Thursday, August 15, 2019
U.S. Navy-Marine Corps Court of Criminal Appeals Grapples With Scope of Amended Prior Consistent Statement Rule
Assume that Witness testifies at trial she saw Defendant on the day of a murder carrying a sawed off shotgun. Moreover, assume that Witness had said something similar in a police statement made in the days after the murder. Finally, assume that defense counsel impeaches Witness's credibility by calling Neighbor, who testifies that Witness has a reputation in the neighborhood for being a liar. Can the prosecution now admit the pertinent portion of Witness's police statement as a prior consistent statement under Federal Rule of Evidence 801(d)(1)(B)? I'm not sure, and I also think that the U.S. Navy-Marine Corps Court of Criminal Appeals is unsure as well.
Federal Rule of Evidence 801(d)(1)(B) currently reads as follows:
(d) Statements That Are Not Hearsay. 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
The underlined language reflects a 2016 amendment to this Rule allowing for the admission of prior consistent statements, and I don't think any court has done a satisfactory job of explaining the scope of the new language. The recent opinion of the U.S. Navy-Marine Corps Court of Criminal Appeals in United States v. Norwood, 2019 WL 3756747 (2019), is no exception.
In Norwood, a military judge admitted prior consistent statements by the victim under Military Rule of Evidence 801(d)(1)(B)(ii) based upon finding that her testimony was coached. The U.S. Navy-Marine Corps Court of Criminal Appeals affirmed the decision to admit these statements but found that they should have been admitted under Rule 801(d)(1)(B)(i). Therefore, the court didn't have to address the scope of Rule 801(d)(1)(B)(ii).
But the court did address the Rule's scope in dicta, noting that
because rebutting a challenge of recent fabrication logically permits a more expansive use of prior statements to show that nothing substantial has changed in the declarant’s testimony. On the other hand, rehabilitating the credibility of the declarant may require something more precisely related to explaining or rebutting the specific manner of the attack on the witness’ credibility. United States v. Cotton, 823 F.3d 430, 437 (8th Cir. 2016); see United States v. Finch, 78 M.J. 781, 787 (A. Ct. Crim. App. 2019); see also MIL. R. EVID. 801(d)(1)(B)(ii) analysis, MCM App. 22 at A22-61 (reciting almost verbatim the same analysis for FED. R. EVID. 801(d)(1)(B)(ii) advisory committee notes to 2014 amendments). For example, if the declarant’s credibility is attacked on another ground such as impeachment by omission because she testified to new information not previously mentioned in other statements, admitting a prior statement that is devoid of the fact now at issue, is not actually consistent with the testimony attacked and does little to rehabilitate the declarant’s credibility based on the specific type of attack. See United States v. Pierre, 781 F.2d 329 (2d Cir. 1986) (where a witness was impeached for omitting key facts in his notes, a subsequent report containing the key facts was admitted as a prior consistent statement and rehabilitated his credibility). But see United States v. J.A.S., 862 F.3d 543, 545 (6th Cir. 2017). Conversely, when the witness’ credibility is attacked on another ground such as faulty memory, less precise prior statements to rehabilitate the witness’ credibility may be admitted. See United States v. Cox, 871 F.3d 479 (6th Cir. 2017) (holding where witness’ credibility was attacked for a faulty memory, an entire prior report of abuse was admitted as a prior consistent statement and was allowed to rehabilitate her credibility and for the truth of the matter asserted).
As the court notes, "rehabilitating the credibility of the declarant may require something more precisely related to explaining or rebutting the specific manner of the attack on the witness’ credibility." Emphasis on the word "may." Does the prior consistent statement need to explain/rebut the specific manner of attack under Rule 801(d)(1)(B)(ii). If so, I don't know that my opening hypothetical would suffice. Does Witness's prior police statement explain/rebut Neighbor's claim that Witness has a reputation in the neighborhood for being a liar? Not really. It would show that he has been consistent in his claim about the sawed off shotgun, but (1) both of these could be lies; and (2) the prior statement doesn't directly address the claims made by his neighbors.
But does Rule 801(d)(1)(B)(ii) contain such a requirement? Should it? I'm not sure, and I don't think the courts are either.