Throughout the controversy over the nomination of Brett Kavanaugh to the Supreme Court, some people were saying that Christine Blasey Ford did not produce “corroborating evidence” to support her accusation that Kavanaugh had sexually assaulted her when they were teenagers. Therefore, since Kavanaugh was denying that he committed the assault, the argument went, he should be given the benefit of the doubt in what seemed to be a “he-said, she-said” controversy.
But actually Ford did provide corroborating evidence to support the accusation she leveled at Kavanaugh, very powerful corroborating evidence, evidence that was largely ignored by the Senate Judiciary Committee, especially in the haste by Republican committee members to get the controversy over with by rushing to a quick confirmation vote.
Part of the problem, of course, lies in how some people perceive the term “corroborating evidence.” For many who aren’t lawyers, the term means eyewitnesses to the incident in question. With respect to the Kavanaugh matter, when such people say that there isn’t any “corroborating evidence” to support Ford’s accusation, what they really mean is that there isn’t any eyewitness testimony to support her accusation.
The only eyewitness to the purported assault would have been Kavanaugh’s friend, Mark Judge, who Ford said was in the room during the assault. But Judge sent a letter to the Judiciary Committee denying any recollection of the event. Therefore, since he presumably couldn’t support Ford’s accusation and since there were no other eyewitnesses in the room, that caused some people to conclude that Ford had failed to provide any evidence to corroborate her accusation.
What such people fail to realize, however, is that the law provides that there can be corroborative evidence that does not consist of eyewitness testimony.
For example, suppose Mary is driving a car that is negligently struck by a car that is being driven by John. John flees the scene but Mary knows who he is. When Mary accompanies the police to John’s house, he denies having committed the hit and run.
Suppose that John has parked his car in the street and the police walk over to inspect it. They find a huge dent in the front bumper with paint on it that matches the color of Mary’s car. That dent and paint would constitute “corroborative evidence” to support Mary’s accusation, even though it doesn’t consist of eyewitness testimony.
Thus, under the law, eyewitness testimony is “corroborative evidence” but not all “corroborative evidence” is eyewitness testimony.
What is the corroborative evidence that shows that Christine Ford was telling the truth and that Brett Kavanaugh’s denial was false?
The corroborating evidence is what the law calls a “prior consistent statement.” This is a statement that a person makes prior to the incident in question that is consistent with her version of the events. Prior consistent statements become especially pertinent when a witness in a case is accused of fabricating a story. In such a case, the law permits the person to show, as a way to corroborate her testimony, that she told others the same story long before she supposedly fabricated the story.
The evidentiary principle of “prior consistent statement” as corroborative evidence is especially pertinent in the case of Christine Ford. That’s because she had previously told several people of the assault she had suffered and, more significantly, she told these people of the assault long before Kavanaugh was even nominated to the Court and even before Justice Kennedy had announced his retirement from the Court.
In June 2013, five years before the Kavanaugh nomination, Ford was having lunch with a friend named Adela Gildo-Mazzon, who has been a California realtor for 15 years. During that lunch, Ford told Gildo-Mazzon that she had almost been raped by a man who is a federal judge. She also stated in her affidavit that she had not talked to Ford since May 2018, which was before Kennedy had resigned and before Kavanaugh had been nominated.
Under the law, the statement that Ford made to Gildo-Mazzon constitutes corroborating evidence that buttresses Ford’s accusation against Kavanaugh. That’s because it is a “prior consistent statement,” one that was made even before Kennedy resigned and before Kavanaugh was nominated and, for that matter, before Donald Trump even became president.
Gildo-Mazzon’s affidavit was in the hands of the Senate Judiciary Committee prior to its rushed confirmation vote last Saturday.
In 2016, Ford was standing in a public area with Keith Koegler, who was a family friend of the Fords and also their son’s softball coach, watching their children play. During the conversation they were having, Ford told Koegler that she had been assaulted by a man who is now a federal judge. That was two years before Kavanaugh was nominated to the Supreme Court.
Under the law, the statement that Christine made to Koegler constitutes corroborating evidence that buttresses Ford’s accusation against Kavanaugh. That’s because it is a “prior consistent statement,” one that was made long before Kennedy had resigned and before Kavanaugh had been nominated and, for that matter, even before Donald Trump had become president.
