CONSISTENT STATEMENTS
See also: CHILDREN–Child Abuse; IDENTIFICATIONS
SEXUAL ASSUALT–Prompt Complaint.
1. Generally
An out-of-court statement by a witness which is consistent with his or her testimony at trial is ordinarily inadmissible hearsay{footnote}E.g., Commonwealth v. Fryar, 680 N.E.2d 901 (Mass. 1997).{/footnote} whether offered as substantive evidence{footnote}United States v. Quinto, 582 F.2d 224, 232 (2d Cir. 1978) (prior consistent statements offered for their truth generally barred by hearsay rule).
State v. Valentine, 692 A.2d 727 (Conn. 1997) (but applying exception)
4 J. Wigmore § 1123, at 254 (at common law, prior statements offered substantively were barred by hearsay rule).{/footnote} or to corroborate the witness’ in-court testimony.{footnote}Dowdy v. United States, 46 F.2d 417, 424 (4th Cir. 1931); Schoppel v. United States, 270 F.2d 413, 417 (4th Cir. 1959); Mellon v. United States, 170 F.2d 583, 585-86 (5th Cir. 1948); Gates v. Rivera, 993 F.2d 697 (9th Cir. 1993) (statement by witness to police shooting that victim had hand in his pocket).
Arizona v. Tinajero, 1997 Ariz. App. LEXIS 3 (January 9, 1997); State v. Valentine, 692 A.2d 727 (Conn. 1997) (but applying exception).
4 Wigmore § 1123, at 254-55.{/footnote} The rationale for excluding this evidence even as corroboration is that the witness’ version of the facts is not made more reliable by virtue of repetition.{footnote}E.g., State v. Valentine, 692 A.2d 727 (Conn. 1997); People v. Seit, 653 N.E.2d 1168, 1169 (N.Y. 1995).{/footnote}
There are several exceptions to this rule, however. Most commonly invoked is the rule allowing the use of prior consistent statements to rebut a charge of recent fabrication or motive to testify falsely (2). Whether or not such a charge has been made against a witness, however, courts have also allowed a witness impeached with a prior inconsistent statement to be rehabilitated with prior consistent statements (§ 3). The distinction can be important–the former rule allows the prior statement to be introduced as substantive evidence, the latter does not. The foundational requirements for statements offered under the former rule are also more strict (2(c)).
2. Rebutting Charge of Recent Fabrication or Improper Motive
Prior consistent statements made by a witness are admissible so long as they are introduced to rebut an express or implied charge of recent fabrication{footnote}FRE 801(d)(1)(B).
Ashford v. Ziemann, 459 N.E.2d 940 (Ill. 1984).{/footnote} or improper motive.{footnote}FRE 801(d)(1)(B).
Cal. Evid. Code § 7091(b); People v. Singer, 300 N.Y. 120 (1949).{/footnote} For example, FRE 801(d)(1)(B) provides that a statement is not hearsay if:
the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is … 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….{footnote}FRE 801(d)(1)(B).
See also N.J. R. Evid. 803(a)(2).{/footnote}
The court has broad discretion in determining admissibility under this rule.{footnote}Christmas v. Sanders, 759 F.2d 1284, 1287 (7th Cir. 1985) (citing United States v. Herring, 582 F.2d 535, 541 (10th Cir. 1978); United States v. Reed, 887 F.2d 1398, 1405 (11th Cir. 1989).
District of Columbia v. Bethel, 567 A.2d 1331, 1336 (D.C. 1990); State v. Robinson, 611 A.2d 852 (Vt. 1992).
McCormick § 49 (2d ed. 1970).{/footnote} The prior statement need not have been made under oath.{footnote} Baker v. Elcona Homes Corp., 588 F.2d 551 (6th Cir. 1978).
Cf. INCONSISTENT STATEMENTS.{/footnote}
Most courts hold that a prior consistent statement need not be proven through the testimony of the impeached witness, but may be proven through the testimony of others who witnessed the prior statement.{footnote}United States v. Piva, 870 F.2d 753, 758 (1st Cir. 1989); United States v. McGrath, 558 F.2d 1102, 1107 (2d Cir. 1977), cert. denied, 434 U.S. 1064 (1978); United States v. Provenzano, 620 F.2d 985, 1001-02 (3d Cir.), cert. denied, 449 U.S. 899 (1980); United States v. Zuniga-Lara, 570 F.2d 1286, 1287 (5th Cir.), cert. denied, 436 U.S. 961 (1978); United States v. Hebeka 25 F.3d 287, 292 (6th Cir. 1994); United States v. Lanier, 578 F.2d 1246, 1255-56 (8th Cir.), cert. denied, 439 U.S. 856 (1978); United States v. Myers, 972 F.2d 1566, 1576 n.7 (11th Cir. 1992), cert. denied, 123 L. Ed. 2d 445, 113 S. Ct. 1813 (1993); United States v. Montague, 958 F.2d 1094, 1099 (D.C. Cir. 1992) ("the Seventh Circuit appears to be a minority of one to the contrary.")
