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Univ. of South Carolina School of Law

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Tuesday, January 31, 2012

A Foolish Consistency?: Does Minnesota's Prior Consistent Statement Rule Make Sense?

Federal Rule of Evidence 801(d)(1)(B) indicates that 

A statement that meets the following conditions is not hearsay:

(1) A Declarant-Witness’s Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement:

(B) is consistent with the declarant’s testimony and is offered to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or

Meanwhile, Minnesota Rule of Evidence 801(d)(1)(B) indicates that

A statement is not hearsay if--

(1) Prior statement by witness. The 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...

The recent opinion of the Court of Appeals of Minnesota in State v. Johnson, 2012 WL 254476 (Minn.App. 2012), reveals the problem that I have with Minnesota's version of Rule 801(d)(1)(B).

In Johnson, Jerome Johnson was convicted of second-degree assault and unlawful possession of a firearm. After he was convicted, Johnson appealed, claiming that the district court erred by precluding him from introducing into evidence a videotape of his police interview, which he claimed was a prior consistent statement under Minnesota Rule of Evidence 801(d)(1)(B) that was consistent with his trial testimony.

The Court of Appeals of Minnesota agreed, concluding that

First, the statements are not hearsay and are admissible as prior statements by a witness. Appellant testified at trial and was subject to cross-examination concerning the statements; the statements are "consistent with [appellant's] testimony and helpful to the trier of fact in evaluating [his] credibility as a witness." See Minn. R. Evid. 801(d)(1)(B). The statements echoed appellant's comments during the police interview and his testimony at trial; therefore, we conclude that the statements were admissible to assist the jury in evaluating his credibility. Second, the district court's finding that the statements were "self-serving" cannot serve as a basis to exclude otherwise admissible evidence.Accordingly, we conclude that the district court abused its discretion in excluding the statements.

The court of appeals ultimately found that the district court's error was harmless, but this second point illustrates the problem that I have with Minnesota Rule of Evidence 801(d)(1)(B): It allows self-serving statements to be admitted as long as they are consistent with trial testimony. The only requirement for admission is that the prior statement be "helpful to the trier of fact in evaluating the declarant's credibility as a witness..." But when would a prior consistent statement not be helpful to the jury in evaluating credibility?

Federal Rule of Evidence 801(d)(1)(B) only allows for the admission of a prior consistent statement to rehabilitate the credibility of a witness who has had his credibility attacked. Minnesota's version allows for such bolstering in the absence of an initial attack.

-CM

http://lawprofessors.typepad.com/evidenceprof/2012/01/federal-rule-of-evidence-801d1bindicates-that-a-statement-that-meets-the-following-conditions-is-not-hearsay-1a-de.html

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