Section 16.15 Generally

• Library: Evidence 2017

1. (§16.15) Generally

A prior consistent statement is admissible, and not hearsay, if the statement is offered to rebut an express or implied charge against the witness of “recent fabrication or improper influence or motive.” Richey v. State Farm Mut. Auto. Ins. Co., 486 S.W.3d 462, 467 (Mo. App. E.D. 2016) (quoting Trident Grp., LLC v. Miss. Valley Roofing, Inc., 279 S.W.3d 192, 199 (Mo. App. E.D. 2009)). The hearsay rule excluding the admission of prior consistent statements is to prevent “duplicitous or corroborative extrajudicial statement[s].” Richey, 486 S.W.3d at 467. This prevents an “unfair advantage” unless the witness is “impeached.” The court in Richey specifically affirmed that prior consistent statements may be used after the witness has been impeached with inconsistencies in the testimony or to address a “charge[ ] of recent fabrication or improper motive.” Id. at 468. The charge concerning motive may come from an opening statement. State v. Campbell, 254 S.W.3d 203 (Mo. App. S.D. 2008). Compare Federal Rule of Evidence 801(d)(1)(B)(ii), which makes a prior consistent statement admissible “to rehabilitate the declarant’s credibility as a witness when attacked on another ground.” The substantive use of the prior consistent statement does not violate the rule against “bolstering.”

In prosecution for sexual assault cases, the immediate or “fresh” complaint of conduct evidence of a prior consistent statement is admissible by the testimony of the victim or other witnesses. See State v. Smith, 540 S.W.2d 189 (Mo. App. E.D. 1976). The...