Wednesday, March 24, 2010
A Foolish Consistency: Fifth Circuit Case Reveals Odd Aspect Of Louisiana's "Prior" Consistent Statement Rule
Federal Rule of Evidence 801(d)(1)(B) provides that
A statement is not hearsay if...[t]he 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.
Seemingly similarly, Louisiana Code of Evidence article 801(d)(1)(B) provides that
A statement is not hearsay if...[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is...[c]onsistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive.
As the recent opinion of the Fifth Circuit in Jones v. Cain, 2010 WL 909084 (5th Cir. 2010), makes clear, however, there is a clear (and bizarre) difference between the two rules.
Now, the facts in Cain were quite odd. After a jury trial in Louisiana, Terrance Jones was convicted of second degree murder in 2001. After he exhausted his appeals in the state court system, he filed a petition for writ of habeas corpus with the United States District Court for the Eastern District of Louisiana. That court denied his motion, prompting his appeal to the Fifth Circuit.
One of the grounds for Cain's appeal was that the trial court improperly allowed for the admission of recorded statements of an absent witness for the prosecution, finding that they constituted consistent statements under Louisiana Code of Evidence article 801(d)(1)(B). Cain claimed that the admission of these statements violated his rights under the Confrontation Clause, and because Cain's initial trial was in 2001, the Fifth Circuit found that the issue was governed by Ohio v. Roberts.
Under Roberts, one of the key questions was whether a particular hearsay exception was "firmly rooted." And, according to the Fifth Circuit, Federal Rule of Evidence 801(d)(1)(B) likely is "firmly rooted because
In Tome v. United States, the Supreme Court held that, under the Federal Rules of Evidence, a prior consistent statement used to rebut a charge of improper motive must have been made before the improper motive allegedly arose....The pre-motive requirement, it explained, was “[t]he prevailing common-law rule for more than a century before adoption of the Federal Rules of evidence."
Conversely, the Fifth Circuit found that
Louisiana's prior consistent statement rule has no such requirement. For Louisiana article 801 to be eligible as a firmly rooted hearsay exception, it cannot contravene more than 100 years of common law evidence practice.
I much prefer the federal rule to the Louisiana rule. Take the following case: Dan is on trial for murder. William testifies and provides an alibi for Dan. On cross-examination, the prosecution asks William, "Isn't it true that Dan gave you $10,000 to help you start a restaurant three weeks ago?" and William responds "Yes." The prosecution has now at least impliedly claimed that William's testimony was the product of Dan's $10,000. Under either the federal or Louisiana rule, defense counsel can now ask William about a statement he made to a friend a month before trial where he claimed that Dan had an alibi. This makes sense. If William said that Dan had an alibi before Dan gave him the money, Williams testimony likely wasn't the product of the money.
Under the Louisiana rule, but not the federal rule, William could also testify that he told a friend two weeks before trial that Dan had an alibi, i.e., after Dan gave him the money. This makes no sense to me. If the consistent statement came after the improper motive, how does it prove that the trial testimony was not the product of that motive? It doesn't according to Federal Rule of Evidence 801(d)(1)(B) and most state counterparts, but for whatever reason, Louisiana thinks differently.