Saturday, June 6, 2009
South Carolina Rule of Evidence 801(d)(1)(B) provides that
A statement is not hearsay if...[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive; provided, however, the statement must have been made before the alleged fabrication, or before the alleged improper influence or motive arose.
In its recent opinion in State v. Russell, 2009 WL 1373602 (S.C.App. 2009), the Court of Appeals of South Carolina found that the trial court properly allowed for the admission of the alleged victim's prior consistent statement even though there was no express ot implied charge of recent fabrication or improper influence of motive. How could it do so?
In Russell, the evidence presented at trial indicated that James F. Russell
attended a party at the home of Child's mother (Mother). Unable to sleep because of noise from the party, Child, who was six years old, got up from his bed and followed Russell outside. Russell led Child to a covered picnic table on one side of the back yard. According to Child, Russell told Child not to tell Mother, and then he pulled Child's pants down and placed his mouth on Child's genitals. Child stated when Russell pulled Child's hand toward Russell's genitals, Child slipped out of Russell's grasp, pulled up his pants, and ran to Mother.
Child's words were presented to the jury in three ways. First, Child testified regarding the above facts. Then, investigators who interviewed Child testified regarding what Child told them. Finally, the prosecution presented a videotape of an interview between a counselor and Child which corroborated Child's testimony at trial. Before this videotape was played for the jury, defense counsel objected that the tape was inadmissible, but the trial judge overruled the objection, and Russell was subsequently convicted of first-degree criminal sexual conduct with a minor.
Russell thereafter appealed, claiming, inter alia, that the tape was inadmissible under South Carolina Rule of Evidence 801(d)(1)(B) because he never made an express of implied charge of recent fabrication or improper influence of motive on the part of child. The court, however, found that the tape was admissible under Section 17-23-175(A) of the South Carolina Code, which permits the admission of out-of-court statements by child sexual abuse victims when the following conditions are met:
(1) the statement was given in response to questioning conducted during an investigative interview of the child;
(2) an audio and visual recording of the statement is preserved on film, videotape, or other electronic means...;(3) the child testifies at the proceeding and is subject to cross-examination on the elements of the offense and the making of the out-of-court statement; and(4) the court finds, in a hearing conducted outside the presence of the jury, that the totality of the circumstances surrounding the making of the statement provides particularized guarantees of trustworthiness.
Russell, however, claimed that this Section could not allow for the corroboration of Child's testimony because it was in conflict with South Carolina Rule of Evidence 801(d)(1)(B) and thus the South Carolina Rules of Evidence. The court noted, however, that South Carolina Rule of Evidence 101 indicates that "[e]xcept as otherwise provided by rule or by statute, these rules govern proceedings in the courts of South Carolina to the extent and with the exceptions stated in Rule 1101." Therefore, when there is a conflict between a statute and a rule of evidence in South Carolina, the former, will always apply.