Circumstantial Corroboration of Prior Inconsistent Statements in Child Sex Offense Cases: Commentary on State v. French, 2025 MT 280

I. Introduction

In State v. French, 2025 MT 280, the Montana Supreme Court addressed two issues with significant implications for criminal evidentiary law and jury selection in the state:

1. When, and under what conditions, a criminal conviction may rest in material part on a child victim’s prior inconsistent statements that the child no longer remembers at trial; and
2. Whether systemic deviations from Montana’s jury selection statute in Cascade County require a new trial for defendants tried during that period.

The case arises from the prosecution of Robert Dan French, who was convicted by a Cascade County jury of two counts of sexual intercourse without consent and one count of sexual assault, all involving minor girls. On appeal, French challenged:

• One of the sexual intercourse without consent convictions, involving a four-year-old child (“K.K.”), on sufficiency-of-the-evidence grounds; and
• The denial of his motion for a new trial based on widespread statutory non-compliance in juror notification procedures revealed in another case, State v. Hinkle.

The Court, in an opinion authored by Justice Beth Baker, affirmed the conviction and the denial of a new trial. Justice McKinnon, joined by Justices Gustafson and Bidegaray, concurred in the jury-selection ruling but dissented from the sufficiency holding, warning that the majority’s approach permits conviction on uncorroborated hearsay in a context where cross-examination is effectively impossible.

Doctrinally, French is most important for its clarification—and, in the eyes of the dissent, its expansion—of Montana’s rule governing the use of prior inconsistent statements as substantive evidence, especially in child sexual abuse prosecutions. It also reaffirms the Court’s recent precedent that systemic but non-selective jury selection irregularities are “technical,” not structural, absent a showing that they distorted the randomness or cross-sectional character of the venire.

II. Factual and Procedural Background

A. The Allegations and Charges

The case stems from separate allegations made in 2018 by three minor girls:

• A.M., whose mother was providing in-home care to French’s elderly relative, alleged that French touched her vagina under her clothing on several occasions while her mother was in another room.
• K.E., a friend of French’s partner’s family, alleged digital penetration of her vagina during overnight stays at French’s home over several years.
• K.K., age four at the time, alleged that while staying overnight at French’s residence in August 2018, French put his “front butt” (later described as the body part he pees with) in her mouth.

In 2019, the State charged French with two counts of sexual intercourse without consent and one count of sexual assault. The prosecution went to jury trial in April 2022.

B. The K.K. Count: Initial Disclosure and Forensic Interviews

K.K. is central to the first appellate issue. The evidence regarding her count unfolded as follows:

• On August 24, 2018, K.K. stayed overnight at the home of French and his long-term partner, Tammy, while K.K.’s mother (a child protection specialist and Army Reservist) was away at annual training and her truck-driver father was working.
• On August 25, after K.K. returned home, she told her father that “last night was weird” and that “the dad out there put his front butt in my mouth.” Her father “blew up,” immediately called her mother (still at training), and both parents soon notified law enforcement (just after midnight on August 26).
• Within days, K.K. underwent two forensic interviews. She was extremely withdrawn, whispering “I don’t know” and telling the interviewer she was “scared.” She did not disclose abuse during these first two sessions.
• In June 2019, while riding in a car with her mother, K.K. spontaneously said that French had “peed in her mouth.” Her mother reported this new disclosure to law enforcement, prompting another forensic interview.
• In that 2019 interview, K.K. described French putting “his part where he pees” in her mouth while she was sleeping in the living room, Tammy was asleep nearby, and French had been on the couch. She physically demonstrated turning her head away and ducking down as he tried to move her head back.
• In March 2021, while showering, K.K. remarked, “that’s what it feels like when a boy tries to put his penis down there,” and when her mother said no one should put anything down there, she replied, “except Robert.” This remark arguably suggested vaginal, rather than oral, contact.

C. K.K.’s Trial Testimony and the District Court’s Rulings

At trial, K.K., then still a young child, did not meaningfully recall the events:

• She answered most questions with “I don’t know” or single words.
• She did not recall her prior forensic interviews or what she had told her father.

Over defense objection, the District Court allowed the State to play a portion of the 2019 forensic interview video for the jury. The State thus relied heavily on K.K.’s out-of-court statements to her parents and the interviewer to establish the essential element of penetration required for sexual intercourse without consent.

