FRE 801(d)(1)(B) Legislative History Page


Proposed Amendment To

FRE 801(d)(1)(B)

Legislative History Page


The FRE 801(d)(1)(B) Legislative History Page summarizes and provides information concerning the pending amendment.

In April 2012, the Evidence Rules Advisory Committee first considered an amendment to FRE 801(d)(1)(B) under the Rules Enabling Act. Presently, FRE 801(d)(1)(B) 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. Under FRE 801(d)(1)(B), the prior statement as non-hearsay is admitted as substantive evidence.

A pending amendment to the rule would allow for the use of a prior consistent statement to “to rehabilitate the declarant’s credibility as a witness when attacked on another ground."

Following public comment on the draft amendment, changes were recommended to the proposed amendment. In September 2014 the U.S. Judicial Conference approved the proposed amendment, agreed to transmit it to the Supreme Court and recommended that the Supreme Court approve it and transmit it to Congress.

Under the Rules Enabling Act, the Supreme Court acted on the proposed amendment on April 25, 2014. The Court's order "prescribed" the rule and transmitted it to Congress. If Congress takes no action regarding the rule amendment, it will become effective on December 1, 2014. Congressional intervention is the last of seven steps in the federal rules amendment process under the Rules Enabling Act.

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The proposed amendment follows:



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; or

* * * * *

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.

Below is a chronology of the development and consideration of the amendment to FRE 801(d)(1)(B) to date:

Date Action
December 1, 2014 Under the Rules Enabling Act, after the Supreme Court transmits the amendment to Congress, it will become effective December 1, 2014 in the absence of any congressional action.
April 25, 2014 The Supreme Court approved the amendment and transmits the amendment to Congress under the Rules Enabling Act.

September 15, 2013 Judicial Conference approved the amendment and recommend that the Supreme Court approve the proposed amendment and transmit it to Congress

June 3-4, 2013 Judicial Conference’s Committee on Rules of Practice and Procedure (known as the “Standing Committee”)

May 3, 2013 Advisory Committee on Evidence Rules considered the public comments

  • Advisory Committee recommends changes to the proposed amendment based on the public comments
  • See also Memorandum to the Advisory Committee on Evidence Rules from Reporter Daniel J. Capra (April 1, 2013) (recommending options for the committee)
  • 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."
  • See also Report of the Advisory Committee on Evidence Rules (May 7, 2013).
  • Blog Post: Changes Made To Proposed Amendment To FRE 801(d)(1)(B) (Prior Consistent Statement) (Part VI)

February 15, 2013 Public Comments Received

June 11, 2012 Judicial Conference Committee on Rules of Practice and Procedure

May 3, 2012 Report of the Committee on Rules of Practice and Procedure

  • Reporting that: "At its Spring 2012 meeting, the Committee voted unanimously, with one member abstaining, to approve an alternate draft amendment to Rule 801(d)(1)(B) and to recommend to the Standing Committee that it be released for public comment."

April 3, 2012 Minutes of the Meeting of the Advisory Committee on Evidence Rules, at 1

1997 Original Recommendation

  • Original recommendation by United States District Court Judge for the Middle District of North Carolina Frank W. Bullock, Jr. to amend FRE 801(d)(1)(B). See Hon. Frank W. Bullock, Jr. and Steven Gardner, Prior Consistent Statements and the Premotive Rule, 24 Fla.St. L.Rev. 509 (1997).
  • See also Report of the Advisory Committee on Evidence Rules (May 3, 2012) (noting Judge Bullock initiated the proposal to amend FRE 801(d)(1)(B) “to provide that prior consistent statements are admissible under the hearsay exemption whenever they would be admissible to rehabilitate the witness’s credibility.”)

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Blog Posts On The 2014 Amendment to FRE 801(d)(1)(B)

Blog posts from the Federal Evidence Blog discussing the 2014 amendment to FRE 801(d)(1)(B) are available here.

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