Judicial Standing Committee Considers Proposed Amendment To FRE 801(d)(1)(B) (Prior Consistent Statement) (Part VII)

After the public comment on the proposed amendment to FRE 801(d)(1)(B), and modification of the amendment by the Advisory Committee on Evidence Rules, as the next step in the process the Judicial Conference’s Committee on Rules of Practice and Procedure reviews the proposal

As previously noted in the Federal Evidence Blog, in May the Advisory Committee on Evidence Rules modified the proposed amendment to FRE 801(d)(1)(B) after receiving public comment on the draft rule. See Changes Made To Proposed Amendment To FRE 801(d)(1)(B) (Prior Consistent Statement) (Part VI); see also Report of the Advisory Committee on Evidence Rules (May 7, 2013).

Under the latest version of the proposed amendment, a prior consistent statement will be admissible in two circumstances. First, when 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," as permitted under the current rule. However, the amendment would expand the use of prior consistent statment under a second circumstance: "to rehabilitate the declarant’s credibility as a witness when attacked on another ground."

The Report, at 2, to the Standing Committee explains the necessity for the amendment:

There are two basic practical problems in distinguishing 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.

The Report, at 2, also provided context on the modification of the initial proposal based on the public comment:

The public comment on the proposed amendment is summarized in the appendix to this report. Although largely negative, it is sparse. The Committee found two concerns expressed in the public comment to merit revisions to the proposed rule and committee note. First, there was a concern that the phrase “otherwise rehabilitates the declarant’s credibility as a witness” is vague and could lead courts to admit prior consistent statements that heretofore have been excluded for any purpose. 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, thereby undermining the Supreme Court’s ruling in Tome v. United States, 513 U.S. 150 (1995).

In response to these concerns, the Committee voted, with one member dissenting, to approve proposed Rule 801(d)(1)(B) with the slight modification to (ii) shown on the following blacklined version. The Committee concluded that the proposal preserves the Tome pre-motive rule as to consistent statements offered to rebut a charge of bad motive, while properly expanding substantive admissibility to statements offered to rehabilitate on other grounds—such as to explain an inconsistency or to rebut a charge of bad memory. And the proposal does so without resorting to the potentially vague “otherwise rehabilitates” language.

Last week, on June 3-4, 2013, the Judicial Conference’s Committee on Rules of Practice and Procedure (known as the “Standing Committee”) met in Washington, D.C. to consider the amendment along with other proposals. The consideration by the Standing Committee is the fourth step in the amendment process out of seven steps. No official report has been released by the U.S. Courts concerning the Standing Committee action. If the Standing Committee approves the amendment, it will be sent to the Judicial Conference of the United States, the policy-making body regarding the administration of the U.S. courts, for consideration (the fifth step in the amendment process). The Federal Evidence Blog will continue to monitor and report on the developments.

In the meantime, the current proposal considered by the Standing Committee and the draft Committee Note are included below. The Committee Note, below, also summarizes the public comments that were received. For further information on past developments, see prior Blog Posts covering the amendment of FRE 801(d)(1)(B).

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)

June 2013

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 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; * * *

* * *


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, for example, provide for substantive admissibility of consistent statements that are probative to explain what otherwise appears to be an inconsistency in the witness’s testimony. Nor did it cover consistent statements that would be probative to rebut a charge of faulty memory. 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 retains the requirement set forth in Tome v. United States, 513 U.S. 150 (1995): that under Rule 801(d)(1)(B), a consistent statement offered to rebut a charge of recent fabrication of improper influence or motive must have been made before the alleged fabrication or improper inference or motive arose. 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.

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 prior consistent statements otherwise admissible for rehabilitation are now admissible substantively as well.

CHANGES MADE AFTER PUBLICATION AND COMMENTS

The text of the proposed amendment was changed to clarify that the traditional limits on using prior consistent statements to rebut a charge of recent fabrication or improper influence or motive are retained. The Committee Note was modified to accord with the change in text.

SUMMARY OF PUBLIC COMMENTS

Hon. Joan Ericksen, (12-EV-001) opposes the proposed amendment as released for public comment on the ground that it is not needed and may lead to unintended consequences.

The Federal Public Defender (12-EV-002) opposes the proposed amendment as released for public comment on the ground that it is “unnecessary and would actually be counterproductive” because it would allow for admission of more prior consistent statements and would “change the dynamics at the trial.”

The Federal Magistrate Judges Association (12-EV-003) “is concerned that, despite the Advisory Committee’s stated purpose, the proposed revision significantly undermines the rule against bolstering a witness and opens the door to the admission of self-serving consistent statements as substantive evidence.” The FMJA suggests that “the revision specifically state limits to the expansion of what types of rehabilitation evidence are admissible — for example, to rebut a charge of faulty recollection — or that the Rule not be changed at all.”

Professor Liesa Richter (12-EV-004) states that “[a]mending Rule 801(d)(1)(B) to include prior consistent statements used to rehabilitate impeaching attacks other than attacks on motivation is completely consistent with the stated reason for the original hearsay exemption” and “advances the development of clear and rational evidentiary policies that can be administered efficiently and uniformly.” Professor Richter argues, however, that the proposal as issued for public comment could be read to undermine the limitation on admitting prior consistent statements established in Tome v. United States, 513 U.S. 150 (1995): that under Rule 801(d)(1)(B), a consistent statement offered to rebut a charge of recent fabrication or improper influence or motive must have been made before the alleged fabrication or alleged improper influence or motive arose. The proposed amendment as issued for public comment was revised with the intent to address that concern.

The National Association of Criminal Defense Lawyers (12-EV-005) contends that prior consistent statements should be subject to the same admissibility requirements as those applicable to prior inconsistent statements under Rule 801(d)(1)(A), i.e., they should be admissible as substantive evidence only when made under oath and subject to cross-examination. The NACDL also contends that the words “otherwise rehabilitates” — as used in the proposed amendment as released for public comment — are “fatally ambiguous.”

William T. Hangley, Esq. (12-EV-006) objects to the proposed amendment because it would lead to greater admissibility of prior consistent statements, and suggests that more study is required before that result is mandated. He also argues that treating prior consistent statements as substantive is unnecessary because the statement simply replicates testimony that the witness has already given.

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