Tuesday, December 25, 2018

Prior consistent statements are not always admissible

When is a prior consistent statement admissible to rehabilitate a witness, and when does its admission constitute impermissible bolstering? The Tenth Circuit recently clarified the rule in United States v. Magnan.

It's all about the chronology and the basis for impeachment. Let's start with chronology:

FRE 801(d)(B)(i) authorizes the admission of prior consistent statements "to
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." (Emphasis added.)
If the defense theory is that the declarant (say, the complainant in a child sex case) has consistently lied about the defendant, then the complainant's prior consistent statements don't rebut that charge---they simply repeat the lie. And thus:
 
T-0: Complainant develops motive to lie
T-1: Complainant says X to mother
T-2: Complainant says X to police
T-3: Complainant says X to social worker
T-4: Complainant says X at trial
The defendant's cross-examination of the complainant at trial about her motive to lie does not open the door to the complainant's prior consistent statements under 801(d)(B)(i). The same motive existed for all of those statements. They do not rebut the charge of motive.
But if:
doll in boxT-0: Complainant has no motive to lie
 
T-1: Complainant says X to mother
T-2: Complainant says X to police
T-3: Complainant is offered praise or rewards (a pretty doll!) by social worker
T-4: Complainant says X to social worker
T-5: Complainant says X at trial
In this scenario, once the defense presents evidence that the social worker influenced the complainant's testimony, the government is free to present the complainant's earlier statements, to show that they were consistent with her trial testimony before any motive to fabricate arose.
Okay, now, what about FRE 801(d)(B)(ii)? It authorizes the admission of prior consistent statements "to rehabilitate the declarant's credibility as a witness when attacked on another ground Doesn't that open the door to prior consistent statements if the defense so much as cross-examines the declarant?
No, it does not.
Tread carefully here, and don't let the government get away with a broad reading of this rule. As the Tenth Circuit explains in Magnan, only some types of attacks will trigger the rule.
For instance, if the defense claims inconsistency: The complainant told mother Y, but told the jury X, then the government may present the complainant's prior consistent statements of X to the police and the social worker to show that most of her statements were consistent.
Or if the defense claims that the complainant has a faulty memory, the government may present the complainant's prior consistent statements to show that her memory is consistent with what she said earlier, closer in time to the events.
But if the defense is simply that the complainant is lying, wanted attention, has an axe to grind, wanted the defendant out of the house---her prior consistent statements do nothing to rehabilitate her credibility. They are not admissible.
So says the Tenth Circuit.

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