CORE CRIMINAL LAW SUBJECTS: Evidence: Prior Consistent Statements

2020 (October Term)

United States v. Ayala, 81 M.J. 25 (MRE 801(d)(1)(B) provides an exception to hearsay for prior consistent statements made by a testifying witness if the statement is consistent with the witness’s testimony and is offered (i) to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying, or (ii) to rehabilitate the declarant’s credibility as a witness when attacked on another ground). 

(Subsection (B)(ii) of the rule MRE 801(d)(1) is new as of 2016 and makes MRE 801(d)(1)(B) consistent with the federal rule; the addition of (B)(ii) to the rule did not impact statements that are admissible under (B)(i) nor did it in any way disturb CAAF’s existing case law relevant to (B)(i) the amendment creates no new law with respect to the admissibility of prior consistent statements to rebut a charge of recent fabrication or improper influence or motive; as such, CAAF’s precedent interpreting (B)(i) continues to apply with full force). 

(because prior consistent statements had already commonly been admitted for the limited purpose of rehabilitating witness credibility—the real change ushered in by the amended subsection (B)(ii) of MRE 801(d)(1) rule was that such prior consistent statements can now be admitted not just for the limited purpose of rehabilitation but as substantive evidence). 

(a prior consistent statement need not be identical in every detail to the declarant’s testimony at trial; rather, the prior statement need only be for the most part consistent with respect to facts of central importance at the trial). 

(prior consistent statements may be eligible for admission under either MRE 801(d)(1)(B)(i) or MRE 801(d)(1)(B)(ii) but not both). 

(statements admitted under MRE 801(d)(1)(B)(ii) must be relevant to the grounds of attack). 

(for a prior consistent statement to be admissible under MRE 801(d)(1)(B)(ii), it must satisfy the following:  (1) the declarant of the out-of-court statement must testify, (2) the declarant must be subject to cross-examination about the prior statement, (3) the statement must be consistent with the declarant’s testimony, (4) the declarant’s credibility as a witness must have been attacked on another ground other than the ones listed in MRE 801(d)(1)(B)(i), and (5) the prior consistent statement must actually be relevant to rehabilitate the witness’s credibility on the basis on which he or she was attacked; the proponent of the evidence bears the burden of articulating the relevancy link between the prior consistent statement and how it will rehabilitate the witness with respect to the particular type of impeachment that has occurred).

(a key question in considering admission under MRE 801(d)(1)(B)(i) is whether the prior statements came before or after the alleged motive to fabricate; CAAF has identified two additional guiding principles that govern admission under (B)(i):  (1) the prior statement, admitted as substantive evidence, must precede any motive to fabricate or improper influence that it is offered to rebut, and (2) where multiple motives to fabricate or multiple improper influences are asserted, the statement need not precede all such motives or influences, but only the one it is offered to rebut; if the statement occurred after the motive arose, then the declarant’s consistency signifies nothing). 

(statements made after an improper influence arose do not rehabilitate a witness’s credibility). 

United States v. Norwood, 81 M.J. 12 (a prior consistent statement made out of court may not constitute hearsay, and thus can be admitted as substantive evidence, if certain threshold requirements are first met:  (1) the declarant of the statement testifies at the court‑martial, (2) the declarant is subject to cross-examination, and (3) the statement is consistent with the declarant’s testimony; furthermore, the prior consistent statement to be offered must either (1) rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying, or (2) rehabilitate the declarant’s credibility as a witness when attacked on another ground; finally, the party that attempts to admit the prior consistent statement into evidence bears the burden of proving that it is admissible).

(in this case, the military judge did not err by admitting the substantive portions of the victim’s videotaped forensic interview as a prior consistent statement where the interview served to rehabilitate the victim’s credibility after the defense attacked it on cross-examination on the ground that her testimony was coached by the government and the interview was consistent with the victim’s trial testimony). 

(even if the military judge erred in concluding that a prior consistent statement was admissible under one prong of the rule, there could not be prejudice when the statement was still admissible under the other prong of the rule). 
 
(the prior statement admitted as a prior consistent statement need not be identical in every detail to the declarant’s testimony at trial for it to be a prior consistent statement; the statement should be for the most part consistent, and in particular, consistent with respect to the facts of central importance to the trial). 

2019 (October Term)

United States v. Finch, 79 M.J. 389 (pursuant to the provisions of MRE 801(d)(1)(B), only those portions of a witness’s prior statement that are consistent with the witness’s courtroom testimony may be deemed admissible at trial).

(a prior consistent statements must serve one of the express purposes cited by MRE 801(d)(1)(B): it must either rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or it must rehabilitate the declarant’s credibility when attacked on another ground). 

(MRE 801(d) provides that a statement is not hearsay if the declarant of the out-of-court statement testifies and is subject to cross-examination about the prior statement, and the statement is consistent with the declarant’s testimony and is offered (i) to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or (ii) to rehabilitate the declarant’s credibility as a witness when attacked on another ground). 

