Monday, February 13, 2012
A Foolish Consistency, Take 2: 6th Circuit Finds Harmless With Admission Of Alleged Prior Consistent Statement
Federal Rule of Evidence 801(d)(1)(B) provides that
A statement that meets the following conditions is not hearsay:...
The declarant testifies and is subject to cross-examination about a prior statement, and the statement:...
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....
As I noted yesterday, the main precondition for admitting a prior consistent statement under Rule 801(d)(1)(B) is that the prior statement be made before the improper influence or motive arose. That wasn't the case in the Diallo case that I posed about yesterday, and it also wasn't the case in United States v. Sperl, 2012 WL 373313 (6th Cir. 2012). But in each case, the court found harmless error. As with other rules of evidence, these cases prompt me to ponder how likely it is that a court would reverse a conviction based upon a Rule 801(d)(1)(B) violation.
In Sperl, Susan Sperl, the owner of the accounting-services firm SusanTax, was accused by the IRS of engaging in several schemes to help her clients falsify their tax returns. Eventually, she was convicted of seven counts of conspiracy and tax fraud.
After she was convicted, Sperl appealed, claiming, inter alia, that the district court erred by allowing for the admission of an alleged prior consistent statement by Bryan Wolf, whom Sperl had allegedly assisted in falsifying his federal income-tax returns. Wolf gave testimony indicating that Sperl intended to commit tax fraud, and, after Sperl attacked Wolf's credibility, the district court allowed the prosecution to present evidence of alleged prior consistent statements made by Wolf pursuant to Federal Rule of Evidence 801(d)(1)(B).
The problem for thr prosecution is that it apparently failed to prove that Wolf made his prior statements before he had a motive to lie, with the prior statements apparently coming after the IRS had already interviewed him. But while the court found apparent error, it deemed this error to be harmless, finding that there was sufficient other testimony and documentary evidence of Sperl's guilt.
Of course, this begs the question of what circumstances it would take for a court to reverse a conviction based upon the improper admission of an alleged prior consistent statement. It would seem to me that the problem for defense counsel in this situation is that an alleged prior consistent statement is, by its very nature duplicative. In other words, for a trial court to admit an alleged prior consistent statement, the witness needed to have already said basically the same thing on the witness stand. And thus, a court might have a hard time finding that improper admission of the prior statement being sufficiently harmful given its repetitive nature.