FRE 801(d)(1)(B) Amendment Concerning Prior Consistent Statements Approved By Judicial Conference (Part IX)

An amendment to FRE 801(d)(1)(B) concerning the admission of prior consistent statements which are otherwise hearsay was approved by the U.S. Judicial Conference at its September 2013 meeting in Washington, D.C. Under the procedures of the Rules Enabling Act, the Conference must submit its recommended amendment to the Supreme Court. If the Court approves the amendment by May 1, 2014 it will transmit the proposed amendment to Congress. While Congress has the power to reject the amendment, if it takes no official action by December 1, 2014 the amended rule will go into effect.

The U.S. Judicial Conference's approved an earlier recommendation of the Judicial Conference’s Committee on Rules of Practice and Procedure (otherwise known as the “Standing Committee”). See FRE 801(d)(1)(B) Amendments Approved By Standing Committee (Part VIII). The Standing Committee had acted upon revisions approved during the May meeting of the Advisory Committee on Evidence Rules, based on the public commments that had been received about a proposal to amend FRE 801(d)(1)(B). (See Changes Made To Proposed Amendment To FRE 801(d)(1)(B) (Prior Consistent Statement) (Part VI)). The Advisory Committee acted after reviewing public comments received between August 2012 and February 15, 2012 concerning the proposed change. (See Changes Made To Proposed Amendment To FRE 801(d)(1)(B) (Prior Consistent Statement) (Part IV)).

Under the recommendation, "The advisory committee proposed that Rule 801(d)(1)(B) be amended to provide that prior consistent statements are admissible under the hearsay exemption whenever they would otherwise be admissible to rehabilitate the witness’s credibility. The amendment is intended to eliminate confusing jury instructions on the permissible use of prior consistent statements." Minutes, at 67, 82 (Sept. 12, 2013).

Under the Rules Enabling Act, 28 U.S.C. § 2071-77, the next steps for the amendment would be as follows:

  • September 15, 2013: The United States Judicial Conference approved the proposed amendment to FRE 801(d)(1)(B) for transmittal to the United States Supreme Court for its review. See 28 U.S.C. § 2073(a) & (b)
  • May 1, 2014: The Supreme Court has the authority to prescribe the federal rules, subject to a statutory waiting period. See 28 U.S.C. §§ 2072, 2075. The Court “shall transmit to the Congress not later than May 1” of the year in which the proposed amendment is to take effect. See 28 U.S.C. §§ 2074(a), 2075; see also Report of the Judicial Conference Committee on Rules of Practice and Procedure to the Chief Justice of the United States and Members of the Judicial Conference of the United States (Sept. 2013)
  • December 1, 2014: Congress has a statutory period of at least seven months to act on any rules prescribed by the Supreme Court. If the Congress does not enact legislation to reject, modify, or defer the rules, they take effect as a matter of law on December 1, 2014. See 28 U.S.C. §§ 2074, 2075. With transmittal to the Supreme Court, the proposed amendment is at the sixth step of the rules amendment process.

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.

Under the proposed amendment approved by the U.S. Judicial Conference, FRE 801(d)(1)(B) would be amended as follows:

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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

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(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:


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(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; * * *

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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.

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Federal Rules of Evidence
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