Worth knowing about – and possibly not so much on your radar – is a relatively recent amendment to the federal evidence rule governing the admissibility of prior consistent statements. I meant to post about this much closer to its effective date, which was December of last year, but I’m afraid I haven’t gotten around to it until now.
While not earth-shattering, the amendment is significant. Under the old version of the rule, prior consistent statements were admissible only if they were offered “to rebut an express or implied charge that the declarant recently fabricated [his testimony on the point in question] or acted from a recent improper influence or motive in so testifying.” This limitation was narrowed even further by the Supreme Court in Tome v. United States, 513 U.S. 150 (1995), in which the Court held that the statement had to have been made prior to the time at which the improper influence or motive to fabricate arose.
The rule has now been expanded to significantly broaden the grounds for admissibility of prior consistent statements. The 2014 amendment retains the original ground of rebutting a charge of recent fabrication based on improper influence or motive but adds a subparagraph which makes prior consistent statements admissible “to rehabilitate the declarant’s credibility as a witness when attacked on another ground.” Fed. R. Evid. 801(d)(2)(B)(ii).
What this expansion of the rule envisions is explained in the advisory committee note for the amendment. Initially, the note states that it retains the requirement established by Tome for prior consistent statements offered to rebut a charge of fabrication based on improper influence or motive; prior consistent statements offered for that purpose must still have been made before the improper influence or motive arose. The way in which the amendment expands the rule is to allow use of prior consistent statements to rehabilitate a witness who has been impeached in other ways. In posing the problem addressed, the advisory committee explained:
[T]he scope of [the original Rule 801(d)(2)(B)] 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)(2)(B) or not at all.
Fed. R. Evid. 801 advisory committee’s note (2014 Amendments) (hereinafter “advisory committee’s note”). The committee then stated that “[t]he 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.” Id.
After reading this, I found myself asking, “Exactly what do you mean by ‘explain what otherwise appears to be an inconsistency’ and ‘rebut a charge of faulty memory’? Give me some examples.” The note itself doesn’t give any, but they can be found in other places, including the McCormick evidence hornbook and Justice Breyer’s dissent in the Tome case. The way in which Justice Breyer suggested a prior consistent statement might be used to rebut a charge of faulty memory was an example drawn directly from the McCormick hornbook, which reasoned, “If the witness’s accuracy of memory is challenged, it seems clear common sense that a consistent statement made shortly after the event and before he had time to forget, should be received in support.” Tome, 513 U.S. at 170 (Breyer, J., dissenting) (quoting E. Cleary, McCormick on Evidence § 49, at 105 n.88 (2d ed. 1972) and adding emphasis). The ways in which Justice Breyer suggested a prior consistent statement might rebut a charge of inconsistency were by “placing a claimed inconsistent statement in context” and/or “showing that an inconsistent statement was not made.” Tome, 513 U.S. at 170 (Breyer, J., dissenting). An example found in the most recent edition of the McCormick hornbook is that “when the attacked witness denies making the inconsistent statement, evidence of consistent statements very near the time of the alleged inconsistent one is relevant to corroborate his denial.” 1 McCormick on Evidence § 47 (Kenneth S. Broun ed. 7th ed. 2013).
The amendment leaves other limitations on the admission of prior consistent statements, however. First, the prior consistent statements are admissible “only if they properly rehabilitate the witness whose credibility is attacked.” Advisory committee’s note. Second, the evidence, like any other, is subject to Rule 403, see advisory committee’s note, so it can be excluded if its probative value to rehabilitate is substantially outweighed by unfair prejudice, confusion of the issues, its misleading nature, waste of time, and/or other Rule 403 considerations. Third, “[a]s before, the trial court has ample discretion to exclude prior consistent statements that are cumulative accounts of an event,” advisory committee’s note, though this is already included in the considerations listed in Rule 403.
So step outside the rigid rule established in Tome and remember these alternative arguments for getting prior consistent statements in. If the government’s offering them, remember that the probative value in question is the value to rehabilitate and you can argue the Rule 403 considerations offset that probative value.
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Shortly before I moved on after 28 years of work as a Federal Public Defender, one of the younger attorneys I had the honor to mentor forwarded me an e-mail he’d received from an Assistant United States Attorney. The e-mail complained that my younger colleague was being extremely frustrating, that my colleague was making far too much of a “simple little case,” that the client in the case was going to be deported no matter what, and that my colleague was forcing the prosecutor to “expend a tremendous amount of effort” on what the prosecutor characterized as a “silly issue.” He ended his e-mail by asking, “Have you been hanging out with Carl Gunn?”
Some people would have been insulted by this, but I felt rather proud. Making as much as we can out of what the government sees as “simple little cases,” litigating issues despite the government’s view that they might be “silly,” and “expend[ing] a tremendous amount of effort” on behalf of clients who have the full weight of the government thrown up against them – often with the government’s view that the case is open and shut, or “simple” – is our calling as public defenders and defense attorneys. We all have our different reasons for doing it, but it’s a crucial task – for our clients, our system, and ourselves. As Sir Thomas More was said to say in “A Man for All Seasons” in response to his future son-in- law’s exclamation that he’d “cut down every law in England” to get at the devil: “Oh, and when the last law in England was down and the Devil turned round on you – where would you hide, Roper, all the laws being flat?”
I’m proud if “hanging out with Carl Gunn” means not just accepting the government’s view that cases are “simple” and “little,” that issues are “silly,” and that we shouldn’t expend resources on our clients. Hence the name of this blog: “Hanging out with Carl Gunn.” I hope to offer some thoughts and ideas that the government may think are “silly,” but I respectfully don’t; that you can use in cases that the government may think are “simple,” but aren’t so simple when looked at more critically; and that are an entirely appropriate way to expend our resources. And in the spirit of this being a “hanging out” together, there might be guest bloggers from time to time with their “silly” ideas to offer. I hope you find some of the ideas on this blog helpful and offer whatever comments you might have to add to them.
