Recent changes have been made to Federal Rules of Evidence 801, which focuses on exclusions from heresy. Statements defined as heresy are statements that a declarant did not make while testifying at the current trial or hearing and that a party offers in evidence to prove the truth of a matter asserted in the statement. Prior to the change, which became effective December 1, 2014, Federal Rule of Evidence 801(d)(1)(B) stated that a declarant-witness’s prior statement is not heresy if “the declarant testifies and is subject to cross-examination about a prior statement, and the statement . . . (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.” Fed. R. Evid. 801(d)(1)(B). Essentially, before the rule change took place, consistent statements could be only substantively used to rebut recent fabrication or improper motive charges. Therefore, many prior statements were potentially admissible only for rehabilitating a witness’s credibility. This left out using consistent statements to substantively rebut general charges against a witness’s credibility, such as charges of inconsistency or faulty memory.
The new rule reads “a statement that meets the following conditions is not hearsay: (1) the declarant testifies and is subject to cross-examination about a prior statement, and the statement . . . (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”. Fed. R. Evid. 801(d)(1)(B). The new change retains the original purpose and limitations of the rule in that it allows parties to bring prior consistent statements before the fact finder for credibility purposes. However, the change now extends the substantive effect to prior consistent statements of rebutting other attacks on a witness’s credibility besides just charges of recent fabrications or recent improper motives. The changes results in a broader application in use of consistent statements, but it does not make any consistent statement admissible that was not admissible before.
Effective December 1, 2014