author:
Justice Kennedy Justice Scalia,
      Justice Breyer,

text:
    TOME v. UNITED STATES
    No. 93-6892.
    Argued October 5, 1994
    Decided January 10, 1995

      Kennedy, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II-A, II-C, and III, in which Stevens, Scalia, Souter, and Ginsburg, JJ., joined, and an opinion with respect to Part II-B, in which Stevens, Souter, and Ginsburg, JJ., joined. Scalia, J., filed an opinion concurring in part and concurring in the judgment, post, p. 167. Breyer, J., filed a dissenting opinion, in which Rehnquist, C. J., and O’Connor and Thomas, JJ., joined, post, p. 169.

      Joseph W. Gandert argued the cause for petitioner. With him on the briefs were Tova Indritz and Carol H. Marion.

      Deputy Solicitor General Wallace argued the cause for the United States. With him on the briefs were Solicitor General Days, Assistant Attorney General Harris, Paul R. Q. Wolfson, and Deborah Watson.

       A brief of amicus curiae urging affirmance was filed for the State of Ohio et al. by Lee Fisher, Attorney General of Ohio, Richard A Cordray, State Solicitor, and Simon B. Karas, and by the Attorneys General for their respective States as follows: Jimmy Evans of Alabama, Bruce M. Botelho of Alaska, Larry EchoHawk of Idaho, Pamela Carter of Indiana, Richard P. Ieyoub of Louisiana, J Joseph Curran, Jr., of Maryland, Joseph P. Mazurek of Montana, Frankie Sue Del Papa of Nevada, Jeffery B. Pine of Rhode Island, T. Travis Medlock of South Carolina, Jan Graham of Utah, and Jeffrey L. Amestoy of Vermont.

        Bruce Robert Rogoff filed a brief for the National Association of Criminal Defense Lawyers as amicus curiae.

   Justice Kennedy

delivered the opinion of the Court, except as to Part II-B.

Various Federal Courts of Appeals are divided over the evidence question presented by this case. At issue is the interpretation of a provision in the Federal Rules of Evidence bearing upon the admissibility of statements, made by a declarant who testifies as a witness, that are consistent with the testimony and are offered to rebut a charge of a “recent fabrication or improper influence or motive.” Fed. Rule Evid. 801(d)(1)(B). The question is whether out-of-court consistent statements made after the alleged fabrication, or after the alleged improper influence or motive arose, are admissible under the Rule.

I

Petitioner Tome was charged in a one-count indictment with the felony of sexual abuse of a child, his own daughter, aged four at the time of the alleged crime. The case having arisen on the Navajo Indian Reservation, Tome was tried by a jury in the United States District Court for the District of New Mexico, where he was found guilty of violating 18 U. S. C. §§ 1153, 2241(c), and 2245(2)(A) and (B).

Tome and the child’s mother had been divorced in 1988. A tribal court awarded joint custody of the daughter, A. T., to both parents, but Tome had primary physical custody. In 1989 the mother was unsuccessful in petitioning the tribal court for primary custody of A. T., but was awarded custody for the summer of 1990. Neither parent attended a further custody hearing in August 1990. On August 27, 1990, the mother contacted Colorado authorities with allegations that Tome had committed sexual abuse against A. T.

The prosecution’s theory was that Tome committed sexual assaults upon the child while she was in his custody and that the crime was disclosed when the child was spending vacation time with her mother. The defense argued that the allegations were concocted so the child would not be returned to her father. At trial A. T., then 6V2 years old, was the Government’s first witness. For the most part, her direct testimony consisted of one- and two-word answers to a series of leading questions. Cross-examination took place over two trial days. The defense asked A. T. 348 questions. On the first day A. T. answered all the questions posed to her on general, background subjects.

The next day there was no testimony, and the prosecutor met with A. T. When cross-examination of A. T. resumed, she was questioned about those conversations but was reluctant to discuss them. Defense counsel then began questioning her about the allegations of abuse, and it appears she was reluctant at many points to answer. As the trial judge noted, however, some of the defense questions were imprecise or unclear. The judge expressed his concerns with the examination of A. T., observing there were lapses of as much as 40-55 seconds between some questions and the answers and that on the second day of examination the witness seemed to be losing concentration. The trial judge stated, “We have a very difficult situation here.”

After A. T. testified, the Government produced six witnesses who testified about a total of seven statements made by A. T. describing the alleged sexual assaults: A. T.’s babysitter recited A. T.’s statement to her on August 22, 1990, that she did not want to return to her father because he “gets drunk and he thinks I’m his wife”; the babysitter related further details given by A. T. on August 27,1990, while A. T.’s mother stood outside the room and listened after the mother had been unsuccessful in questioning A. T. herself; the mother recounted what she had heard A. T. tell the babysitter; a social worker recounted details A. T. told her on August 29, 1990, about the assaults; and three pediatricians, Drs. Kuper, Reich, and Spiegel, related A. T.’s statements to them describing how and where she had been touched by Tome. All but A. T.’s statement to Dr. Spiegel implicated Tome. (The physicians also testified that their clinical examinations of the child indicated that she had been subjected to vaginal penetrations. That part of the testimony is not at issue here.)

A. T.’s out-of-court statements, recounted by the six witnesses, were offered by the Government under Rule 801(d)(1)(B). The trial court admitted all of the statements over defense counsel’s objection, accepting the Government’s argument that they rebutted the implicit charge that A. T.’s testimony was motivated by a desire to live with her mother. The court also admitted A. T.’s August 22d statement to her babysitter under Rule 803(24), and the statements to Dr. Kuper (and apparently also to Dr. Reich) under Rule 803(4) (statements for purposes of medical diagnosis). The Government offered the testimony of the social worker under both Rules 801(d)(1)(B) and 803(24), but the record does not indicate whether the court ruled on the latter ground. No objection was made to Dr. Spiegel’s testimony. Following trial, Tome was convicted and sentenced to 12 years’ imprisonment.

On appeal, the Court of Appeals for the Tenth Circuit affirmed, adopting the Government’s argument that all of A. T.’s out-of-court statements were admissible under Rule 801(d)(1)(B) even though they had been made after A. T.’s alleged motive to fabricate arose. The court reasoned that “the pre-motive requirement is a function of the relevancy rules, not the hearsay rules” and that as a “function of relevance, the pre-motive rule is clearly too broad ... because it is simply not true that an individual with a motive to lie always will do so.” 3 F. 3d 342, 350 (1993). “Rather, the relevance of the prior consistent statement is more accurately determined by evaluating the strength of the motive to lie, the circumstances in which the statement is made, and the declarant’s demonstrated propensity to lie.” Ibid. The court recognized that some Circuits require that the consistent statements, to be admissible under the Rule, must be made before the motive or influence arose, see, e. g., United States v. Guevara, 598 F. 2d 1094, 1100 (CA7 1979); United States v. Quinto, 582 F. 2d 224, 234 (CA2 1978), but cited the Ninth Circuit’s decision in United States v. Miller, 874 F. 2d 1255, 1272 (1989), in support of its balancing approach. Applying this balancing test to A. T.’s first statement to her babysitter, the Court of Appeals determined that although A. T. might have had “some motive to lie, we do not believe that it is a particularly strong one.” 3 F. 3d, at 351. The court held that the District Judge had not abused his discretion in admitting A. T.’s out-of-court statements. It did not analyze the probative quality of A. T.’s six other out-of-court statements, nor did it reach the admissibility of the statements under any other rule of evidence.

We granted certiorari, 510 U. S. 1109 (1994), and now reverse.

II

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.” Ellicott v. Pearl, 10 Pet. 412, 439 (1836) (emphasis added). See also People v. Singer, 300 N. Y. 120, 124-125, 89 N. E. 2d 710, 712 (1949).

McCormick and Wigmore stated the rule in a more categorical manner: “[T]he applicable principle is that the prior consistent statement has no relevancy to refute the charge unless the consistent statement was made before the source of the bias, interest, influence or incapacity originated.” E. Cleary, McCormick on Evidence §49, p. 105 (2d ed. 1972) (hereafter McCormick). See also 4 J. Wigmore, Evidence §1128, p. 268 (J. Chadbourn rev. 1972) (hereafter Wigmore) (“A consistent statement, at a time prior to the existence of a fact said to indicate bias . . . will effectively explain away the force of the impeaching evidence” (emphasis in original)). The question is whether Rule 801(d)(1)(B) embodies this temporal requirement. We hold that it does.

