Sunday, October 17, 2010
Darlin' Don't Refrain: Sixth Circuit Finds No Problem With Improperly Timed Admission Of Prior Consistent Statements
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....
So, what happens if a party introduces a witness' alleged prior consistent statement before the opposing party charges the witness with recent fabrication or improper influence or motive, but the opposing party does later levy such a charge against the witness? That was the question addressed by the recent opinion of the Sixth Circuit in United States v. Wells, 2010 WL 3958647 (6th Cir. 2010).
In Wells, Oscar Wells was convicted of conspiracy to violate, and three counts of substantive violations of, the Hobbs Act. This conviction was secured in large part based upon the testimony of Wells' alleged co-conspirators, Jimmy Gates and Liberator Noce, who testified against Wells after they reached plea bargains with the government.
During her opening statement, the prosecutor referenced statements that Gates and Noce made to the FBI before they reached plea agreements with the government indicated that these statements would be consistent with their testimony at trial. During his opening statement, defense counsel then argued that Gates and Noce were untrustworthy based upon the plea bargains that they struck with the government in exchange for their testimony at trial. Thereafter, the prosecutor introduced the prior consistent statements made by Gates and Noce to the FBI during her direct examinations of Gates and Noce.
After he was convicted, Wells appealed, claiming, inter alia, that it was improper for the prosecutor to mention the prior statements to the FBI during his opening statement because he had not yet charged these witnesses with recent fabrication or improper influence or motive. In addressing this argument, the Sixth Circuit found that
The prosecutor's remarks in her opening statement concerning the consistent pretrial statements made by Noce and Insana were risky if not improper. Although it was reasonable to expect that Defendant would challenge the credibility of the witnesses based on their motive to secure a favorable plea bargain, the admissibility of the prior statements still hinged on whether such an attack was actually made. It is conceivable, for example, that a defendant would refrain from making this type of credibility attack for the very purpose of preventing the admissibility of a prior consistent statement. It is undoubtedly tempting, but generally unwise, for a prosecutor to try to predict the strategy opposing counsel will adopt, and then to try to blunt the strategy's impact. By prematurely calling attention to prior consistent statements in the opening statement, a prosecutor creates the chance of mistrial and an issue for appeal.
That said, the court found that any error committed by the district court in allowing these remarks during the prosecutor's opening statement was harmless because
Any potential prejudice that might otherwise have been inflicted upon Defendant by the remarks about prior consistent statements vanished during Defendant's opening statement. Defendant offers no suggestion that he would have refrained from charging the witnesses with improper motive to avoid the introduction of the prior consistent statements. Any such suggestion, if made, would be implausible since a major part of Defendant's defense was an attack on the credibility of the government witnesses. The prosecutor's remarks did nothing more than predict what would soon come out properly in the course of witness examination. Furthermore, there was considerable evidence of Defendants guilt, viz. the bank records and testimony that Defendant made four cash deposits on days that Gates cashed checks from Noce. Under these circumstances, we do not view the prosecutor's remarks concerning the prior consistent statements as flagrant.
I agree with the court's conclusion based upon Wells failing to argue that he would have refrained from charging the witnesses with improper motive. If he had made this argument, however, I wonder whether the court would have reached the opposite conclusion?