Back in March, Phil wrote about proposed changes to the Federal Rules of Evidence (F.R.E). One of these changes involves an expansion to the rule addressing prior consistent statements of a testifying witness: F.R.E. 801(d)(1)(B).

For context, the Military Rules of Evidence (M.R.E.) are based on the F.R.E., and changes to the F.R.E. are automatically assimilated after 18 months, pursuant to M.R.E. 1102 (the 2013 version of the M.R.E. is here).

F.R.E. 801 and M.R.E. 801 both provide definitions that apply to hearsay evidence, including exclusions from what might otherwise be hearsay. One such exclusion is for a prior statement of a testifying witness where the statement:

is consistent with the declarant’s testimony and is offered 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.

M.R.E. 801(d)(1)(B); F.R.E. 801(d)(1)(B). The Supreme Court analyzed this pre-motive rule in Tome v. United States, 513 U.S. 150 (1995) (Oyez case page):

The prevailing common-law rule for more than a century before adoption of the Federal Rules of Evidence was that a prior consistent statement introduced to rebut a charge of recent fabrication or improper influence or motive was admissible if the statement had been made before the alleged fabrication, influence, or motive came into being, but it was inadmissible if made afterwards. As Justice Story explained: “[W]here the testimony is assailed as a fabrication of a recent date, . . . in order to repel such imputation, proof of the antecedent declaration of the party may be admitted.” Ellicott v. Pearl, 10 Pet. 412, 439 (1836) (emphasis added). See also People v. Singer,300 N.Y. 120, 124-125, 89 N.E.2d 710, 712 (1949).

McCormick and Wigmore stated the rule in a more categorical manner: “[T]he applicable principle is that the prior consistent statement has no relevancy to refute the charge unless the consistent statement was made before the source of the bias, interest, influence or incapacity originated.” E. Cleary, McCormick on Evidence § 49, p. 105 (2d ed. 1972) (hereafter McCormick). See also 4 J. Wigmore, Evidence § 1128, p. 268 (J. Chadbourn rev. 1972) (hereafter Wigmore) (“A consistent statement, at a time prior to the existence of a fact said to indicate bias . . . will effectively explain away the force of the impeaching evidence” (emphasis in original)). The question is whether Rule 801(d)(1)(B) embodies this temporal requirement. We hold that it does.

513 U.S. at 156. But the Supreme Court has now approved an expansion of this exclusion, to include prior statements offered “to rehabilitate the declarant’s credibility as a witness when attacked on another ground.” Unless Congress acts, the new Federal Rule will take effect on December 1, 2014, and will read:

(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;
* * *

The Federal Evidence Review Blog has a summary of the Supreme Court’s approval here, and a summary of the change here.

Assuming this change is adopted into the M.R.E. (a fair assumption), it both will and won’t affect the way courts-martial are tried. The existing Rule does not address the admission of prior consistent statements for rehabilitative purposes separate from the truth of the matter asserted. In other words, out-of-court statements may be admitted to rehabilitate a testifying witness only on the basis that the out-of-court statement was made and is similar to the in-court testimony. The report of the Evidence Rules Advisory Committee offered this interesting comment:

Under the current Rule, some prior consistent statements offered to rehabilitate a witness’s credibility—specifically, those that rebut a charge of recent fabrication or improper influence or motive—are also admissible substantively. But other rehabilitative statements—such as those that explain a prior inconsistency or rebut a charge of faulty recollection—are not admissible under the hearsay exemption, but only for rehabilitation. There are two basic practical problems in distinguishing between substantive and credibility use as applied to prior consistent statements. First, the necessary jury instruction is almost impossible for jurors to follow. The prior consistent statement is of little or no use for credibility unless the jury believes it to be true. Second, and for similar reasons, the distinction between substantive and impeachment use of prior consistent statements has little, if any, practical effect. The proponent has already presented the witness’s trial testimony, so the prior consistent statement ordinarily adds no real substantive effect to the proponent’s case.

