Also known as: recent fabrication · recently fabricate · recent fabrication exception · rebut recent fabrication
Written by attorneys — see sources below.
A charge that a witness's in-court testimony is a recent invention or stems from a recent improper motive or influence.
Nurse Elena testified that Dr. Chan ignored her warnings about Patricia's falling blood pressure during surgery. Valley Hospital suggested on cross that Elena invented the account after receiving a later disciplinary write-up. Patricia offered Elena's incident report and texts made the evening of surgery that repeated the same warnings. The statements predated the alleged motive and rebutted the charge that Elena recently fabricated her testimony.
Oliver testified that Star Fitness executives omitted veto language from Corey's endorsement contracts. Star Fitness suggested on cross that Oliver fabricated the account after her termination and new consulting work for Corey's agent. Corey offered emails Oliver sent six months before termination that repeated the identical account of the negotiations. The emails predated the alleged motive and rebutted the charge that Oliver recently fabricated her testimony.
Tome was charged in a one-count indictment with the felony of sexual abuse of a child, his own daughter A. T., aged four at the time of the alleged crime. The case arose on the Navajo Indian Reservation, and Tome was tried by a jury in the United States District Court for the District of New Mexico, where he was found guilty of violating 18 U. S. C. §§ 1153, 2241(c), and 2245(2)(A) and (B). Tome and the child's mother had been divorced in 1988, with a tribal court awarding joint custody of A. T. to both parents but Tome having primary physical custody. In 1989 the mother unsuccessfully petitioned the tribal court for primary custody of A. T., though she was awarded custody for the summer of 1990. On August 27, 1990, the mother contacted Colorado authorities with allegations that Tome had committed sexual abuse against A. T. At trial A. T., then 6½ years old, was the Government's first witness. For the most part her direct testimony consisted of one- and two-word answers to a series of leading questions. Cross-examination took place over two trial days, during which the defense asked A. T. 348 questions. On the first day A. T. answered all the questions posed to her on general, background subjects. The next day there was no testimony, and the prosecutor met with A. T.; when cross-examination resumed she was reluctant to discuss those conversations and reluctant at many points to answer questions about the allegations of abuse. After A. T. testified, the Government produced six witnesses who testified about a total of seven statements made by A. T. describing the alleged sexual assaults. A. T.'s babysitter recited A. T.'s statement to her on August 22, 1990, that she did not want to return to her father because he "gets drunk and he thinks I'm his wife," and related further details given by A. T. on August 27, 1990, while A. T.'s mother stood outside the room and listened. The mother recounted what she had heard A. T. tell the babysitter. A social worker recounted details A. T. told her on August 29, 1990, about the assaults. Three pediatricians, Drs. Kuper, Reich, and Spiegel, related A. T.'s statements to them describing how and where she had been touched by Tome. All but A. T.'s statement to Dr. Spiegel implicated Tome. A. T.'s out-of-court statements, recounted by the six witnesses, were offered by the Government under Rule 801(d)(1)(B). The trial court admitted all of the statements over defense counsel's objection. The court also admitted A. T.'s August 22d statement to her baby sitter under Rule 803(24), and the statements to Dr. Kuper (and apparently also to Dr. Reich) under Rule 803(4). Following trial, Tome was convicted and sentenced to 12 years' imprisonment. On appeal, the Court of Appeals for the Tenth Circuit affirmed. The Supreme Court granted certiorari.
View caseA prior consistent statement rebuts the charge when it is consistent with the witness's trial testimony and was made before the alleged motive to fabricate arose. The statement must directly address the specific fabrication charge raised on cross-examination. Timing is critical because only statements that predate the motive can rebut the suggestion of recent invention.
Supporting sources
Yes. When the statement satisfies the requirements of Rule 801(d)(1)(B)(i), it is defined as nonhearsay and is admissible both to rehabilitate credibility and as substantive evidence. The jury may consider the statement for its truth once the charge of recent fabrication is raised and the timing condition is met.
Supporting sources
The statement remains admissible if it rebuts the specific charge of recent fabrication presented at trial. An earlier possible motive suggested by other facts goes to weight rather than admissibility. The rule focuses on whether the statement predates the motive identified during cross-examination.
Supporting sources
No. A statement made after the alleged motive arose cannot rebut the charge of recent fabrication. The timing requirement demands that the prior statement precede the motive identified on cross-examination. Statements that postdate the motive are excluded under the rule.
Supporting sources
…made by a declarant who testifies as a witness, that are consistent with the testimony and are offered to rebut a charge of a "recent fabrication or improper influence or motive." Fed. Rule Evid. 801(d)(1)(B). The question is whether out-ofcourt consistent statements made after the alleged fabrication, or after the alleged improper…