Tuesday, April 6, 2010
A Foolish Consistency, Take 3: Second Circuit Finds No Error With Admission Of Alleged Prior Consistent Statement
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.
Pursuant to the Supreme Court's opinion in Tome v. United States, 513 U.S. 150 (1995), it is well established that this Rule "permits the introduction of a declarant's consistent out-of-court statements to rebut a charge of recent fabrication or improper influence or motive only when those statements were made before the charged recent fabrication or improper influence or motive." I don't see how the recent opinion of the Second Circuit in United States v. Burden, 2010 WL 1223186 (2nd Cir. 2010), is consistent with this construction of the Rule.
In Burden, several defendants, including Jermain Buchanan, appealed from their convictions on multiple counts including violations of the Racketeer Influenced and Corrupt Organizations Act, the Violent Crimes in Aid of Racketeering statute, and conspiracy to distribute cocaine and cocaine base. One of the incidents giving rise to the action against the defendants was a drive-by shooting in front of Marque Young's house, which resulted in Derek Owens being killed and Young being wounded so severely that he is now a paraplegic.
Young testified at trial and described having seen Buchanan and another person as the shooters. He further testified that he had identified Buchanan in two separate photo spreads. During cross-examination, Buchanan's counsel attempted to introduce an October 1999 statement in which Young told police that he wasn't sure Buchanan was in the front passenger seat. The government objected and the district court sustained the objection. The government later stated that it would withdraw its objection if it could introduce a November 1999 statement in which Young identified Buchanan as the shooter under the theory that it was a prior consistent statement. The district court ultimately allowed both the October and November statements to be admitted.
Part of the basis for Buchanan's appeal was
that the November statement was not admissible under Federal Rule of Evidence 801(d)(1)(B) as a prior consistent statement because he had never made a charge of recent fabrication against Young. Instead, he argues that his goal in getting the October statement admitted was to impeach Young and make his trial testimony less believable because of his earlier inconsistent statements. Buchanan further argues that the government's purpose in introducing the November statement was improper bolstering of Young's credibility.
The Second Circuit disagreed, finding that
Buchanan was attempting to impeach Young, specifically by suggesting that his trial testimony in which he identified Buchanan as a shooter was a recent fabrication. Once allowed to raise that inference, the district court was well within its discretion to allow a month-later statement, consistent with the trial testimony, to be introduced to rebut the charge that Young's trial testimony was recently fabricated.
Really? I read Buchanan's impeachment of Young in one of two ways: First, Buchanan might have been trying to prove that Young was more uncertain about whether Buchanan was a shooter than his trial testimony would have suggested. In other words, Young's trial testimony was not a fabrication or based upon an improper motive or influence; it was based upon confusion. Second, Buchanan might have been trying to prove that Young's trial testimony was a fabrication, but not a recent fabrication.
It seems most likely to me that Buchanan was trying to prove that Young was uncertain of whether Buchanan was a shooter when he talked to police in October 1999. Then, something happened to cause Young to lie to cops in November 1999 and eventually at trial. If this was the case, Young's statement to the cops in November was not a prior consistent statement but came after some unstated improper influence or motive. And if that were the case, I don't see how Young's statement in November 1999 qualified as a prior consistent statement.