Public Comment Sought On Amendment To FRE 801(d)(1)(B) (Prior Consistent Statement) (Part III)

Proposed amendment to FRE 801(d)(1)(B) would allow for the use of a prior consistent statement to “otherwise rehabilitate[] the declarant’s credibility as a witness”; public comments on the proposed amendment are due by February 15, 2013

FRE 801(d)(1)(B) provides that a prior consistent statement may be introduced as a rehabilitative means to rebut a charge of recent fabrication, influence or motive as long as the statement was made prior to the alleged fabrication, influence or motive. Under FRE 801(d)(1)(B), the prior statement as non-hearsay is admitted as substantive evidence.

As previously highlighted in prior posts (I and II), the draft amendment would extend FRE 801(d)(1)(B) to include a prior consistent statement used to “otherwise rehabilitate[] the declarant’s credibility as a witness.” As explained in the Draft Committee Note, reproduced below, the amendment would “exempt from the hearsay rule” prior consistent statements “whenever they are admissible to rehabilitate the witness.” Prior limitations against using prior consistent statements for other purposes (such as to bolster a witness) would remain unchanged.

The suggestion to amend the rule started with now retired United States District Court Judge for the Middle District of North Carolina Frank W. Bullock, Jr., when he was a member of the Standing Committee on Rules of Practice and Procedure. See Report of the Advisory Committee on Evidence Rules (May 3, 2012) (noting Judge Bullock initiated the proposal to amend FRE 801(d)(1)(B) “to provide that prior consistent statements are admissible under the hearsay exemption whenever they would be admissible to rehabilitate the witness’s credibility.”); see also Hon. Frank W. Bullock, Jr. and Steven Gardner, Prior Consistent Statements and the Premotive Rule, 24 Fla.St. L.Rev. 509 (1997).

In April 2012, the Advisory Committee on Evidence Rules considered and approved a draft amendment to FRE 801(d)(1)(B) for publication. See Agenda for Committee Meeting (April 3, 2012); see also Report of the Advisory Committee on Evidence Rules, at 3 (May 3, 2012) ("At its Spring 2012 meeting, the Committee voted unanimously, with one member abstaining, to approve an alternate draft amendment to Rule 801(d)(1)(B) and to recommend to the Standing Committee that it be released for public comment."). On June 11, 2012, the Judicial Conference Committee on Rules of Practice and Procedure approved the draft amendment for publication and public comment. The public comment period begins August 15, 2012, and ends on February 15, 2013. See Preliminary Draft Of Proposed Amendments to the Federal Rules of Appellate, Bankruptcy, and Criminal Procedure, and the Federal Rules of Evidence (August 2012).

As part of the amendment process to the Federal Rules of Evidence, in June 2012, the U.S. Judicial Conference Committee on Rules of Practice and Procedure approved the proposed amendment to FRE 801(d)(1)(B) for publication, as recommended by the Advisory Committee on Evidence Rules. The draft amendment is reproduced below along with a draft committee note. Any public comments are due by February 15, 2013. Comments can be submitted via email to: Rules_Comments@ao.uscourts.gov.

Public hearings on the proposed amendment are presently scheduled for January 4, 2013 in Boston, Massachusetts, and on January 22, 2013 in Washington, D.C.

For more information on the pending amendment to FRE 801(d)(1)(B), see the background materials at the FRE 801(d)(1)(B) Amendment Legislative History Page, which includes various reports on the amendment, and the prior coverage in the Federal Evidence Blog.

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Advisory Committee on Evidence Rules
Proposed Amendment: Rule 801(d)(1)(B)
(Prior Consistent Statement)


strike out indicates deletion; underline indicates insertion

Rule 801. Definitions That Apply to This Article; Exclusions from Hearsay

* * *

(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
(i) 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; or
(ii) otherwise rehabilitates the declarant’s credibility as a witness
;

* * *



Draft Committee Note

Rule 801(d)(1)(B), as originally adopted, provided for substantive use of certain prior consistent statements of a witness subject to cross-examination. As the Advisory Committee noted, “[t]he prior statement is consistent with the testimony given on the stand, and, if the opposite party wishes to open the door for its admission in evidence, no sound reason is apparent why it should not be received generally.”

Though the original Rule 801(d)(1)(B) provided for substantive use of certain prior consistent statements, the scope of that Rule was limited. The Rule covered only those consistent statements that were offered to rebut charges of recent fabrication or improper motive or influence. The Rule did not provide for admissibility of, for example, consistent statements that are probative to explain what otherwise appears to be an inconsistency in the witness’s testimony. Nor did it include consistent statements that would be probative to rebut a charge of faulty recollection. Thus, the Rule left many prior consistent statements potentially admissible only for the limited purpose of rehabilitating a witness’s credibility.

The original Rule also led to some conflict in the cases; some courts distinguished between substantive and rehabilitative use for prior consistent statements, while others appeared to hold that prior consistent statements must be admissible under Rule 801(d)(1)(B) or not at all.

The amendment provides that prior consistent statements are exempt from the hearsay rule whenever they are admissible to rehabilitate the witness. It extends the argument made in the original Advisory Committee Note to its logical conclusion. As commentators have stated, “[d]istinctions between the substantive and nonsubstantive use of prior consistent statements are normally distinctions without practical meaning,” because “[j]uries have a very difficult time understanding an instruction about the difference between substantive and nonsubstantive use.” Hon. Frank W. Bullock, Jr. and Steven Gardner, Prior Consistent Statements and the Premotive Rule, 24 Fla.St. L.Rev. 509, 540 (1997). See also United States v. Simonelli, 237 F.3d 19, 27 (1st Cir. 2001) (“the line between substantive use of prior statements and their use to buttress credibility on rehabilitation is one which lawyers and judges draw but which may well be meaningless to jurors”).

The amendment does not change the traditional and well-accepted limits on bringing prior consistent statements before the factfinder for credibility purposes. It does not allow impermissible bolstering of a witness. As before, prior consistent statements under the amendment may be brought before the factfinder only if they properly rehabilitate a witness whose credibility has been attacked. As before, to be admissible for rehabilitation, a prior consistent statement must satisfy the strictures of Rule 403. As before, the trial court has ample discretion to exclude prior consistent statements that are cumulative accounts of an event. The amendment does not make any consistent statement admissible that was not admissible previously — the only difference is that all prior consistent statements otherwise admissible for rehabilitation are now admissible substantively as well.

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