More on Prior Consistent Statements
A few weeks ago I wrote an article about prior consistent statements in employment cases. I received a note regarding the article from my colleague, Professor Stephen R. Lazarus of Cleveland-Marshall College of Law. He raised some good points which I addressed in a private response (set forth below). His comments are as follows:
Thank you for the article. It’s a good one. I still have problems with the new subpart:
HR Director Sue: “I fired Stella because she violated the same company policy three times.”
Cross examiner: “Last August you said you thought she violated policy just once, didn’t you?”
HR Director Sue: “Yes, but in October I said it was three times.”
A strict reading of the rule seems to say the prior consistent statement is admissible, both to support credibility and for its truth. I had always thought that it was inadmissible for either one. Allowing it in encourages lawyers to tell their potential witnesses to make out of court statements, preferably in writing, that will be consistent with their testimony, so as to use them at trial once there has been inconsistency impeachment.
Would it be any better if Sue’s prior consistent statement at trial was “Yes, but in February I said it was three times”? I don’t think so, but at least there an argument could be made that a consistent statement made closer to the litigated event tends to rebut an inference of poor memory (you second example).
Is it possible that the new subpart was not actually aimed at generally allowing in prior consistent statement to buttress the witness but rather to just say that if the statement came in to buttress the witness it should also be admitted substantively? The Advisory Committee Notes seem ambiguous on this.
Here’s my response:
Hi Steve. Thanks for your thoughtful comments. The Finch case, which is cited in the article, seems to provide some guidance on the issue you’ve pinpointed. The Army Court of Criminal Appeals in Finch decided that “[a] prior statement admitted under Mil R. Evid. 801(d)(1)(B)(ii) must rehabilitate the credibility of the witness in order to be admissible under the rule. The fact that a statement was repeated in the past, without more, is not very probative in rehabilitating the credibility of the witness’ in-court testimony.” 2019 WL 1211845, *5. Evid. R. 801(d)(1)(B)(ii) does say that a prior consistent statement is admissible when “offered *** to rehabilitate the declarant’s credibility ***.” So, first and foremost, the prior consistent statement must have probative rehabilitative value. If it does not, or if it’s probative value for rehabilitation is substantially outweighed by the dangers set forth in Evid. R. 403, then it does not come in. As the Finch court said, “Fed. R. Evid. 403, not Fed. R. Evid. 801, remains the primary means of excluding prior consistent statements that have little probative value.” Id. at *5.
Turning to your example, the question is how much rehabilitative value does a prior consistent statement made in October or the following February have, when the witness said something different in August. If it has some probative value on the issue of rehabilitation and the danger of unfair prejudice, etc., does not outweigh it, then it comes in. I think a judge would not abuse his/her discretion by admitting the October/February statement and, in my estimation, if erroneous it would most likely be harmless. Of course, context at trial matters.
The Finch court also cited the Advisory Comm. on Evid. R., Agenda for Comm. Meeting, at 56-67 (3 May 2013) (www.uscourts.gov/sites/default/files/fr_import/EV2013-05.pdf), and the Advisory Comm. on Evid. R., Minutes of the Meeting of May 3, 2013 (www.uscourts.gov/sites/default/files/fr_import/2013-05-Evidence-Minutes.pdf), which provide more insight.