After the State’s case-in-chief, French moved to dismiss the K.K. count, arguing that:

• The only evidence of penetration was K.K.’s prior inconsistent statements; and
• Those statements were insufficient as a matter of law without corroboration.

The District Court denied the motion, characterizing the corroborative evidence as “thin” but sufficient—namely, K.K.’s parents’ testimony, the timing of her disclosures relative to her stay with French, and K.K.’s demeanor. The jury convicted on all three counts.

D. Post-Trial Motion for New Trial: The Jury Selection Issue

Nearly 18 months after the verdict, French moved for a new trial based on newly revealed irregularities in Cascade County’s jury selection procedures, relying on a transcript from State v. Hinkle, a separate case before the same District.

In Hinkle, the clerk of court and sheriff testified that, since 2020, the clerk:

• Had been sending jury summons and questionnaires by mail; but
• Did not certify non-responders to the sheriff for personal service, as required by § 3‑15‑405, MCA (2023).

The Hinkle court vacated its jury calendar to correct ongoing statutory noncompliance. French argued that the same systematic practice had been used for his trial and that, “in the interest of justice,” a new trial was warranted.

The District Court denied the motion, holding that:

• It was untimely under § 46‑16‑702, MCA (30-day limit); and
• French had not shown that his own jury pool was skewed, or that the deviation affected randomness or a fair cross-section.

III. Summary of the Supreme Court’s Decision

A. Issue 1 – Sufficiency of Evidence and Corroboration

The Supreme Court affirmed the denial of French’s motion to dismiss the K.K. count. It held:

• Under M. R. Evid. 801(d)(1)(A), prior inconsistent statements may be admitted as substantive evidence.
• A conviction may rest on such statements if they are supported by independent, reliable, corroborative evidence that “supports an inference” that each element of the offense occurred.
• Corroboration need not independently prove the element; it must be “additional evidence of a different character on the same point.” § 26‑1‑102(3), MCA.
• In this case, the parents’ testimony, the immediacy and nature of K.K.’s spontaneous disclosures, the timing relative to her stay with French, and K.K.’s demeanor and physical demonstration in the 2019 video supplied adequate corroboration of her prior statements describing penetration and identifying French as the assailant.

On that basis, reviewing the evidence in the light most favorable to the prosecution, the Court held that a rational juror could find sexual intercourse without consent (i.e., penetration) beyond a reasonable doubt.

B. Issue 2 – Jury Selection Statute and New Trial

On the jury selection issue, the Court:

• Agreed that Cascade County’s clerk had not complied with § 3‑15‑405, MCA, by failing to certify non-responders to the sheriff for personal service.
• However, reaffirmed its holding in State v. Hillious, 2025 MT 53, that such deviations are technical, not structural, errors unless they affect randomness, cross-sectional representation, or are based on subjective exclusion criteria.
• Found French had produced no evidence that his venire was not a fair cross-section or that selector discretion skewed the panel.
• Concluded the District Court did not abuse its discretion in denying the new trial motion, both on timeliness and on the absence of prejudice.

C. The Concurrence and Dissent

Justice McKinnon concurred in the resolution of the jury selection issue but dissented on sufficiency. In her view:

• The only evidence of the essential element of penetration was K.K.’s prior inconsistent statements, which are inherently unreliable hearsay.
• The parents’ reactions and K.K.’s general distress did not corroborate the content of those statements (penetration); they showed, at most, that “something upsetting” occurred.
• Under Montana’s own definition of “corroborative evidence,” and precedents like White Water and Giant, this was insufficient to satisfy the corroboration requirement as a matter of law.

She therefore would have reversed the sexual intercourse without consent conviction relating to K.K.

