother divorced in 1988, the tribal court awarded the parents joint custody but gave Tome primary physical custody, allowing her mother custody on weekends and holidays along with visitation rights.(11) There were continuing custody disputes and the parties began alternating two week periods in June of 1989, the month when the abuse allegedly took place.(12)

   The child, A.T., spent the summer of 1990 with her mother, who had remarried and moved to Colorado. Shortly before a custody review that was scheduled for August of 1990, A.T. spontaneously remarked to her baby sitter that her father sometimes thought that she, A.T., was "his wife."(13) Five days later, after her mother had been unsuccessful in eliciting further details,(14) A.T. gave a detailed account to the baby-sitter while her mother listened from outside the room.(15) Two days later, A.T. gave an even more detailed account of what appeared to be a second act of abuse to a Colorado Child Protection Services Caseworker.(16)

   Three physicians examined A.T., all of whom would testify at trial. About two weeks after A.T.'s interview with the social worker, she was examined by a pediatrician who found physical evidence consistent with penetration. A.T. repeated to the pediatrician that her father had sexually abused her. A week later, A.T. saw a second pediatrician to whom she described the abuse and who concluded based on the physical evidence that A.T. "had definitely had penile penetration in her vaginal area."(17) Finally, about a year later, on 3 September 1991, after the defendant had been indicted, A.T. was seen by a third pediatrician who was an expert in child sexual abuse and who found physical evidence of repeated penetration. A.T. told her that Tome had touched her inappropriately.(18)

   The tribal court awarded physical custody of A.T. to her mother on 15 February 1991.(19) Matthew Tome was indicted in the United States District Court in August 1991.

   B. THE TRIAL

   The trial began on 24 February 1992.(20) A.T. was the government's first witness.(21) A.T.'s direct testimony was mainly in the form of one or two word answers to the prosecutor's leading questions.(22) The court allowed A.T to illustrate her testimony through the use of dolls and by pointing to parts of the prosecutor's body.(23) The Court of Appeals concluded that "[t]hrough these means, A.T. testified that Tome removed her clothes, got on top of her, and put his private place where she goes potty and in her mouth. She further testified that after this happened she went to the bathroom and wiped blood off herself with a tissue."(24)

   Cross examination took place over two days.(25) On the first day, defense counsel established that A.T. and the prosecutor were on a first-name basis and generally explored the reasons A.T. might have for preferring to live with her mother instead of her father.(26) On the next day, no testimony was taken, and the prosecutor met with A.T.. The Court of Appeals described the cross-examination that resumed after this intervening day as "strained."(27) Defense counsel first asked A.T. about any conversations she had with the prosecutor on the previous day.(28) Counsel then inquired about any conversations concerning the abuse with anyone other than the prosecutor.(29) According to the petitioner, A.T. testified "that the only person with whom she had discussed the alleged abuse was the prosecutor ... [and] denied that she ever spoke with her babysitter about the alleged abuse; she either failed to respond or stated that she was unable to remember when asked about other out-of-court statements concerning the alleged abuse."(30)

   The cross-examination became increasingly difficult the second day, prompting the judge to note on the record that there had been lapses of forty to fifty-five seconds between the questions and the witness's answers.(31) The judge noted that the witness seemed to be losing concentration and concluded, "We have a very difficult situation here."(32)

   After A.T.'s cross-examination, the prosecution called each of the six adults to whom, in 1990 and 1991, A.T. had described the abuse. The trial court relied on the prosecution's argument that it was offering the testimony under Rule 801(d)(1)(B) to rebut the implication of improper motive or influence promised in opening statement and made on cross-examination.(33) The trial court also relied on Rule 803(24)(34) to admit A.T.'s August 22, but not August 27, statement to her babysitter on the apparent ground that the spontaneous declaration of that date had "circumstantial guarantees of trustworthiness" analogous to those of Rule 803(3).(35) The court also admitted, under Rule 803(4),(36) the statements A.T. made to the first two pediatricians with whom she had spoken, though the trial court seemed to believe that her identification of the defendant as the person who had abused her was admissible only insofar as it supported the doctor's opinion that penetration had occurred and not for the truth of the matter asserted.(37) Thus, the trial court did not give a limiting instruction as to the pediatricians' testimony because it concluded that A.T.'s statements were admissible under Rule 801(d)(1)(B).(38) The court admitted without objection the testimony of the pediatrician and child sexual abuse expert whom A.T. had seen in 1991.(39)

   The six witnesses, whom the Supreme Court characterized as "a parade of sympathetic and credible witnesses who did no more than recount A.T.'s detailed out-of-court statements to them" provided accounts of the alleged abuse in many ways more adequate than that provided in A.T.'s testimony, something the Court's rather compressed account of their testimony tends to mask.(40) The baby- sitter's account of A.T.'s first complaint illustrated the spontaneity of A.T.'s statements(41) and her account of A.T.'s explanation of what she had meant five days earlier contained a narrative response to an openended question that was more detailed and more coherent than A.T.'s direct testimony had been.(42) The account that the social worker gave was even more detailed and added an episode, unlikely to have been fabricated by a six-year-old, in which the defendant's mother confronted the defendant about the incident.(43) The testimony of Dr. Karen Kuper, the first pediatrician to see A.T., described her interview with A.T. in a way that emphasized that the child had given her account in response to questions that were a good deal less leading than the ones that the prosecutor used during her direct testimony.(44) The second pediatrician testified that she had quickly determined that A.T. had "been through enough in terms of discussing it and that what was important for me was to examine her"(45) and had decided not to conduct a full interview. She added little except that A.T. had repeated that "her father had put his thing in her."(46) The third pediatrician, who did not see A.T. until after the defendant was indicted and over a year after A.T.'s initial complaints, testified without objection.(47) By that time, A.T. was disinclined to volunteer anything. In response to direct questions, however, she told the doctor where the defendant had touched her.(48)

   After Tome testified and presented his own evidence, he was convicted and sentenced to twelve years imprisonment.(49)

   The time-frame in which the events and statements occurred bears emphasizing. The alleged abuse took place in...