Supreme Court To Decide Pending Amendment To FRE 801(d)(1)(B) (Prior Consistent Statement) By Next Week (Part X)

The Supreme Court is considering whether to approve a pending amendment to FRE 801(d)(1)(B); the proposed amendment, which received some critical comments during the public comment period, was modified and recommended by the Judicial Conference to the United States last fall; the Supreme Court must act by May 1, 2014, under the Rules Enabling Act

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."

Under the Rules Enabling Act, the Supreme Court must act on the proposal by May 1, 2014. After Supreme Court action, the amendment becomes law if Congress does not enact legislation to reject, modify, or defer the rules by December 1, 2014. See 28 U.S.C. §§ 2074, 2075. The transmittal of the proposed amendment to the Supreme Court represents the sixth step, out of seven steps, in the rules amendment process.

Summary Background Of The Amendment

The suggestion to amend FRE 801(d)(1)(B) was made some years ago by now retired United States District Court Judge for the Middle District of North Carolina Frank W. Bullock, Jr., when he was a member of the Standing Committee on Rules of Practice and Procedure. See 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.”); see also Hon. Frank W. Bullock, Jr. and Steven Gardner, Prior Consistent Statements and the Premotive Rule, 24 Fla.St. L.Rev. 509 (1997).

In April 2012, the Evidence Rules Advisory Committee first considered an amendment to FRE 801(d)(1)(B) under the Rules Enabling Act. During the public comment period, some critical comments were received. In May 2013, the Advisory Committee on Evidence Rules adopted two modifications in response to the public comments. As the committee explained:

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.

Report of the Advisory Committee on Evidence Rules (May 7, 2013).
Minutes of the Meeting of the Advisory Committee on Evidence Rules, at 3-4 (May 3, 2012).

Judicial Conference Action

In September 2013, the Judicial Conference of the United States approved the modified amendment to FRE 801(d)(1)(B). Under the proposed amendment, prior consistent statements would be admissible whenever they would otherwise be admissible to rehabilitate the witness’s credibility. As the 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, at 29 (Sept. 2013) explained the proposal:

[FRE 801(d)(1)(B)] would be amended to provide that prior consistent statements are admissible under the hearsay exemption whenever they are admissible to 1) rebut an express or implied charge that the witness recently fabricated testimony or acted from a recent improper influence or motive in so testifying; and 2) rehabilitate the declarant’s credibility when attacked on another ground.... 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. Judge Fitzwater emphasized that this amendment would preserve the rule of Tome v. United States, 513 U.S. 150 (1995). Under that case, a prior consistent statement is not hearsay only if it was made prior to the time when the motive to fabricate arose.

A member of the Standing Committee observed that if a witness was in court and available to be cross-examined, there seemed little reason to exclude prior consistent statements on any basis. The advisory committee’s reporter observed that this current amendment represented a small step in that direction.

Supreme Court Action By May 1, 2014

With the statutory May 1st deadline approaching, it remains to be seen whether the Supreme Court will approve the recommendation, modify it or reject it. If the Court approves any amendment to FRE 801(d)(1)(B), it will become law, unless Congress otherwise acts prior to December 1, 2014, under the Rules Enabling Act.

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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