Eighth Circuit Addresses the Scope of the 2014 Amendment to the Prior Consistent Statement Hearsay Exclusion

Federal Rule of Evidence 801(d)(1)(B) provides an exclusion to the rule against hearsay if

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:

(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.

Subsection (ii) was added via a 2014 amendment, and courts are still trying to figure out the scope of this addition. The recent opinion of the Eighth Circuit in United States v. Begay, 2024 WL 4129017 (8th Cir. 2024), is the latest attempt to address this question.

In Begay, a jury found Descart Begay, Jr., guilty of both sexual abuse and aggravated sexual abuse. At trial, S.S. testified during direct examination that Begay had raped her. Thereafter, during cross-examination, S.S.

withstood multiple attacks on her credibility. One recurrent theme was that she had a motive to lie because she feared that her estranged husband would become violently angry if he found out that she had consensual sex with another man. During cross-examination, Begay's counsel tried to convince the jury that she made up the story about the rape to avoid angering him. This is an example of a category-one situation: a “charge” that a witness fabricated a story based on a motive to lie. See Fed. R. Evid. 801(d)(1)(B)(i)....

The other line of attack was that the jury could not trust S.S.’s recollection because she had a faulty memory, both from past drug use and her mental-health struggles. Cross-examination uncovered several details she could not remember. Some were from after the assault, like when she put on her socks and the identity of the officer who helped her. Others were about what happened during the rape, like whether Begay choked her. These raised a category-two situation: credibility “attack[s] on another ground.” Fed. R. Evid. 801(d)(1)(B)(ii).

Thereafter,

S.S. testified on redirect that she told multiple people—her mother, her estranged husband, and the officers who interviewed her—about the rape. In response to additional questioning, she also agreed that she told an FBI agent and the examining nurse about it. And then she summed up by saying that she had “repeatedly told law enforcement that Mr. Begay [had] raped [her].”

On appeal, Begay claimed that this re-direct testimony violated Rule 801(d)(1)(B). The Eighth Circuit disagree, concluding that

The rationale for a pre-motive-statement limitation in category-one cases is that a prior consistent statement only becomes “a square rebuttal of the charge that the testimony was contrived as a consequence of that motive” if the witness had been saying the same thing all along, even before the motive to lie arose....The rehabilitative force disappears, on the other hand, if the prior consistent statement came later...If time 1 is when the motive to lie arose, then we would expect statements made at time 2 and time 3 to be consistent. After all, the same motive to lie existed at those points. A consistent statement at time 0, in contrast, squarely rebuts the motive-to-lie charge.

There is no similar rationale for importing a pre-motive-statement requirement into the second category. The main reason is the nature of the attack. First, if the charge is a lack of credibility based on a faulty memory or any “[ ]other ground,” then a prior consistent statement made at any point—time 0, 1, 2, or 3—will “rehabilitate” the witness. Second, it is almost impossible to pinpoint a specific point in time when a faulty memory arises, unlike a motive to lie or other improper influence, so it would not “make[ ]...sense” to import a timing requirement. Id. And finally, timing has never mattered for category-two prior consistent statements, at common law or now....Long story short, none of the conditions for a “common-law premotive requirement” are present in category-two situations....

Begay's view is that this is not a category-two situation at all. He was trying “to make [the] broader point” that S.S. had a motive to lie, even if he attacked her credibility in multiple ways....In these “mixed” situations, involving both category-one and category-two impeachment, he believes the pre-motive requirement from Tome must apply. That is, a rule of inadmissibility must trump one of admissibility to avoid circumvention of the Tome rule. Many situations, after all, involve both category-one and category-two impeachment.

The premise of the argument may be true, but the conclusion is not. Even if many cases involve both types of impeachment, the two categories of Rule 801(d)(1)(B) are joined by an “or,” meaning a statement “is not hearsay” if it satisfies either condition.2 And if the text were not clear enough, the evidentiary rules “generally favor the admission, rather than the exclusion, of evidence.”...

The same goes here. S.S. may well have had a motive to lie at the time of the rape, making the post-rape statements inadmissible under Rule 801(d)(1)(B)(i). But the statements were still admissible to counter the “attack[s] on another ground,” like her allegedly faulty memory....They then became fair game for the prosecutor and the jury to use as substantive evidence of Begay's guilt. 

-CM