Changes Made To Proposed Amendment To FRE 801(d)(1)(B) (Prior Consistent Statement) (Part VI)

Advisory Committee on Evidence Rules modifies proposed amendment to FRE 801(d)(1)(B) following some critical comments received during the public comment period; the committee recomends two modifications to the proposal which will be considered by the Judicial Conference’s Committee on Rules of Practice and Procedure in June 2013

The Federal Evidence Blog has been monitoring the developments concerning the proposed amendment to FRE 801(d)(1)(B). The proposal would broaden the use of prior consistent statements to "rehabilitate[ ] the declarant’s credibility as a witness.”

During the public comment period, from August 15, 2012 through February 15, 2013, some critical comments were received. See Public Comments Critical Of Proposed Amendment To FRE 801(d)(1)(B) (Prior Consistent Statement) (Part IV) ; More Public Comments Critical Of Proposed Amendment To FRE 801(d)(1)(B) (Prior Consistent Statement) (Part V).

Last week, on May 3, 2013, the Advisory Committee on Evidence Rules considered the public comments. See Meeting Agenda. An analysis of the comments received and options were presented to the committee by the committee reporter. See Memorandum to the Advisory Committee on Evidence Rules from Reporter Daniel J. Capra (April 1, 2013); see also Minutes of the Meeting of the Advisory Committee on Evidence Rules (October 5, 2012) (summarizing history of the amendment prior to the receipt of public comments).

The Advisory Committee adopted two modifications in response to the public comments:

The Committee found two concerns expressed in the public comment to be meritorious and to require some kind of adjustment to the rule as issued for public comment. First, there was a concern that the phrase “otherwise rehabilitates the declarant’s credibility as a witness” was vague and could lead to courts admitting prior consistent statements that have heretofore been excluded for any purpose — while that technically would not be possible because the proposal requires that a prior consistent statement must be admissible for rehabilitation under existing law in order to be admissible substantively, the expressed concern was that courts might somehow use the amendment as an excuse to admit more prior consistent statements. Second, there was a more specific concern that the language could lead courts to admit prior consistent statements to rebut a charge that the witness had a motive to falsify, even though the statement was made after the motive to falsify arose. If that were so, it would mean that the Supreme Court’s ruling in Tome v. United States, 513 U.S. 150 (1995), would be undermined, as the Court in that case held that admissibility of prior consistent statements under Rule 801(d)(1)(B) was limited to those consistent statements that were made before a motive to falsify arose.

Minutes of the Meeting of the Advisory Committee on Evidence Rules, at 3-4 (May 3, 2012).

The consideration of the public comments by the Advisory Committee is the third step in the amendment process out of seven steps. The recommendation of the Advisory Committee on Evidence Rules has been forwarded for consideration by the Judicial Conference’s Committee on Rules of Practice and Procedure (known as the “Standing Committee”). See Report of the Advisory Committee on Evidence Rules (May 7, 2013). The Standing Committee will meet on June 3-4, 2013 in Washington, D.C. to consider the amendment along with other proposals.

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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