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Univ. of South Carolina School of Law

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Friday, January 11, 2013

A Foolish Consistency?: "An Unneeded Hearsay Exception" & The Case Against The Rule 801(d)(1)(B) Amendment

Currently, Federal Rule of Evidence 801(d)(1)(B) provides 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....

On the other hand, as I have noted on a few prior occasions (see herehere, and here), Minnesota Rule of Evidence 801(d)(1)(B) is broader, providing 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...(B) consistent with the declarant's testimony and helpful to the trier of fact in evaluating the declarant's credibility as a witness...

In other words, under the Minnesota Rule, a witness's prior consistent statement can be admitted as non-hearsay even if there is no express or implied charge that the witness recently fabricated his trial testimony or acted from a recent improper influence or motive in so testifying. Under a proposed amendment, however, Federal Rule of Evidence 801(d)(1)(B) would be functionally similar to Minnesota Rule of Evidence 801(d)(1)(B). So, why has this change been proposed, and does it make sense?

First, let's look at the proposed language of the new Rule. The amended Federal Rule of Evidence 801(d)(1)(B) would provide 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 (i) 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 (ii) otherwise rehabilitates the declarant’s credibility as a witness.... 

The italicized language is the proposed addition to Federal Rule of Evidence 801(d)(1)(B), and allow me to explain its import. Under the current version of the Rule, a prior consistent statement is admissible as nonhearsay only if there is an express or implied charge that the witness recently fabricated his trial testimony or acted from a recent improper influence or motive in so testifying. So, let's say that Wiliaml, a witness for the prosecution, testifies, "I saw [Defendant] shoot the victim." Then, let's say that defense counsel asks, "Isn't it true that you are testifying today based upon a grant of immunity?" The implication of the question is that the offer of immunity is the reason why William is incriminating [Defendant], which is why the prosecution could then admit statements that William made incriminating [Defendant] before being approached regarding a grant of immunity.

Conversely, let's say that William testified, and then defense counsel:

(1) asks WIlliam whether he has a prior burglary conviction from 2006;

(2) asks William whether he cheated on his taxes in 2007; or

(3) asks William whether he has held a grudge against [Defendant] for years.

With these or similar questions, defense counsel is certainly impeaching the credibility of WIlliam, but defense counsel is not claiming that there was a recent fabrication or a recent improper influence or motive. Indeed, all of the above questions relate to events that occurred years ago. So, under the current Federal Rule of Evidence 801(d)(1)(B), none of these forms of impeachment would allow for the admission of other statements of William consistent with his trial testimony as nonhearsay.

But, under the amended Rule 801(d)(1)(B), because each of these questions impeach William's credibility, William's other consistent statements would be admissible nonhearsay under new subsection (ii) because they would rehabilitate his credibility.

So, does this make sense? In the recent article, An Unneeded Hearsay ExceptionLaird Kirkpatrick, the Louis Harkey Mayo Research Professor of Law at the George Washington University Law School, argues that the answer is "no." And he's not alone. As he notes,

In a survey of federal judges conducted by the committee, 72 percent said they believed the proposed amendment would lead to more prior consistent statements being admitted, yet less than half of them thought that this would be a good result.

You can read the full article for all of his reasoning, but I will focus on one of his arguments here. Professor Kirkpatrick notes that

The amendment could lead to an increased number of reversals in cases in which prior consistent statements are found to have been erroneously admitted. Under current law, if a prior consistent statement is admitted improperly, for example by relating facts going beyond the trial testimony, courts often find the error to be harmless by relying on the fact that the statement was not admitted for substantive purposes. But under the proposed amendment such statements would become substantive evidence upon which the jury could rely, making a finding of harmless error more difficult.

This argument relates to the rationale for why the current amendment has been proposed:

The proposal to amend Rule 801(d)(1)(B) originated with Judge Frank W. Bullock, Jr., when he was a member of the Standing Committee. Judge Bullock proposed that Rule 801(d)(1)(B) be amended to provide that prior consistent statements are admissible under the hearsay exemption whenever they would be admissible to rehabilitate the witness’s credibility. Under the current Rule, some prior consistent statements offered to rehabilitate a witness’s credibility—specifically, those that rebut a charge of recent fabrication or improper influence or motive—are also admissible substantively. But other rehabilitative statements—such as those that explain a prior inconsistency or rebut a charge of faulty recollection—are not admissible under the hearsay exemption, but only for rehabilitation. There are two basic practical problems in distinguishing between substantive and credibility use as applied to prior consistent statements. First, the necessary jury instruction is almost impossible for jurors to follow. The prior consistent statement is of little or no use for credibility unless the jury believes it to be true. Second, and for similar reasons, the distinction between substantive and impeachment use of prior consistent statements has little, if any, practical effect. The proponent has already presented the witness’s trial testimony, so the prior consistent statement ordinarily adds no real substantive effect to the proponent's case.

