Military Rule of Evidence 801(d)(1)(B) – which is identical to Fed. R. Evid. 801(d)(1)(B) – provides situations where a prior consistent statement by a witness is not hearsay. Put differently, if a witness testifies about something in court, the rule allows a prior (out-of-court) statement by that same witness to be admitted to prove the thing asserted.
The rule has long allowed a prior statement to be admitted as non-hearsay when the prior statement predated an allegedly recent fabrication or an allegedly improper motive or influence on the in-court testimony. For example, just a few weeks ago in United States v. Frost, 79 M.J. 104 (C.A.AF. Jul. 30, 2019) (CAAFlog case page), CAAF addressed the admission of a prior statement by an alleged child victim of rape. The statement was made to a psychotherapist, but a majority of CAAF found that the defense had alleged that the child was improperly influenced by her mother before the child talked to the psychotherapist. Accordingly, the statement was wrongly admitted.
But the federal rule was amended in 2014 to add a new sub-section: 801(d)(1)(B)(ii). The new subsection makes any prior consistent statements of a witness non-hearsay, so long as the prior statement is otherwise admissible for rehabilitation (discussed here). Specifically, the new subsection states that a prior consistent statement is not hearsay when it is offered:
to rehabilitate the declarant’s credibility as a witness when attacked on another ground.
The amendment did not, however, change what statements are otherwise admissible to rehabilitate a witness; the Advisory Committee note on the amendment explains that:
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.
The amendment was incorporated into the MCM in 2016 (noted here).
The Army CCA addressed the change in a recent published decision in United States v. Finch, 78 M.J. 781 (A. Ct. Crim. App. 2019) (link to slip op.). Writing for a unanimous three-judge panel of the CCA, Judge Wolfe explained that the requirement that the prior statement be admitted to rehabilitate the declarant’s credibility is an important one:
Part (ii) requires rehabilitation of the credibility of a witness.
“Mere repeated telling of the same story is not relevant to whether that story, when told at trial, is true.” McCaskey, 30 M.J. at 192. A prior statement admitted under Mil R. Evid. 801(d)(1)(B)(ii) must rehabilitate the credibility of the witness in order to be admissible under the rule. The fact that a statement was repeated in the past, without more, is not very probative in rehabilitating the credibility of the witness’ in-court testimony.
In general, to be rehabilitative, a prior consistent statement must address the manner in which the witness’ credibility was attacked. In Pierre, the witness was impeached for omitting key facts in his interview notes. The implication was that the witness had either made up the key facts after the interview or had an inaccurate memory about what was said in the interview. 781 F.2d at 334. A formal report that contained the key facts, created shortly after the interview, tended to rebut both implications, and therefore rehabilitated the witness’ credibility.
. . .
In other words, a prior consistent statement admitted under Part (ii) must be probative of some fact at issue. And repetition alone will not meet the offering party’s burden. McCaskey, 30 M.J. at 192; see also Adams, 63 M.J. at 697 n.5.
78 M.J. at 787. Then, applying that law to a prior statement (a videotaped interview with military investigators) by the alleged victim in Finch, Judge Wolfe explained that the statement was admissible under the new Mil. R. Evid. 801(d)(1)(B)(ii) because the defense had implied that the alleged victim’s in-court testimony was inconsistent with her prior statements to the investigators, and that implication “was factually rebutted by watching the interview.” 78 M.J. at 791.
Last week CAAF granted review:
No. 19-0298/AR. U.S. v. David M. Finch. CCA 20170501. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:
WHETHER THE MILITARY JUDGE ERRED IN ADMITTING OVER DEFENSE OBJECTION THE VIDEO-RECORDED INTERVIEW OF AH BY CID BECAUSE IT WAS NOT A PRIOR CONSISTENT STATEMENT UNDER MIL.R.EVID. 801(d)(1)(B).
Briefs will be filed under Rule 25.
Update: The NMCCA seems to have reached the same conclusion about the meaning of Mil. R. Evid. 801(d)(1)(B)(ii) in United States v. Norwood, 79 M.J. 644 (N-M. Ct. Crim. App. Aug. 9, 2019) (link to slip op.).