EvidenceProf Blog

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

Friday, October 3, 2008

We Are The Fabrication: Court Of Criminal Appeal Of Texas Makes Seemingly Erroneous Prior Consistent Statement Ruling

I am a bit baffled by the recent opinion of the Court of Criminal Appeals of Texas in Klein v. State, 2008 WL 4414498 (Tex.Crim.App. 2008), which I think contains a fundamental misunderstanding of the prior consistent statement rule.  In Klein, Nicholas Klein was charged in an eight-count indictment with aggravated sexual assault of a child, his daughter.    

Specifically, when she was ten years old, the complainant told a school counselor that Klein had sexually abused her. Very soon after this, the complainant repeated these accusations to a Child Protective Services investigator (Todd) and to a police investigator (Cook).  The complainant, however, subsequently recanted these accusations against her father.

Thereafter, at trial, during the State's direct examination, the complainant reaffirmed her recantation and testified that her father did not sexually abuse her. The complainant, however, also testified on direct examination by the State that her father did sexually abuse her. Klein's lawyer claimed that the complainant's direct-examination testimony in which she claimed that he father did sexually abuse her was influenced by the State's trickery in questioning her. The trial court decided that this assertion allowed the State to introduce into evidence the complainant's prior out-of-court statements to Todd and Cook to show that the complainant said the same thing without any "trick" questions from the State.  According to the trial court, these prior statements were admissible under Texas Rule of Evidence 801(e)(1)(B), which indicates 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."

On Klein's appeal, the Second Court of Appeals reversed, holding that:

     "We see no caselaw, nor does the State direct us to any, that would justify our stretching rule 801(e)(1)(B) to hold that [the complainant's] disavowal of her testimony supporting [appellant's] guilt, taken alone, operated as an implicit charge that she was 'improperly influenced.' Similarly, nothing in defense counsel's cross-examination of [the complainant] implied that [the complainant] was lying when she testified that [appellant] had assaulted her or that she had been pressured to so testify. Defense counsel stayed completely away from the testimony that damaged [appellant's] case and emphasized [the complainant's] testimony that was favorable to [appellant]-[the complainant] had lied about the assault and had recanted consistently since soon after the outcry/  All the jury had before it was [the complainant's] conflicting testimony. We hold that conflicting evidence alone does not trigger rule 801(e)(1)(B)."

I'm skeptical of the Court of Appeals' conclusion that there was no charge that the complainant's testimony was improperly influenced.  It seems that a claim that the prosecution "tricked" her into saying that her father sexually abused her could be construed as at least an implicit charge of improper influence, which would suggest that I would agree with the majority opinion of Court of Criminal Appeals of Texas in Klein v. State, which reversed the Court of Appeals' disposition.  The problem is that the Court of Criminal Appeals of Texas made an even bigger error.

And its problem was that it did not find that defense counsel charged the complainant with being improperly influenced or having an improper motive; instead, it merely found that "[t]he record support[ed] a finding that these out-of-court statements were offered to rebut an implied charge of recent fabrication."  In reaching this conclusion, the majority rejected the reasoning of Judge Cochran's dissenting opinion, which concluded "that the complainant's out-of-court statements to Todd and Cook 'could not possibly qualify as statements offered to rebut an explicit or implicit charge of recent fabrication' because no charge of recent fabrication 'for some improper reason' was made by the defense on cross-examination.

According to the majority opinion,

     "Judge Cochran's dissenting opinion seems to change the language of the 'recent fabrication' element of rule 801(e)(1)(B) to require that a recent fabrication be due to an improper reason, usually an improper influence or motive. This element of rule 801(e)(1)(B), however, does not require that the recent fabrication be due to an improper reason. Rule 801(e)(1)(B) permits the admission of a prior consistent statement to rebut a charge of 'recent fabrication or improper influence or motive.'"