A

Rule 801 provides:

“(d) Statements which are not hearsay. — A statement is not hearsay if—
“(1) Prior statement by witness. — The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is .. .
“(B) consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.”

Rule 801 defines prior consistent statements as nonhear-say only if they are offered to rebut a charge of “recent fabrication or improper influence or motive.” Fed. Rule Evid. 801(d)(1)(B). Noting the “troublesome” logic of treating a witness’ prior consistent statements as hearsay at all (because the declarant is present in court and subject to cross-examination), the Advisory Committee decided to treat those consistent statements, once the preconditions of the Rule were satisfied, as nonhearsay and admissible as substantive evidence, not just to rebut an attack on the witness’ credibility. See Advisory Committee’s Notes on Fed. Rule Evid. 801(d)(1), 28 U. S. C. App., p. 773. A consistent statement meeting the requirements of the Rule is thus placed in the same category as a declarant’s inconsistent statement made under oath in another proceeding, or prior identification testimony, or admissions by a party opponent. See Fed. Rule Evid. 801.

The Rules do not accord this weighty, nonhearsay status to all prior consistent statements. To the contrary, admissibility under the Rules is confined to those statements offered to rebut a charge of “recent fabrication or improper influence or motive,” the same phrase used by the Advisory Committee in its description of the “traditiona[lj” common law of evidence, which was the background against which the Rules were drafted. See Advisory Committee’s Notes, supra, at 773. Prior consistent statements may not be admitted to counter all forms of impeachment or to bolster the witness merely because she has been discredited. In the present context, the question is whether A. T.’s out-of-court statements rebutted the alleged link between her desire to be with her mother and her testimony, not whether they suggested that A. T.’s in-court testimony was true. The Rule speaks of a party rebutting an alleged motive, not bolstering the veracity of the story told.

This limitation is instructive, not only to establish the preconditions of admissibility but also to reinforce the significance of the requirement that the consistent statements must have been made before the alleged influence, or motive to fabricate, arose. That is to say, the forms of impeachment within the Rule’s coverage are the ones in which the temporal requirement makes the most sense. 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. By contrast, prior consistent statements carry little rebuttal force when most other types of impeachment are involved. McCormick §49, p. 105 (“When the attack takes the form of impeachment of character, by showing misconduct, convictions or bad reputation, it is generally agreed that there is no color for sustaining by consistent statements. The defense does not meet the assault” (footnote omitted)); see also 4 Wigmore §1131, p. 293 (“The broad rule obtains in a few courts that consistent statements may be admitted after impeachment of any sort — in particular after any impeachment by cross-examination. But there is no reason for such a loose rule” (footnote omitted)).

There may arise instances when out-of-court statements that postdate the alleged fabrication have some probative force in rebutting a charge of fabrication or improper influence or motive, but those statements refute the charged fabrication in a less direct and forceful way. 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; but if the drafters of Rule 801(d)(1)(B) intended to countenance rebuttal along that indirect inferential chain, the purpose of confining the types of impeachment that open the door to rebuttal by introducing consistent statements becomes unclear. If consistent statements are admissible without reference to the timeframe we find imbedded in the Rule, there appears no sound reason not to admit consistent statements to rebut other forms of impeachment as well. Whatever objections can be leveled against limiting the Rule to this designated form of impeachment and confining the rebuttal to those statements made before the fabrication or improper influence or motive arose, it is clear to us that the drafters of Rule 801(d)(1)(B) were relying upon the common-law temporal requirement.

The underlying theory of the Government’s position is that an out-of-court consistent statement, whenever it was made, tends to bolster the testimony of a witness and so tends also to rebut an express or implied charge that the testimony has been the product of an improper influence. Congress could have adopted that rule with ease, providing, for instance, that “a witness’ prior consistent statements are admissible whenever relevant to assess the witness’ truthfulness or accuracy.” The theory would be that, in a broad sense, any prior statement by a witness concerning the disputed issues at trial would have some relevance in assessing the accuracy or truthfulness of the witness’ in-court testimony on the same subject. The narrow Rule enacted by Congress, however, cannot be understood to incorporate the Government’s theory.

Our analysis is strengthened by the observation that the somewhat peculiar language of the Rule bears close similarity to the language used in many of the common-law cases that describe the premotive requirement. “Rule 801(d)(1) (B) employs the precise language — ‘rebut[ting]. .. charge[s] ... of recent fabrication or improper influence or motive’— consistently used in the panoply of pre-1975 decisions.” Ohl-baum, The Hobgoblin of the Federal Rules of Evidence: An Analysis of Rule 801(d)(1)(B), Prior Consistent Statements and a New Proposal, 1987 B. Y. U. L. Rev. 231, 245. See, e.g., Ellicott v. Pearl, 10 Pet., at 439; Hanger v. United States, 398 F. 2d 91, 104 (CA8 1968); People v. Singer, 300 N. Y. 120, 89 N. E. 2d 710 (1949).

The language of the Rule, in its concentration on rebutting charges of recent fabrication or improper influence or motive to the exclusion of other forms of impeachment, as well as in its use of wording that follows the language of the common-law cases, suggests that it was intended to carry over the common-law premotive rule.

B

Our conclusion that Rule 801(d)(1)(B) embodies the common-law premotive requirement is confirmed by an examination of the Advisory Committee’s Notes to the Federal Rules of Evidence. We have relied on those well-considered Notes as a useful guide in ascertaining the meaning of the Rules. See, e. g., Huddleston v. United States, 485 U. S. 681, 688 (1988); United States v. Owens, 484 U. S. 554, 562 (1988). Where, as with Rule 801(d)(1)(B), “Congress did not amend the Advisory Committee’s draft in any way . . . the Committee’s commentary is particularly relevant in determining the meaning of the document Congress enacted,” Beech Aircraft Corp. v. Rainey, 488 U. S. 153, 165-166, n. 9 (1988). The Notes are also a respected source of scholarly commentary. Professor Cleary was a distinguished commentator on the law of evidence, and he and members of the Committee consulted and considered the views, criticisms, and suggestions of the academic community in preparing the Notes.

The Notes disclose a purpose to adhere to the common law in the application of evidentiary principles, absent express provisions to the contrary. Where the Rules did depart from their common-law antecedents, in general the Committee said so. See, e. g., Notes on Rule 804(b)(4), 28 U. S. C. App., p. 790 (“The general common law requirement that a declaration in this area must have been made ante litem motam has been dropped, as bearing more appropriately on weight than admissibility”); Rule 804(b)(2), id., at 789 (“The exception is the familiar dying declaration of the common law, expanded somewhat beyond its traditionally narrow limits”); Rule 804(b)(3), ibid. (“The exception discards the common law limitation and expands to the full logical limit”). The Notes give no indication, however, that Rule 801(d)(1)(B) abandoned the premotive requirement. The entire discussion of Rule 801(d)(1)(B) is limited to the following comment:

“Prior consistent statements traditionally have been admissible to rebut charges of recent fabrication or improper influence or motive but not as substantive evidence. Under the rule they are substantive evidence. The prior statement is consistent with the testimony given on the stand, and, if the opposite party wishes to open the door for its admission in evidence, no sound reason is apparent why it should not be received generally.” Notes on Rule 801(d)(1)(B), id., at 773.

Throughout their discussion of the Rules, the Advisory Committee’s Notes rely on Wigmore and McCormick as authority for the common-law approach. In light of the categorical manner in which those authors state the premotive requirement, see supra, at 156, it is difficult to imagine that the drafters, who noted the new substantive use of prior consistent statements, would have remained silent if they intended to modify the premotive requirement. As we observed with respect to another provision of the Rules, “[w]ith this state of unanimity confronting the drafters of the Federal Rules of Evidence, we think it unlikely that they intended to scuttle entirely [the common-law requirement].” United States v. Abel, 469 U. S. 45, 50 (1984). Here, we do not think the drafters of the Rule intended to scuttle the whole premotive requirement and rationale without so much as a whisper of explanation.

