Master The Supreme Court held that prior consistent statements are admissible under Federal Rule of Evidence 801(d)(1)(B) only if made before the alleged motive to fabricate arose. with this comprehensive case brief.
Tome v. United States is a cornerstone evidence case on the admissibility of prior consistent statements under Federal Rule of Evidence 801(d)(1)(B). The Supreme Court resolved a recurring trial issue: when may a party shore up a witness’s credibility by introducing earlier consistent statements? The Court held that such statements are admissible as non-hearsay to rebut a charge of recent fabrication or improper influence or motive only if they were made before the alleged motive to fabricate arose. This timing requirement, often called the premotive rule, aligns Rule 801(d)(1)(B) with its common-law roots and guards against circular bolstering.
For law students and litigators alike, Tome is essential because it provides a rigorous, timeline-based framework for evaluating witness rehabilitation. The decision forces careful attention to the chronology of events, the nature of the impeachment, and the logical probativeness of a consistent statement. It also foreshadows later amendments to the Federal Rules of Evidence and continues to guide courts on how to distinguish permissible rehabilitation from improper repetition.
Tome v. United States, 513 U.S. 150 (1995) (U.S. Supreme Court)
The defendant, Tome, was prosecuted in federal court for sexually abusing his young daughter, A.T. The prosecution’s case rested in significant part on A.T.’s in-court testimony and a series of out-of-court statements she made to several adults (including a babysitter, a social worker, a pediatrician, and law enforcement personnel) describing the abuse in terms consistent with her trial testimony. The defense theory was that the accusations arose from a custody dispute: A.T.’s parents were estranged, the child’s mother sought to regain or retain custody, and the child was allegedly influenced to fabricate the abuse to aid her mother in the custody battle. After defense cross-examination suggested that A.T. had been coached or had a motive to lie tied to custody, the district court admitted testimony from six adults recounting A.T.’s prior consistent statements under Federal Rule of Evidence 801(d)(1)(B). The Tenth Circuit affirmed the conviction, accepting the government’s view that the statements were properly admitted to rebut a charge of recent fabrication or improper influence. The Supreme Court granted certiorari to determine whether Rule 801(d)(1)(B) contains the traditional premotive requirement, i.e., that the consistent statements predate the alleged motive to fabricate.
Under Federal Rule of Evidence 801(d)(1)(B), may prior consistent statements be admitted as substantive, non-hearsay evidence to rebut a charge of recent fabrication or improper influence or motive when those statements were made after the alleged motive to fabricate arose?
Federal Rule of Evidence 801(d)(1)(B) provides that a statement is not hearsay if the declarant testifies and is subject to cross-examination about a prior statement, the statement is consistent with the declarant’s testimony, and it is offered to rebut an express or implied charge that the declarant recently fabricated the testimony or acted from a recent improper influence or motive. Tome holds that the Rule incorporates the common-law premotive requirement: such prior consistent statements are admissible as non-hearsay to rebut a charge of fabrication or improper influence only if they were made before the alleged motive to fabricate arose.
No. Rule 801(d)(1)(B) retains the common-law premotive requirement. Prior consistent statements are admissible as substantive, non-hearsay evidence to rebut a charge of recent fabrication or improper influence only if the statements were made before the alleged motive or influence came into existence. Because the statements here were made after the custody-related motive allegedly arose, they were inadmissible under the Rule. The judgment was reversed and the case remanded.
The Court grounded its decision in text, history, and logic. Textually, Rule 801(d)(1)(B) codified a specific slice of the common law allowing admission of prior consistent statements when used to rebut claims of recent fabrication or improper influence. Historically, that doctrine included a premotive condition: the consistent statement must predate the motive to fabricate. The Advisory Committee’s Notes and prevailing common-law authorities reflected this timing requirement. The Court reasoned that without the premotive limit, the Rule would authorize admission of any number of consistent repetitions made after the alleged motive arose, which would be logically weak to rebut fabrication and would invite impermissible bolstering. A statement made after a motive to lie exists is not probative of whether that motive tainted the trial testimony; it merely repeats the same possibly motivated story. Applying that framework, the Court noted that the defense theory identified a custody dispute as the source of A.T.’s alleged motive to fabricate, and the out-of-court statements introduced were made after the custody motive had arisen. As such, they failed the premotive requirement and were inadmissible under Rule 801(d)(1)(B). The Court rejected the government’s contention that the Rule’s silence on timing implied no premotive requirement, emphasizing that Congress intended to carry forward the common-law limitation. The Court also observed that its ruling did not preclude admission of child-victim statements under other hearsay exceptions (such as statements for medical diagnosis or treatment, excited utterances, or the residual exception), nor did it foreclose use of consistent statements for other permissible rehabilitation purposes under the evidence rules where applicable. Because the court of appeals had upheld the conviction based on an erroneous interpretation of Rule 801(d)(1)(B), the Supreme Court reversed and remanded for further proceedings, including any harmless-error analysis.