IV. Detailed Analysis

A. Issue 1 – Corroboration of Prior Inconsistent Statements

1. Legal Framework: Statutes and Rules

Several statutory and evidentiary provisions structure the Court’s analysis:

• Substantive offense: Sexual intercourse without consent, § 45‑5‑503, MCA, requires knowing sexual intercourse “without consent or with another person who is incapable of consent.”
• Definition of sexual intercourse: § 45‑2‑101(68), MCA, defines “sexual intercourse” as “any penetration, however slight, of the vulva, anus, or mouth of one person by the penis of another person” or by certain body members.
• Motions for dismissal: § 46‑16‑403, MCA, allows a trial court to dismiss charges for insufficient evidence; the defendant must show that, even taking the evidence in the light most favorable to the State, no rational trier of fact could find the elements beyond a reasonable doubt.
• Prior inconsistent statements: Under M. R. Evid. 801(d)(1)(A), a prior inconsistent statement by a witness is “not hearsay” and may be used as substantive evidence if the declarant testifies and is subject to cross-examination about the statement.
• Corroborative evidence: § 26‑1‑102(3), MCA, defines corroborative evidence as “additional evidence of a different character to the same point.”

The crux is how much, and what kind, of corroborative evidence is required before a conviction may rest on prior inconsistent statements—especially when the declarant is a very young child who cannot recall the events at trial.

2. The Corroboration Doctrine in Montana: Key Precedents

French sits in a line of Montana cases grappling with how to use prior inconsistent statements substantively without compromising reliability.

a. State v. White Water (1981)

In White Water, the defendant was charged with sexual intercourse without consent based on allegations that he digitally penetrated a child’s vagina. The child’s trial testimony indicated only that the defendant touched her “butt” inside her underwear. A sheriff testified that the child previously told him the defendant had penetrated her vagina with his finger. The mother saw the defendant’s hand down the back of the child’s pants, but did not know whether penetration occurred.

The Court held the evidence insufficient to prove penetration:

• The only evidence of penetration was the child’s prior inconsistent statement to the sheriff.
• The mother’s testimony corroborated only that some inappropriate contact occurred, not that penetration took place.
• Therefore, the prior inconsistent statement, without corroboration on the same point (penetration), could not sustain a conviction.

This case introduced the principle—subsequently restated—that “an unreliable prior inconsistent statement should not be the sole, substantive evidence upon which a jury should be allowed to base guilt.”

b. State v. Giant (2001)

Giant involved the identity of an assailant in an aggravated assault case. The victim initially identified her husband (Giant) as the attacker, then at trial identified their son. The State argued that Giant’s “flight” (taking money and leaving with the sons) corroborated the earlier statements identifying him as the assailant.

The Court rejected this:

• It had previously held that evidence of flight alone is insufficient to establish guilt beyond a reasonable doubt.
• Thus, flight could not serve as the sole corroborative evidence for a prior inconsistent statement identifying the defendant.
• Both forms of evidence—prior inconsistent statements and flight—were independently unreliable; “zero and zero cannot make one.”
• Other physical evidence proved an assault occurred, but did not corroborate the essential identity element once the victim named her son at trial.

Giant therefore announced a “bright-line rule”: prior inconsistent statements admitted as substantive evidence must be corroborated by reliable, independent evidence to sustain a conviction. The reliability inquiry focuses on the corroborating evidence, not on fine-grained evaluation of the prior statement’s reliability.

c. State v. Torres (2013)

Torres, though not fully described in French, is repeatedly cited for the central rule:

“As long as each element of the offense finds support in some independent, reliable evidence of guilt besides the prior statement . . . corroboration will be sufficient.” (Torres, as quoted in French, ¶ 37.)

This encapsulation is the doctrinal anchor the majority in French relies upon.

d. City of Helena v. Strobel (2017)

In Strobel, the defendant was convicted of partner or family member assault. The victim recanted or minimized her earlier statements that the defendant had grabbed and punched her in the face. Corroborating evidence included:

• A bystander who saw the defendant trying to shove the victim into a truck.
• An officer who found the victim upset and intoxicated, and who recounted her prior description of being struck in the face.

The Court held:

• Circumstantial evidence alone can prove guilt beyond a reasonable doubt.
• If circumstantial evidence alone can support a conviction, it can certainly supply corroboration for a prior inconsistent statement.
• Corroborating evidence “does not have to be sufficient standing alone to prove guilt. It instead must ‘support’ the elements of the offense established by the substantive evidence the prior inconsistent statement supplies.”

e. State v. Dineen (2020)

In Dineen, the defendant was convicted of strangulation, which required proof of covering the victim’s nose and mouth. The victim recanted at trial but previously told several people that the defendant tried to kill her, that she could not breathe, and that she thought she would die.

Corroborative evidence included:

• The victim’s highly distressed demeanor on the night in question.
• Injuries to her mouth and throat.
• The defendant’s numerous calls and text messages, including admissions that he had covered her mouth.