State v. Parris, 696 P.2d 1368 (Ariz. Ct. App. 1985).
Contra United States v. West, 670 F.2d 675, 687 (7th Cir.), cert. denied, 457 U.S. 1124, 1139 (1982). {/footnote}
2(a). What Constitutes an Implied Charge of Recent Fabrication or Improper Motive?
This rule may be triggered by several forms of impeachment: alleging or implying that the witness has a motive or interest in giving false testimony,{footnote}Tome v. United States, 115 S. Ct. 696, 701 (1995):
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.
United States v. Zito, 467 F.2d 1401, 1404 (2d Cir. 1972) (implying that prosecution witness fabricated testimony to avoid prosecution); United States v. Feldman, 711 F.2d 758, 766 (7th Cir.) (consistent statement made to FBI before plea bargain was reached admitted to "rebut inferences of recent fabrication motivated by the agreement."), cert. denied, 464 U.S. 939 (1983); United States v. Rodriguez, 452 F.2d 1146, 1148 (9th Cir. 1972) (implying that prosecution witness fabricated testimony in hope of leniency). {/footnote} use of a prior inconsistent statement,{footnote}United States v. Pierre, 781 F.2d 329, 333 (2d Cir. 1986) (prior consistent statements could clarify prior inconsistent statements by showing that they were not really inconsistent); United States v. Rubin, 609 F.2d 51, 63 (2d Cir. 1979) (prior consistent statements were admitted in rebuttal to ensure that jury was not misled by impeaching statements taken out of context), aff’d on other grounds, 449 U.S. 424 (1981); Applebaum v. American Export Isbrandtsen Lines, 472 F.2d 56, 60-61 (2d Cir. 1972); United States v. Harris, 761 F.2d 394, 400 (7th Cir. 1985) (prior consistent statements were admitted to place inconsistent statements in context and show whether they were truly inconsistent); Affronti v. United States, 145 F.2d 3, 7-8 (8th Cir. 1944).
Cal. Evid. Code § 791(a); Stafford v. Lyon, 413 S.W.2d 495 (Mo. 1967).
4 J. Weinstein & M. Berger, Evidence, § 801(d)(1)(B)(0) at 801-100 (1977).
But see People v. McDaniel, 611 N.E.2d 265, 270 (N.Y. 1993) (mere impeachment by proof of inconsistent statements does not constitute a charge that the witness’ testimony is a fabrication){/footnote} showing that the witness previously failed to mention a fact to which he testified in court, at a time when it would have been expected to do so,{footnote}Felice v. Long Island R.R., 426 F.2d 192, 197-98 (2d Cir.) (witness’ accident report faied to mention fact he later testified to in court), cert. denied, 400 U.S. 820 (1970).{/footnote} contradiction of the witness’ testimony with another witness’ testimony,{footnote}Ryan v. United Parcel Serv., 205 F.2d 362, 364 (2d Cir. 1953).
CHECK United States v. Lanier, 578 F.2d 1246, 1253-1254 (8th Cir. 1978); United States v. Rinn, 586 F.2d 113, 119 (9th Cir. 1978).{/footnote} and implying that the witness met with another witness to fabricate a story together.{footnote}People v. Segura, 923 P.2d 266, 269 (Colo. Ct. App. 1995);{/footnote}
A mere attack on the general credibility of a witness does not itself render prior consistent statements admissible.{footnote} Christmas v. Sanders, 759 F.2d 1284, 1287 (7th Cir. 1985).
Check McCormick § 49 (2d ed. 1970).{/footnote} Asserting or implying that a witness is confused or mistaken does not satisfy this rule.{footnote}People v. Singer, 300 N.Y. 120, 124 (19___).{/footnote} That the witness’ testimony is refuted by other evidence does not render a prior consistent statement admissible.{footnote}McGowan v. Cooper Industries, Inc., 863 F.2d 1266 (6th Cir. 1988).{/footnote}
2(b). What Statements Are Admissible?
