§ 22.02 Prohibition on Bolstering

• Jurisdiction: United States

§ 22.02 Prohibition on Bolstering

[A] General Rule

Generally, a witness's credibility may not be bolstered or supported with evidence relevant only for that purpose, until after impeachment.¹¹ Consumption of time and confusion of issues are the principal reasons for this rule.¹² There are two prominent examples: (1) A witness's good character for truthfulness is not admissible in the absence of an attack on that character.¹³ (2) Prior consistent statements are inadmissible before a witness's credibility has been impeached.¹⁴

Certain types of bolstering are permissible, and attorneys spend a good deal of time trying to bolster the credibility of their witnesses: calling a witness "Doctor" rather than "Mister" (including a Ph.D); referring to FBI agents as "Special Agent" rather than "Mister." Offering several witnesses, each saying the same thing, bolsters each other. Qualifying an expert is another type of permissible bolstering; the more impressive the qualifications, the more persuasive the witness.

[B] Exceptions

At least two exceptions to the general prohibition against bolstering were recognized at common law: (1) pretrial identifications, and (2) fresh complaints.¹⁵ A major issue under the Federal Rules concerns a third exception—plea bargaining agreements.

[1] Pretrial Identifications

First, a witness's in-court identification of an accused as the person who committed the crime may be bolstered or corroborated by evidence of a prior out-of-court identification (e.g., lineup, showup, or photo display)—a type of prior consistent statement. This rule is no longer as important as it once was because Rule 801(d)(1)(C) exempts prior identifications from the hearsay rule, making the identification admissible as substantive, rather than merely corroborative, evidence.¹⁶

[2] Fresh Complaints

The second exception was evidence of fresh complaints in rape trials.¹⁷ The alleged rape victim's in-court testimony may be bolstered by the fact that she made a complaint soon after the incident.¹⁸ In short, a fresh complaint is a type of prior consistent statement. Frequently, resort to this theory of admissibility is unnecessary because the "fresh complaint" often qualifies as an excited utterance (hearsay exception) and therefore is admissible as substantive evidence.¹⁹ Nevertheless, there are situations in which the complaint is delayed and thus not admissible as an excited utterance, but is still admissible under the bolstering theory, provided a sufficient explanation for the delay is offered.²⁰

[3] Cooperation (Plea) Agreements

The admissibility of plea bargain agreements to bolster the testimony of a prosecution witness who testifies pursuant to such an agreement has divided the federal courts. The agreements are written and fairly elaborate, including provisions for perjury prosecutions if the witness testifies falsely. Such "deals" will...