The Court found this circumstantial and direct evidence sufficient to support the inference that he had covered both mouth and nose, satisfying the elements of strangulation.

3. Majority’s Legal Reasoning in French

a. Clarifying the Role of Corroboration

The majority in French refines and synthesizes these precedents, pushing back against what it characterizes as an unduly narrow view of corroboration espoused by the dissent.

Key points:

• Corroboration is element-specific but inferential. Each element of the offense must “find support in some independent, reliable evidence.” But corroborative evidence:
  • Need not be direct;
  • Need not independently prove the element; and
  • Need only “support an inference” that the element occurred as described in the prior inconsistent statement.
• Different functions: admissibility vs. sufficiency. The Court distinguishes:
  • Admissibility: Whether corroborative evidence exists that, together with the prior statement, permits the jury to consider the statement as substantive proof that the crime occurred at all.
  • Sufficiency: Whether, viewing the entire record (including the prior statement and all corroborative evidence) in the light most favorable to the State, a rational juror could find each element beyond a reasonable doubt.
• Reliability focus is on the corroborating evidence, not the prior statement. Following Giant, the Court emphasizes that the purpose of the corroboration requirement is to avoid case-by-case reliability assessments of prior inconsistent statements themselves. Thus:
  • The prior statement is treated as per se in need of corroboration.
  • The court assesses whether the independent evidence offered to corroborate it is reliable “as a matter of law.”
• Multiple prior statements are not corroboration for each other. The State had argued that K.K.’s repeated similar statements (to father, mother, interviewer) corroborated each other. The Court rejects that:
  • Because prior inconsistent statements are per se unreliable standing alone, one such statement cannot serve as corroboration for another.
  • Repetition goes only to credibility, not corroboration; the corroboration must be independent of the hearsay statements themselves.

b. Applying the Doctrine to K.K.’s Statements

The majority accepts that the only direct evidence of penetration is K.K.’s out-of-court statements. It then identifies corroborative evidence that, in its view, reliably supports the same points (identity and penetration) via inference:

1. Timing and immediacy of disclosure. K.K. told her father about the incident on the evening she returned from French’s home. This supports:
   • That something significant occurred at that location; and
   • That French, being the adult male present, was the likely assailant.
2. Parents’ reactions. The father “blew up,” the mother left military training early, and they promptly involved law enforcement—twice (2018 and 2019). From this, the Court infers:
   • K.K.’s disclosure was serious and outside normal family experience;
   • Her parents found her believable; and
   • Her later spontaneous statement in 2019 was not contrived or coached by other disclosures (notably, it preceded A.M. and K.E.’s reports to law enforcement).
3. Sequence relative to other victims’ disclosures. K.K.’s disclosures predated the other girls’ reports, allowing an inference that her account arose from her own experience rather than suggestive conversation about other allegations.
4. Demeanor and physical demonstration in the 2019 forensic interview. The Court highlights that:
   • Initially animated, K.K. became withdrawn and visibly uncomfortable when discussing the incident.
   • She physically demonstrated turning her head away and ducking, while indicating that French tried to move her head back up.
   • Even ignoring her verbal descriptions, the physical demonstration itself is independent evidence supporting the inference that an unwanted sexual act occurred involving her mouth and an object controlled by French.

Taking all of this together, the Court concludes that there is sufficient independent and reliable evidence to:

• Corroborate that French was the assailant; and
• Support an inference of penetration of K.K.’s mouth by French’s penis, meeting the statutory definition of sexual intercourse.

While the District Court called this corroboration “thin,” the Supreme Court finds it passes the legal threshold: it makes the prosecution’s theory a rational, though not inevitable, interpretation of the evidence. Weighing whether to accept that interpretation was for the jury, not the appellate court.

4. The McKinnon Concurrence/Dissent: A Stricter View of Corroboration

Justice McKinnon’s partial dissent presents a substantial critique of the majority’s approach. The dissent’s core themes are:

• Element-specific corroboration. Corroboration must address the specific element
• That K.K. was at French’s house;
• That something upsetting happened; or
• That her parents believed her.

