EvidenceProf Blog

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

Tuesday, July 14, 2009

A Foolish Consistency: Supreme Court Of New Hampshire Opinion Misapplies Prior Consistent Statement Rule

Like its federal counterpartNew Hampshire Rule of Evidence 801(d)(1)(B) provides that:

A statement is not hearsay if...[t]he 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 is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.

As the recent opinion of the Supreme Court of New Hampshire in State v. White, 2009 WL 1955235 (N.H. 2009), makes clear, however, this rule does not provide the sole method for admitting prior consistent statements into evidence. But it seems to me that the method that the court applied was not, in fact, applicable.

In White, Delvin White was charged with aggravated felonious sexual assault and one count of felonious sexual assault because he, inter alia, allegedly digitally penetrated the vagina of his friend's eight year-old daughter, M.G., with his finger. At trial, M.G. testified against White, claiming that he put his finger inside her. Later, during defense counsel's cross-examination of he daughter, the following exchange took place:

Q: Do you remember what you said to your dad was that Delvin put his hand on your genital area, not in. Do you remember that?

A: Yes.

Q: And later that night when the policeman came and the policeman talked to you that night, right?

A: Yes.

Q: And you talked to other policemen later, right?

A: Yes.

Q: But that night you talked to at least one policeman?

A: Yes.

Q: And you told that policeman that Delvin put his hand on your genital area. Right?


[t]o rehabilitate M.G.'s credibility, the State later called Detective Kelley as a rebuttal witness. Detective Kelley testified that officers responding to the scene of an alleged sexual assault do not generally conduct detailed interviews of victims, but rather make an initial report and refer the matter to a trained juvenile investigator. Detective Kelley stated that he had the opportunity to conduct an in-depth, follow-up interview with M.G. the day after the incident. The prosecutor then asked: ā€œDid she at some point tell you whether or not she had been digitally penetrated by Delvin White?ā€ Detective Kelley responded, "Yes, she did."

Subsequently, White was convicted, and he appealed, claiming that the trial court erred by allowing Detective Kelley to testify regarding M.G.'s statement, which he construed as hearsay. And the Supreme Court of New Hampshire found that Detective Kelley's testimony regarding M.G.'s statement was not admissible under New Hampshire Rule of Evidence 801(d)(1)(B) because defense counsel made no express or implied charge against M.G. of recent fabrication or improper influence or motive. 

The court, however, found that "[n]otwithstanding New Hampshire Rule of Evidence 801(d)(1)(B), our common law rule allows the admission of prior consistent statements for the limited purpose of rehabilitation when a witness's credibility has been impeached by the use of prior inconsistent statements." The court then found that the common law rule applied to the case before it and found that the trial court did not err.

But wait a second. How was M.G.'s statement to Detective Kelley the day after the alleged assault a prior consistent statement. M.G. testified at trial that she was digitally penetrated. Defense counsel introduced evidence of prior inconsistent statements M.G. made the night of the alleged assault. The statement to Kelley was after those prior inconsistent statements the day after the assault. How does it makes any sense to introduce these as prior consistent statements?



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It seems appropriate to me unless you buy the defendant's argument that because there was no express or implied charge of recent fabrication the prosecution was not entitled to offer this testimony. The defense was trying to inject a very questionable "inconsistency" into the witness' testimony - ambiguity about whether the victim had reported penetration to the officer reporting to the scene. But whether she had or not does not make her later statement about penetration "inconsistent" but just more detailed. Describing this as an "inconsistency" allows the defense to manufacture a conflict where (at least arguably) none exists. This issue is, it seems to me, whether she was telling the truth. The defense offered the failure to describe the assault in full as an inconsistency, which inconsistency (presumably) is meant to suggest to the jury that none of the testimony was true since obviously touching a 8 year old "on" her genitals is not permissible either. The rebuttal testimony is intended to rebut the suggestion that she had not told a story consistent with her testimony at trial to police at the time. The issue is whether the statements are prior to the testimony at trial, not prior to the purportedly inconsistent earlier statements. The Byzantine interpretations in 801(d)(1)(B) under federal law are I think difficult to justify. But as I read the New Hampshire decision the court concluded that NH law provided wide discretion to courts on admissibility decisions relating to credibility and that admitting this evidence was consistent with that discretion.

Posted by: Tamara Piety | Jul 15, 2009 8:35:14 AM

Thanks, Tamara. I think that you are right that the defense's prior inconsistent statement argument was questionable, and I don't have a problem with the court allowing rebuttal testimony. It just seems odd to me that the court described the testimony at issue as a prior consistent statement. As you note, there are problems withe the interpretations of RUle 801(d)(1)(B) under federal law, but it seems to me that in cases such as State v. Young, 743 A.2d 1275 (N.H. 1999), New Hampshire courts have adopted those interpretations. But maybe because the court in White was operating outside of Rule 801(d)(1)(B), it felt like the prior consistent statement merely needed to, as you say, come before trial. It looks like an issue I might research a bit more.

Posted by: Colin Miller | Jul 16, 2009 5:23:48 AM

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