Observing that Edward Cleary was the Reporter of the Advisory Committee that drafted the Rules, the Court has relied upon his writings as persuasive authority on the meaning of the Rules. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U. S. 579 (1993); Abel, supra, at 51-52. Cleary also was responsible for the 1972 revision of McCormick’s treatise, which included an examination of the changes introduced by the proposed federal rules to the common-law practice of impeachment and rehabilitation. The discussion, which occurs only three paragraphs after the treatise’s categorical description of the common-law premotive rule, also lacks any indication that the proposed rules were abandoning that temporal limitation. See McCormick § 50, p. 107.

Our conclusion is bolstered by the Advisory Committee’s stated “unwillingness to countenance the general use of prior prepared statements as substantive evidence.” See Notes on Rule 801(d)(1), 28 U. S. C. App., p. 773. Rule 801(d), which “enumerates three situations in which the statement is excepted from the category of hearsay,” ibid., was expressly contrasted by the Committee with Uniform Rule of Evidence 63(1) (1953), “which allows any out-of-court statement of a declarant who is present at the trial and available for cross-examination.” Notes on Rule 801(d)(1), supra, at 773 (emphasis added). When a witness presents important testimony damaging to a party, the party will often counter with at least an implicit charge that the witness has been under some influence or motive to fabricate. If Rule 801 were read so that the charge opened the floodgates to any prior consistent statement that satisfied Rule 403, as the Tenth Circuit concluded, the distinction between rejected Uniform Rule 63(1) and Rule 801(d)(1)(B) would all but disappear.

That Rule 801(d)(1)(B) permits prior consistent statements to be used for substantive purposes after the statements are admitted to rebut the existence of an improper influence or motive makes it all the more important to observe the preconditions for admitting the evidence in the first place. The position taken by the Rules reflects a compromise between the views expressed by the “bulk of the case law ... against allowing prior statements of witnesses to be used generally as substantive evidence” and the views of the majority of “writers . . . [who] ha[d] taken the opposite position.” Ibid. That compromise was one that the Committee candidly admitted was a “judgment . . . more of experience than of logic.” Ibid.

“A party contending that legislative action changed settled law has the burden of showing that the legislature intended such a change.” Green v. Bock Laundry Machine Co., 490 U. S. 504, 521 (1989) (applying that presumption in interpreting Federal Rule of Evidence 609). Nothing in the Advisory Committee’s Notes suggests that it intended to alter the common-law premotive requirement.

C

The Government’s final argument in favor of affirmance is that the common-law premotive rule advocated by petitioner is inconsistent with the Federal Rules’ liberal approach to relevancy and with strong academic criticism, beginning in the 1940’s, directed at the exclusion of out-of-court statements made by a declarant who is present in court and subject to cross-examination. This argument misconceives the design of the Rules’ hearsay provisions.

Hearsay evidence is often relevant. “The only way in which the probative force of hearsay differs from the probative force of other testimony is in the absence of oath, demeanor, and cross-examination as aids in determining credibility.” Advisory Committee’s Introduction to Article VIII, 28 II S. C. App., p. 771. That does not resolve the matter, however. Relevance is not the sole criterion of admissibility. Otherwise, it would be difficult to account for the Rules’ general proscription of hearsay testimony (absent a specific exception), see Fed. Rule Evid. 802, let alone the traditional analysis of hearsay that the Rules, for the most part, reflect. Ibid. (“The approach to hearsay in these rules is that of the common law. . . . The traditional hearsay exceptions are drawn upon for the exceptions . . .”). That certain out-of-court statements may be relevant does not dispose of the question whether they are admissible.

The Government’s reliance on academic commentators critical of excluding out-of-court statements by a witness, see Brief for United States 40, is subject to like criticism. To be sure, certain commentators in the years preceding the adoption of the Rules had been critical of the common-law approach to hearsay, particularly its categorical exclusion of out-of-court statements offered for substantive purposes. See, e.g., Weinstein, The Probative Force of Hearsay, 46 Iowa L. Rev. 331, 344-345 (1961) (gathering sources). General criticism was directed to the exclusion of a declarant’s out-of-court statements where the declarant testified at trial. See, e. g., id., at 333 (“[Treating the out of court statement of the witness himself as hearsay” is a “practical absurdity in many instances”); Morgan, Hearsay Dangers and the Application of the Hearsay Concept, 62 Harv. L. Rev. 177, 192-196 (1948). As an alternative, they suggested moving away from the categorical exclusion of hearsay and toward a case-by-case balancing of the probative value of particular statements against their likely prejudicial effect. See Weinstein, supra, at 338; Ladd, The Relationship of the Principles of Exclusionary Rules of Evidence to the Problem of Proof, 18 Minn. L. Rev. 506 (1934). The Advisory Committee^ however, was explicit in rejecting this balancing approach to hearsay: Given the Advisory Committee’s rejection of both the general balancing approach to hearsay and of Uniform Rule 63(1), see supra, at 162, the Government’s reliance on the views of those who advocated these positions is misplaced.

“The Advisory Committee has rejected this approach to hearsay as involving too great a measure of judicial discretion, minimizing the predictability of rulings, [and] enhancing the difficulties of preparation for trial.” Advisory Committee’s Introduction, supra, at 771.

The statement-by-statement balancing approach advocated by the Government and adopted by the Tenth Circuit creates the precise dangers the Advisory Committee noted and sought to avoid: It involves considerable judicial discretion; it reduces predictability; and it enhances the difficulties of trial preparation because parties will have difficulty knowing in advance whether or not particular out-of-court statements will be admitted. See Advisory Committee’s Introduction, supra, at 771.

D

The case before us illustrates some of the important considerations supporting the Rule as we interpret it, especially in criminal cases. If the Rule were to permit the introduction of prior statements as substantive evidence to rebut every implicit charge that a witness’ in-court testimony results from recent fabrication or improper influence or motive, the whole emphasis of the trial could shift to the out-of-court statements, not the in-court ones. The present case illustrates the point. In response to a rather weak charge that A. T.’s testimony was a fabrication created so the child could remain with her mother, the Government was permitted to present a parade of sympathetic and credible witnesses who did no more than recount A. T.’s detailed out-of-court statements to them. Although those statements might have been probative on the question whether the alleged conduct had occurred, they shed but minimal light on whether A. T. had the charged motive to fabricate. At closing argument before the jury, the Government placed great reliance on the prior statements for substantive purposes but did not once seek to use them to rebut the impact of the alleged motive.

We are aware that in some cases it may be difficult to ascertain when a particular fabrication, influence, or motive arose. Yet, as the Government concedes, a majority of common-law courts were performing this task for well over a century, see Brief for United States 39, and the Government has presented us with no evidence that those courts, or the judicial circuits that adhere to the rule today, have been unable to make the determination. Even under the Government’s hypothesis, moreover, the thing to be rebutted must be identified, so the date of its origin cannot be that much more difficult to ascertain. By contrast, as the Advisory Committee commented, see supra, at 164, the Government’s approach, which would require the trial court to weigh all of the circumstances surrounding a statement that suggest its probativeness against the court’s assessment of the strength of the alleged motive, would entail more of a burden, with no guidance to attorneys in preparing a case or to appellate courts in reviewing a judgment.

Ill

Courts must be sensitive to the difficulties attendant upon the prosecution of alleged child abusers. In almost all cases a youth is the prosecution’s only eyewitness. But “[t]his Court cannot alter evidentiary rules merely because litigants might prefer different rules in a particular class of cases.” United States v. Salerno, 505 U. S. 317, 322 (1992). When a party seeks to introduce out-of-court statements that contain strong circumstantial indicia of reliability, that are highly probative on the material questions at trial, and that are better than other evidence otherwise available, there is no need to distort the requirements of Rule 801(d)(1)(B). If its requirements are met, Rule 803(24) exists for that eventuality. We intimate no view, however, concerning the admissibility of any of A. T.’s out-of-court statements under that section, or any other evidentiary principle. These matters, and others, are for the Court of Appeals to decide in the first instance.

Our holding is confined to the requirements for admission under Rule 801(d)(1)(B). The Rule permits the introduction of a declarant’s consistent out-of-court statements to rebut a charge of recent fabrication or improper influence or motive only when those statements were made before the charged recent fabrication or improper influence or motive. These conditions of admissibility were not established here.

The judgment of the Court of Appeals for the Tenth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice Scalia,

concurring in part and concurring in the judgment.

