Falling into the tiger pit of prior consistent statements

About a decade ago I represented a pre-teen girl in a DSS abuse and neglect case in which she alleged her stepfather had sexually abused her. DSS became involved after she reported the abuse to a school counselor. At a pre-trial hearing, in an attempt to get the matter dismissed, the stepfather’s attorney had noted that a precursor of S.C Code § 63-7-1620 required the child be appointed separate counsel. Typically the family courts had read that statute to require counsel for the guardian ad litem if the guardian was not an attorney, and the statute has been revised to make appointment of an attorney for an allegedly abused child discretionary. However the court denied stepfather’s request for a dismissal and instead ordered the child be appointed an attorney. I was appointed. It is the sole time in my career I have represented a child in a civil matter.

The case turned on the credibility of the child and the credibility of the stepfather. Since the child was my client and my role was to represent her wishes and not her “best interests” (as is the role one has when one is a child’s guardian), we explored ways to bolster her credibility. One bit of helpful information was that she had reported the alleged abuse to a friend’s mother shortly before DSS got involved.

It was clear to me that my client did not like her stepfather and wished her mother hadn’t married him. What was unclear was whether she didn’t like her stepfather because he abused her or whether she was raising a false allegation of abuse because she didn’t like her stepfather. Her stepfather asserted the abuse allegation was false but argued she raised this allegation in response to attempted discipline that had occurred just prior to her report to the school counselor.

And thus stepfather stepped into the tiger pit of prior consistent statements. South Carolina Rule of Evidence 801(d)(1) excludes from the hearsay rule a statement that 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…” Had stepfather alleged the child was lying because he didn’t like her, the child’s statement to the friend’s mother would remain inadmissible hearsay. However, by arguing that the child lied because she disagreed with a subsequent discipline attempt, the child and the friend’s mother were both able to testify about the child’s allegation of abuse that predated the discipline attempt. The court ended up finding my client more credible and found the stepfather had abused her.

The issue of prior consistent statements frequently arises in habitual intoxication or physical cruelty divorce claims. Such behaviors typically occur in the privacy of the home and the only adult eyewitnesses are the spouses themselves. However one spouse may often complain to friends and family about the behavior at or shortly after the time of each occurrence. Sometimes this is the best evidence of the problem during the marriage–especially if the complaints occurred frequently or over a period of years.

After a fault divorce action is filed the spouse defending the fault claim often alleges these claims are fabrications, being made simply to gain advantage in the divorce. In doing so, that spouse renders admissible all the prior statements the fault-claiming party made to friends and family during the marriage. It doesn’t necessary prove the fault behavior, but it does prove that the fault-claiming spouse perceived a problem with the behavior during the marriage. Often fault divorce grounds turn on issues of credibility. Anything that bolsters one party’s credibility creates a significant advantage.

An attorney representing the spouse claiming fault can use discovery to lay a trap to render otherwise inadmissible statements admissible. One might issue a request to “admit or deny that Plaintiff [or defendant] complained to [name of person] about [behavior that is complained about] on [approximate date that predates the parties’ separation].” As an example, “Admit or deny that on or about July 15, 2016, the Plaintiff complained to her sister about the Defendant hitting her.” If the Defendant denies this request, and if that date predates the parties’ separation, both the Plaintiff and her sister can testify about that conversation.

An attorney representing the spouse defending fault claims can avoid rendering these prior consistent statements admissible by not arguing the fault allegations are fabrications designed to gain an advantage in the divorce litigation. It can be better strategy to claim these past allegations are inaccurate than to claim they are recent fabrications. Often temporary hearing affidavits make such claims, potentially rendering a significant number of prior consistent statements admissible. Before arguing that fault allegations are a fabrication, one needs to ask the client if his or her spouse complained to others about the behavior during the marriage. If that spouse had, it may be better strategy to defend the allegations without claiming they are a recent fabrication.

Because much of what occurs in a marriage is often only observed by the participants, credibility determinations can be outcome determinative. Prior consistent statements that predate the separation can greatly bolster credibility. Attorneys need to consider strategies to allow or prevent the admissibility of such statements as part of their temporary hearing and discovery preparation.

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