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

Like its federal counterpart, New 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?

A: Yes.

Thereafter,

[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: “Did she at some point tell you whether or not she had been digitally penetrated by Delvin White?” 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?

-CM