How the prompt outcry rule protects the guilty.

• Author: Smith, Robert S.

A lawyer, it is said, once asked a judge to charge the jury: "It is better that a hundred guilty should go free, than that one innocent man should be convicted." (1) The judge agreed to give the charge, but said he would also tell the jury that he had already seen more than a hundred guilty go free at the current term of court.

The release of many guilty people is inevitable in any decent legal system. That is because errors are inevitable, and decency requires us to err on the side of releasing the guilty rather than imprisoning the innocent. Still, I am convinced that our system releases many more guilty people than it has to.

Probably the main reason for this is our overuse of exclusionary rules as sanctions for police or other governmental misconduct. Exclusionary rules, in almost all cases, protect the guilty without significantly reducing the chance of convicting the innocent. (2) I have grumbled about this problem in several dissenting opinions. (3) But in this article, for a change, I will grumble about something else--another rule that protects guilty defendants far more than innocent ones. That is the rule excluding prior consistent statements, 4 and particularly the narrowness of the "prompt outcry" exception to that rule in cases of rape or sexual abuse. (5)

It is hornbook law that prior statements of a witness that are consistent with his or her testimony are inadmissible unless they fit within a hearsay exception, (6) though one of the hornbooks that states the rule also criticizes it. (7) This rule is merely an application of the hearsay rule itself: a prior consistent statement is, like any other out-of-court statement, hearsay, when it is offered to prove the truth of the matter asserted. (8) Prior consistent statements are often stigmatized as "bolster[ing]" of the witness's in-court testimony, and the rule excluding them is rationalized on the ground, among others, that "untrustworthy testimony does not become less so merely by repetition." (9)

Like the authors of the New York Evidence Handbook, I find the rationales for excluding prior consistent statements unpersuasive. (10) It is true that such statements are sometimes merely cumulative, but not always: "[p]rior statements of witnesses, being closer in time to the described event, are sometimes more reliable than in-court testimony." (11) And the main reason for the existence of the hearsay rule--protecting the right to cross-examination--is absent in the case of prior consistent statements, because the witness is in court, and can be cross-examined about the prior statement as well as the present one. To quote my favorite form of authority, one of my own opinions: "[s]ince the admission of prior consistent statements is rarely prejudicial, courts should be ... willing to relax the rule excluding such statements when their admission will advance the efforts of a factfinder to learn the truth." (12)

There is perhaps no better case for relaxation of the rule than one in which a victim of rape or sexual abuse has kept the crime secret for some time after it occurred, but has made an exception to the secrecy by confiding in someone close to her. Our court confronted two such cases not long ago, and decided them in a single opinion under the title People v. Rosario. (13) In both cases, trial judges had allowed evidence of the victims' prior consistent statements, applying the prompt outcry...