A Foolish Consistency, Take 2: Is the Amendment to Rule 801(d)(1)(B) Less Impactful Than Previously Thought?

Earlier this week, I posted an entry about the amendment to Federal Rule of Evidence 801(d)(1)(B). Currently, that Rule provides that a statement is not hearsay if it

(B) is consistent with the declarant’s testimony and is offered 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….

Under the amendment, Federal Rule of Evidence 801(d)(1)(B) will now provide that a statement is not hearsay if it

(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; or  

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

In my previous post, I lamented the fact that a new species of prior consistent statement will be admissible under the Rule. Now, however, after reading the Committee Note attached to the amendment, I’m not so sure that this new species will (or at least should) be admissible.

The example I gave was as follows:

Ed is an eyewitness to a fatal fight in which Dan kills Vince. The day of the encounter, Ed gives a statement to Police Officer Peters, in which he says that Dan was the initial aggressor. At Dan’s murder trial, Ed testifies that Dan was the initial aggressor. The defense then impeaches Ed with evidence of his five year old conviction for perjury. Under Rule 801(d)(1)(B)(ii), the prosecution could now introduce Ed’s prior statement to Police Officer Peters.

But could it? The Committee Note indicates that

The intent of the amendment is to extend substantive effect to consistent statements that rebut other attacks on a witness — such as the charges of inconsistency or faulty memory.  

The amendment does not change the traditional and well-accepted limits on bringing prior consistent statements before the factfinder for credibility purposes. It does not allow impermissible bolstering of a witness. As before, prior consistent statements under the amendment may be brought before the factfinder only if they properly rehabilitate a witness whose credibility has been attacked. As before, to be admissible for rehabilitation, a prior consistent statement must satisfy the strictures of Rule 403. As before, the trial court has ample discretion to exclude prior consistent statements that are cumulative accounts of an event. The amendment does not make any consistent statement admissible that was not admissible previously — the only difference is that prior consistent statements otherwise admissible for rehabilitation are now admissible substantively as well. (emphasis added).

Here’s my thinking. If the defense impeached Ed through a prior inconsistent statement or memory loss, his prior consistent statement would be admissible under Rule 801(d)(1)(B)(ii), and I think this makes sense. With memory loss, the defense would be claiming that Ed doesn’t remember things will, making his prior consistent statement have high probative value because it was ostensibly made when he remembered the event more clearly. And it seems obvious that a prior consistent statement is something that would directly controvert a prior inconsistent statement. It is thus unsurprising that these were the two examples of impeachment referenced in Rule 801(d)(1)(B)(ii).

Conversely, my example of conviction impeachment seems different. In that case, the prior consistent statement does not directly respond to the method of impeachment. Instead, it is, in the words of the Committee Note, merely a “prior consistent statement[] that [is] [a] cumulative account[] of an event.” Therefore, the court would have discretion to exclude it, and, the way that I see it, the court should exclude it.

-CM