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Univ. of South Carolina School of Law

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Friday, July 23, 2010

A Foolish Consistency?: Minnesota Opinion Reveals Three Factor Test Minnesota Courts Use To Determine Admissibility Of Prior Consistent Statements

Like its federal counterpart, Minnesota 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 helpful to the trier of fact in evaluating the declarant's credibility as a witness....

And, as the recent opinion of the Court of Appeals of Minnesota in State v. Morris, 2010 WL 2813345 (Minn.App. 2010), makes clear, courts in Minnesota apply a three factor test for determining whether a statement qualifies as a prior consistent statement under this Rule.

In Morris, Erwin Morris allegedly had

a dispute with his wife, R.H., over whether she served him poisoned grape juice....According to R.H., Morris "just turned [into] a different person" and began yelling at her and hitting her. She tried to escape by running up the stairs, but Morris dragged her back to the basement. He told her that he would "slice [her] throat" and harm the children if she screamed or called the police. The two then talked, and Morris calmed down.

While making breakfast the next morning, R.H. decided to use the opportunity to get out of the house. She gathered her daughters, flagged down a passing car, and went to her friend R.W.'s house.

R.W. observed that R.H. looked unkempt and her eyes were puffy. After R.H. described the incident with Morris, R.W. called the police. When the police arrived, R.H. was crying and her face appeared swollen. R.H. told the officers what happened the night before and the officers transported her to a shelter. Morris was arrested and charged with making terroristic threats...and domestic assault....

After R.H. testified, the state indicated its intention to offer portions of her statement to police as prior consistent statements. The district court met with counsel outside of the jury's presence to review the contents of the police report, determining on a line-by-line basis the portions of R.H.'s statement that were consistent with her trial testimony and the portions that were inconsistent and would be redacted. Morris objected to admission of the consistent statements only on the ground that they were cumulative. Morris objected to R.W.'s testimony as to what R.H. told her about the incident on hearsay grounds. The district court overruled the objections.

After he was convicted, Morris appealed, claiming, inter alia, that the district court erred in deeming portions of R.H.'s prior statement to police admissible under Minnesota Rule of Evidence 801(d)(1)(B). Initially, the Court of Appeals of Minnesota found that Morris failed to preserve this issue for appellate review because he merely claimed that these portions of R.H.'s prior statement were cumulative, not that they were hearsay.

The court then found that there was no plain error by the district court in admitting the portion of her prior statement. Morris had claimed that the admission of these portions of the statement violated State v. Bakken, 604 N.W.2d 106, 109 (Minn.App.2000), which held that, before admitting a prior consistent statement under Minnesota Rule of Evidence 801(d)(1)(B),

the district court must determine whether: (1) the witness's credibility has been challenged; (2) the prior statement would be helpful to the trier of fact in evaluating the witness's credibility; and (3) the prior statement and the trial testimony are consistent with each other.

The court disagreed, finding that

While the district court did not specifically address the Bakken factors, the record shows that the Bakken standard for admission was met. Morris's lawyer repeatedly challenged R.H.'s credibility. In his opening statement, counsel indicated that "[R.H.] is not consistent with her stories...none of it adds up. During cross-examination, counsel repeatedly attempted to impeach her testimony. And in questioning one of the police officers, defense counsel again attempted to impeach R.H.'s earlier testimony.

Implicit in the district court's admission of R.H.'s prior consistent statements to the police and R.W. is the determination that they would help the jury evaluate her credibility. The district court carefully reviewed the police report that contained R .H.'s statements to determine which statements were consistent with her trial testimony. Consistent with the parties' agreement, the district court redacted the portions of the police report that differed from R.H.'s trial testimony. Because the prior statements were consistent and assisted the jury in evaluating R.H.'s challenged trial testimony, we conclude that the district court did not commit plain error by admitting the prior consistent statements.

I agree with the court's conclusion but wonder about the second Bakken factor. If a witness' credibility has been challenged and he made a prior consistent statement, how would the prior consistent statement not be helpful to the trial of fact in evaluation the witness' credibility. In my mind, if factors one and three are satisfied, factor two will always be satisfied, but maybe I am missing an odd case where this conclusion would not be clear.

-CM

http://lawprofessors.typepad.com/evidenceprof/2010/07/prior-consistent--state-v-morrisnot-reported-in-nw2d-2010-wl-2813345minnapp2010.html

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