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September 13, 2016 Articles

Rule 801(d)(1): The Admissibility of Prior Consistent Statements

Every prior consistent statement offered to rehabilitate a witness is defined as nonhearsay, even when the witness has not been accused of fabrication.

By Cheryl D. Stein – September 13, 2016

At common law, both prior inconsistent statements offered for impeachment and prior consistent statements offered for rehabilitation were considered hearsay and were admissible only as evidence of credibility. The law changed with the adoption of the Federal Rules of Evidence in 1975. Rule 801(d)(1) defined certain categories of out-of-court statements as nonhearsay, meaning that they are admissible as evidence of the truth of their contents.

Federal Rule of Evidence 801(d)(1)
For a prior inconsistent statement to be admissible as substantive evidence, it must have been made “under penalty of perjury at a trial, hearing, or other proceeding or in a deposition.” Fed. R. Evid. 801(d)(1)(A). Prior inconsistent statements made in any other context are hearsay and can be admitted only for impeachment purposes.

The rule is much more liberal on the admission of prior consistent statements. Until December 2014, the rule defined as nonhearsay any prior consistent statement that was offered “to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying.” Fed. R. Evid. 801(d)(1)(B)(i). The prior consistent statement was admissible as substantive evidence—even if not made under oath and without regard to the informality of its setting—as long as the opposing party suggested that the witness was fabricating testimony.

Although seemingly neutral on its face, the rule in practice generally gives an advantage to the government in criminal cases for the simple reason that the vast majority of witnesses are prosecution witnesses. It is usually the defense that is impeaching those witnesses and the government that is rehabilitating them.

That advantage became greater on December 1, 2014, when an amendment to the rule went into effect. Now, pursuant to Federal Rule of Evidence 801(d)(1)(B)(ii), every prior consistent statement offered to rehabilitate a witness is defined as nonhearsay, even when the witness has not been accused of fabrication. The rule concerning prior inconsistent statements remains unchanged.

Tome v. United States
The most important Supreme Court case on the admissibility of prior consistent statements isTome v. United States,513 U.S. 150 (1995). The defendant in Tome was accused of sexually assaulting his four-year-old daughter. He and the child’s mother were divorced in 1988, and Tome had primary physical custody of the girl. The mother petitioned for primary custody in 1989. Although that request was denied, the court awarded her physical custody of the child for the summer of 1990. It was at the end of August 1990 that she accused Tome of abusing their daughter. At trial, Tome’s defense was that the allegations were concocted so that the little girl could remain with her mother. After the child testified at trial and her credibility was attacked, the government presented six witnesses who testified to her out-of-court statements about the alleged abuse. The earliest of those statements had been made less than a week before the police were contacted. They were admitted over the defendant’s hearsay objections.

The Supreme Court agreed with Tome that the prior consistent statements by the child should have been excluded. It noted that, at common law, only those prior consistent statements that were made before a motive to fabricate arose were admissible to rehabilitate a witness accused of being untruthful. Nothing in the Advisory Committee note suggested that the drafters of 801(d)(1) intended to depart from this well-known principle. The holding was also dictated by logic: any statement made after a witness acquires a motive to fabricate simply does not meet the substance of the impeachment. Once the witness has a reason to lie, it is to be expected that the lie will be repeated. That repetition is not itself evidence of veracity. In addition, the comparative liberality of the rule on the admission of prior consistent statements made “it all the more important to observe the preconditions for admitting the evidence in the first place.” 513 U.S. at 162–63. Accordingly, the Court held that (the then-existing) Rule 801(d)(1)(B) permitted the introduction of a prior consistent statement elicited to rebut a charge of recent fabrication or improper motive only when the statement had been made before the motive arose.

Application of Amended Rule 801(d)(1) to Tome
In the wake of the recent amendment to the rule, courts will have to decide whether the Tomeholding applies to prior consistent statements elicited to rehabilitate a witness on a ground other than fabrication, such as a failure of perception, memory, or narration. There are not yet any appellate opinions on point, but I believe the answer to that question has to be yes. The commentary to the amendment refers to Tome with approval, and the logic of its holding applies to all forms of impeachment and rehabilitation. If, for example, a party impeaches an opposing witness with evidence that a recent stroke has resulted in memory damage, only a prior consistent statement made before the stroke would serve to rebut that claim. Moreover, given the increased liberality of the rule wrought by the amendment, there is now an even greater need “to observe the preconditions for admitting the evidence in the first place.”

Logic, legal history, and the drafters’ commentary all indicate that statements offered for the purpose of rehabilitating a witness under Rule 801(d)(1)(B)(ii) are admissible only if made before the impeaching circumstance arose. Only a handful of appellate opinions on this issue has appeared, but it is important to preserve the record and object at trial to any prior consistent statements offered by the opposing party that do not meet the Tome standard.

Keywords: criminal litigation, prior consistent statements, prior inconsistent statements, Federal Rules of Evidence, FRE 801(d)(1)

Cheryl D. Stein is a criminal defense lawyer in Washington, D.C. She teaches evidence at the American University Washington College of Law and is an instructor at the Harvard Law School Trial Advocacy Workshop. This article was written in fall 2015.