EvidenceProf Blog

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

Thursday, January 30, 2025

Tenth Circuit Finds Forensic Interviews Admissible as Prior Consistent Statements

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) of Rule 801(d)(1)(B) was added in 2014, and there has been a paucity of precedent on it since its passage. But it's at the heart of the Tenth Circuit's recent opinion in United States v. Bruce, 2025 WL 311251 (10th Cir. 2025).

In Bruce,

Stetson Bruce was convicted on two counts of aggravated sexual abuse in Indian country for sexually abusing his five-year-old son, R.W. The trial centered on the testimony of R.W. and his half-sister, E.R., who said she witnessed one of the acts. After both children testified and were cross-examined, the United States District Court for the Eastern District of Oklahoma admitted into evidence the recordings of their forensic interviews, which were consistent with their trial testimony. These recordings were not played in the courtroom, but the jury was given access to them during its deliberations.

On appeal, Bruce claimed that these recordings should have been deemed inadmissible. The Tenth Circuit disagreed, finding they were admissible under Rule of Evidence 801(d)(1)(B). With regard to R.W.'s forensic interview, the court concluded that

On cross-examination defense counsel asked R.W. “[h]ow many times” he had talked to the prosecutor, whether he and the prosecutor “talk about [the incident] a lot,” and whether the prosecutor “helps [him] with what [he's] saying.”...The obvious purpose of this questioning was to suggest that the prosecutor was coaching R.W. In other words, the implication was that R.W. was “act[ing] from a recent improper influence or motive.” Fed. R. Evid. 801(d)(1)(B)(i)....

This then took the Tenth Circuit to E.R.'s forensic interview, which it deemed admissible under Rule 801(d)(1)(B)(ii), finding as follows:

Similarly, E.R.’s forensic interview was admissible under Rule 801(d)(1)(B)(ii), which permits the admission of prior consistent statements that are offered “to rehabilitate the declarant's credibility as a witness when attacked on another ground.” The Advisory Committee Notes to the 2014 Amendment specifically identify “faulty memory” as one such alternative ground. See Fed. R. Evid. 801 advisory committee's note to 2014 amendment (“The intent of the amendment is to extend substantive effect to consistent statements that rebut other attacks on a witness—such as the charges of inconsistency or faulty memory.”).

Recall that, on cross-examination, defense counsel asked E.R. several questions about her memory of the incident, pointing out that it had happened long ago. He also questioned her about seeing both her father and his girlfriend and her mother and stepfather having sex. And later, while cross-examining Ms. Blevins, defense counsel inquired if a child sometimes “transposes persons in the experience”: “[I]f, for example, a child saw a certain sex act between person A and person B and two years later she attributes the sex act to person C and D, just simply changes parties, same dance?”...Given this record, Defendant concedes that he charged E.R. with having a faulty memory, at least to the extent that she had transposed her memory of walking in on him and his girlfriend into a memory of him abusing her little brother....

Defendant maintains, however, that he directed this line of attack at E.R.’s forensic interview in addition to her in-court testimony, so her prior consistent statements in the interview could not rebut the attack. But E.R.’s forensic interview occurred less than two months after she saw her father and his girlfriend having sex. And when E.R. reported the abuse of R.W., she also told her mother about observing her father and his girlfriend having sex. The recency of the father-girlfriend episode, and E.R.’s speaking of the very different father-R.W. episode in the same conversation significantly weakens Defendant's transposition theory. A factfinder could reasonably decide that it was highly unlikely that she had mistakenly “transposed” the very recent girlfriend episode into the two-year-ago father-R.W. episode. E.R.’s forensic interview could therefore be used to rehabilitate her credibility.

In sum, E.R.’s forensic interview was admissible under Rule 801(d)(1)(B)(ii).

-CM

https://lawprofessors.typepad.com/evidenceprof/2025/01/federal-rule-of-evidence-801d1b-provides-an-exclusion-to-the-rule-against-hearsay-if-the-declarant-testifies-and-is-su.html

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