I concur in the judgment of the Court, and join its opinion except for Part II-B. That Part, which is devoted entirely to a discussion of the Advisory Committee’s Notes pertinent to Rule 801(d)(1)(B), gives effect to those Notes not only because they are “a respected source of scholarly commentary,” ante, at 160, but also because they display the “purpose,” ibid., or “inten[t],” ante, at 161, of the draftsmen.

I have previously acquiesced in, see, e. g., Beech Aircraft Corp. v. Rainey, 488 U. S. 153 (1988), and indeed myself engaged in, see United States v. Owens, 484 U. S. 554, 562 (1988), similar use of the Advisory Committee Notes. More mature consideration has persuaded me that is wrong. Having been prepared by a body of experts, the Notes are assuredly persuasive scholarly commentaries — ordinarily the most persuasive — concerning the meaning of the Rules. But they bear no special authoritativeness as the work of the draftsmen, any more than the views of Alexander Hamilton (a draftsman) bear more authority than the views of Thomas Jefferson (not a draftsman) with regard to the meaning of the Constitution. It is the words of the Rules that have been authoritatively adopted — by this Court, or by Congress if it makes a statutory change. See 28 U. S. C. §§2072, 2074 (1988 ed. and Supp. IV). In my view even the adopting Justices’ thoughts, unpromulgated as Rules, have no authoritative (as opposed to persuasive) effect, any more than their thoughts regarding an opinion (reflected in exchanges of memoranda before the opinion issues) authoritatively demonstrate the meaning of that opinion. And the same for the thoughts of congressional draftsmen who prepare statutory amendments to the Rules. Like a judicial opinion and like a statute, the promulgated Rule says what it says, regardless of the intent of its drafters. The Notes are, to be sure, submitted to us and to the Members of Congress as the thoughts of the body initiating the recommendations, see § 2073(d); but there is no certainty that either we or they read those thoughts, nor is there any procedure by which we formally endorse or disclaim them. That being so, the Notes cannot, by some power inherent in the draftsmen, change the meaning that the Rules would otherwise bear.

In the present case, the merely persuasive force of the Advisory Committee Notes suffices. Indeed, in my view the case can be adequately resolved without resort to the Advisory Committee at all. It is well established that “‘“the body of common law knowledge” ’ ” must be “ ‘ “a source of guidance” ’ ” in our interpretation of the Rules. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U. S. 579, 588 (1993) (quoting United States v. Abel, 469 U. S. 45, 52 (1984) (quoting Cleary, Preliminary Notes on Reading the Rules of Evidence, 57 Neb. L. Rev. 908, 915 (1978))). Rule 801(d)(1)(B) uses language that tracks common-law cases and prescribes a result that makes no sense except on the assumption that that language indeed adopts the common-law rule. As the Court’s opinion points out, only the premotive-statement limitation makes it rational to admit a prior corroborating statement to rebut a charge of recent fabrication or improper motive, but not to rebut a charge that the witness’ memory is playing tricks.

Justice Breyer,

with whom The Chief Justice, Justice O’Connor, and Justice Thomas join,

dissenting.

The basic issue in this case concerns not hearsay, but relevance. As the majority points out, the common law permitted a lawyer to rehabilitate a witness (after a charge of improper motive) by pointing to the fact that the witness had said the same thing earlier — but only if the witness made the earlier statement before the motive to lie arose. The reason for the time limitation was that, otherwise, the prior consistent statement had no relevance to rebut the charge that the in-court testimony was the product of the motive to lie. The treatises, discussing the matter under the general heading of “impeachment and support” (McCormick) or “relevancy” (Wigmore), and not “hearsay,” make this clear, stating, for example, that a

“ ‘prior consistent statement has no relevancy to refute [a] charge [of recent fabrication, etc.,] unless the consistent statement was made before the source of the bias, interest, influence or incapacity originated.’” Ante, at 156 (quoting E. Cleary, McCormick on Evidence §49, p. 105 (2d ed. 1972) (hereinafter McCormick)).

The majority believes that a hearsay-related rule, Federal Rule of Evidence 801(d)(1)(B), codifies this absolute timing requirement. I do not. Rule 801(d)(1)(B) has nothing to do with relevance. Rather, that Rule carves out a subset of prior consistent statements that were formerly admissible only to rehabilitate a witness (a nonhearsay use that relies upon the fact that the statement was made). It then says that members of that subset are “not hearsay.” This means that, if such a statement is admissible for a particular rehabilitative purpose (to rebut a charge of recent fabrication or improper influence or motive), its proponent now may use it substantively, for a hearsay purpose (i. e., as evidence of its truth), as well.

The majority is correct in saying that there are different kinds of categories of prior consistent statements that can rehabilitate a witness in different ways, including statements (a) placing a claimed inconsistent statement in context; (b) showing that an inconsistent statement was not made; (c) indicating that the witness’ memory is not as faulty as a cross-examiner has claimed; and (d) showing that the witness did not recently fabricate his testimony as a result of an improper influence or motive. See United States v. Rubin, 609 F. 2d 51, 68 (CA2 1979) (Friendly, J., concurring). But, I do not see where, in the existence of several categories, the majority can find the premise, which it seems to think is important, that the reason the drafters singled out one category (category (d)) was that category’s special probative force in respect to rehabilitating a witness. Nor, in any event, do I understand how that premise can help the majority reach its conclusion about the common-law timing rule.

I doubt the premise because, as McCormick points out, other categories of prior consistent statements (used for rehabilitation) also, on occasion, seem likely to have strong probative force. What, for example, about such statements introduced to rebut a charge of faulty memory (category (c) above)? McCormick says about such statements: “If the witness’s accuracy of memory is challenged, it seems clear common sense that a consistent statement made shortly after the event and before he had time to forget, should be received in support.” McCormick §49, at 105, n. 88 (emphasis added). Would not such statements (received in evidence to rehabilitate) often turn out to be highly probative as well?

More important, the majority’s conclusion about timing seems not to follow from its “especially probative force” premise. That is because probative force has little to do with the concerns underlying hearsay law. Hearsay law basically turns on an out-of-court declarant’s reliability, as tested through cross-examination; it does not normally turn on the probative force (if true) of that declarant’s statement. The “timing” circumstance (the fact that a prior consistent statement was made after a motive to lie arose) may diminish probative force, but it does not diminish reliability. Thus, from a hearsay perspective, the timing of a prior consistent statement is basically beside the point.

At the same time, one can find a hearsay-related reason why the drafters might have decided to restrict the Rule to a particular category of prior consistent statements. Juries have trouble distinguishing between the rehabilitative and substantive use of the kind of prior consistent statements listed in Rule 801(d)(1)(B). Judges may give instructions limiting the use of such prior consistent statements to a rehabilitative purpose, but, in practice, juries nonetheless tend to consider them for their substantive value. See 4 J. Weinstein & M. Berger, Weinstein’s Evidence ¶ 801(d) (1)(B)[01], p. 801-188 (1994) (“[A]s a practical matter, the jury in all probability would misunderstand or ignore a limiting instruction [with respect to the class of prior consistent statements covered by the Rule] anyway, so there is no good reason for giving one”). It is possible that the Advisory Committee made them “nonhearsay” for that reason, i. e., as a concession “more of experience than of logic.” Advisory Committee’s Notes on Fed. Rule Evid. 801(d)(1)(B), 28 U. S. C. App., p. 773 (also noting that the witness is available for cross-examination in the courtroom in any event). If there was a reason why the drafters excluded from Rule 801(d)(l)(B)’s scope other kinds of prior consistent statements (used for rehabilitation), perhaps it was that the drafters concluded that those other statements caused jury confusion to a lesser degree. On this rationale, however, there is no basis for distinguishing between premotive and post-motive statements, for the confusion with respect to each would very likely be the same.

In sum, because the Rule addresses a hearsay problem and one can find a reason, unrelated to the premotive rule, for why it does so, I would read the Rule’s plain words to mean exactly what they say: If a trial court properly admits a statement that is “consistent with the declarant’s testimony” for the purpose of “rebut[ting] an express or implied charge . . . of recent fabrication or improper influence or motive,” then that statement is “not hearsay,” and the jury may also consider it for the truth of what it says.