The report also cited to an interesting concurring opinion of Judge Friendly of the Second Circuit in United States v. Rubin, 609 F.2d 51, 66-71 (2d Cit. 1979) (misidentified in the report as United States v. Quinto) (available here), which includes this observation:

Since the only mention of prior consistent statements in the Federal Rules of Evidence is in Rule 801(d)(1)(B) and this limits admission to cases where the statement “is offered to rebut an express or implied charge against him of recent fabrication or improper influence,” lawyers and judges can be forgiven for being misled into concluding, as was done by dictum in United States v. Quinto, supra, that the limitation applies to the use of prior consistent statements for rehabilitation as well as for direct evidence. However, analysis makes it clear that Rule 801(d)(1)(B) simply does not deal with the extent to which prior consistent statements may be used for rehabilitation.

Rubin, 609 F.2d at 68-69. Of course, the mere existence of a consistent out-of-court statement won’t fix false testimony. A lie remains a lie, no matter how many times it is retold.

This all seems rather straightforward, except that I think it unbalances the playing field for prior consistent and inconsistent statements. Under the existing rule, prior statements are admissible for their substance only under limited circumstances: inconsistent statements must have been made under oath, and consistent statement must predate an asserted motive to fabricate. But now prior consistent statements get preferential treatment, as they are substantively admissible any time a witness is attacked (and if the witness gives damaging testimony, an attack is all but certain). The counter to this argument is that the weight and credibility of testimony is a matter for the finder of fact to determine, and (as the Rules Advisory Committee noted), if the finder of fact believes that a prior consistent statement not offered for the truth of the matter is a true statement, then they will believe the consistent in-court testimony about the underlying factual issue (and the reverse as well). I’ve only glanced at the scholarship in this area, but I suspect that there is (or soon will be) a good treatise out there somewhere that breaks this down even further.

But from a court-martial trial practice point of view, this change hasn’t hit the books yet. Absent action by the President, this new rule will become part of the M.R.E. in mid-2016.

12 Responses to “What you need to know about the pending change to F.R.E. 801(d)”

  1. Anonymouse Air Force Senior Defense Counsel with initials NM says:

    I’m confused.  The declarant-witness has to be “subject to cross examination about a prior statement” before it’s admissible?  Does “prior statement” mean “prior inconsistent statement” or “prior consistent statement?”  Does “subject to” mean they are actually asked about the prior statement or that opposing counsel simply had an opportunity to cross them about it? 
    Does this mean if the declarant testifies on 1 May 2014 that the traffic light was red, and is cross-examined that on 1 April 2014 they told a friend the light was green, the opposing party can ask on re-direct, “isn’t it true you told the police on 1 March the light was red?”
    According to one of the links above, a member of the Standing Committee observed that if a witness is present in court and “available to be cross examined” there’s little reason to keep out a prior consistent statement “on any basis.”   This statement is counter to my understanding of the committee note that follows the rule on the link from the Federal Evidence Review Blog that has kindly been posted for us.  The committee note suggests this new rule doesn’t change much at all and even states that prior consistent statements that weren’t admissible before still aren’t admissible.
    I understand this post, and the post makes sense to me. But when I read the text of the rule in the context of the committee notes, I lose my previous understanding.  Maybe this is simply because I never really under stood the rules on prior consistent statements that well to begin with…

  2. Zachary D Spilman says:

    You’re over-thinking this. The witness must testify at trial and be subject to cross examination about the prior statement (whether it is consistent or not). Keep in mind that the prior statement may be introduced by the testimony of a different witness or through a different medium (i.e., a writing, recording, etc.). 

    The bit about the prior statement being admissible for any reason if the witness testifies and is subject to cross examination is a recognition of the fact that the crucial issue about witness testimony is credibility, and cross examination is the crucible by which credibility is determined. So (goes the reasoning) when the witness testifies and is cross examined, why not admit prior statements from the witness and allow the parties to put the witness to the test about the prior statements.

  3. Anonymous Air Force Senior Defense Counsel with initials NM says:

    So lets assume that our declarant-witness has made a prior written/sworn statement (as often is the case in our military practices).  does that entire statement now become a prosecution exhibit simply because the witness was available to be cross examined?  The rule says a prior statement is not hearsay if it’s consistent.  Prior inconsistent statements would still not be admissible unless the witness denies making the prior statement, correct?  So do we redact prior inconsistent parts, introduce an entire written statement under the rule of completeness, or some other thing?  Perhaps I am overthinking this, but I’m trying to break it down to how it will affect what we do in the courtroom, and I’m having trouble with that. 
    Like you say in your post, I think I should begin looking for “a good treatise…that breaks this down…”  It seems to me, that the only way this work smoothly, is if the entire pretrial statement is admissible – to include it’s inconsistent parts.  Or is that the point that I’m over-thinking?  That once the witness has been confronted with the inconsistent parts of the statement, the entire statement becomes admissible?