In other words, the amendment is not based upon the belief that consistent statements offered to rehabilitate are reliable or important enough to be considered nonhearsay; instead, the amendment is based upon jurors ignoring jury instructions. That wouldn't make the new Rule unique; the Bruton doctrine is also premised upon the belief that jurors will ignore jury instructions in a certain context. But what the Bruton doctrine does it to deem inadmissible statements that jurors are likely to use for improper purposes while the amended Rule 801(d)(1)(B) deems admissible statements under similar circumstances. I strongly disagree with this reasoning and agree with the majority of judges to argue against the amended Rule.




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Honestly, I think the whole rule should be tossed. I don't see how any of it can have an impact on a juror. It wouldn't on me.

Imagine that a witness is testifying for the prosecution and testifies to X. Defense counsel snorts in true Perry Mason fashion and states, "Oh please, you just made that up!" Prosecution immediately objects and says the witness's prior consistent testimony must be admitted. What good does that do me as a juror? None.

Why? because credibility decision are not made on consistency. If I've already concluded that the witness is lying, then the only thing a prior consistent statement is going to do is convince me he's a consistent liar...which doesn't make the situation better, it makes it worse. I'd be sitting thinking that the witness is not just a liar but a god-damn liar. On the other hand, if I think the witness is telling the truth then I agree with the judge that it adds nothing to the case.

The only real thing admitting the prior statement would do is have the impact of repetition. I'm more likely to remember the fact later in the jury room because it became the focus of attention.

Still, sitting here at my desk I can't think of a single convincing reason why the proponent would /ever/ want to take advantage of the rule. At best, it leaves him in neutral and at worst it puts him in reverse.

Posted by: Daniel | Jan 11, 2013 9:11:27 PM


You post overlooks the fact that the reason 803(d)(1)(B) came into existence was because the rules drafters believed that the jurors would not follow the court's instruction to NOT treat the PCS as substantive evidence. If true (and I tend to agree with them), then it makes sense to eliminate the "mental gymnastics" requirement with regard to all prior consistent statements offered to rehabilitate any attack on credibility.

As for Daniel's comment, I couldn't disagree more. If a worker says he was hurt on the job on Day 1, and the employer denies it, I, as a juror, in judging whether the worker is telling the truth would want to see evidence that it happened as he said. One important piece of evidence would be that he told his wife that night, or co-workers that he had been injured on Day 1. (I'm assuming the statement was not admissible under 803.) Consistency is the hallmark of truth. We look for it in making our judgments about whether someone is telling the truth. Hence, the admissibility of INconsistent statements to undermine credibility. In short, I'm all for the amendment. In fact, I'd allow all prior consistent statements by witnesses in for their truth regardless whether the witness's credibility has been attacked.

Posted by: Fred Moss | Jan 14, 2013 11:23:27 AM

Fred, the example that you give in response to Daniel's comment involves the use of consistent statements by a civil plaintiff against a civil defendant. But what if the example involves the prosecution using a consistent statement (by a victim, eyewitness, etc.) against a criminal defendant? As you note, both the original Rule and the proposed expansion are based upon the concern that jurors will ignore jury instructions. The solution in the original Rule was to make certain consistent statements non-hearsay, and the solution in the amended Rule is to make even more consistent statements non-hearsay. In that case, I think that my analogy holds. My conclusion would be that, if anything, we should restrict Rule 801(d)(1)(B) to ensure that an innocent defendant is not unjustly convicted. The solution in the amendment seems to be that because jurors are currently improperly using additional consistent statements as substantive evidence, we should condone that practice. I don't see how that's justified in the criminal context.

Posted by: Colin Miller | Jan 14, 2013 1:41:32 PM


We should "condone" the admission of prior consistent statements as nonhearsay offered against the criminal accused because it is restricted to where the declarant testifies and is subject to cross. The 6th Amendment is satisfied. I simply do not believe in the old canards used to justify the exclusion of PISs: because the declarant was not under oath at the time (only one exception and one exemption require an oath), because the jury wasn't watching when it was said (?? Big deal - not a requirement for any exception or exemption), and too many people will concoct PISs in order to put them in. (Big deal. Relevance should winnow most out.)

If the credibility of an alleged rape victim can be attacked with the fact she said nothing to her roommate about it that night, she should be able to put in the fact that she DID tell her roommate about it promptly -- before and regardless of whether she is attacked on cross. In fact, the highly relevant nature of PISs is recognized in Texas which has an "outcry" exception to the hearsay rule in child sex cases. It is intuitively correct.


Posted by: Fred | Jan 17, 2013 12:44:44 PM

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