Koegler’s affidavit setting forth these facts was in the hands of the Senate Judiciary Committee prior to its rushed confirmation vote last Saturday.
In 2017, Ford told a neighbor named Rebecca White that she had been assaulted by an older teen who is now a federal judge. That was the year before the Kavanaugh nomination.
Under the law, the statement that Christine made to White constitutes corroborating evidence that buttresses Ford’s accusation against Kavanaugh. That’s because it is a “prior consistent statement,” one that was made before Kennedy resigned and before Kavanaugh was nominated.
White’s sworn affidavit setting forth this fact was in the hands of the Senate Judiciary Committee prior to its rushed confirmation vote last Saturday.
In 2002 when Russell and Christine Ford got married, she told him that she was a sex-abuse victim. That was 16 years before the Kavanaugh nomination. In 2012, Russell listened to Christine tell her therapist that two boys pinned her to a bed, molested her, and prevented her from screaming. Russell stated that during the therapy session, Christine mentioned Kavanaugh’s name. That was 6 years before the Kavanaugh nomination.
Under the law, the statements that Christine made to Russell in 2002 and the statements she made in his presence during that 2012 therapy session constitute corroborating evidence that buttresses Ford’s accusation against Kavanaugh. That’s because it is a “prior consistent statement,” one that was made before Kennedy resigned and before Kavanaugh was nominated and, for that matter, even before Donald Trump became president.
Russell’s sworn affidavit setting forth these facts was in the hands of the Senate Judiciary Committee prior to its rushed confirmation vote last Saturday.
In 2012, Christine Ford told her therapist that she had suffered an assault by students from “an elitist boys’ school” who went on to become “highly respected and high-ranking member of society in Washington.” The therapist has written notes that confirm that Ford made that statement in 2012. That was six years before the Kavanaugh appointment. Ford’s therapist also has notes that reflect that in 2013, Ford described a “rape attempt” in her late teens. That was five years before the Kavanaugh nomination.
Under the law, Christine’s statements to her therapist in 2012 and 2013 constitute corroborating evidence that buttress her accusation against Kavanaugh. That’s because they are “prior consistent statements,” ones that were made before Kennedy resigned and before Kavanaugh was nominated and, for that matter, before Donald Trump even became president.
For an excellent article summarizing the affidavits that Russell Ford, Adela Gildo-Mazzon, Keith Koegler, and Rebecca White filed with the Senate Judiciary Committee, see the following article at pbs.org: “Here’s What the 4 Affidavits Supporting Christine Blasey Ford Say.” Also, see the following article at HuffPost: “The Forgotten Affidavits.”
Ford’s prior consistent statements to her three friends, her husband, and her therapist, are obviously critically important corroborative evidence because they tend to show that she hasn’t recently fabricated her story, as President Trump and others are now asserting. Equally important, the fact that she made the prior consistent statements prior to Kennedy’s resignation and Kavanaugh’s nomination serves to reinforce the truthfulness of her testimony.
As Laurie Levenson, a former prosecutor and current criminal law and evidence professor at Loyola Law School in Los Angeles. put it in the HuffPost article:
They are what we would call “prior consistent statements” ― in other words, [Ford] was telling people about this before she had the alleged motive to fabricate. If this were a court of law, this would be significant, but it’s all gotten lost in the partisanship.
The HuffPost article points out that there was a shockingly high level of unawareness of or indifference to all this corroborating evidence among members the Senate Judiciary Committee, notwithstanding the fact that the corroborating evidence of Ford’s accusation against Kavanaugh was in their hands.
Perhaps that is understandable for those members of the Senate Judiciary Committee who aren’t lawyers. They might well be among those people who mistakenly believe that corroborating evidence can consist only of eyewitness testimony.
But what about the lawyers on the committee? What was their excuse for not bringing this corroborating evidence to the attention of the committee prior to the rushed confirmation vote on Saturday?
There was one section of the HuffPost article that particularly caught my eye:
Asked about the affidavits last week, Sen. John Cornyn (R-Texas) said the people didn’t really have corroborating information. “Those are not people who witnessed the alleged event,” he said.
