Tuesday, October 13, 2009
Lacking Consistency: Court Of Appeals Of Texas Seemingly Errs In Deeming Prior Consistent Statements Admissible In Sexual Assault Appeal
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.
In other words, if a witness says something at trial and opposing counsel presents evidence that the witness' testimony is the product of some recent event giving the witness an improper motive to lie, the party calling the witness can thereafter present a consistent statement preceding the event to challenge this "product" argument. In its recent opinion in Hutson v. State, 2009 WL 3210704 (Tex.App.-Dallas 2009), the Court of Appeals of Texas, Dallas, found that Texas Rule of Evidence 801(e)(1)(B) was applicable in a sexual assault trial. I disagree.
In Hutson, Timothy Hutson was convicted of aggravated sexual assault of a child under fourteen years of age based upon acts he allegedly committed against his stepdaughter. The stepdaughter testified to these acts at trial, and, after defense counsel cross-examined the stepdaughter, the court allowed for the admission of prior consistent statements that she made to the police.
On appeal, Hutton claimed that these prior consistent statements were wrongfully admitted because, inter alia, "there was no cross-examination accusing [the stepdaugher] of recent fabrication." The court, however, disagreed, noting that "the charge of recent fabrication may be either express or implied" and that the Court of Criminal Appeals of Texas had found in Hammons v. State, 239 S.W.3d 798 (Tex.Crim.App. 2007) that
a reviewing court, in assessing whether the cross-examination of a witness makes animplied charge of recent fabrication or improper motive, should focus on the “purpose of the impeaching party, the surrounding circumstances, and the interpretation put on them by the [trial] court.” Courts may also consider clues from the voir dire, opening statements, and closing arguments. From the totality of the questioning, giving deference to the trial judge's assessment of tone, tenor, and demeanor, could a reasonable trial judge conclude that the cross-examiner is mounting a charge of recent fabrication or improper motive? If so, the trial judge does not abuse his discretion in admitting a prior consistent statement that was made before any such motive to fabricate arose.
The court then noted that this standard had been met in the case before it because
appellant's cross-examination of the complainant focused on her counseling and punishment for lying, her repeated denials to counselors and investigators that she had been sexually assaulted, and what appellant asserted were inconsistent statements in the earlier trial that appellant had not assaulted her. Appellant also questioned the other witnesses about the complainant's lying. In his opening statement, appellant's counsel stated the complainant “has had a chronic, severe problem of lying.” In his argument to the jury, appellant's counsel stated the complainant “had a habitual, a pathological problem with lying.” After “giving deference to the trial judge's assessment of tone, tenor, and demeanor,” we conclude the trial court could determine that appellant's counsel was “mounting a charge of recent fabrication."
Here's my problem. According to the court itself, "the charge of recent fabrication may be either express or implied." (emphasis added). Does this look like a charge of recent fabrication to readers? It sure doesn't to me. Instead, it looks to me like defense counsel was labeling the stepdaughter as a "chronic," "habitual," and "pathological" liar. Moreover, even if defense counsel were raising a charge of recent fabrication, as the Court of Criminal Appeals of Texas noted in Hammons, the prosecution could have only admitted "a prior consistent statement that was made before any...motive to fabricate arose." My question is: What was the motive in Hutson, and when did it arise? To admit the stepdaughter's consistent statements, the court(s) needed to establish the date that a motive to fabricate arose and establish that the consistent statements were prior to that date. They didn't.