§ 32.03 Prior Consistent Statements: FRE 801(d)(1)(B)

• Jurisdiction: United States

§ 32.03 Prior Consistent Statements: FRE 801(d)(1)(B)

The common law generally viewed prior consistent statements with suspicion because they are easily manufactured before trial and typically have little rehabilitative power after impeachment. Nevertheless, such statements were admissible if offered to rebut a charge of recent fabrication, a type of impeachment. The statement, however, could be considered for rehabilitative purposes but not as substantive evidence.¹⁰ Under Rule 801(d)(1)(B), such statements are substantively admissible.¹¹ As noted below, a 2014 amendment added a provision on other types of impeachment.

The witness must be subject to cross-examination at trial.¹² Thus, the statement of a witness who asserts the privilege against self-incrimination is not admissible.¹³

[A] "Premotive" Requirement

In Tome v. United States,¹⁴ the Supreme Court held that Rule 801(d)(1)(B) applies only when the statements "were made before the charged recent fabrication or improper influence or motive."¹⁵ The Court found that the rule implied a temporal requirement that "the consistent statements must have been made before the alleged influence, or motive to fabricate arose."¹⁶ In the Court's view, a consistent statement that predates the improper influence or motive to fabricate forcefully refutes a charge of improper influence or motive, whereas a consistent statement made after the alleged improper influence or motive to fabricate had arisen has far less probative force in refuting the charge.

Example. Suppose a witness is cross-examined about receiving money to influence the witness's testimony, a type of bias impeachment. The cash was provided on June 1. If the witness made a statement consistent with her trial testimony on May 1, the consistent statement rehabilitates credibility. It was made before the alleged motive arose.

Determining when a motive to fabricate arises has divided the courts. Does the motive occur as soon as the witness is arrested? Yes, according to some courts.¹⁷ Once arrested, a person has an incentive to cooperate with the police. Other courts disagree, rejecting a rule that the motive to fabricate always arises at the time of arrest. According to the Eleventh Circuit, "statements made after arrest are not automatically and necessarily contaminated by a motive to fabricate in order to curry favor with the government."¹⁸ Moreover, the court declined to adopt a bright line regarding arrest.¹⁹Instead, a case-specific factual inquiry is...