(the plain text of MRE 801(d)(1)(B)(ii) indicates that a prior consistent statement is admissible when it serves to rehabilitate the declarant’s credibility as a witness when attacked on another ground; the rule’s mention of another ground refers to one other than the grounds listed in MRE 801(d)(1)(B)(i): recent fabrication or an improper influence or motive in testifying; the rule itself does not specify what types of attacks a prior consistent statement under MRE 801(d)(1)(B)(ii) is admissible to rebut, but the Drafters’ Analysis to the MREs lists charges of inconsistency or faulty memory as two examples). 

(prior consistent statements may be admitted for their value in rehabilitating a witness’s credibility that has been attacked and as substantive evidence for the truth of the matter asserted; the prior consistent statement rule does not allow impermissible bolstering of a witness; to be admissible for rehabilitation, a prior consistent statement must satisfy the strictures of MRE 403, and the trial court has ample discretion to exclude prior consistent statements that are cumulative accounts of an event). 

(it is not the case that under MRE 801(d)(1)(B)(ii), all prior consistent statements that serve to rehabilitate a declarant’s credibility as a witness are automatically admissible following impeachment on any ground; rather, the military judge must make a determination that each prior consistent statement is relevant to rehabilitate the witness on one of the grounds cited in MRE 801(d)(1)).

(in sum, for a prior consistent statement to be admissible under MRE 801(d)(1)(B)(ii), it must satisfy the following: (1) the declarant of the out-of-court statement must testify, (2) the declarant must be subject to cross-examination about the prior statement, (3) the statement must be consistent with the declarant’s testimony, (4) the declarant’s credibility as a witness must have been attacked on another ground other than the ones listed in MRE 801(d)(1)(B)(i), and (5) the prior consistent statement must actually be relevant to rehabilitate the witness’s credibility on the basis on which he or she was attacked).

(the proponent of prior consistent statement evidence under MRE 801(d)(1)(B)(ii) bears the burden of articulating the relevancy link between the prior consistent statement and how it will rehabilitate the witness with respect to the particular type of impeachment that has occurred).

(in this case, the military judge abused his discretion in admitting an entire videotaped interview of a child witness as a prior consistent statement under MRE 801(d)(1)(B) where (1) he failed to put any findings of fact or conclusions of law on the record, thereby forfeiting the deference his ruling typically would have been given, (2) he failed to review the video before admitting it, and (3) he admitted the entire video interview rather than limiting the evidence to those portions of the interview that actually contained prior consistent statements).

(when a party moves to introduce a prior consistent statement under MRE 801(d)(1)(B), the statement must be generally consistent with the declarant’s testimony at trial to be admissible). 
 
(to the extent a prior statement contains substantive information inconsistent with the declarant’s in-court testimony, those material inconsistent aspects of the statement are hearsay and are not admissible under MRE 801(d)(1)(B)). 

(the party moving to introduce a prior statement has a duty to identify those portions of the statement that are consistent with the witness’s testimony, and then to demonstrate the relevancy link between the prior consistent statement and how it will rehabilitate the witness’s credibility). 

(in this court-martial of an accused for the alleged sexual abuse and rape of his 11-year-old stepdaughter, a videotaped interview of the alleged victim was not admissible in its entirety as a prior consistent statement to rebut a claim of recent fabrication or to rehabilitate the alleged victim’s testimony; many portions of the videotaped interview were generally consistent with the alleged victim’s in-court testimony and admissible; in addition, many of the discrepancies between the alleged victim’s in-court testimony and her videotaped interview were relatively inconsequential and admissible; however, one statement by the alleged victim on the videotape was not consistent with anything she testified to at the court-martial – specifically where she explained that after she told her mother that the accused had sexually assaulted her, her mother began to require the accused to stay away from their home when the alleged victim invited her female friends to spend the night for a sleepover; because this statement tended to bolster the alleged victim’s credibility, and it pertained to an issue of central importance to the trial, i.e. whether the alleged victim’s account of the sexual assaults was truthful, this prior statement was flatly inadmissible under MRE 801(d)(1)(B)).

2012 (September Term)

United States v. Coleman, 72 M.J. 184 (a prior consistent statement is not hearsay if it is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive; the rule requires that a prior statement, admitted as substantive evidence, precede any motive to fabricate or improper influence that it is offered to rebut; where multiple motives to fabricate or multiple improper influences are asserted, the statement need not precede all such motives or inferences, but only the one it is offered to rebut).

1999

United States v. Anderson, 51 MJ 145 (MRE 801(d)(1)(B) applies to statements made prior to trial which are consistent with the witnessís testimony and which are offered to rebut an express or implied allegation against the witness of recent fabrication or improper influence or motive, typically introduced to rehabilitate a witnessís credibility).

(where defense cross-examination solicited from witnesses prior statements which affirmed the witnessís trial testimony, the prior statements were substantive evidence which the members could consider for the truth of the matter therein is they chose to believe them; they were not, therefore, classic prior consistent statements as envisioned in MRE 801(d)(1)(B)).


Home Page |  Opinions & Digest  |  Daily Journal  |  Scheduled Hearings  |  Search Site