Judicial Survey On Whether To Amend FRE 801(d)(1)(B) (Prior Consistent Statements) (Part I)

Judicial Survey of responding district court judges highlights support to amend FRE 801(d)(1)(B); the Advisory Committee on Evidence Rules will consider whether to recommend that a draft amendment be advanced

One rule amendment pending for review concerns FRE 801(d)(1)(B) which 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. A draft amendment, originally advanced by 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, would extend FRE 801(d)(1)(B) to include a prior consistent statement used to rehabilitate the credibility of the witness.

On April 3, 2012, the Advisory Committee on Evidence Rules considers whether to approve a draft amendment to FRE 801(d)(1)(B) for publication. See Agenda for Committee Meeting (April 3, 2012). Before proceeding, the Advisory Committee sought the views of a variety of parties. See, e.g., Report of the Evidence Rules Advisory Committee, at 3 (Nov. 28, 2011) ("Prior its spring meeting, the Committee, with the assistance of the Federal Judicial Center,
intends to survey all district judges to obtain their views on whether the proposal is needed and has merit. The Committee will also solicit the views of the American Bar Association, the American College of Trial Lawyers, the National Association of Criminal Defense Lawyers, and other interested groups."); Advisory Committee on Evidence Rules Minutes, at 3-4 (Oct. 28, 2011) ("Before the Fall meeting, the Department of Justice submitted a letter in favor of the amendment and the Public Defender submitted a letter opposed to the amendment. Justice Appel contacted courts in three states and reported that there was recognition that the current distinction between rehabilitation and substantive use was confusing and not meaningful — but that there was no sense of urgency to amend the rule in those three states."); Report of the Evidence Rules Advisory Committee, at 3 (April 8, 2011) ("The Committee requested that the Department of Justice representative and the Public Defender representative solicit the views of interested parties. The Committee directed the Reporter to research the practices in the states with similar rules. And one committee member will solicit the views of state supreme court justices.").

Through a Federal Judicial Center survey, all district court judges were asked for their views. Eight questions were sent to 961 federal district judges. Responses were received from 506 judges (or 53 percent). See Tim Reagan and Margaret S. Williams, Survey of District Court Judges on a Proposed Amendment to Federal Rule of Evidence 801(d)(1)(B) Concerning Prior Consistent Statements, Federal Judicial Center (March 2, 2012).

Given the importance of this issue, the views of the district court judges are noteworthy. The following questions and answers were provided:

Question 1. Jury Comprehension

Question 1: "It is difficult for jurors to understand the instruction that a prior consistent statement is admissible only to rehabilitate and not for the truth of the matter asserted in the statement."

Summary Response: "There was 84% agreement with this statement; 50% of responding judges agreed strongly." (footnote omitted)

Question 2. Practical Effect

Question 2: "Amending Rule 801(d)(1)(B) to state that a prior consistent statement is exempt from the hearsay rule whenever it would be otherwise admissible to rehabilitate a witness would have little practical effect on the outcome of jurors’ deliberations."

Summary Response: "There was 69% agreement with this statement; 31% of responding judges agreed strongly." (footnote omitted)

Question 3. More Statements Admitted

Question 3: "Amending Rule 801(d)(1)(B) to state that prior consistent statements are exempt from the hearsay rule whenever they are otherwise admissible to rehabilitate the witness’s credibility would lead to more prior consistent statements being admitted."

Summary Response: "There was 72% agreement with this statement; 27% of responding judges agreed strongly." (footnote omitted)

Question 4. More Statements Would Be Good

Question 4: "If the proposed amendment to Rule 801(d)(1)(B) increased the frequency with which prior consistent statements were admitted into evidence, that would be a good result of the amendment."

Summary Response: "There was 48% agreement with this statement, including 15% strong agreement; 34% of responding judges were neutral, and 18% disagreed, 7% strongly." (footnote omitted)

Question 5. Use of Rule 403

Question 5: "Although the proposed amendment might result in litigants offering more prior consistent statements as evidence, because of Rule 403, trial judges are unlikely to actually allow substantially more prior consistent statements into evidence."

Summary Response: "There was 35% agreement with this statement, including 8% strong agreement; 24% of responding judges were neutral, and 41% disagreed, 7% strongly.

Question 6. Proposed Amendment

Question 6: "Rule 801(d)(1)(B) should be amended to state something like [the proposed amendment recited above.]"

Summary Response: "There was 65% agreement with this proposal; 31% of responding judges agreed strongly."

Question 7. Alternative Amendment

Question 7: "Rule 801(d)(1)(B) should be amended, but in a way different from the proposal stated."

Summary Response: "There was 10% agreement with this statement, including 3% strong agreement; 49% of responding judges were neutral, and 41% disagreed, 15% strongly."

Question 8. Do Not Amend

Question 8: "Rule 801(d)(1)(B) should not be amended."
Summary Response: "There was 22% agreement with this statement, including 9% strong agreement; 21% of responding judges were neutral, and 57% disagreed, 20% strongly."

According to the report, the results of the survey "showed substantial support for the proposed amendment" and "also showed support for the empirical prediction that the amendment would lead to an increase in prior consistent statements coming into evidence."

Next week the Advisory Committee on Evidence Rules will have these and other views in mind as it considers whether to advance a draft amendment on the rule.

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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