Content-based corroboration. Evidence that does not relate to the content of the prior statement—i.e., penetration—does not satisfy § 26‑1‑102(3), MCA’s requirement of evidence “to the same point.” In her view:

• Parents’ distress and calls to law enforcement corroborate only that a serious allegation was made, not what that allegation was.
• General demeanor evidence shows emotional impact, not penetration.

Comparative law and reliability. The dissent notes that most U.S. jurisdictions impose stricter conditions on using prior inconsistent statements substantively, typically requiring:

• Availability for meaningful cross-examination; and
• That the prior statement was made under oath in a formal proceeding.

Here, K.K. was technically present but effectively unavailable for cross-examination because she did not remember the events or her prior statements. Thus, the usual reliability safeguard—adversarial testing—was absent.

Reliance on White Water and Giant. Echoing those cases, she emphasizes:

• In White Water, evidence that the defendant’s hand was inside the child’s underwear corroborated inappropriate touching, but did not corroborate penetration; thus the conviction failed.
• In Giant, physical evidence corroborated that an assault occurred, but not who committed it; the prior inconsistent identity statements and flight, both unreliable, could not support the identity element.
• Similarly here, the corroborative evidence shows that “something bad” happened and that K.K. and her parents took it seriously—but does not corroborate the crucial element of penetration.

To the dissent, the evidentiary “gap” on penetration remains unfilled. Because Montana law forbids conviction when the only evidence of an essential element is an uncorroborated prior inconsistent statement, she would reverse the K.K. count outright.

5. Evaluating the Doctrinal Shift

French does not overrule White Water or Giant, but it tilts the balance toward allowing more convictions to stand where corroboration is indirect and circumstantial. Several observations follow:

• Continuity in formal rule; change in application. The majority recites the existing rule—each element must be supported by independent, reliable corroboration that need not be sufficient alone—and insists that it is merely applying Torres, Strobel, and Dineen. The dissent argues that the majority, in practice, dilutes the “same point” requirement by accepting evidence of opportunity, distress, and parental reaction as sufficient to corroborate penetration.
• Child sex offense context. The Court emphasises the need to accommodate the realities of child testimony: children may forget, shut down, or be unable to testify coherently years later. In that context, prior statements plus contextual circumstantial evidence may be the only path to prosecution, and French makes clear that such cases will not automatically fail for lack of direct corroboration of penetration.
• Risk of conflating “something bad happened” with “the charged crime occurred.” The dissent’s concern is that once evidence of distress, parental belief, and location is accepted as corroboration of the elements, the corroboration requirement no longer meaningfully polices the line between “some abuse or misconduct occurred” and “this specific criminal element (e.g., penetration) occurred.”
• Practical bottom line. Post-French, Montana trial courts and litigants should expect:
  • Greater willingness by appellate courts to find sufficient corroboration in circumstantial evidence that contextualizes and supports the plausibility of a prior inconsistent statement.
  • A continued prohibition on using multiple inconsistent statements to corroborate each other; there must still be some independent evidence.
  • Intense factual disputes about whether circumstantial evidence really speaks to the “same point” as the prior statement, or merely to general wrongdoing.

B. Issue 2 – Jury Selection Irregularities and New Trials

1. The Statutory Requirement: § 3‑15‑405, MCA

Montana’s jury selection statute requires:

• The clerk of court to serve notice by mail on persons drawn as jurors and require a mailed response as to qualifications.
• If a person does not respond, the clerk must “certify the failure to the sheriff, who shall serve the notice personally on them.”

This two-step process is designed to:

• Promote randomness by ensuring that non-responses do not systematically exclude certain populations (those who move frequently, distrust official mail, etc.); and
• Limit the clerk’s discretion in excusing or excluding jurors.

2. Cascade County’s Practice and the Hinkle Revelations

Testimony in Hinkle showed that, “since COVID” (circa 2020), the Cascade County clerk:

• Sent notices and questionnaires by mail (and later used postcards), but
• Did not certify non-responders to the sheriff; instead, they were simply marked as “not deliverable” or effectively ignored.

When the sheriff attempted belated personal service in Hinkle:

• Only 7 of 63 listed non-responders were successfully served.
• A large number had wrong addresses or did not answer the door.

The Hinkle court reacted by vacating its upcoming jury calendar to restore statutory compliance.

