EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Wednesday, October 31, 2007

Vermont Supreme Court Reverses Prior Consistent Statement Ruling in Halloween Case

In State v. Lemay, 908 A.2d 430 (Vt. 2006), the Vermont Supreme Court was presented with the appeal of Joseph Roger Lemay, who was convicted of lewd and lascivious conduct with a child and sexual assault.  The event leading to these convictions occurred on October 21, 2003.  The defendant was living with the alleged victim's (A.K.) mother and older brother, and on the night of the 21st, he began wrestling with the alleged victim and her friend, B.S.  The two girls later told friends and neighbors that during this wrestling, the defendant grabbed their breasts, and A.K. claimed that the defendant inserted his finger into her vagina.

Before trial, defense counsel revealed that it planned to claim that A.K. fabricated her allegations because the defendant and her mother told her that she could not go to New Hampshire to celebrate Halloween.  At a pretrial conference, the prosecution indicated that it planned to call the girls' friends and family to testify about the allegations made by the two girls.  They claimed that these allegations were admissible under Vermont Rule of Evidence 801(d)(1)(B), which indicates that a statement is not hearsay if the declarant testifies at trial, is subject to cross-examination, and the statement is consistent with her testimony and is offered to rebut an express or implied charge against her of fabrication or improper influence or motive.

The prosecutor thus claimed that this testimony was admissible at trial because A.K. planned to provide consistent testimony at trial.  Defense counsel, though, questioned the timing of A.K.'s statements and whether they were made before the defendant and her mother told her she could not go to New Hampshire for Halloween.  The trial court judge, apparently having not read or understood Rule 801(d)(1)(B), responded, ""I'm not sure the timing here is critical under the rule" and found the proposed testimony admissible  The judge, however, allowed defense counsel to renew his objection to the testimony at trial by simply stating the word "hearsay," but again found the testimony to be admissible when defense counsel merely objected, "Hearsay" before the testimony was given.

The case eventually reached the Vermont Supreme Court, which reversed the conviction, finding that (1) under Rule 801(d)(1)(B), the testimony was inadmissible because A.K.'s statements came after she was told she couldn't go to New Hampshire for Halloween, (2) the alleged victim's statements did not constitute excited utterances, and (3) the defendant preserved his objection on appeal.  The first ruling was the easiest to make.

In a case involving somewhat similar facts, Tome v. United States, 513 U.S. 150 (1995), the United States Supreme Court noted that (identical) Federal Rule of Evidence 801(d)(1)(B) only applies if the alleged consistent statement was made before the source of the bias, interest, influence, or incapacity originated.  Thus, if A.K. made her statements before she was told she couldn't go to New Hampshire for Halloween, they would be admissible to rebut defense counsel's claim that she only made up her allegations in response to the Halloween edict.  However, allegations that she made after that edict in no way rebut defense counsel's claim because clearly they could have been made in response to that edict.



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