EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Monday, March 29, 2010

A Foolish Consistency, Take 2: New Jersey Court Finds No Error With Admission Of Prior Consistent Statement Before Charge Of Recent Fabrication

Like Federal Rule of Evidence 801(d)(1)(B), New Jersey Rule of Evidence 803(a)(2) allows for the admission of:

A statement previously made by a person who is a witness at a trial or hearing, provided it would have been admissible if made by the declarant while testifying and the statement...is consistent with the witness' testimony and is offered to rebut an express or implied charge against the witness of recent fabrication or improper influence or motive.

In other words, an attorney is allowed to admit a witness' prior consistent statement after opposing counsel has charged the witness with recent fabrication or improper influence or motive to rebut that charge. According to the recent opinion of the Superior Court of New Jersey, Appellate Division, in State v. Hay, 2010 WL 1028048 (N.J.Super.A.D. 2010), however, there is no unfair prejudice if an attorney is allowed to admit a witness' prior consistent statement before opposing counsel has made such a charge. I disagree.

In Hay, Andre T. Hay was convicted of second-degree aggravated assault, third-degree terroristic threats, fourth-degree unlawful possession of a weapon, and third-degree possession of a weapon for an unlawful purpose. These convicted stemmed out of acts that Hay allegedly committed against the mother of his children, who later that day reported these acts to Dr. Randall Lewis at the Union County Community Hospital.

At Hay's trial, Dr. Lewis testified concerning what the alleged victim told him. The alleged victim thereafter testified concerning the acts Hay allegedly committed against her. Subsequently, defense counsel's cross-examination of the alleged victim "suggested that the victim did not seek medical assistance or speak with the police until a considerable time after the incident and that she later approached the prosecutor to have the charges dropped before ultimately deciding to prosecute the case."  

After Hay was convicted, he appealed, claiming, inter alia, that Dr. Lewis' testimony concerning the alleged victim's statements constituted inadmissible hearsay. The Superior Court of New Jersey, Appellate Division disagreed, finding that the alleged victim's statements were admissible under New Jersey Rule of Evidence 803(c)(4) as statements made for purposes of medical treatment or diagnosis. If the court stopped with that holding, it would not have committed error.

The court, however, went on to find that it was "satisfied that the statement was admissible as a prior consistent statement of a witness testifying at trial." The court noted that defense counsel did not charge the alleged victim with recent fabrication until after Dr. Lewis had testified concerning her prior consistent statement but found that "[n]o prejudice arose simply from the fact that Dr. Lewis testified to this consistent statement before defense counsel raised the issue of recent fabrication when he thereafter cross-examined the victim." I disagree.

I see this situation as the converse to the situation where a judge deems a criminal defendant's prior convictions admissible against him for impeachment purposes. Under these circumstances, if the defendant chooses not to testify, he cannot appeal the judge's ruling because, inter alia, if he testified, the prosecution could have chosen not to impeach him.

Now, let's look at Hay. Sure, defense counsel charged the alleged victim with recent fabrication. But would he have done so if the court had not already allowed for the admission of her prior consistent statements to Dr. Lewis? In other words, in Hay, defense counsel risked nothing by charging the victim with recent fabrication because her prior consistent statements had already been admitted. But would he have taken the same risk if the cat were not already out of the bag? That's a question we can't answer, but we can answer that this is not the situation envisioned by the prior consistent statement rule.



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