3. The Hillious/Donahue/Kalina Framework

The Supreme Court applies a line of recent decisions:

• State v. Hillious, 2025 MT 53. The clerk had failed to send non-responders to the sheriff, but the Court held:
  • The error was “technical and harmless” absent proof that:
    • Random selection was affected; or
    • Exclusions were based on subjective criteria.
  • A defendant must demonstrate that the departure from the statute compromised the fair cross-section requirement or relied on impermissible selection discretion.
• State v. Donahue, 2025 MT 144. Reaffirmed that “substantial compliance” with the jury selection statute is sufficient, and that noncompliance becomes problematic only if it affects randomness or objective qualification standards.
• State v. Kalina, 2025 MT 70. Clarified that a “fair cross section” does not require any given venire to perfectly mirror community demographics; it is a systemic safeguard, not a compositional guarantee for any individual panel.

4. Application in French

French urged the Court to overrule Hillious and treat Cascade County’s repeated, systemic statutory violation as structural error—requiring automatic reversal without a showing of prejudice. The Court declined:

• Untimeliness: The motion for new trial was filed long after the 30-day statutory window in § 46‑16‑702, MCA.
• No showing of skewed panel: French provided no evidence that:
  • His particular venire underrepresented any cognizable community group; or
  • The clerk or sheriff applied subjective criteria to exclude jurors.
• Consistency with Hillious: Because the practice mirrored that in Hillious, and because French failed to distinguish his case or show manifest error in the prior decision, Hillious controlled and dictated that this was a technical, harmless error.

Thus, the Court held that French was not entitled to a new trial on the basis of jury selection irregularities.

V. Complex Concepts Simplified

1. Prior Inconsistent Statements: Substantive vs. Impeachment Use

A “prior inconsistent statement” is something a witness said earlier that conflicts with their testimony at trial. There are two basic uses:

• Impeachment only: In many jurisdictions, such statements can only be used to show the witness is unreliable (to “impeach” credibility), not as proof that the prior version of events is true.
• Substantive evidence: Under Montana law (M. R. Evid. 801(d)(1)(A)), if certain conditions are met, the prior inconsistent statement can be treated as if it were testimony: the jury can use it as proof of the facts it describes.

Because such statements are generally made outside the courtroom and without the same safeguards (like cross-examination under oath), Montana requires corroboration before a conviction can rest on them.

2. Corroborative Evidence

“Corroborative evidence” is additional evidence that backs up (corroborates) a key piece of testimony or a statement. Under Montana’s statute:

“Corroborative evidence” means additional evidence of a different character to the same point. (§ 26‑1‑102(3), MCA)

In this context:

• “Different character” means the corroboration is not just the same statement repeated, but some other kind of evidence—physical evidence, third-party observations, timing, demeanor, etc.
• “Same point” means it relates to the same specific issue (e.g., penetration, identity, use of a weapon), not just that “something bad happened.”

3. Direct vs. Circumstantial Evidence

• Direct evidence proves a fact without needing inferences (e.g., an eyewitness saying “I saw him hit her.”).
• Circumstantial evidence supports a fact by inference from related facts (e.g., seeing the victim bruised and crying, hearing the defendant say “I shouldn’t have hit you.”).

Montana law recognizes that an element of an offense can be proven entirely by circumstantial evidence. French confirms that the same is true for corroboration of prior inconsistent statements: corroboration may be wholly circumstantial as long as it is reliable and tied to the same point.

4. Sufficiency of the Evidence Review

On appeal, sufficiency review asks:

Could any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, have found the essential elements of the crime beyond a reasonable doubt?

The appellate court does not re-try the case or decide which witnesses were more believable. It only checks whether there was a legally adequate evidentiary foundation for the jury’s verdict.

5. Structural vs. Technical Error in Jury Selection

• Structural error: A fundamental flaw in the trial mechanism itself (e.g., racial exclusion from juries) that requires automatic reversal because it undermines the basic fairness of the proceeding.
• Technical (or “harmless”) error: A deviation from a rule that does not, by itself, show significant prejudice or distortion of fair process.

In the jury-selection context, Montana precedent requires a showing that:

• Random selection was affected; and/or
• Juror excusals or exclusions were based on subjective, improper criteria.

Absent such a showing, violations of § 3‑15‑405, MCA, are treated as technical deviations, not grounds for automatic reversal.