Assuming Rule 801(d)(1)(B) does not codify the absolute timing requirement, I must still answer the question whether, as a relevance matter, the common-law statement of the premotive rule stands as an absolute bar to a trial court’s admission of a postmotive prior consistent statement for the purpose of rebutting a charge of recent fabrication or improper influence or motive. The majority points to statements of the timing rule that do suggest that, for reasons of relevance, the law of evidence never permits their admission. Ante, at 156. Yet, absolute-sounding rules often allow exceptions. And, there are sound reasons here for permitting an exception to the timing rule where circumstances warrant.

For one thing, one can find examples where the timing rule’s claim of “no relevancy” is simply untrue. A post-motive statement is relevant to rebut, for example, a charge of recent fabrication based on improper motive, say, when the speaker made the prior statement while affected by a far more powerful motive to tell the truth. A speaker might be moved to lie to help an acquaintance. But, suppose the circumstances also make clear to the speaker that only the truth will save his child’s life. Or, suppose the postmotive statement was made spontaneously, or when the speaker’s motive to lie was much weaker than it was at trial. In these and similar situations, special circumstances may indicate that the prior statement was made for some reason other than the alleged improper motivation; it may have been made not because of, but despite, the improper motivation. Hence, postmotive statements can, in appropriate circumstances, directly refute the charge of fabrication based on 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 Pharmaceuticals, Inc., 509 U. S. 579 (1993). Article IV of the Federal Rules, which concerns relevance, liberalizes the rules for admission of relevant evidence. See id., at 587. The Rules direct the trial judge generally to admit all evidence having “any tendency” to make the existence of a material fact “more probable or less probable than it would be without the evidence.” Fed. Rules Evid. 401, 402. The judge may reject the evidence (assuming compliance with other rules) only if the probative value of the evidence is substantially outweighed by its tendency to prejudice a party or delay a trial. Rule 403. The codification, as a general matter, relies upon the trial judge’s administration of Rules 401, 402, and 403 to keep the barely relevant, the time wasting, and the prejudicial from the jury. See, e. g., Abel, supra, at 54 (“A district court is accorded a wide discretion in ... [assessing the probative value of [proffered evidence], and weighing any factors counseling against admissibility”); 1 Weinstein’s Evidence, supra, ¶ 401[01] (discussing broad discretion accorded trial judge); 22 C. Wright & K. Graham, Federal Practice and Procedure § 5162 (1978 and 1994 Supp.).

In Daubert, this Court considered the rule of Frye v. United States, 293 F. 1013 (CADC 1923), which had excluded scientific evidence that had not gained general acceptance in the relevant field. 509 U. S., at 585-586. Like the premo-tive rule here at issue, the Frye rule was “rigid,” setting forth an “absolute prerequisite to admissibility,” which the Court said was “at odds with the ‘liberal thrust’ of the Federal Rules.” Id., at 588. Daubert suggests that the liberalized relevancy provisions of the Federal Rules can supersede a pre-existing rule of relevance, at least where no compelling practical or logical support can be found for the pre-existing rule. It is difficult to find any strong practical or logical considerations for making the premotive rule an absolute condition of admissibility here. Perhaps there are other circumstances in which categorical common-law rules serve the purposes of Rules 401, 402, and 403, and should, accordingly, remain absolute in the law. But, for the reasons stated above, this case, like Daubert, does not present such a circumstance. Thus, considered purely as a matter of relevancy law (and as though Rule 801(d)(1)(B) had not been written), I would conclude that the premotive rule did not survive the adoption of the Rules.

Irrespective of these arguments, one might claim that, nonetheless, the drafters, in writing Rule 801(d)(1)(B), relied on the continued existence of the common-law relevancy rule, and that Rule 801(d)(1)(B) therefore reflects a belief that the common-law relevancy rule would survive. But, I would reject that argument. For one thing, if the drafters had wanted to insulate the common-law rule from the Rules’ liberalizing effect, this would have been a remarkably indirect (and therefore odd) way of doing so — both because Rule 801(d)(1)(B) is utterly silent about the premotive rule and because Rule 801(d)(1)(B) is a rule of hearsay, not relevancy. For another thing, there is an equally plausible reason why the drafters might have wanted to write Rule 801(d)(1)(B) the way they did — namely, to allow substantive use of a particular category of prior consistent statements that, when admitted as rehabilitative evidence, was especially impervious to a limiting instruction. See supra, at 171.

Accordingly, I would hold that the Federal Rules authorize a district court to allow (where probative in respect to rehabilitation) the use of postmotive prior consistent statements to rebut a charge of recent fabrication or improper influence or motive (subject of course to, for example, Rule 403). Where such statements are admissible for this rehabilitative purpose, Rule 801(d)(1)(B), as stated above, makes them admissible as substantive evidence as well (provided, of course, that the Rule’s other requirements, such as the witness’ availability for cross-examination, are satisfied). In most cases, this approach will not yield a different result from a strict adherence to the premotive rule for, in most cases, postmotive statements will not be significantly probative. And, even in cases where the statement is admitted as significantly probative (in respect to rehabilitation), the effect of admission on the trial will be minimal because the prior consistent statements will (by their nature) do no more than repeat in-court testimony.

In this case, the Court of Appeals, applying an approach consistent with what I have described above, decided that A. T.’s prior consistent statements were probative on the question of whether her story as a witness reflected a motive to lie. There is no reason to reevaluate this factbound conclusion. Accordingly, I would affirm the judgment of the Court of Appeals.


source: Caselaw Access Project

license: Public Domain

text:
    ILLINOIS v. KENTUCKY
    No. 106, Orig.
    Decided May 28, 1991
    Decree entered January 17, 1995
    Decree entered.
   The motion of the Special Master for compensation and reimbursement of expenses is granted and the Special Master is awarded a total of $114,708.16 to be paid equally by the parties.

The Report of the Special Master is received and ordered filed. The Report is adopted. The Special Master is hereby discharged.

DECREE

It is ordered, adjudged, and decreed that:

1. The boundary line between the State of Illinois and the Commonwealth of Kentucky is fixed as geodetically described in Joint Exhibits 3 through 26 to thé Special Master’s Report filed with this Court on December 2,1994. Joint Exhibits 3 through 26 are incorporated by reference herein.

2. Copies of this Decree and the Special Master’s Report (including Joint Exhibits 3 through 26) shall be filed with the Clerk of this Court, the Secretary of State of the State of Illinois, and the Secretary of State of the Commonwealth of Kentucky.

3. Copies of this Decree and the Special Master’s Report (including Joint Exhibits 3 through 26, and paper prints of Joint Exhibits 3 through 26, once they become available) shall be filed with the County Clerk’s Office in Illinois and with the County Clerk’s Office in the Commonwealth of Kentucky in each of the following counties:

In Illinois, the counties of Gallatin, Hardin, Pope, Massac, Pulaski, and Alexander, and

In Kentucky, the counties of Union, Crittenden, Livingston, McCracken, and Ballard.

4. The State of Illinois and the Commonwealth of Kentucky each have concurrent jurisdiction over the Ohio River.

5. The costs of this proceeding shall be divided between the parties, as recommended by the Special Master.


author: Justice Scalia Justice Stevens,

text:
    ASGROW SEED CO. v. WINTERBOER et al., dba DEEBEES
    No. 92-2038.
    Argued November 7, 1994
    Decided January 18, 1995

      Scalia, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O’Connor, Kennedy, Souter, Thomas, Ginsburg, and Breyer, JJ., joined. Stevens, J., filed a dissenting opinion, post, p. 193.

      Richard L. Stanley argued the cause for petitioner. With him on the briefs were John F Lynch, Bruce Stein, Lawrence C. Maxwell, and Mary Ellen Morris.

      Richard H. Seamon argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Days, Assistant Attorney General Hunger, Deputy Solicitor General Kneedler, Barbara C. Biddle, and Wendy M. Keats.

      William H. Bode argued the cause for respondents. With him on the brief was Luis M. Acosta.

       Briefs of amici curiae urging reversal were filed for the American Intellectual Property Law Association by J. Michael Jakes; and for the American Seed Trade Association by Gary Jay Kushner, John G. Roberts, Jr., and David G. Leitch.

        Mary Helen Sears filed a brief for Ted Cook as amicus curiae urging affirmance.
      Briefs of amici curiae were filed for the Rural Advancement Foundation International et al. by David Charles Masselli; and for James G. McDonald by Stephen Gordon.

