People v. Applewhite, 2016 IL App (4th) 140558 (December). Episode 285 (Duration 5:49)

115-10 statements trumps Rule 613(c) which prohibits prior consistent statements.

This was a sexual abuse of a 10 year old girl case.

Trial Court

The trial court found that the “time, content, and circumstances of the statements, the testimony of the witnesses, the credibility of [G.Z.], who has testified here by way of video, all [the court] believe[s] are sufficient to allow the admissibility of the [section] 115-10 statements.”

Issue

Defendant’s main argument is that the child was too consistent.

Defendant contends that the admitted hearsay testimony provided by 4 other witnesses was unnecessarily cumulative and prejudicial.

Rule 613(c)

Illinois Rule of Evidence 613(c) (eff. Jan. 1, 2011), which governs prior consistent statements of a witness, provides, as follows:

“(c) Evidence of Prior Consistent Statement of Witness. A prior statement that is consistent with the declarant-witness’s testimony is admissible, for rehabilitation purposes only and not substantively as a hearsay exception or exclusion, when the declarant testifies at the trial or hearing and is available to the opposing party for examination concerning the statement, and the statement is offered to rebut an express or implied charge that: (i) the witness acted from an improper influence or motive to testify falsely, if that influence or motive did not exist when the statement was made; or (ii) the witness’s testimony was recently fabricated, if the statement was made before the alleged fabrication occurred.”

In general, proof of a prior consistent statement made by a witness is inadmissible hearsay, which may not be used to bolster a witness’s testimony.

The danger in prior consistent statements is that a jury is likely to attach disproportionate significance to them.

People tend to believe that which is repeated most often, regardless of its intrinsic merit, and repetition lends credibility to testimony that it might not otherwise deserve.

115-10 Statement

In this case, the trial court admitted the contested statements at issue pursuant to section 115-10 of the Code.

Section 115-10 was originally passed in response to the difficulty in convicting persons accused of sexually assaulting young children. This difficulty occurs because children’s testimony in sexual assault cases is often inadequate. Problems in proof may result when the lesser developed cognitive and language skills that children have hinder them in adequately communicating the details of an assault.

The legislature sought to create a hearsay exception to allow into evidence corroborative testimony that the child complained to another person about the incident.

It appears that the legislature, in providing for the admission of evidence of outcry statements as exceptions to the hearsay rule in certain cases, was concerned with the ability of the victim to understand and articulate what happened during the incident and the reluctance many victims have relating the details of the incident at trial.

Evidence of an outcry statement made to another by a child under the age of 13 would corroborate the testimony of a child who, by reason of age, may be reluctant or unable to clearly express the details of the incident.

*** The importance of allowing hearsay testimony of an outcry *** is not dictated by the age of the victim when the assault occurs. Instead, it is dictated by the victim’s ability to adequately testify to the alleged incident.

The General Assembly enacted section 115-10 of the Code to allow admission of detailed corroborative evidence of the child’s complaint about the incident to another individual” out of concern that “child witnesses, especially the very young, often lack the cognitive or language skills to effectively communicate instances of abuse at trial.

Holding

Defendant’s argument must fail.

Defendant’s contention that the admitted section 115-10 hearsay testimony at issue violated the prohibition against utilizing prior consistent statements as substantive evidence is unavailing because by its very nature, section 115-10 of the Code constitutes an exception to that rule.

Based on the rationale underpinning its enactment, the plain language of section 115-10 of the Code provides for the admission, in relevant part, of “testimony of an out of court statement” made by the minor victim that is solicited from a witness who directly heard the minor making the statement. 725 ILCS 5/115-10(a)(2).

To accept defendant’s premise—which the court did not—would signify that section 115-10 of the Code permits the admission of specific hearsay declarations as substantive evidence solely when a minor under 13 years old testifies inconsistently with the identified corroborative hearsay statements the minor conveyed to others.

If the provisions of section 115­ 10 are satisfied, whether a minor victim testifies consistently, inconsistently, or by not responding to questions posed regarding the sexual acts alleged does not affect the admissibility—under section 115-10—of the minor’s out-of-court statements to others that detailed a defendant’s sexual acts.

In the context of a section 115-10 hearing, the rule proscribing the admission of a witness’s prior consistent statements has no application whatsoever.