Prior consistent statements are admissible even if they do not relate specifically to the matters on which the witness was impeached.{footnote} United States v.Casoni, 950 F.2d 893, 903-04 (3d Cir. 1991); United States v. Brantley, 733 F.2d 1429, 1438 (11th Cir.1984), cert. denied, 470 U.S. 1006, 105 S. Ct. 1362, 84 L.Ed.2d 383 (1985).{/footnote} The statements need not be identical in every detail to the trial testimony so long as they are generally consistent.{footnote}United States v. Vest, 842 F.2d 1319, 1329 (1st Cir.), cert. denied, 488 U.S. 965 (1988); United States v. Lombardi, 550 F.2d 827, 828 (2d Cir. 1977) (per curiam) (prior statement omitting one detail, but otherwise consistent with trial testimony, admitted as prior consistent statement to rebut implication that witness falsified his testimony).{/footnote}
2(c). Statements Made After Motive to Fabricate Arises (The Pre-Motive Rule)
Under the common law hearsay exception for consistent statments, the offered statement must have been made before the circumstances existed which gave rise to the alleged motive to fabricate.{footnote}E.g., Prophet v. United States, 602 A.2d 1087, 1093 (D.C. 1992); People v. Bobiek, 648 N.E.2d 160, 164 (Ill. Ct. App. 1995)
4 Wigmore ‘1128(1), at 268; Edward Cleary, McCormick on Evidence § 49, at 105 (2d ed. 1972). {/footnote} This requirement, sometimes referred to as the “pre-motive rule” or the “temporal requirment,” is not explicitly set forth in FRE 801(d)(1)(B) and its state counterparts. In Tome v. United States,{footnote}115 S. Ct. 696 (1995).{/footnote} however, the United States Supreme Court read such requirment into the federal rule, finding no indication that the drafters of the rules intended to eliminate it.{footnote}Id. (statements made by four-year-old to baby sitter, social worker, and child’s mother, implicating the child’s father for sexually abusing her, held inadmissible).
Accord Arizona v. Tinajero, 1997 Ariz. App. LEXIS 3 (January 9, 1997) (inculpatory statement made after arrest inadmissible); People v. Segura, 923 P.2d 266, 268-69 (Colo. Ct. App. 1995); State v. Kholi, 672 A.2d 429, 438 (R.I. 1996).
See also United States v. Guevara, 598 F.2d 1094, 1099-1100 (7th Cir. 1979) (when witness was impeached by evidence that he received money to inform, prior consistent statement made subsequent to alleged motive was inadmissible because it did not "remove the implication of improper motive from [witness’s] prior testimony").{/footnote}
2(d). Use as Substantive Evidence
A prior consistent statement admissible under FRE 801(d)(1)(B) or its state counterparts may be used as substantive evidence.{footnote}FRE 801(d)(1)(B) advisory committee’s note.
Accord Cal. Evid. Code § 1236.{/footnote} This is contrary to the common law rule.{footnote}E.g., People v. Seit, 653 N.E.2d 1168 (1995).{/footnote}
3. Rehabilitating a Witness Impeached with an Inconsistent Statement
Statements which do not satisfy the strict requirements of FRE 801(d)(1)(B) may nonethless be offered for the limited purpose of rehabilitation, and not for their truth, in which case the requirements of that rule do not apply.{footnote}United States v. Simonelli, ______ (1st Cir. 2001); United States v. Castillo, 14 F.3d 802, 806 (2d Cir. 1994); United States v. Casoni, 950 F.2d 893, 905-06 (3d Cir. 1991); United States v. Ellis, 1997 U.S. App. LEXIS 21040 (4th Cir. 1997); Engebretsen v. Fairchild Aircraft Corporation, 21 F.3d 721, 730 (6th Cir. 1994); United States v. Harris , 761 F.2d 394, 399 (7th Cir. 1985); United States v. Andrade, 788 F.2d 521, 532-33 (8th Cir. 1986).
