Court of Appeals of Michigan Upholds Admission of Prior Consistent Statements After Defense Counsel Likens Prosecution’s Case to “Let’s Make a Deal”

Michigan Rule of Evidence 801(d)(1)(B) provides the an exclusion to the rule against hearsay when

The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is…

(B) consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.

So, is this “prior consistent statement” exclusion triggered for a cooperating witness for the prosecution when defense counsel “liken[s] the prosecution’s case to “Let’s Make a Deal”? That was the question addressed by the Court of Appeals of Michigan in its recent opinion in People v. Lewis, 2021 WL 220763 (Mich. App. 2021).

In Lewis, Marcus Lewis was convicted of delivery of a controlled substance less than 50 grams and two counts of possession with intent to deliver a controlled substance less than 50 grams. Shawn Osborn, the alleged recipient of this controlled substance, was a cooperating witness for the prosecution at trial. After Osborn testified, the prosecution introduced prior consistent statements Osborn made to Detective Steven Stoddard upon being pulled over. In upholding the admission of these statements, the Court of Appeals of Michigan held that

Osborn’s statements to Detective Stoddard were admissible under MRE 801(d)(1)(B). Osborn testified at trial and was subject to cross-examination, and there were express and implicit charges of recent fabrication, i.e., that Osborn was lying in order to receive the benefit of a plea deal. In his opening statement, defendant’s attorney likened the prosecution’s case to “Let’s Make a Deal.” And during cross-examination of Osborn, who testified before Detective Stoddard, defense counsel plainly implied by his questioning that Osborn was lying in light of his plea deal. Further, the statements Osborn made to the detective were consistent with Osborn’s trial testimony. Finally, Osborn’s prior consistent statements were made before the time that the supposed motive to fabricate arose, where Osborn’s statements to Detective Stoddard were made shortly after the drug transaction took place, which was long before Osborn was offered the plea deal that purportedly motivated him to fabricate. Accordingly, the trial court did not err in allowing the admission of Osborn’s statements.

-CM