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.
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;
* * *
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.