Prior Consistent Statements: The Dangers of Misinterpreting Recently Amended Federal Rule of Evidence 801(d)(1)(B)

Authors

Laird C. Kirkpatrick, The George Washington University Law SchoolFollow
Christopher B. Mueller, University of Colorado Law SchoolFollow

Document Type

Article

Publication

The George Washington Law Review Arguendo

Year

2016

Citation Information

Laird C. Kirkpatrick & Christopher B. Mueller, Prior Consistent Statements: The Dangers of Misinterpreting Recently Amended Federal Rule of Evidence 801(d)(1)(B), 84 Geo. Wash. L. Rev. Arguendo 193 (2016), http://www.gwlr.org/wp-content/uploads/2017/03/84-Geo.-Wash.-L.-Rev.-Arguendo-193.pdf, reprinted in Trial Evidence, spring 2016, at 12, available at http://scholar.law.colorado.edu/articles/514/.

Abstract

A recent amendment to Federal Rule of Evidence 801(d)(1)(B) expands the situations in which prior consistent statements by testifying witnesses can be used as substantive evidence, and not merely as rehabilitating evidence. In this piece, the Authors argue that the revised rule may mislead judges and lawyers to conclude that prior consistent statements are always usable as substantive evidence when offered to rehabilitate a witness. Nothing could be further from the truth. The intent, although hard to discern on the face of the revised rule, is only to allow substantive use of consistent statements that are otherwise admissible to rehabilitate the testimony of a witness whose credibility has been attacked in a way that can be properly answered by proving prior consistencies. Thus the rule allows substantive use of consistent statements when they are relevant to repair attacks charging the witness with having forgotten what actually happened or charging the witness with making prior inconsistent statements in those limited cases in which proving consistent statements could refute such an attack. Perhaps most importantly, the revised rule does not do away with the premotive requirement adopted by the Supreme Court in the Tome case more than twenty years ago.

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