Sunday, March 25, 2018

Case o' The Week: Gov't Adores our Opened Doors - Kootswatewa and Hearsay on Rebuttal

  Opened doors can be scary.
United States v. Kootswatewa, 2018 WL 1439610 (9th Cir. Mar. 23, 2018), decision available here.

Players: Decision by Judge Watford, joined by Judge Wallace and visiting DJ Sands. Hard fought appeal by D. Az. AFPD Michael Burke.

Facts: Kootswatewa was charged with sexual abuse of a child. Id. at 2. The child, K.C., was a developmentally disabled 11 year old girl that lived on the same reservation as the defendant. Id. After the assault, K.C. made statements to a police officer. Id.
  At trial, the defense questioned K.C.’s reliability, describing her motives to fabricate the story and exploring coaching by K.C.’s mother. Id. at *4. In the government’s rebuttal case, the court allowed testimony from the officer about statements K.C. had made to him shortly after the abuse. Id. at *4.
  Kootswatewa was convicted and sentenced to forty years. Id. at *2.

Issue(s): “We turn . . . to Kootswatewa’s objection to the admission of the officer’s testimony concerning the statements K.C. made to him shortly after the abuse occurred. . . . The district court admitted K.C.’s statements under Rule 801(d)(1)(B)(i), which renders admissible a prior statement that is consistent with the declarant’s in-court testimony and is offered ‘to rebut an express or implied charge that the declarant recently fabricated [her testimony] or acted from a recent improper influence or motive in so testifying.’” Id. at *4, quoting Fed.R. Evid. 801(d)(1)(B)(i).

Held:The district court properly exercised its discretion in admitting K.C.’s statements to the officer.” Id. at *4. “K.C.’s prior statements to the officer were admissible to rebut defense counsel’s suggestion that K.C.’s in-court testimony had been tainted by a ‘recent improper influence or motive’ – namely, K.C.’s mother alleged coaching.Id. at *4.

Of Note: Kootswatewa is a disappointing, but important, decision on the admission of hearsay testimony under Federal Rule of Evidence 801(d)(1)(B)(i). Appellate counsel admirably slugged away at each requirement of this “rebuttal” hearsay evidence, and the Ninth addresses the rule in depth.
  First, to be admissible, this evidence has to have occurred before the alleged motive to fabricate arose. Id. at *4. Judge Watford finds that requirement met here, because the statements to the officer happened before K.C. spoke to her mother.
  Kootswatewa also argued that the defense had a different theory on K.C.’s motive to lie: that she had gone where she was told not to go by her mother, and fabricated the assault to cover for herself and avoid discipline. Id. at *4. That motive to lie pre-dated the statements to the officer, so why were the cop-statements admissible? Judge Watford concludes that prior statements for rebuttal don’t have to address all of the defense theories: it is enough that the statements properly went to one of them (here, the theory that K.C. was coached). Id. at *5.
  “Opening the door” is often a dangerous possibility for the defense – and here, the Ninth allowed a barn door to be opened with these statements to the officer. Study Kootswatewa when weighing the risks and dangers of attacking the credibility of government witnesses, and mulling the government’s rebuttal case.

How to Use: Maybe there was error, here: facts in K.C.’s statements to the cop, and her testimony at trial, were not consistent. Id. at *5. The Ninth looks at the evidence in this case, and concludes that “any error in admitting the statement was harmless.” Id.
  This passage of Kootswatewa is worth a close read – inconsistent facts in the pretrial statement and the trial testimony may help keep 801(d)(1)(B)(i) evidence out of your trial.
For Further Reading: In 2016, Professor Kilkpatrick forcefully warned that amendments to FRE 801 would improperly expand the use of prior statements as substantive evidence in rebuttal. See Kirkpatrick, Laird C., Prior Consistent Statements: The Dangers of Misinterpreting Recently Amended Fre 801(D)(1)(B)* (2016). 24 Trial Evidence 12 2016; GWU Law School Public Law Research Paper No. 2016-40; GWU Legal Studies Research Paper No. 2016-40. Available at SSRN:
  Read this short piece, and read Kootswatewa: the Prof was, sadly, spot on.

Steven Kalar, Federal Public Defender, Northern District of California. Website at


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