§ 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 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 allegedly 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.¹⁷

[B] Rehabilitation

A related issue is whether prior consistent statements not admissible under this rule are nevertheless admissible for rehabilitation — i.e., to support credibility rather than as substantive evidence. Some federal courts have concluded that a prior consistent statement must satisfy the requirements of Rule 801(d)(1)(B) or it is inadmissible for any purpose,¹⁸ whereas others have held that a statement's inadmissibility under the rule precludes substantive but not rehabilitative use.¹⁹ Even if admission is permissible for rehabilitative purposes, the "[p]rior consistent statements still must meet at least the standard of having 'some rebutting force beyond the mere fact that the...