   Justice Scalia

delivered the opinion of the Court.

The Plant Variety Protection Act of 1970, 7 U. S. C. §2321 et seq., protects owners of novel seed varieties against unauthorized sales of their seed for replanting purposes. An exemption, however, allows farmers to make some sales of protected variety seed to other farmers. This case raises the question whether there is a limit to the quantity of protected seed that a farmer can sell under this exemption.

I

In 1970, Congress passed the Plant Variety Protection Act (PVPA), 84 Stat. 1542, 7 U. S. C. § 2321 et seq., in order to provide developers of novel plant varieties with “adequate encouragement for research, and for marketing when appropriate, to yield for the public the benefits of new varieties,” §2581. The PVPA extends patent-like protection to novel varieties of sexually reproduced plants (that is, plants grown from seed) which parallels the protection afforded asexually reproduced plant varieties (that is, varieties reproduced by propagation or grafting) under Chapter 15 of the Patent Act. See 35 U. S. C. §§ 161-164.

The developer of a novel variety obtains PVPA coverage by acquiring a certificate of protection from the Plant Variety Protection Office. See 7 U. S. C. §§2421, 2422, 2481-2483. This confers on the owner the exclusive right for 18 years to “exclude others from selling the variety, or offering it for sale, or reproducing it, or importing it, or exporting it, or using it in producing (as distinguished from developing) a hybrid or different variety therefrom.” §2483.

Petitioner, Asgrow Seed Company, is the holder of PVPA certificates protecting two novel varieties of soybean seed, which it calls A1937 and A2234. Respondents, Dennis and Becky Winterboer, are Iowa farmers whose farm spans 800 acres of Clay County, in the northwest corner of the State. The Winterboers have incorporated under the name “D-Double-U Corporation” and do business under the name “DeeBee’s Feed and Seed.” In addition to growing crops, for sale as food and livestock feed, since 1987 the Winter-boers have derived a sizable portion of their income from “brown-bag” sales of their crops to other farmers to use as seed. A brown-bag sale occurs when a farmer purchases seed from a seed company, such as Asgrow, plants the seed in his own fields, harvests the crop, cleans it, and then sells the reproduced seed to other farmers (usually in nondescript brown bags) for them to plant as crop seed on their own farms. During 1990, the Winterboers planted 265 acres of A1937 and A2234, and sold the entire salable crop, 10,529 bushels, to others for use as seed — enough to plant 10,000 acres. The average sale price was $8.70 per bushel, compared with a then-current price of $16.20 to $16.80 per bushel to obtain varieties A1937 and A2234 directly from Asgrow.

Concerned that the Winterboers were making a business out of selling its protected seed, Asgrow sent a local farmer, Robert Ness, to the Winterboer farm to make a purchase. Mr. Winterboer informed Ness that he could sell him soybean seed that was “just like” Asgrow varieties A1937 and A2234. Ness purchased 20 bags of each; a plant biologist for Asgrow tested the seeds and determined that they were indeed A1937 and A2234.

Asgrow brought suit against the Winterboers in the Federal District Court for the Northern District of Iowa, seeking damages and a permanent injunction against sale of seed harvested from crops grown from A1937 and A2234. The complaint alleged infringement under 7 U. S. C. §2541(1), for selling or offering to sell Asgrow’s protected soybean varieties; under § 2541(3), for sexually multiplying Asgrow’s novel varieties as a step in marketing those varieties for growing purposes; and under § 2541(6), for dispensing the novel variéties to others in a form that could be propagated without providing notice that the seeds were of a protected variety.

The Winterboers did not deny that Asgrow held valid certificates of protection covering A1937 and A2234, and that they had sold seed produced from those varieties for others to use as seed. Their defense, at least to the §§2541(1) and (3) charges, rested upon the contention that their sales fell within the statutory exemption from infringement liability found in 7 U. S. C. § 2543. That section, entitled “Right to save seed; crop exemption,” reads in relevant part as follows:

“Except to the extent that such action may constitute an infringement under subsections (3) and (4) of section 2541 of this title, it shall not infringe any right hereunder for a person to save seed produced by him from seed obtained, or descended from seed obtained, by authority of the owner of the variety for seeding purposes and use such saved seed in the production of a crop for use on his farm, or for sale as provided in this section: Provided, That without regard to the provisions of section 2541(3) of this title it shall not infringe any right hereunder for a person, whose primary farming occupation is the growing of crops for sale for other than reproductive purposes, to sell such saved seed to other persons so engaged, for reproductive purposes, provided such sale is in compliance with such State laws governing the sale of seed as may be applicable. A bona fide sale for other than reproductive purposes, made in channels usual for such other purposes, of seed produced on a farm either from seed obtained by authority of the owner for seeding purposes or from seed produced by descent on such farm from seed obtained by authority of the owner for seeding purposes shall not constitute an infringement.. . .”

The Winterboers argued that this language gave them the right to sell an unlimited amount of seed produced from a protected variety, subject only to the conditions that both buyer and seller be farmers “whose primary farming occupation is the growing of crops for sale for other than reproductive purposes,” and that all sales comply with state law. As-grow maintained that the exemption allows a farmer to save and resell to other farmers only the amount of seed the seller would need to replant his own fields — a limitation that the Winterboers’ sales greatly exceeded. The District Court agreed with Asgrow and granted summary judgment in its favor. 795 F. Supp. 915 (1991).

The United States Court of Appeals for the Federal Circuit reversed. 982 F. 2d 486 (1992). Although “recognizing] that, without meaningful limitations, the crop exemption [of § 2543] could undercut much of the PVPA’s incentives,” id., at 491, the Court of Appeals saw nothing in §2543 that would limit the sale of protected seed (for reproductive purposes) to the amount necessary to plant the seller’s own acreage. Rather, as the Court of Appeals read the statute, §2543 permits a farmer to sell up to half of every crop he produces from PVPA-protected seed to another farmer for use as seed, so long as he sells the other 50 percent of the crop grown from that specific variety for nonreproductive purposes, e. g., for food or feed. The Federal Circuit denied Asgrow’s petition for rehearing and suggestion for rehearing en banc by a vote of six judges to five. 989 F. 2d 478 (1993). We granted certiorari. 511 U. S. 1029 (1994).

II

It may be well to acknowledge at the outset that it is quite impossible to make complete sense of the provision at issue here. One need go no further than the very first words of its title to establish that. Section 2543 does not, as that title claims and the ensuing text says, reserve any “[r]ight to save seed” — since nothing elsewhere in the Act remotely prohibits the saving of seed. Nor, under any possible analysis, is the proviso in the first sentence of § 2543 (“Provided, That”) really a proviso.

With this advance warning that not all mysteries will be solved, we enter the verbal maze of §2543. The entrance, we discover, is actually an exit, since the provision begins by excepting certain activities from its operation: “Except to the extent that such action may constitute an infringement under subsections (3) and ()) of section 25)1 of this title, it shall not infringe any right hereunder for a person to save seed produced by him . . . and use such saved seed in the production of a crop for use on his farm, or for sale as provided in this section . . . .” (Emphasis added.) Thus, a farmer does not qualify for the exemption from infringement liability if he has

“(3) sexually multiplied] the novel variety as a step in marketing (for growing purposes) the variety; or
(4) use[d] the novel variety in producing (as distinguished from developing) a hybrid or different variety therefrom.” 7 U. S. C. §§2541(3)-(4).

In 1990, the Winterboers planted 265 acres of Asgrow protected variety seed and collected a harvest of 12,037 bushels of soybeans. The parties do not dispute that this act of planting and harvesting constituted “sexual multiplication” of the novel varieties. See 7 U. S. C. § 2401(f) (defining “sexually reproduced” seed to include “any production of a variety by seed”). The Winterboers sold almost all of these beans for use as seed (i. e., “for growing purposes”), without Asgrow’s consent. The central question in this ease, then, is whether the Winterboers’ planting and harvesting were conducted “as a step in marketing” Asgrow’s protected seed varieties for growing purposes. If they were, the Winter-boers were not eligible for the §2543 exemption, and the District Court was right to grant summary judgment to Asgrow.

