Public Comments Critical Of Proposed Amendment To FRE 801(d)(1)(B) (Prior Consistent Statement) (Part IV)

Proposed amendment to FRE 801(d)(1)(B) would broaden the use of prior consistent statements to "rehabilitate[ ] the declarant’s credibility as a witness”; public comments, which are due by today, have been critical of the proposed amendment and suggest it is unnecessary and may "change the dynamics at the trial" by placing emphasis on out of court statements rather than the in court testimony

Under what circumstances may prior consistent statements be admitted? A proposed amendment under consideration would broaden the use of prior consistent statements. Public comment on the proposal ends today. While few comments have been received, the comments question the necessity of any amendment.

Presently, under FRE 801(d)(1)(B), 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. The prior statement as non-hearsay is admitted as substantive evidence under the rule.

Proponents of amending the rule have highlight two concerns under the current rule:

There are two basic practical problems in the distinction between substantive and credibility use as applied to prior consistent statements. First, the necessary jury instruction is almost impossible for jurors to follow. The prior consistent statement is of little or no use for credibility unless the jury believes it to be true. Second, and for similar reasons, the distinction between substantive and impeachment use of prior consistent statements has little, if any, practical effect. The proponent has already presented the witness’s trial testimony, so the prior consistent statement ordinarily adds no real substantive effect to the proponent’s case.

Minutes of the Advisory Committee on Evidence Rules (April 3, 2012).

On June 11, 2012, the Judicial Conference Committee on Rules of Practice and Procedure approved a draft amendment for publication and public comment. The public comment period began on August 15, 2012, and ends today, 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). The proposal followed a judicial survey sent to 961 federal district judges with responses received from 506 judges which concluded that there was "substantial support for the proposed amendment." See Judicial Survey On Whether To Amend FRE 801(d)(1)(B) (Prior Consistent Statements) (Part I) (highlighting questions and answers in the survey). The original idea for the amendment "originated with Judge Frank W. Bullock, Jr., when he was a member of the Standing Committee. Judge Bullock proposed that Rule 801(d)(1)(B) be amended to provide that prior consistent statements are admissible under the hearsay exemption whenever they would be admissible to rehabilitate the witness’s credibility." Report of the Advisory Committee on Evidence Rules (May 3, 2012).

Under the draft amendment, FRE 801(d)(1)(B) would be extended to include a prior consistent statement used to “otherwise rehabilitate[] the declarant’s credibility as a witness.” According to 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.

Three public comments have been submitted as follows:

  • Honorable Joan N. Ericksen, U.S. District Judge for the District of Minnesota (submitted Dec. 28, 2012): Comments suggest that although the "proposal has good surface appeal," it appears to be unnecessary. Judge Ericksen suggests that a jury instruction could address any "existing problem" instead of fixing "an Evidence Rule." She questions whether the new subsection (ii) (permitting prior consistent statements for rehabilitation) will "overwhelm" the former rule in subsection (i) (allowing prior consistent statements 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"). In her view, she "cannot imagine why any lawyer practicing under the amended rule would offer a statement under (i), when it could just as well be offered under (ii) without the restrictive timing and purpose requirements." Judge Ericksen notes that lack of standards under subsection (ii) which "articulates a test that depends on result rather than purpose." She also notes that the proposed rule may abrogate Tome v. United States, 513 U.S. 150, 157 (1995), in which the Supreme Court held that prior consistent statements may not be admitted to counter all forms of impeachment or to bolster the witness merely because the witness has been discredited. Among other "unintended consequences" of the amendment, would be an increase in the admission of prior consistent statements, which as the Tome Court noted, would shift the trial emphasis on "the out-of-court statements, not the in-court ones." Judge Ericksen urges the Evidence Committee "to carefully consider whether it has all of the information necessary to be comfortable making what is a pretty big change to the substantive law of hearsay."
  • The Federal Public Defenders (submitted by Michael S. Nachmanoff, Federal Defender in the Eastern District of Virginia) (submitted Jan. 3, 2013): The Federal Public Defenders have concluded the amendment is not "warranted" and "could be more harmful than beneficial." If adopted, in their view, the amendment would "change the dynamics at the trial." They also express concern over placing too much emphasis on out of court statements: "Allowing substantive consideration of all prior consistent statements may create an incentive to craft the perfect statement out of court as a substitute for the imperfect live testimony." As an "alternative remedy," the Defenders propose that prior consistent statements be considered "only for impeachment or to preclude them entirely." The bolstering of the statement should not be permitted for the reasons recognized by other cases, including Tome v. United States, 513 U.S. 150 (1995).
  • Federal Magistrate Judges Association (FMJA) (submitted Feb. 4, 2013): The FMJA also believes the amendment "is unnecessary" and is concerned it "will open the door to the admission of self-serving consistent statements whose only effect is bolstering the witness's credibility." According to the judges, the proposal "contains no limitation as to the type of evidence admissible as long as it 'otherwise rehabilitates' the witness's credibility." Either the rule should not be amended or limitations should be clarified concerning the circumstances in which a prior consistent statement may be admitted.

The public comment period, the Advisory Committee on Evidence Rules will consider whether the draft should be modified and whether any proposed rule should be recommended for further consideration. The public comment opportunity is the second of seven steps in the rulemaking process to the Federal Rules of Evidence.

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.

The draft proposal and draft Advisory Committee Note follow:


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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