Prior Consistent Statements: Rule 801(d)(1)(b) and Beyond
| Publication year | 1999 |
| Pages | 83 |
| Citation | Vol. 28 No. 9 Pg. 83 |
1999, September, Pg. 83. Prior Consistent Statements: Rule 801(d)(1)(B) and Beyond
Vol. 28, No. 9, Pg. 83
The Colorado Lawyer
September 1999
Vol. 28, No. 9 [Page 83]
September 1999
Vol. 28, No. 9 [Page 83]
Specialty Law Columns
Civil Evidence
Prior Consistent Statements: Rule 801(d)(1)(B) and Beyond
by Lawrence M. Zavadil
Civil Evidence
Prior Consistent Statements: Rule 801(d)(1)(B) and Beyond
by Lawrence M. Zavadil
Q: Is C.R.E. 801(d)(1)(B) the exclusive means of admitting a
prior consistent statement
A: No. While C.R.E. 801(d) (1)(B) governs the substantive use
of prior consistent statements, it does not apply where the
prior consistent statement is offered only to rehabilitate a
witness' credibility
Assumed Facts
Randy Reckless makes a left turn at a busy intersection
Bruce Biker, traveling in the opposite direction, collides
with Reckless. Reckless tells a police officer at the scene
that he had a green turn arrow at the time of his turn. A
week later, Reckless tells Charlie Cousin that he noticed the
turn arrow was green when he was nearing the intersection and
assumed it was still green when he made the turn because
oncoming traffic was not yet moving.
Biker sues Reckless for personal injury. Reckless testifies
at trial that the left turn arrow was green at the time of
his turn. On cross-examination, Biker attacks Reckless'
credibility by using Reckless' seemingly inconsistent
statement to Cousin, and thereby suggesting that
Reckless' memory has been affected by the passage of
time. Reckless calls the police officer to testify about the
prior consistent statement that Reckless made to the officer
at the scene. Is Reckless' prior consistent statement to
the police officer admissible?
Discussion
At common law, prior consistent statements were generally
admissible to rehabilitate an impeached witness on several
theories, including: (1) to place a supposed inconsistent
statement in context to refute the alleged inconsistency; (2)
to support the denial of making an inconsistent statement;
(3) to refute the suggestion that the witness' memory is
flawed due to the passage of time; and (4) to refute an
allegation of improper influence or motive.1 Such statements,
however, could not be used to prove the truth of the matter
asserted.2 Rather, they were only admissible for the
non-hearsay purpose of repairing a witness' credibility.3
C.R.E. 801(d)(1)(B), which is identical to Federal Rule of
Evidence 801(d)(1)(B), provides...
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