EvidenceProf Blog

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

Monday, August 2, 2010

Looking For Consistency: Second Circuit Notes That Prior Consistent Statements Are Admissible For All Purposes

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....

And, as the text of the Rule and the recent opinion of the Second Circuit in United States v. Caracappa, 2010 WL 2884970 (2nd Cir. 2010), make clear, because a prior consistent statement under this Rule is "not hearsay," it is admissible generally and not solely to counter the suggestion that the declarant's testimony was motivated by an improper purpose.

In Caracappa, Stephen Caracappa and Louis Eppolito appealed from final judgments convicting both men of racketeering conspiracy and distribution of and conspiracy to distribute narcotics and convicting Eppolito of money laundering.

Caracappa and Eppolito are former police detectives who were employed by the New York City Police Department...until the early 1990s. In 1986-1993, while so employed, they were also a partnership employed by Anthony Casso, the underboss, i.e., second in command, of the Lucchese Crime Family-one of the five Organized Crime Families in the New York City area. The government's key witness at trial was Burton Kaplan, who was a former associate of the Lucchese Crime Family, a close friend of Casso, and the main intermediary between Casso and Caracappa/Eppolito.... 

After Kaplan had testified and described relaying information received from Caracappa and Eppolito to Casso and relaying to them instructions and payments from Casso, and after defendants had cross-examined Kaplan at length, challenging the veracity of that testimony, the government was allowed to call Burstein as a witness to testify that Kaplan told him in 1994 that Kaplan had been the conduit between Caracappa/Eppolito and Casso.

After he was convicted, Caracappa appealed, claiming, inter alia, that "the government in summation improperly used Burstein's testimony to bolster that of Kaplan, rather than using it solely to counter the suggestion that Kaplan's testimony was motivated by an improper purpose, we see no misuse by the government." The Second Circuit disagreed, finding that

Prior consistent statements that are admissible under Rule 801(d)(1)(B) "are substantive evidence. The prior statement is consistent with the testimony given on the stand, and, if the opposite party wishes to open the door for its admission in evidence, no sound reason is apparent why it should not be received generally."



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