That section is both shocking and befuddling. The section makes clear that Cornyn was well aware of the affidavits. But if that section of the article is, in fact, true, it makes absolutely no sense. John Cornyn was one of the most brilliant trial attorneys in Texas. He also served six years as a state district judge. He also served seven years as a justice on the Texas Supreme Court. He also served three years as the state’s attorney general.
Assuming that section of the HuffPost article is correct, how in the world could Cornyn not know that under the law prior consistent statements constitute “corroborating information.” Yet, there it is: Cornyn’s statement that because the people who swore that Christine Ford made prior consistent statements are not “eyewitnesses,” their sworn statements cannot be considered “corroborating information.”
Rule 801(d) of the Federal Rules of Evidence, which are the evidentiary rules for trials in federal court, states in part as follows:
Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay: A Declarant-Witness’s Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement … is consistent with the declarant’s testimony and is offered to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying….
How could Cornyn not know that?
In 1995, when Cornyn was serving as a justice on the Texas Supreme Court, the U.S. Supreme Court decided the case of Tome v. United States, where the court’s opinion stated in part as follows:
The prevailing common law rule for more than a century before adoption of the Federal Rules of Evidence was that a prior consistent statement introduced to rebut a charge of recent fabrication or improper influence or motive was admissible if the statement had been made before the alleged fabrication, influence, or motive came into being, but it was inadmissible if made afterwards. As Justice Story explained: “[W]here the testimony is assailed as a fabrication of a recent date .. in order to repel such imputation, proof of the antecedent declaration of the party may be admitted.”
Impeachment by charging that the testimony is a recent fabrication or results from an improper influence or motive is, as a general matter, capable of direct and forceful refutation through introduction of out-of-court consistent statements that predate the alleged fabrication, influence, or motive. A consistent statement that predates the motive is a square rebuttal of the charge that the testimony was contrived as a consequence of that motive…. Evidence that a witness made consistent statements after the alleged motive to fabricate arose may suggest in some degree that the in-court testimony is truthful, and thus suggest in some degree that that testimony did not result from some improper influence
How could Cornyn not know that?
In 1998, the year that Cornyn gave up his seat on the Texas Supreme Court to become the state’s attorney general, the Texas Second Court of Appeals, issued an opinion in the case of Bolden v. State, which stated in pertinent part as follows:
Although this is a case of first impression, we are guided by our sister courts in the federal circuits who have addressed this issue under FED.R.EVID. 801(d)(1)(B)…. We find, therefore, that Martin’s prior consistent statement was properly admitted under Rule 801(e)(1)(B) for purposes of rehabilitating an impeached witness.
How could Cornyn not know that?
In Issue 3, volume 30, of the Hastings Law Journal (1979), an article entitled “Prior Consistent Statements: Rule 801(d)(b)(1) (B) of the Federal Rules of Evidence, Critique and Proposal” by Michael H. Graham states:
Complicating the analysis of the corroborative value of the prior statement is the fact that it is also relevant to an evaluation of witness credibility and accordingly to an evaluation of the weight to be given to the witness’ in-court testimony. The concept of corroboration thus possesses two dimensions. Not only does corroboration refer to the concept that a prior consistent statement may constitute independent evidence directly relevant to establishing a fact of consequence, but the concept of corroboration also encompasses use of a prior consistent statement as evidence which tends to buttress the credibility of the in-court declarant. By buttressing the credibility of the witness, the prior consistent statement is relevant as it indirectly provides probative evidence as to a fact of consequence.
How could Cornyn not know that?
Is it possible that in the rush to a confirmation vote Cornyn simply forgot that prior consistent statements constitute corroborating evidence?
Or course it’s possible, but wouldn’t such a grave legal error serve to confirm that the rushed confirmation vote constituted severe political misconduct — misconduct that entailed virtually all of the Republican members of Congress dutifully lining up behind Trump’s demand for a quick confirmation vote and sacrificing their individual judgment, integrity, and conscience in the process?
One thing is for sure though: Contrary to popular opinion, Christine Blasey Ford did provide corroborating evidence to the U.S. Senate that buttressed her accusation against Brett Kavanaugh — powerful corroborating evidence in the form of prior consistent statements that were previously made to several different people and all of which statements were made long before Kavanaugh was even nominated.