Tome v. United States, 513 U.S. 150, 24 (1995)

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Cite as: 513 U. S. 150 (1995)

Breyer, J., dissenting

improper motive, not because they bolster in a general way the witness' trial testimony, see ante, at 159, but because the circumstances indicate that the statements are not causally connected to the alleged motive to lie.

For another thing, the common-law premotive rule was not as uniform as the majority suggests. Cf. United States v. Abel, 469 U. S. 45, 50 (1984) (stating that where the common law was unanimous, the drafters of the Federal Rules likely intended to preserve it). A minority of courts recognized that postmotive statements could be relevant to rebut a charge of recent fabrication or improper influence or motive under the right circumstances. See, e. g., United States v. Gandy, 469 F. 2d 1134, 1135 (CA5 1972); Copes v. United States, 345 F. 2d 723, 726 (CADC 1964); State v. George, 30 N. C. 324, 328 (1848). I concede that the majority of courts took the rule of thumb as absolute. But, I have searched the cases (and the commentators) in vain for an explanation of why that should be so. See, e. g., McCormick § 49, at 105, and n. 88 (citing cases).

One can imagine a possible explanation: Trial judges may find it easier to administer an absolute rule. Yet, there is no indication in any of the cases that trial judges would, or do, find it particularly difficult to administer a more flexible rule in this context. And, there is something to be said for the greater authority that flexibility grants the trial judge to tie rulings on the admissibility of rehabilitative evidence more closely to the needs and circumstances of the particular case. 1 J. Weinstein & M. Berger, Weinstein's Evidence

¶ 401[01], pp. 401-8 to 401-9 (1994) ("A flexible approach . . . is more apt to yield a sensible result than the application of a mechanical rule"). Furthermore, the majority concedes that the premotive rule, while seemingly bright line, poses its own administrative difficulties. Ante, at 165-166.

This Court has acknowledged that the Federal Rules of Evidence worked a change in common-law relevancy rules in the direction of flexibility. See Daubert v. Merrell Dow

173

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