Evidence - Rule 801(d)(1)(B) – Prior Consistent Statements

Tome v. United States, 513 U.S. 150 (1995)

In order to introduce a prior consistent statement under Rule 801(d)(1)(B), the statement must have been made prior to the time that the alleged incentive to fabricate occurred. A consistent statement that predates the motive is a square rebuttal of the charge that the testimony was contrived as a consequence of that motive. Statements which were made after the motive to fabricate arose do not rebut the charge of recent fabrication. Thus, such statements are not admissible because they amount to hearsay. On remand, the Tenth Circuit concluded that the error in admitting the testimony was not harmless and required a new trial. 61 F.3d 1446 (10th Cir. 1995).

Jones v. Cain, 600 F.3d 527 (5th Cir. 2010)

A witness to a murder provided recorded statements to the police prior to his death from unrelated causes. He also testified at a suppression hearing prior to this death. His testimony at the suppression hearing was admissible, because it was prior sworn testimony. His statements to the police, however, were not admissible. The state argued that the statements to the police were not offered for the truth of the matter asserted, but this was clearly belied by the record. The statements were not merely used to “shore up the witness’s credibility” or to “explain the investigators’ conduct.” The state also argued that the statements qualified as prior consistent statements (i.e., consistent with the suppression hearing testimony) and thus were admissible under a firmly-rooted hearsay exception. However, these statements were not made prior to the time that the supposed motive to fabricate arose (i.e., a motive to shift responsibility for the murder from himself to the defendant).

United States v. Al-Moayad, 545 F.3d 139 (2d Cir. 2008)

The government improperly admitted an informant’s hand-written notes that he authored after meeting with a government agent. The notes were not written prior to the time the motive to fabricate arose and, consequently, did not meet the prerequisite for admissibility.

United States v. Gonzalez, 533 F.3d 1057 (9th Cir. 2008)

Certain hearsay was admitted under the theory that it represented a prior consistent statement. The proper predicate for such evidence was not offered. Harmless error.

United States v. Bercier, 506 F.3d 625 (8th Cir. 2007)

The sexual abuse victim’s prior statements implicating the defendant were not admissible as prior consistent statements, because the statements were not made prior to the alleged time of the fabrication. The statements were not admissible under the medical diagnosis exception, Rule 802(4), because statements that identify a perpetrator of a sexual assault are not made for purposes of medical diagnosis. See also United States v. Kenyon, 397 F.3d 1071 (8th Cir. 2005).

United States v. Kenyon, 397 F.3d 1071 (8th Cir. 2005)

Admitting prior consistent statements of the child abuse victim was reversible error, because the statements were not made prior to the time that the defendant claimed she fabricated the charges as required by Tome v. United States, 513 U.S. 150 (1995).

United States v. Awon, 135 F.3d 96 (1st Cir. 1998)

The witness's prior statement implicating the defendant was made after he had the motive to seek leniency for his participation in the crime. Therefore, the out-of-court statement was not admissible under Rule 801(d)(1)(B).

United States v. Forrester, 60 F.3d 52 (2d Cir. 1995)

A witness’s hand-written statement which was prepared after her arrest (and after her motive to lie arose) was not admissible under Rule 801(d)(1)(B).

United States v. Acker, 52 F.3d 509 (4th Cir. 1995)

The trial court clearly erred in allowing an FBI agent to recite what a key government witness had said to him previously under the prior consistent statement rule, Fed.R.Evid. 801(d)(1)(B). The prior statement was made by the witness five months after he had been arrested for participation in a bank robbery for which the defendant was now being tried. The trial court simply held that the prior statement was “corroborative” of the testimony and was therefore admissible. Not only is this not a valid basis for introducing the out-of-court declaration, in this case, the other requirement of 801(d)(1)(B) was not satisfied – that is, the prior statement did not rebut a charge of recent fabrication, because the statement was not made prior to the time that a motive to lie arose.

United States v. Bolick, 917 F.2d 135 (4th Cir. 1990)

The use of prior consistent statements to rehabilitate a witness is only permissible if the witness has been impeached. In this case the government introduced a prior consistent statement without the defendant’s having first impeached the witness. This was reversible error. The fact that the trial court gave a limiting instruction to the jury was not sufficient. The limiting instruction failed to advise the jury that they could consider the prior statements only if the declarant was subsequently impeached by the defense counsel.

United States v. Dotson, 821 F.2d 1034 (5th Cir. 1987)

The police report contained an officer’s statement relating what he was told by a government witness to the effect that the witness had carried marijuana for the defendant. This was inadmissible to strengthen the witness’ credibility even though the witness’ statement would have qualified as a prior consistent statement. The officer’s statement about what the witness stated was not admissible.

United States v. Collicott, 92 F.3d 973 (9th Cir. 1996)

The government’s introduction of a witness’s prior statements to a law enforcement officer was error. The government’s justification – that the statement to the officer was admissible because the defense asked the officer about other statements made by the witness to the officer – was unavailing, because the defendant was properly seeking to impeach the witness on an unrelated matter.

United States v. Moreno, 94 F.3d 1453 (10th Cir. 1996)

After a co-defendant pled guilty, he testified against the defendant. To rehabilitate the witness’s credibility, the government called that witness’s lawyer who was asked whether the witness (his client) had implicated the defendant prior to the witness’s decision to plead guilty. This was error. The witness’s statements to his lawyer did not pre-date his motive to fabricated evidence against the defendant, and thus was not admissible as a prior consistent statement. The witness’s motive to fabricate arose as soon as he was arrested. Harmless error.

United States v. Albers, 93 F.3d 1469 (10th Cir. 1996)

The trial court erred in permitting the introduction of out-of-court statements of witnesses on the theory that they were prior consistent statements. In both instances, the statements were made after the motivation to falsify testimony arose. Thus, the statements did not satisfy the “pre-motive” prong of Rule 801(d)(1)(B) and United States v. Tome, 115 S.Ct. 696 (1995).

United States v. Pendas-Martinez, 845 F.2d 938 (11th Cir. 1988)

The defendant’s conviction was reversed because the government introduced evidence of a Coast Guard officer’s report under the erroneous theory that it was admissible to rehabilitate a witness as a prior consistent statement. However, the Eleventh Circuit held that the officer’s credibility was not challenged and the report was not admissible under 801(d)(1)(B). The court holds that “It is an abuse of discretion to admit into evidence and send to the jury room government agent case summaries which constitute a written summary of the government’s theory of the case.”