VI. Practical and Doctrinal Impact

1. For Prosecutors

• Enhanced viability of child sex cases based on prior interviews. French makes it clear that prosecutions may proceed—and convictions may stand—even where:
  • A child witness cannot recall the abuse at trial; and
  • The only direct evidence of certain elements (like penetration) comes from prior statements in forensic interviews or to caregivers;
  • So long as there is independent circumstantial evidence that supports an inference that those elements occurred.
• Building corroboration. Prosecutors should focus on:
  • Documenting the immediacy and spontaneity of disclosures.
  • Collecting evidence of the child’s demeanor and behavioral changes.
  • Establishing the timing relative to contact with the accused and other disclosures.
  • Preserving high-quality recordings of forensic interviews capturing both words and body language.

2. For Defense Counsel

• Challenging “same point” corroboration. After French, defense arguments will likely focus on:
  • Parsing which specific element the prior inconsistent statement supplies (e.g., penetration vs. general contact); and
  • Arguing that the State’s alleged corroboration speaks only to background or distress, not that specific element.
• Exploiting internal inconsistencies. As in K.K.’s shifting descriptions (oral vs. implied vaginal penetration, “peeing” vs. not), highlighting evolving or inconsistent accounts remains critical to casting doubt on reliability and to arguing that corroboration does not cure these defects.
• Preserving objections and records. Defense counsel should:
  • Object on both admissibility and sufficiency grounds when the State relies heavily on prior statements.
  • Develop a clear record on the lack (or weakness) of corroborative evidence specifically tied to contested elements.

3. For Trial Courts

• Gatekeeping role on corroboration. Judges must:
  • Identify which elements of the offense the prior inconsistent statements purport to prove.
  • Determine whether there is independent, reliable evidence supporting an inference that each such element occurred, beyond the statements themselves.
• Jury instructions. Courts should ensure juries understand:
  • They may consider prior inconsistent statements both to judge the witness’s credibility and as substantive evidence; but
  • They must still be convinced beyond a reasonable doubt of each element, considering all the evidence (including corroborative circumstances).
• Managing child witnesses. French underscores:
  • The reality that young children may shut down or not recall events.
  • The need for sensitive procedures to maximize their ability to testify while protecting their well-being.

4. Jury Selection Practices Statewide

• Administrative wake-up call. Although the Court treats the deviation as “technical,” the fact that a District vacated its jury calendar in Hinkle signals that clerks statewide must reassess and, if necessary, reform their procedures to ensure statutory compliance.
• Litigation strategy. Defendants seeking relief based on similar irregularities must:
  • Timely object or move for new trial within statutory deadlines.
  • Produce evidence—statistical or otherwise—that their specific venire was not a fair cross-section or that selection included improper subjective criterias (e.g., systematic exclusion of certain neighborhoods, socioeconomic groups, etc.).

VII. Conclusion

State v. French is a significant decision at the intersection of child sexual abuse prosecutions, evidence law, and jury selection doctrine in Montana.

On the evidentiary front, the Court reaffirms that prior inconsistent statements may serve as substantive proof of essential elements—such as penetration in a sexual offense case—so long as each element is supported by independent, reliable corroborative evidence. It clarifies that this corroboration may be entirely circumstantial and need only support an inference of the element, rather than independently proving it. At the same time, it reiterates that multiple prior statements cannot corroborate each other; the corroboration must be truly independent.

The partial dissent underscores a countervailing concern: that, if circumstantial corroboration is defined too loosely, the statutory requirement that corroboration speak to the “same point” as the prior statement risks being hollowed out, allowing convictions to rest effectively on uncorroborated hearsay—particularly troubling where young children cannot meaningfully be cross-examined.

On jury selection, French solidifies the Court’s recent holdings that systemic deviations from statutory juror notification procedures are “technical” rather than structural errors absent demonstrable impact on randomness or cross-sectional representation. Clerks must nonetheless strive for substantial compliance, but defendants seeking reversal must connect procedural defects to concrete prejudice in the composition of their venire.

Overall, French both extends and sharpens Montana’s prior jurisprudence, especially White Water, Giant, Torres, Strobel, and Dineen. It will likely shape how Montana courts handle child victim testimony, forensic interviews, and corroboration challenges in serious sexual offenses for years to come, while preserving a relatively high bar for overturning convictions on the basis of noncompliant jury selection practices.