What are the facts?
The defendant, Tome, was prosecuted in federal court for sexually abusing his young daughter, A.T. The defense theory was that A.T., who had been living with Tome pursuant to custody arrangements, had a motive to fabricate allegations in order to return to her mother. At trial, A.T. testified and was cross-examined; the defense sought to impeach her credibility by suggesting that her accusations were motivated by the custody dispute and desire to live with her mother. Over defense objection, the district court admitted testimony from six adult witnesses—comprising caregivers and professionals—who recounted numerous out-of-court statements by A.T. identifying Tome as the abuser. The government argued these were admissible as prior consistent statements under Federal Rule of Evidence 801(d)(1)(B) to rebut the defense claim of recent fabrication or improper influence or motive. Many of these statements were made after the alleged motive to fabricate had arisen. The jury convicted, and the Tenth Circuit affirmed, holding that the Rule did not require the prior consistent statements to predate the motive. The Supreme Court granted certiorari.
What is the legal issue?
Under Federal Rule of Evidence 801(d)(1)(B), may a prior consistent statement be admitted as nonhearsay to rebut a charge of recent fabrication or improper influence or motive if the statement was made after the alleged motive to fabricate or improper influence arose?
What rule applies?
Federal Rule of Evidence 801(d)(1)(B) provides that a declarant-witness's prior consistent statement is not hearsay if the declarant testifies and is subject to cross-examination about the prior statement, and the statement is offered to rebut an express or implied charge of recent fabrication or improper influence or motive (or, after the 2014 amendment, to rehabilitate the declarant's credibility when attacked on another ground). As interpreted in Tome, for statements offered to rebut a charge of fabrication or improper influence or motive, the statement must have been made before the alleged motive or influence arose—the "premotive" requirement.
What did the court hold?
No. A prior consistent statement is admissible as nonhearsay under Rule 801(d)(1)(B) to rebut a charge of recent fabrication or improper influence or motive only if it was made before the alleged motive to fabricate or improper influence arose.
What is the reasoning?
The Court, relying on the text, history, and common-law background of Rule 801(d)(1)(B), concluded that the Rule incorporates the traditional temporal limitation on prior consistent statements. At common law, such statements had probative value to rebut a charge of fabrication or improper influence only if they were made before the alleged motive arose; a statement made after the motive exists does little to rebut the suggestion that the witness was influenced or biased at the time of both the statement and trial testimony. The Advisory Committee Notes reflect this understanding by framing the Rule as adopting the common-law approach, not expanding it. The Court emphasized that the phrase "to rebut" in the Rule presupposes actual probative force directed to the specific impeachment claim. Without the premotive requirement, the Rule would allow a party to bolster credibility through sheer repetition of a story told after bias or motive had already attached—an approach the common law rejected as lacking in logical relevance and as risking unfair prejudice and undue consumption of time. The Court rejected the government's view that timing should go merely to weight for the jury; the Rule is one of admissibility, and statements lacking the requisite premotive character are not admissible as nonhearsay under 801(d)(1)(B). The Court noted that other evidentiary routes might permit some uses of consistent statements for rehabilitation purposes, but the government had defended admission solely on 801(d)(1)(B). Because the statements at issue were made after A.T. allegedly developed a motive to fabricate (to return to her mother), they did not satisfy Rule 801(d)(1)(B). The judgment was reversed and the case remanded for further proceedings, including consideration of harmless error.
Why is this case significant?
Tome cements the premotive requirement for prior consistent statements used to rebut charges of fabrication or improper influence or motive. For law students, it illustrates how the Federal Rules often codify, rather than discard, key common-law limitations, and how textual interpretation is informed by historical practice and Advisory Committee Notes. Practically, Tome limits the government's or any party's ability to pile on multiple witnesses to repeat out-of-court statements when those statements were made after bias or motive attached. The 2014 amendment to Rule 801(d)(1)(B) maintains Tome's premotive rule in subsection (i) while adding subsection (ii), which permits prior consistent statements to be admitted substantively to rehabilitate credibility when attacked on other grounds (such as inconsistency or faulty memory). Tome remains the touchstone for determining timing and relevance when the attack is one of fabrication or improper influence or motive.
What is a prior consistent statement under Rule 801(d)(1)(B)?
It is a witness's out-of-court statement that is consistent with the witness's in-court testimony and is offered to rebut an express or implied charge that the witness recently fabricated the testimony or acted under improper influence or motive. The declarant must testify at trial and be subject to cross-examination about the statement.
What did Tome decide about the timing of prior consistent statements?
Tome held that when a party offers a prior consistent statement to rebut a charge of recent fabrication or improper influence or motive, the statement is admissible as nonhearsay only if it was made before the alleged motive or influence arose—i.e., it must be a "premotive" statement.
Did the 2014 amendment to Rule 801(d)(1)(B) change Tome's rule?
No, not for motive-based attacks. The amendment split the Rule into (B)(i) and (B)(ii). Subsection (i) codifies Tome's premotive requirement for rebutting charges of fabrication or improper influence or motive. Subsection (ii) allows prior consistent statements to rehabilitate the witness on other grounds (e.g., inconsistency or faulty memory), but it does not undermine Tome's premotive requirement for motive-based attacks.
Must a prior consistent statement be made under oath to be admissible?
No. Unlike prior inconsistent statements under Rule 801(d)(1)(A), prior consistent statements admitted under 801(d)(1)(B) need not be made under oath or at a formal proceeding. The key requirements are consistency, proper purpose (e.g., rebutting a motive-based attack), timing (premotive for (B)(i)), and that the declarant testifies and is subject to cross-examination.
Can prior consistent statements that fail Tome's timing requirement still come in for a limited purpose?
Possibly. While such statements are inadmissible as nonhearsay under 801(d)(1)(B)(i), they might be admissible for other limited rehabilitative purposes under the Rules—such as to explain a claimed inconsistency or to counter an attack on memory—if the requirements of 801(d)(1)(B)(ii) or another evidence rule are met. However, they cannot be admitted as substantive evidence to rebut a motive-based fabrication claim unless they predate the motive.
Does Tome apply in both criminal and civil cases?
Yes. Rule 801(d)(1)(B) applies across criminal and civil cases in federal courts. Tome's interpretation of the Rule's premotive requirement governs in any federal proceeding where a party offers prior consistent statements to rebut a charge of fabrication or improper influence or motive.