Using prior consistent statements to bolster credibility

Posted Saturday, February 23rd, 2013 by Gregory Forman
Filed under Litigation Strategy, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys

A few years ago I was court appointed in a Department of Social Services abuse and neglect case as the lawyer for a twelve year old who was accusing her stepfather of sexually molesting her.  Unique in my career, I was not her guardian or the lawyer for her guardian: I was her lawyer.  Thus my role was to determine and pursue her goals without regard as to her best interests.

Her goal was to get a finding of abuse against her stepfather.  It quickly became apparent that the case would resolve around the relative credibility of my client and her stepfather.  Thus anything that bolstered her credibility would increase the likelihood of success.

Her mother and stepfather’s position was that her accusation was fabricated in response to recent difficulties she’d been having with them.  This, unbeknownst to them and their attorney, opened the door to my client’s prior consistent statement that predated this alleged fabrication.  I was able to locate the parent of one of her friends to whom she had confided the abuse prior to the date of the alleged difficulties that led to the alleged fabrication.

At trial my client testified about the abuse and was cross examined about the incident that her mother and stepfather claimed had prompted her to fabricate this abuse.  This allowed me to call her friend’s mom as a witness.  When I asked this woman whether my client had confided the abuse to her, stepfather’s attorney raised a hearsay objection.  I ask the court for brief leave to establish the statement’s admissibility and then asked the witness when this statement had taken place.  Having established that the statement took place before the difficulties that led to the alleged fabrication, I argued that my client’s statement to this woman was admissible as a prior consistent statement under SCRE 801(d)(1)(b), which states that,

[A] statement is not hearsay if… [it 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…

Having gotten that statement admitted, we were able to convince the trial judge that my client was credible and were able to get the finding she wanted.  The corroboration of her friend’s mother was helpful in tipping the credibility scale in her favor.

In my experience a family court litigant’s prior consistent statements are rarely introduced at trial.  This is surprising.  Typically in most unhappy marriages the spouses have long complained to their friends about the other spouse’s problematic behaviors.  Often these complaints involve allegations of physical abuse, substance abuse, financial mismanagement, withholding affection or disrespectful attitude.  Yet, when litigation arises, the other spouse counters that these allegations are recent fabrications, designed to bolster the complaining party’s case, and without any factual basis.  The opposing party may further claim that these supposedly false allegations render the complaining party uncredible.

Such recent-fabrication allegations open the door to admitting the other spouse’s history of complaining to friends, family and neighbors as a method of bolstering credibility.  These corroborating witnesses don’t necessarily prove the other spouse’s behavior; however, they do prove that the complaint isn’t a recent fabrication.  At a minimum, they make the complaining party more credible (the allegations are corroborated) and the other party less credible (the claim of recent fabrication is refuted).  Ideally they can even convince the trial court that the allegations are accurate.

Because allegations of recent fabrication render admissible such litany of complaints, one needs to be cautious about making these claims if one’s client realizes the spouse had long complained about the behavior to others.  And once a lawyer becomes aware that one’s client is being accused of recent fabrications, one should explore what prior consistent statements might exist to bolster the client’s credibility.

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