Section 7.59 Use of Prior Consistent Statements to Rehabilitate Witness

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5. (§7.59) Use of Prior Consistent Statements to Rehabilitate Witness

In Missouri, prior consistent statements may be used (1) to rehabilitate a witness who has been impeached with a prior inconsistent statement or (2) to rebut a charge of recent fabrication. See State v. Christeson, 50 S.W.3d 251, 267 (Mo. banc 2001); State v. Henderson, 666 S.W.2d 882, 890–91 (Mo. App. S.D. 1984).

These statements are not admissible as substantive evidence, but only for rehabilitative purposes. See generally State v. Cox, 542 S.W.2d 40, 49–50 (Mo. App. E.D. 1976). For these prior consistent statements to be admissible, there must be proof that the witness, in fact, made the prior inconsistent statements, either in the form of an admission by the witness that the witness made the statement or by extrinsic proof of the statement. See McElhattan v. St. Louis Pub. Serv. Co., 309 S.W.2d 591, 594–95 (Mo. 1958).

If a witness is impeached with a prior inconsistent statement, proof of a prior consistent statement made by the witness before the inconsistent statement is admissible for whatever rehabilitative value it has. See Nielsen v. Dierking, 418 S.W.2d 146, 149 (Mo. 1967); State v. Mueller, 872 S.W.2d 559 (Mo. App. E.D. 1994). Prior consistent statements made after the inconsistent statement are not admissible. See Neely v. State, 117 S.W.3d 731, 735 (Mo. App. S.D. 2003); State v. McClendon, 895 S.W.2d 249 (Mo. App. E.D. 1995).

In Broome v. Bi-State Development Agency, 795 S.W.2d 514 (Mo. App. E.D. 1990), the plaintiff was struck by the defendant’s bus. Witness Counsell testified that the bus entered the intersection under a yellow light that turned red before the bus hit the plaintiff in a crosswalk on the opposite side of the intersection. On cross-examination, Counsell denied telling the police that the bus had a green light. The plaintiff later called her son, who testified that Counsell told him that the bus started up when the light was yellow. On appeal, the trial court’s decision to grant the defendant a new trial was affirmed because admission of the son’s testimony was error. Before a witness’s prior consistent statement is admissible, the witness first must be impeached by proof that the witness made a prior inconsistent statement. When a witness denies making the prior inconsistent statement, it is premature for the party sponsoring that witness to offer evidence of a prior consistent statement because this evidence is improper and self-serving. The son’s...