Thursday, August 25, 2011
It's Too Late: Court Of Appeals Of Ohio Finds No Error In Exclusion Of Alleged Prior Consistent Statement
A statement is not hearsay if...[t]he declarant testifies at trial or hearing and is subject to cross-examination concerning the statement, and the statement is...consistent with declarant's testimony and is offered to rebut an express or implied charge against declarant of recent fabrication or improper influence or motive....
As the recent opinion of the Court of Appeals of Ohio, First District, in State v. Strutz, 2011 WL 3111983 (Ohio App. 1 Dist. 2011), (sort of) makes clear, however, a statement can only qualify as a prior consistent statement under this rule if it was made before any motive to lie arose.In Strutz, John Strutz was convicted of two counts of tampering with evidence, murder, and abuse of a corpse after he allegedly killed and dismembered his wife. After Strutz's wife "disappeared," Strutz was interrogated by Detective Macaluso, and this interrogation was recorded and transcribed. At trial,
Strutz testified in his own defense. During his direct examination, Strutz admitted that he had reviewed the transcripts of his recorded conversations with Detective Macaluso and that the transcripts were "pretty accurate." He then moved to admit the recordings of those conversations into evidence to rebut testimony from police officers that Strutz had acted disinterested in the fact that his wife was missing. Strutz argued that his prior statements were not hearsay because they were not being offered to prove the truth of the matter asserted but to show his state of mind: that he was concerned about his missing wife. The state argued that Strutz's statements were hearsay and that he was only trying to admit them as a way to bolster his trial testimony.
After he was convicted, Strutz appealed, claiming, inter alia, the the trial court should have admitted the recordings as prior consistent statements under Ohio Rule of Evidence 801(d)(1)(b) or to prove his state of mind. In response, the Court of Appeals of Ohio, First District, preliminarily noted that Ohio courts have interpreted Rule 801(d)(1)(b)
to apply only to those prior consistent statements that have preceded prior inconsistent statements or that have been made before any motive to falsify testimony has arisen. Normally, Evid.R. 801(D)(1)(b) is used by the state to rebut the charge of "recent fabrication" raised by defense counsel during the cross-examination of a state's witness. If there has been sufficient impeachment of a witness to amount to a charge of recent fabrication at trial, then the state may be allowed to, introduce prior out-of-court consistent statements that would otherwise be considered hearsay. In determining whether to admit a prior consistent statement, a trial court should take a "generous view" of the "the entire trial setting to determine if there was sufficient impeachment to amount to a charge of fabrication or improper influence or motivation."
Applying these standards to the case before it, the court concluded
that the trial court properly held that the recorded conversations between Strutz and Detective Macaluso were inadmissible under Evid.R. 801(D)(1)(b). First, Strutz had not yet been cross-examined regarding his statement to Detective Macaluso or the other officers. At that point, offering the recorded conversations into evidence could only be construed as an attempt to bolster Strutz's credibility, which made the recorded conversations hearsay because they were being offered for the truth of the matter asserted. Second, if Strutz wanted to offer these recordings to show his state of mind—that he had been concerned about the disappearance of his wife—he could have simply testified to that fact. Finally, we are not convinced that the other officers' testimony that Strutz seemed disinterested in the disappearance of his wife amounted to a charge of recent fabrication. Strutz had not changed his story from the time his wife had disappeared to the end of his trial.
All of these points are fine, but I feel like the Court of Appeals of Ohio missed the big picture. The key point is that Strutz was interrogated by Detective Macaluso after his wife disappeared and presumably after he killed his wife. Therefore, his statements during that interrogation were not made before any motive to lie arose. Therefore, regardless of what happened at trial, the recorded interrogation could not have been admissible as a prior consistent statement.