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

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Monday, May 5, 2014

A Foolish Consistency: Does the Amendment to Rule 801(d)(1)(B) Make Sense?

As I noted in my post on Friday, the Supreme Court approved an amendment to Federal Rule of Evidence 801(d)(1)(B), which currently provides that a statement is not hearsay if it

(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

Under the amendmentFederal Rule of Evidence 801(d)(1)(B) will now provide that a statement is not hearsay if it

(B) is consistent with the declarant’s testimony and is offered:  

(i) 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) to rehabilitate the declarant’s credibility as a witness when attacked on another ground....

So, does the amendment make sense? Respectfully, my answer is "no."

Let's look at the classic case of admissibility under the current version of Federal Rule of Evidence 801(d)(1)(B). Carl and Dan allegedly rob a bank. During the robbery, Dan allegedly shoots a bank teller. A few days after the robbery, Carl tells his friend Fred that Dan shot the seller. A few weeks later, Carl and Dan are arrested. Carl enters into a plea bargain with the prosecution, pursuant to which he will plead guilty to bank robbery and testify against Dan in exchange for the prosecution not charging him with felony murder.

At trial, Carl testifies that Dan shot the bank teller. On cross-examination, the defense asks Carl whether he is testifying pursuant to a plea bargain, implying that Carl's testimony is a recent fabrication based upon the plea bargain. At this point, the prosecution can introduce Carl's prior consistent statement to Fred, which preceded the plea bargain. Makes sense, right? Because the prior consistent statement preceded the plea bargain, it couldn't be the fruit of the poisonous tree.

Now, let's look at a case under new Federal Rule of Evidence 801(d)(1)(B)(ii). In this case, Ed is an eyewitness to a fatal fight in which Dan kills Vince. The day of the encounter, Ed gives a statement to Police Officer Peters, in which he says that Dan was the initial aggressor. At Dan's murder trial, Ed testifies that Dan was the initial aggressor. The defense then impeaches Ed with evidence of his five year old conviction for perjury. Under Rule 801(d)(1)(B)(ii), the prosecution could now introduce Ed's prior statement to Police Officer Peters.

But why? That prior statement does not precede the perjury conviction. And the point of the defense introducing the perjury conviction is to prove that Ed is generally a liar. Thus, I don't see why the prior consistent statement should be admissible. The prosecution's point in admitting it would be to prove that Ed has been consistent. But the defense's point in impeaching Ed is that he is consistently a liar. 

-CM

http://lawprofessors.typepad.com/evidenceprof/2014/05/as-i-noted-in-mypost-on-friday-the-supreme-court-approved-an-amendment-tofederal-rule-of-evidence-801d1b-whichcurrent.html

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Comments

Several reasons support the admissibility of Ed's PCS: First, it was made while the facts were fresh in his mind. Second, it was made before Ed could be influenced by a party. Third, Ed is present & subject to cross. Fifth, consistency is the hallmark of truth; thus Ed's PCS rebuts the attack on the credibility of his testimony via bad character evidence.

Posted by: Fred Moss | May 6, 2014 12:59:04 PM

Fred: Interesting. Everything except for your fifth point would support the admissibility of a prior consistent statement even if the witness's credibility is not attacked, right? So the question then is whether an attack on a witness's general credibility changes the calculus. And this gets to the question of whether "consistency is the hallmark of truth." I'm not sure that I agree with this. Consistency seems to me to be the hallmark of consistency. It seems that someone can be consistently dishonest to the same extent as someone else is consistently dishonest. But I have nothing to back up my inclination.

Posted by: Colin Miller | May 7, 2014 12:12:31 PM

Colin, If consistency is not the hallmark of truth, then why are prior INconsistent statements used more than anything else at trial to impeach witnesses' credibility? The use if PISs is premised on the notion that inconsistency = lack of credibility/untruthfulness. I think the rationale for keeping witnesses' PCSs out as hearsay unless they rebut a specific attack "stinks of the lamp," to use a Maguire expression. I just don't buy the notion that allowing them in freely will lead to witnesses manufacturing tons of PCSs to offer at trial.

Posted by: Fred Moss | May 7, 2014 1:14:39 PM

Fred, I'm definitely no expert on this, but I try to put myself in the shoes of a juror.

Hypo 1: Ed testifies that Dan was the initial aggressor. I probably think Ed is telling the truth. Then, defense counsel asks Ed, "Isn't it true that you told Frank that Vince was the initial aggressor?" Ed responds, "Yes." Now, I doubt Ed, and with good reason.

Hypo 2: Ed testifies that Dan was the initial aggressor. I think Ed is probably telling the truth. Defense counsel then asks Ed, "Isn't it true that you were convicted of perjury five year ago?" Ed responds, "Yes." Now, I doubt Ed, and with good reason. The prosecutor then asks Ed, "Isn't it true that you previously told Frank that Dan was the initial aggressor?" Ed responds, "Yes." This...I don't know...it doesn't really make me trust Ed's testimony any more. If I thought the perjury conviction made it 75% likely that Ed was lying, I don't think that Ed's prior consistent statement changes that percentage at all. Basically, if I think that Ed's a liar based on his perjury conviction, I assume that I would simply think that he was also lying when he made his prior consistent statement to Frank.

Posted by: Colin Miller | May 7, 2014 3:51:51 PM

Colin, just because Ed's PCS does not affect your judgment as to credibility doesn't mean it would not affect mine. Credibility judgments are not a matter of logic; they are gestalt judgments. BTW, your hypo reveals the fatal flaw in 609 (and in your credibility logic). What if Ed's perjury was to prevent his father from being convicted of capital murder. Perjury is serious, but should Ed's credibility be tainted forever & w/ regard to all he says, particularly when it could be nothing more than testifying about the color of the traffic light? No. 609 leaves the jury in the dark as to the circumstances behind the conviction, to speculate the worst facts.

Posted by: Fred Moss | May 8, 2014 8:10:58 AM

Fred: Fair enough. I think that our back and forth reflects the debate that went on for a while about whether Rule 801(d)(1)(B) should have been amended.

Posted by: Colin Miller | May 8, 2014 8:50:00 AM

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