Monday, January 13, 2020
Federal Rule of Evidence 801(d)(1)(B) used to only allow for admission of a prior consistent statement when there had been a claim of recent fabrication based upon an improper motive. So, for instance, if Carl accused Dan of a murder days after the killing, this statement could be used if defense counsel later claimed at Dan's murder trial that Carl was only implicating Dan due to a recent favorable plea agreement.
After a recent amendment, however, Federal Rule of Evidence 801(d)(1)(B) now states that
A statement that meets the following conditions is not hearsay:....
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
There isn't much precedent yet on Rule 801(d)(1)(B)(ii), but the recent case of United States v. Iu, 917 F.3d 1026 (8th Cir. 2019), is one such case. Here is how I'm presenting it to my students:
Kalolo Iu is charged with sexual abuse. Brittany Bad Hand gives an initial statement to an FBI Special Agent identifying Iu as her attacker. Bad Hand later gives a statement to the defense investigator identifying her brother’s boyfriend as her assailant. At trial, after Bad Hand identifies Iu as her assailant, the defense impeaches her with her statement to the defense investigator. Can the prosecution now introduce Bad Hand’s statement to the FBI Special Agent? See United States v. Iu, 917 F.3d 1026 (8th Cir. 2019).
According to the 8th Circuit, Hand's statement to the FBI Special Agent was admissible because her credibility had been attacked on a ground other than claiming she had made a recent fabrication based on an improper motive.