The PVPA does not define “marketing.” When terms used in a statute are undefined, we give them their ordinary meaning. FDIC v. Meyer, 510 U. S. 471, 476 (1994). The Federal Circuit believed that the word “marketing” requires “extensive or coordinated selling activities, such as advertising, using an intervening sales representative, or similar extended merchandising or retail activities.” 982 F. 2d, at 492. We disagree. Marketing ordinarily refers to the act of holding forth property for sale, together with the activities preparatory thereto (in the present case, cleaning, drying, bagging, and pricing the seeds). The word does not require that the promotional or merchandising activities connected with the selling be extensive. One can market apples by simply displaying them on a cart with a price tag; or market a stock by simply listing it on a stock exchange; or market a house (we would normally say “place it on the market”) by simply setting a “for sale” sign on the front lawn. Indeed, some dictionaries give as one meaning of “market” simply “to sell.” See, e.g., Oxford Universal Dictionary 1208 (3d ed. 1955); Webster’s New International Dictionary 1504 (2d ed. 1950). Of course, effective selling often involves extensive promotional activities, and when they occur they are all part of the “marketing.” But even when the holding forth for sale relies upon no more than word-of-mouth advertising, a marketing of goods is in process. Moreover, even if the word “marketing” could, in one of its meanings, demand extensive promotion, we see no reason why the law at issue here would intend that meaning. That would have the effect of preserving PVPA protection for less valuable plant varieties, but eliminating it for varieties so desirable that they can be marketed by word of mouth; as well as the effect of requiring courts to ponder the difficult question of how much promotion is necessary to constitute marketing. We think that when the statute refers to sexually multiplying a variety “as a step in marketing,” it means growing seed of the variety for the purpose of putting the crop up for sale. Under the exception set out in the first clause of § 2543, then, a farmer is not eligible for the § 2543 exemption if he plants and saves seeds for the purpose of selling the seeds that they produce for replanting.

Section 2543 next provides that, so long as a person is not violating either §§ 2541(3) or (4),

“it shall not infringe any right hereunder for a person to save seed produced by him from seed obtained, or descended from seed obtained, by authority of the owner of the variety for seeding purposes and use such saved seed in the production of a crop for use on his farm, or for sale as provided in this section . . . .” (Emphasis added.)

Farmers generally grow crops to sell. A harvested soybean crop is typically removed from the farmer’s premises in short order and taken to a grain elevator or processor. Sometimes, however, in the case of a plant such as the soybean, in which the crop is the seed, the farmer will have a portion of his crop cleaned and stored as seed for replanting his fields next season. We think it clear that this seed saved for replanting is what the provision under discussion means by “saved seed” — not merely regular uncleaned crop that is stored for later market sale or use as fodder.

There are two ways to read the provision, depending upon which words the phrase “for sale as provided in this section” is taken to modify. It can be read “production of a crop ... for sale as provided in this section”; or alternatively “use such saved seed ... for sale as provided in this section.” The parallelism created by the phrase “for use on his farm” followed immediately by “or for sale as provided in this section” suggests the former reading. But the placement of the comma, separating “use [of] such saved seed in the production of a crop for use on his farm,” from “or for sale,” favors the latter reading. So does the fact that the alternative reading requires the reader to skip the lengthy “Provided, That” clause in order to find out what sales are “provided [for] in this section” — despite the parallelism between “provided” and “Provided,” and despite the presence of a colon, which ordinarily indicates specification of what has preceded. It is surely easier to think that at least some of the sales “provided for” are those that are “Provided” after the colon. (It is, of course, not unusual, however deplorable it may be, for “Provided, That” to be used as prologue to an addition rather than an exception. See Springer v. Philippine Islands, 277 U. S. 189, 206 (1928); 1A N. Singer, Sutherland on Statutory Construction § 20.22 (5th ed. 1992).)

We think the latter reading is also to be preferred because it lends greater meaning to all the provisions. Under the former reading (“production of a crop... for sale as provided in this section”), the only later text that could be referred to is the provision for “bona fide sale[s] for other than reproductive purposes” set out in the second sentence of § 2543 — the so-called “crop exemption.” (The proviso could not be referred to, since it does not provide for sale of crops grown from saved seed, but only for sale of saved seed itself.) But if the “or for sale” provision has such a limited referent, the opening clause’s (“Except to the extent that...”) reservation of § 2541(3) infringement liability (i. e., liability for growing as a step in marketing for reproductive purposes) would be devoid of content, since the provision to which it is attached would permit no sales for reproductive purposes. Under the latter reading, by contrast, the farmer may not “use [his] saved seed ... for sale” as the proviso allows if the seed was intentionally grown for the purpose of such sale — i. e., “sexually multiplied]... as a step in marketing (for growing purposes) the variety.” A second respect in which our favored reading gives greater meaning to the provision is this: The other reading (“crop ... for sale as provided in this section”) causes the “permission” given in the opening sentence to extend only to sales for nonreproductive purposes of the crops grown from saved seed, as opposed to sales of the saved seed itself. But no separate permission would have been required for this, since it is already contained within the crop exemption itself; it serves only as a reminder that crop from saved seed can be sold under that exemption — a peculiarly incomplete reminder, since the saved seed itself can also be sold under that exemption.

To summarize: By reason of its proviso the first sentence of § 2543 allows seed that has been preserved for reproductive purposes (“saved seed”) to be sold for such purposes. The structure of the sentence is such, however, that this authorization does not extend to saved seed that was grown for the very purpose of sale (“marketing”) for replanting — because in that case, §2541(3) would be violated, and the above-discussed exception to the exemption would apply. As a practical matter, since §2541(1) prohibits all unauthorized transfer of title to, or possession of, the protected variety, this means that the only seed that can be sold under the proviso is seed that has been saved by the farmer to replant his own acreage. (We think that limitation is also apparent from the text of the crop exemption, which permits a farm crop from saved seeds to be sold — for nonreproductive purposes — only if those saved seeds were “produced by descent on such farm” (Emphasis added.) It is in our view the proviso in § 2543, and not the crop exemption, that authorizes the permitted buyers of saved seeds to sell the crops they produce.) Thus, if a farmer saves seeds to replant his acreage, but for some reason changes his plans, he may instead sell those seeds for replanting under the terms set forth in the proviso (or of course sell them for nonreproductive purposes under the crop exemption).

It remains to discuss one final feature of the proviso authorizing limited sales for reproductive purposes. The proviso allows sales of saved seed for replanting purposes only between persons “whose primary farming occupation is the growing of crops for sale for other than reproductive purposes.” The Federal Circuit, which rejected the-proposition that the only seed sellable under the exemption is seed saved for the farmer’s own replanting, sought to achieve some limitation upon the quantity of seed that can be sold for reproductive purposes by adopting a “crop-by-crop” approach to the “primary farming occupation” requirement of the proviso. “[B]uyers or sellers of brown bag seed qualify for the crop exemption,” it concluded, “only if they produce a larger crop from a protected seed for consumption (or other nonre-productive purposes) than for sale as seed.” 982 F. 2d, at 490. That is to say, the brown-bag seller can sell no more than half of his protected crop for seed. The words of the statute, however, stand in the way of this creative (if somewhat insubstantial) limitation. To ask what is a farmer’s “primary farming occupation” is to ask what constitutes the bulk of his total farming business. Selling crops for other than reproductive purposes must constitute the preponderance of the farmer’s business, not just the preponderance of his business in the protected seed. There is simply no way to derive from this text the narrower focus that the Federal Circuit applied. Thus, if the quantity of seed that can be sold is not limited as we have described — by reference to the original purpose for which the seed is saved — then it is barely limited at all (i. e., limited only by the volume or worth of the selling farmer’s total crop sales for other than reproductive purposes). This seems to us a most unlikely result.

* * *

We hold that a farmer who meets the requirements set forth in the proviso to § 2543 may sell for reproductive purposes only such seed as he has saved for the purpose of replanting his own acreage. While the meaning of the text is by no means clear, this is in our view the only reading that comports with the statutory purpose of affording “adequate encouragement for research, and for marketing when appropriate, to yield for the public the benefits of new varieties.” 7 U. S. C. §2581. Because we find the sales here were unlawful, we do not reach the second question on which we granted certiorari — whether sales authorized under §2543 remain subject to the notice requirement of §2541(6).

