Prior Statements of a Witness: A Nettlesome Corner of the Hearsay Thicket

In Tome v United States, for the fifth time in eight years, the Supreme Court decided a case presenting the problem of how a child\u27s allegations of sexual abuse should be presented in court. Often the child who charges that an adult abused her is unable to testify at trial, or at least unable to testify effectively under standard procedures. These cases therefore raise intriguing and difficult questions related to the rule against hearsay and to an accused\u27s right under the Sixth Amendment to confront the witnesses against him. One would hardly guess that, however, from the rather arid debate in Tome, which focused on a seemingly technical question concerning the interpretation of a provision in the hearsay portion of the Federal Rules of Evidence. In this article, I will examine both that question and some of the broader issues surrounding it. I will use Tome as a vehicle to explore what I believe is the impoverished state of the law concerning the admissibility of prior statements of a witness. This state, I will argue, is attributable in part to the Court\u27s longstanding unwillingness to recognize that a party may be substantially hindered in attempting to examine a witness with respect to a prior statement the truth of which the witness no longer affirms. A complete solution to the problem, however, would require a dramatic restructuring of the law of hearsay and confrontation, a prospect that I will touch on only briefly in the conclusion to this article