EvidenceProf Blog

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

Sunday, February 12, 2012

A Foolish Consistency: 2nd Circuit Finds No Plain Error With Admission Of 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....

Of course, 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 United States v. Diallo, 2012 WL 386421 (2nd Cir. 2012), so what did the Second Circuit do?

In Diallo, Amadou Diallo was convicted of one count of conspiring to commit Hobbs Act robberies and one count of committing a Hobbs Act robbery. After he was convicted, Diallo appealed, claiming, inter alia, that the district court erred by allowing for the admission of a prior statement by a witness for the prosecution. Diallo did not object to the admission of this statement at trial, meaning that the Second Circuit could only reverse for plain error

The Second Circuit did find error but no plain error. Unfortunately, the Second Circuit's opinion doesn't give us the content of the witness' prior statement, but it does tell us that the district court found that the statement was admissible under Federal Rule of Evidence 801(d)(1)(B) because he "did not have a motive to fabricate [when he made the statement] because he had not been charged, arrested, or given a cooperation agreement." 

The Second Circuit found, however, that the witness'

own testimony, however, indicate[d] that he decided to cooperate with the government when, along with his attorney, he turned himself in and approached the government to share his knowledge of the robberies. Because a motive to fabricate may well have existed when [the witness] made the original consistent statements, arguably there was no basis for admitting them into evidence.

That said, the court found that this error was not plain because the witness' statement were largely corroborated by another witness for the prosecution.



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