The judgment of the Court of Appeals for the Federal Circuit is

Reversed.

Justice Stevens,

dissenting.

The key to this statutory puzzle is the meaning of the phrase, “as a step in marketing,” as used in 7 U. S. C. § 2541(a)(3) (1988 ed., Supp. V). If it is synonymous with “for the purpose of selling,” as the Court holds, see ante, at 188, then the majority’s comprehensive exposition of the statute is correct. I record my dissent only because that phrase conveys a different message to me.

There must be a reason why Congress used the word “marketing” rather than the more common term “selling.” Indeed, in § 2541(a)(1), contained in the same subsection of the statute as the crucial language, Congress made it an act of infringement to “sell the novel variety.” Yet, in § 2541(a)(3), a mere two clauses later, Congress eschewed the word “sell” in favor of “marketing.” Because Congress obviously could have prohibited sexual multiplication “as a step in selling,” I presume that when it elected to prohibit sexual multiplication only “as a step in marketing (for growing purposes) the variety,” Congress meant something different.

Moreover, as used in this statute, “marketing” must be narrower, not broader, than selling. The majority is correct that one meaning of “marketing” is the act of selling and all acts preparatory thereto. See ante, at 187. But Congress has prohibited only one preparatory act — that of sexual multiplication — and only when it is a step in marketing. Under the majority’s broad definition of “marketing,” prohibiting sexual multiplication “as a step in marketing” can be no broader than prohibiting sexual multiplication “as a step in selling,” because all steps in marketing are, ultimately, steps in selling. If “marketing” can be no broader than “selling,” and if Congress did not intend the two terms to be coextensive, then “marketing” must encompass something less than all “selling.”

The statute as a whole — and as interpreted by the Court of Appeals — indicates that Congress intended to preserve the farmer’s right to engage in so-called “brown-bag sales” of seed to neighboring farmers. Congress limited that right by the express requirement that such sales may not constitute the “primary farming occupation” of either the buyer or the seller. Moreover, § 2541(a)(3) makes it abundantly clear that the unauthorized participation in “marketing” of protected varieties is taboo. If one interprets “marketing” to refer to a subcategory of selling activities, namely, merchandising through farm cooperatives, wholesalers, retailers, or other commercial distributors, the entire statute seems to make sense. I think Congress wanted to allow any ordinary brown-bag sale from one farmer to another; but, as the Court of Appeals concluded, it did not want to permit farmers to compete with seed manufacturers on their own ground, through “extensive or coordinated selling activities, such as advertising, using an intervening sales representative, or similar extended merchandising or retail activities.” 982 F. 2d 486, 492 (CA Fed. 1992).

This reading of the statute is consistent with our time-honored practice of viewing restraints on the alienation of property with disfavor. See, e.g., Sexton v. Wheaton, 8 Wheat. 229, 242 (1823) (opinion of Marshall, C. J.). The seed at issue is part of a crop planted and harvested by a farmer on his own property. Generally the owner of personal property — even a patented or copyrighted article — is free to dispose of that property as he sees fit. See, e. g., United States v. Univis Lens Co., 316 U. S. 241, 250-252 (1942); Bobbs-Merrill Co. v. Straus, 210 U. S. 339, 350-351 (1908). A statutory restraint on this basic freedom should be expressed clearly and unambiguously. Cf. Deepsouth Packing Co. v. Laitram Corp., 406 U. S. 518, 530-531 (1972). As the majority recognizes, the meaning of this statute is “by no means clear.” Ante, at 192. Accordingly, both because I am persuaded that the Court of Appeals correctly interpreted the intent of Congress, and because doubts should be resolved against purported restraints on freedom, I would affirm the judgment below.

       At the time the infringement action was filed, §2541 provided in full:
      “Except as otherwise provided in this subchapter, it shall be an infringement of the rights of the owner of a novel variety to perform , without authority, any of the following acts in the United States, or in commerce which can be regulated by Congress or affecting such commerce, prior to expiration of the right to plant variety protection but after either the issue of the certificate or the distribution of a novel plant variety with the notice under section 2567 of this title:
      “(1) sell the novel variety, or offer it or expose it for sale, deliver it, ship it, consign it, exchange it, or solicit an offer to buy it, or any other transfer of title or possession of it;
      “(2) import the novel variety into, or export it from, the United States;
      “(3) sexually multiply the novel variety as a step in marketing (for growing purposes) the variety; or
      “(4) use the novel variety in producing (as distinguished from developing) a hybrid or different variety therefrom; or
      “(5) use seed which had been marked “Unauthorized Propagation Prohibited” or “Unauthorized Seed Multiplication Prohibited” or progeny thereof to propagate the novel variety; or
      “(6) dispense the novel variety to another, in a form which can be propagated, without notice as to being a protected variety under which it was received; or
      “(7) perform any of the foregoing acts even in instances in which the novel variety is multiplied other than sexually, except in pursuance of a valid United States plant patent; or
      “(8) instigate or actively induce performance of any of the foregoing acts.”
      In October 1992, Congress amended §2541, designating the prior text as subsection (a) and adding a subsection (b), the provisions of which are not relevant here. Curiously, however, the references in §2543 to the infringement provisions of § 2541 were not amended to reflect this change. For clarity’s sake, therefore, we will continue to refer to the infringement provisions under their prior designations, e. g., §§ 2541(l)-(8), rather than their current designations, e. g., §§2541(a)(l)-(8).

       Congress has recently amended this section by striking from the first sentence the words “ ‘section: Provided, That’ and all that follows through the period and inserting ‘section.’ ” Plant Variety Protection Act Amendments of 1994, Pub. L. 103-349, 108 Stat. 3136, 3142. That amendment has the effect of eliminating the exemption from infringement liability for farmers who sell PVPA-protected seed to other farmers for reproductive purposes. That action, however, has no bearing on the resolution of the present case, since the amendments affect only those certificates issued after April 4,1995, that were not pending on or before that date. See id., §§ 14(a), 15,108 Stat. 3144, 3145.

       The dissent asserts that the Federal Circuit’s more demanding interpretation of “marketing” is supported by the ancient doctrine disfavoring restraints on alienation of property, see post, at 194-195. The wellspring of that doctrine, of course, is concern for property rights, and in the context of the PVPA it is the dissent’s interpretation, rather than ours, which belittles that concern. The whole purpose of the statute is to create a valuable property in the product of botanical research by giving the developer the right to “exclude others from selling the variety, or offering it for sale, or reproducing it, or importing it, or exporting it,” etc. 7 U. S. C. § 2488. Applying the rule disfavoring restraints on alienation to interpretation of the PVPA is rather like applying the rule disfavoring restraints upon freedom of contract to interpretation of the Sherman Act.

         This reading also gives meaning to the proviso’s statement that “without regard to the provisions of section 2541(3)... it shall not infringe any right hereunder” for a person to engage in certain sales of saved seed for reproductive purposes (emphasis added). This serves to eliminate the technical argument that a production of seed that was originally in compliance with §2541(3) (because it was not done as a step in marketing for reproductive purposes) could retroactively be rendered unlawful by the later sale permitted in the proviso, because such sale causes the earlier production to have been “a step in the marketing” for reproductive purposes.

       For crops such as soybeans, in which the-, seed: and: the harvest are one and the same, this will mean enough seeds- for one year’s crop on that acreage. Since the germination rate of a batch of-seed declines over time, the soybean farmer will get the year-after-next’s seeds from next year’s harvest. That is not so for some vegetable crops, in which the seed is not the harvest, and a portion of the crop must be permitted to overripen (“go to seed”) in order to obtain seeds. One of the amici in the Court of Appeals asserted (and the parties before us did not dispute) that it is the practice of vegetable farmers to “grow” seeds only every four or five years, and to “brown bag” enough seed for four or five future crops. A vegetable farmer who sets aside protected seed with subsequent replantings in mind, but who later abandons his plan (because he has sold his farm, for example), would under our analysis be able to sell all his saved seed, even though it would plant (in a single year) four or five times his current acreage.

      “It would seem to be a consequence of that absolute power which a man possesses over his own property, that he may make any disposition of it which does not interfere with the existing rights of others, and such disposition, if it be fair and real, will be valid. The limitations on this power are those only which are prescribed by law.” Sexton v. Wheaton, 8 Wheat., at 242.