Supreme Court Approves Amendment To FRE 801(d)(1)(B) (Prior Consistent Statement) (Part XI)

The Supreme Court has approved an amendment to FRE 801(d)(1)(B) which 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"; the amendment will become effective on December 1, 2014, unless Congress takes other action

On April 28, 2014, the Supreme Court released transmittal letters on its web site indicating that the Court adopted an amendment to FRE 801(d)(1)(B). The amendment, which is reproduced below in redline, clarifies that a prior consistent statement may be offered "to rehabilitate the declarant’s credibility as a witness when attacked on another ground." Under the Rules Enabling Act, the amendment will become effective on December 1, 2014, unless Congress takes other action. See 28 U.S.C. §§ 2074, 2075. The approval of the proposed amendment to the Supreme Court represents the fifth step, out of seven steps, in the rules amendment process.

Last week, the Federal Evidence Blog summarized the background and development of the amendment. For more information on the amendment to FRE 801(d)(1)(B), see the background materials and timeline at the FRE 801(d)(1)(B) Amendment Legislative History Page, and the prior coverage in the Federal Evidence Blog.



Proposed Amendment: Rule 801(d)(1)(B)
(Prior Consistent Statement)

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.

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