This reasoning is bizarre to me because it implies that you can have a recent fabrication due to a proper or at least benign reason.  The word "fabricate" is generally defined as "to make up for the purpose of deception."  Thus, if a party claims that a witness, like the complainant in Klein, rendered incorrect testimony because she was mistaken, her testimony would not be a fabrication because she would not have the purpose to deceive.  And this seems to be the point Judge Cochran was making in his dissenting opinion when he concluded that Klein's:

     "position in this case is not that the child was improperly influenced with a bribe, or threatened, or promised something if she testified in a certain way. It is that the prosecutor confused her with his questions on the witness stand. That position does not attack the witness; it attacks the cross-examiner."

Again, I think that defense counsel's position could be construed as an argument that the complainant was subject to an improper influence, but I don't see how it could be construed as an argument that the complainant's testimony was a recent fabrication that was somehow not based upon an improper influence or motive.  Indeed, even the cases cited by the majority don't support its conclusion that "rule 801(e)(1)(B)...does not require that the recent fabrication be due to an improper reason."  The court cited to its previous opinion in Hammons v. State, 239 S.W.3d 798 (Tex.Cr.App. 2007), for the proposition that, to be admissible under rule 801(e)(1)(B), the "prior consistent statement must be made prior to the time that the supposed motive to falsify arose."  This holding states the obvious: There must be an improper reason for there to be a recent fabrication.

The court also cited the Supreme Court's opinion in United States v. Tome, 513 U.S. 150 (1995), as support for its argument.  But, Tome compels the same conclusion as Hammons based upon passages such as these:

     "McCormick and Wigmore stated the rule in a more categorical manner: '[T]he applicable principle is that the prior consistent statement has no relevancy to refute the charge unless the consistent statement was made before the source of the bias, interest, influence or incapacity originated.'"

     "A consistent statement that predates the motive is a square rebuttal of the charge that the testimony was contrived as a consequence of that motive."



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With due respect to CM, Rule 801(e)(1)(B)provides that a prior consistent statement is not hearsay if offered to rebut an express or implied charge of recent fabrication.

Here, the child testified on direct examination that her testimony was internally conflicting because of her misunderstanding of the prosecutor's questions. The implication was that the questions were confusing and therefore influenced the girl to answer in an untruthful manner. The defense attorney gave this implication express utterance as the parties argued about admission of consistent statements the girl had made to others.

Under the rule, the State was entitled to show the jury that it was not the questions of the proseutor that caused the girl to testify that she had been sexually assaulted because she had said the same thing to various persons way before the prosecutor began asking questions.

Posted by: Charles Orbison | Oct 8, 2008 9:02:32 AM

If the court found that the child's prior consistent statements were admissible to rebut the contention that the prosecutor's confusing questions were an "improper influence" on her testimony, I might very well agree with you. Indeed, I indicated as much in the post. The problem with the court's opinion, however, was that it did not find that the child's prior consistent statements were admissible to rebut the allegation of an "improper influence." Instead, it found that "[t]he record support[ed] a finding that these out-of-court statements were offered to rebut an implied charge of recent fabrication." In fact, the court went so far as to say that there was no improper influence upon the child's testimony by rejecting Judge Cochran's dissenting opinion and finding that the Rule "does not require that the recent fabrication be due to an improper reason."

My problem is that it is clear from the opinion that defense counsel did not claim that the child's trial testimony was a recent fabrication; instead, he claimed that the child was mistaken based upon the confusing questions of the prosecution. Because there was no allegation that the child made up her trial testimony for the purpose of deception, the court should not have found that defense counsel alleged a recent fabrication.

Posted by: Colin Miller | Oct 8, 2008 10:37:24 AM

I think the implication by the girl's testimony was that parts of her testimony was mistaken because of confusing questioning. But, as the trial court considered admissibility, the defense attorney turned this implication of mistake into an express allegation of improper influence by the prosecutor. So, at the time the trial court had to rule, it had heard a strong allegation that the girl had been improperly influenced by the prosecutor.

It certainly is not the typical case and the rule does not fit neatly into the circumstances presented to the trial court. I understand why some might be uneasy with the opinion.

Posted by: Charles Orbison | Oct 8, 2008 10:54:06 AM

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