Bullock & Gardner, Prior Consistent Statements and the Premotive Rule, 24 F.S.U. L. Rev. 509, 521-22 nn. 86-96 (1997) (only the Ninth Circuit holds that prior consistent statements are either admissible under Rule 801(d)(1)(B) or not at all).{/footnote} Instead, admissibility turns on "whether the particular consistent statement sought to be used has some rebutting force beyond the mere fact that the witness has repeated on a prior occasion a statement consistent with his trial testimony."{footnote}United States v. Pierre, 781 F.2d 329, 331 (2d Cir. 1986)
Accord United States v. Castillo, 14 F.3d 802, 806 (2d Cir. 1994); United States v. Ellis, 1997 U.S. App. LEXIS 21040 (4th Cir. 1997);{/footnote}
Statements offered for purposes of rehabilitation are not offered for their truth and are therefore not substantive evidence. Some courts, even after Tome v. United States,{footnote}115 S. Ct. 696 (1995) (discussed in § 2(c), supra).{/footnote} have held that the pre-motive rule does not apply when the prior consistent statement is offered to rehabilitate such a witness under these circumstances, rather than as substantive evidence under FRE 801(d)(1)(B) or its state counterpart.{footnote}United States v. Rubin, 609 F.2d 51, 66 (2d Cir. 1979) (Friendly, J., concurring), aff’d on other grounds, 449 U.S. 424 (1981); United States v. Casoni, 950 F.2d 893, 897 n. 2 (3d Cir. 1991) (admitting statement as relevant after rejecting argument that motive to fabricate existed at the time of statement); United States v. Ellis, 1997 U.S. App. LEXIS 21040 (4th Cir. 1997); United States v. Parry, 649 F.2d 292, 296 (5th Cir. 1981); United States v. Harris, 761 F.2d 394 (7th Cir. 1985); United States v. Scholle, 553 F.2d 1109, 1121-22 (8th Cir.), cert. denied, 434 U.S. 960 (1977).
See also Tome, 115 S. Ct. at 705 ("our holding is confined to the requirements for admission under Rule 801(d)(1)(B)").
But see Mueller & Kirkpatrick § 406 at 17-20 (Aug. 1995 Supp.) (stating that Tome left this issue unresolved but opining that the pre-motive rule should be applied in both contexts).
Contra United States v. Quinto, 582 F.2d 224, 233-34 (2d Cir. 1978); United States v. Check, 582 F.2d 668, 681 n.40 (2d Cir. 1978) (prior consistent statements that do not satisfy FRE 801(d)(1)(B) standards are not admissible for substantive or rehabilitative use); United States v. Gwaltney, 790 F.2d 1378, 1384 (9th Cir. 1986);.{/footnote}
The admission of prior consistent statements may also be justified by the rule of completeness where they are necessary to place an allegedly inconsistent statement into context or show that it is not in fact inconsistent with the witness’ testimony.{footnote}United States v. Marin, 669 F.2d 73, 84 (2d Cir. 1982) (prior consistent statements should be admitted for purposes of completeness when "necessary to explain the admitted portion, to place it in context, or to avoid misleading the trier of fact"); United States v. Rubin, 609 F.2d 51, 63 (2d Cir. 1979), aff’d on other grounds, 449 U.S. 424 (1981); United States v. Ellis, 1997 U.S. App. LEXIS 21040 (4th Cir. 1997); Engebretsen v. Fairchild Aircraft Corporation, 21 F.3d 721, 730 (6th Cir. 1994); United States v. Andrade, 788 F.2d 521, 533 (8th Cir.), cert. denied, 107 S. Ct. 462 (1986).
But see United States v. Pierre, 781 F.2d 329, 333 (2d Cir. 1986) (indicating that there is no difference between prior consistent statements offered to rehabilitate and those offered for completeness).
See also COMPLETENESS, RULE OF.{/footnote}
5. Admissibility under Residual Exception
Prior consistent statements of a criminal defendant exculpating himself have been held not admissible under the residual exception to the hearsay rule because of their lack of trustworthiness.{footnote}Arizona v. Tinajero, 1997 Ariz. App. LEXIS 3 (January 9, 1997){/footnote}
Bibliography
Bullock & Gardner, Prior Consistent Statements and the Premotive Rule, 24 F.S.U. L. Rev. 509 (1997).
Graham, Prior Consistent Statements: Rule 801(d)(1)(B) of the Federal Rules of Evidence, Critique and Proposal, 30 Hastings L.J. 575 (1979).
Hogan, Case Note, A Consistent Interpretation for 801(d)(1)(B) Prior Consistent Statements, 39 How. L.J. 819 (1996).
Note, Prior Consistent Statements: Temporal Admissibility Standard Under Federal Rule Of Evidence 801(d)(1)(B), 55 Fordham L. Rev. 759 (1987).
Annotation, Admissibility Of Impeached Witness’ Prior Consistent Statement-Modern State Criminal Cases, 58 A.L.R.4th 1014 (19__).