  4. Zachary D Spilman says:

    Reading your comment, it seems like you’ve mixed up prior statements that are offered for the truth of the matter asserted and prior statements that are not offered for the truth of the matter asserted.

    Hearsay can be used to attack credibility. In fact, it’s often the case that a prior inconsistent statement is used to attack the credibility of a witness under circumstances where the statement is not admissible to prove the truth of the inconsistent fact.

    I hate using examples to discuss rules of evidence (light was green, light was red, there are four lights…), because they get too complicated, too fast. But when a witness admits on cross-examination that he once said the opposite of his in-court testimony, that’s a prior inconsistent statement that goes only to the credibility of the witness. The prior inconsistent statement is not admissible to prove that the inconsistent assertion is the true fact unless the prior statement was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition (M.R.E. 801(d)(1)(A)). 

    The change will expand only the circumstances where prior consistent statements are admissible to prove the truth of the underlying assertion. A statement that is now admissible only as proof of consistency (and not as proof that the underlying assertion is the true fact) will in the future be admissible to prove the truth of the underlying assertion. In this context, the committee’s comment that “the prior consistent statement is of little or no use for credibility unless the jury believes it to be true” makes the change an obvious one.

    When it comes to a prior statement that is both consistent and inconsistent, you need to look at the reasons it is being offered, the purposes for which it is admissible, and then seek appropriate limitations from the judge. Consider completeness, 403 balancing, and the general prohibition of propensity evidence.

  5. Johnny Ringo says:

    “there are four lights…”
    Yet another reason to love this blog.

  6. stewie says:

    JR, I think the nerd quotient of this blog is admirably high.  I think in the vein of “four lights” we should be discussing the legality of the Cardassian torture memo.

  7. Johnny Ringo says:

    Stewie – The Cardassians clearly did not have a specific intent to inflict severe pain or suffering. 
    People who have worked on >X number of MJ cases vs. people who get esoteric Sci-Fi references would be a Venn diagram that I’d probably take a look at. 

  8. RKincaid3 (RK3PO) says:

    That’s it…the author’s of the Yu/Bybee Torture memo’s were Cardassians!  Haynes must have been, too!  Can’t beleive I didn’t see this before now!  Shame on me–but it figures–we have met the enemy and it is us.

  9. stewie says:

    I assume you of all people RK3 would appreciate the ties between the Cardassian justice system and the current 120 situation.  The Cardassian had a guilty until proven innocent system.  The purpose of a trial was for the accused to admit their wrong, apologize, and let the people see the State triumph over evil.  There’s a wonderful episode of Deep Space Nine that goes over the perverseness of this process.  The most celebrated Defense Counsel on Cardassia is renowned not for his skill at acquittals but his skill in getting accused to admit their guilt.
    I don’t think our system is quite that bad, but it’s another example of the interesting sideways look at things that science fiction often gives us, and the echoes of what happens when you bend too far one way.

  10. RKincaid3 (RK3PO) says:

    but it’s another example of the interesting sideways look at things that science fiction often gives us, and the echoes of what happens when you bend too far one way

    Yes, indeedy, Stewie.  And maybe I am giving away my age with this one–but, recall if you will, Stewie, the classic example of sci fi offers introspection.  The original Star Trek episode where the Enterprise is visiting a planet where there is a race war on-going.  The difference between the races?  One was white and black (white on the right side of their body) and the other was black and white (black on the right side).
        So, the question is this:  how silly are we that so many of us see sci fi as a learning tool?  Or is it sillier still that it requires sci fi to teach us how silly–in some cases criminally silly–we as a species can be and in fact are to each other?

  11. k fischer says:

    I find viewing anything involving the Kardashians torture.  So, did Kim draft a memo against torture?

  12. stewie says:

    She’d have to be able to spell torture first.  Also, memo.