Supreme Court of Wyoming Applies the State’s Unique Version of the Prior Consistent Statement Rule

Federal Rule of Evidence 801(d)(1)(B) provides an exclusion to the rule against hearsay for a statement that

(B) 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

(ii) to rehabilitate the declarant’s credibility as a witness when attacked on another ground

The federal rule was recently amended, but Wyoming Rule of Evidence 801(d)(1)(B) looks like the pre-amendment version of the federal rule. It provides an exclusion to the rule against hearsay for a statement by a declarant that is “consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive.”

But, as the yesterday’s opinion of the Supreme Court of Wyoming in Hicks v. State, 2021 WL 48198 (Wyo. 2021), makes clear, Wyoming’s rule differs from the pre-amendment version of the federal rule.

In Hicks, Hunter Lee Hicks was convicted of third-degree sexual abuse of a minor. At trial, after the victim testified, the defense impeached her with evidence that her family “encouraged [her] to fabricate or exaggerate Mr. Hicks’ actions” as they transported her to the police station to be interviewed. Subsequently, the State introduced the victim’s statement during the police interview under Wyoming Rule of Evidence 801(d)(1)(B).

Under the old federal rule, the police interview would have been totally inadmissible because it was made after the improper influence: the victim’s family encouraging her to exaggerate. But the Supreme Court of Wyoming noted that, under Wyoming law,

[a] prior consistent statement may be used as substantive evidence if the alleged improper influence arose after the statement was made. However, if the prior consistent statement was made after the improper influence arose, then the statement may only be used for rehabilitative purposes. When a prior consistent statement is admissible only for rehabilitative purposes, a limiting instruction must be given, but only if requested.

Therefore, because the victim’s statement was properly admitted and the defense didn’t ask for a limiting instruction, there were not grounds for a new trial.

-CM