Tome is the leading case on prior consistent statements. It cements the premotive requirement and prevents parties from bolstering a witness with post-motive repetitions that do not actually rebut an alleged fabrication. For students, the case is a blueprint for evidence analysis: identify the alleged motive or improper influence, establish when it arose, and compare that timeline to the dates of the consistent statements. Tome also frames the continued importance of alternative hearsay exceptions and anticipates later developments in Rule 801(d)(1)(B). After the 2014 amendment subdividing the Rule, Tome’s premotive requirement remains controlling for statements offered to rebut a charge of recent fabrication or improper motive (now 801(d)(1)(B)(i)).
The premotive requirement means a prior consistent statement is admissible under Rule 801(d)(1)(B) to rebut a charge of fabrication or improper influence only if it was made before the alleged motive or influence arose. To apply it, (1) identify the specific motive or influence alleged by the opponent; (2) determine when that motive arose; and (3) admit only those consistent statements that predate that point. If the statement follows the motive, it does not logically rebut the charge and is inadmissible under this Rule.
Yes, for statements offered to rebut a charge of recent fabrication or improper influence (now 801(d)(1)(B)(i)), Tome’s premotive requirement remains. The 2014 amendment added 801(d)(1)(B)(ii), which allows prior consistent statements to rehabilitate after other attacks on credibility (such as charges of faulty memory or inconsistency). For (B)(ii), courts generally do not require premotive, but the statement must genuinely rehabilitate the specific credibility attack and otherwise meet the Rule’s requirements.
It cannot come in under 801(d)(1)(B)(i). However, after 2014, such a statement may be admissible under 801(d)(1)(B)(ii) if it specifically rebuts a different form of impeachment (for example, impaired memory), and it will then be admissible substantively. If neither (B)(i) nor (B)(ii) applies, the statement is generally inadmissible hearsay unless it fits another hearsay exception. Limited-purpose admission purely to rehabilitate without a hearsay exception is rarely viable because the statement’s probative value typically depends on its truth.
Common alternatives include Rule 803(4) (statements made for medical diagnosis or treatment, including descriptions of symptoms and sometimes the cause), Rule 803(2) (excited utterances), and Rule 807 (residual exception) where trustworthiness and necessity are shown. If the child testifies and is subject to cross-examination, Confrontation Clause concerns are generally satisfied, but the statement still must fit an evidentiary rule to be admitted for its truth.
It need not be explicit. Most courts accept an implied charge, such as cross-examination that suggests coaching, bias, or a motive to lie (e.g., to gain custody, leniency, or financial benefit). The key is that the attack asserts the testimony is the product of a motive or influence. General credibility attacks, like poor memory or perception, typically are addressed under 801(d)(1)(B)(ii) rather than (B)(i).
The proponent of the prior consistent statement bears the burden to show admissibility, including that the statement predated the alleged motive or influence when relying on 801(d)(1)(B)(i). Trial courts review admissibility for abuse of discretion, but the interpretation of the Rule itself is a question of law.
Tome v. United States anchors the law of prior consistent statements by insisting on a logical connection between the impeachment and the rehabilitation: only a statement that precedes the alleged motive to fabricate can meaningfully rebut a charge of fabrication or improper influence. By restoring the common-law premotive requirement to the text of Rule 801(d)(1)(B), the Court curtailed circular bolstering and ensured that consistent statements admitted as non-hearsay carry genuine probative force.
For exams and practice, build a timeline. Pin down the motive or influence and its inception, line up each prior consistent statement, and test whether it predates the motive. If it does not, consider whether other hearsay exceptions or Rule 801(d)(1)(B)(ii) apply. Tome’s disciplined approach keeps credibility rehabilitation within principled bounds while leaving room for admission under other, properly tailored evidentiary rules.