A Foolish Consistency: Does the Amendment to Rule 801(d)(1)(B) Make Sense?

As I noted in my post on Friday, the Supreme Court approved an amendment to Federal Rule of Evidence 801(d)(1)(B), which currently 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….

So, does the amendment make sense? Respectfully, my answer is “no.”

Let’s look at the classic case of admissibility under the current version of Federal Rule of Evidence 801(d)(1)(B). Carl and Dan allegedly rob a bank. During the robbery, Dan allegedly shoots a bank teller. A few days after the robbery, Carl tells his friend Fred that Dan shot the seller. A few weeks later, Carl and Dan are arrested. Carl enters into a plea bargain with the prosecution, pursuant to which he will plead guilty to bank robbery and testify against Dan in exchange for the prosecution not charging him with felony murder.

At trial, Carl testifies that Dan shot the bank teller. On cross-examination, the defense asks Carl whether he is testifying pursuant to a plea bargain, implying that Carl’s testimony is a recent fabrication based upon the plea bargain. At this point, the prosecution can introduce Carl’s prior consistent statement to Fred, which preceded the plea bargain. Makes sense, right? Because the prior consistent statement preceded the plea bargain, it couldn’t be the fruit of the poisonous tree.

Now, let’s look at a case under new Federal Rule of Evidence 801(d)(1)(B)(ii). In this case, 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 why? That prior statement does not precede the perjury conviction. And the point of the defense introducing the perjury conviction is to prove that Ed is generally a liar. Thus, I don’t see why the prior consistent statement should be admissible. The prosecution’s point in admitting it would be to prove that Ed has been consistent. But the defense’s point in impeaching Ed is that he is consistently a liar. 

-CM