Prior Consistent Statement Witness Rehabilitation, Fed.R.Evid. 801(d)(1)(B), and Prior Identification Statements, Fed.R.Evid. 801(d)(1)(C)

Prior Consistent Statement: Fed.R.Evid. 801(d)(1)(B)(i) provides that a prior consistent statement of a declarant testifying at trial and subject to cross-examination concerning the statement is admissible when 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.” Thus, to rebut an express or implied charge that the witness is motivated or has been influenced to testify falsely or that his testimony is a recent fabrication, evidence is admissible that he told the same story before the motive or influence came into existence or before the time of the alleged recent fabrication. The prior consistent statement is exempt from the bar of the rule against hearsay, Fed.R.Evid. 802, through definition as not hearsay, Fed.R.Evid. 801(d)(1)(B)(i), and thus is admitted as substantive evidence. To illustrate, assume that John, while standing on the sidewalk, witnessed an automobile accident involving a car driven by Mary and a truck driven by Bill. The factual issue in dispute is the color of the traffic light at the intersection facing both parties. At trial, John testifies that the light facing Mary was green. On cross-examination, Bill’s attorney brings out that four weeks after the accident John met Mary for the first time at her lawyer’s office, that they dated thereafter, and that they are now engaged to be married. On redirect examination, John may testify that one day after the accident, and thus before the alleged improper influence or motive arose, he told his best friend Tim that the light facing the car driven by the woman was green. However, John may not testify that two weeks after John and Mary were engaged he told his mother that the light facing Mary was green. Where admissible, the prior consistent statement may be testified to by either the witness himself or any other person with personal knowledge of the statement. Fed.R.Evid. 801(d)(1)(B)(i) does require that the declarant testify at the trial and that he be subject to cross-examination concerning the prior statement, a requirement that is satisfied so long as the declarant is available to be recalled. To illustrate the distinction between an express and an implied charge of improper motive assume, for example, that on cross-examination of the witness counsel inquires, “You are the mother of the defendant, aren’t you?” Counsel has made an implied charge of improper motive. Although the question directly inquires about a fact, it does not inquire about the natural inference the cross-examiner hopes the trier of fact will draw. Now, assume that counsel continues on cross-examination, “You would do anything you could to help your son, wouldn’t you?” This is an express charge, because the inference previously left to be inferred is now asserted. The question, “You are lying to protect your son, aren’t you?” is objectionable as argumentative. The question, “Isn’t it true that although the murder occurred six months ago, the first time you ever told anyone what you just testified to was last week,” is a charge of recent fabrication. The risk of a mini-trial revolving around whether one or more of several alleged prior consistent statements was made supports the limited scope of Fed.R.Evid. 801(d)(1)(B)(i). So does the idea that a prospective witness could otherwise simply turn members of the public into witnesses by just telling them what the person will later testify to in court. The person spoken to could be a celebrity, politician, etc., who, if called, would add an improper artificial boost to the side who provided the jury an opportunity to meet such person. If I was a juror, the prospective witness should search out Michael Jordan. A prior consistent statement of the witness may be admitted without reference to Fed.R.Evid. 801(d)(1)(B)(i) when relevant to rehabilitation in a manner other than refutation encompassed in Fed.R.Evid. 801(d)(1)(B)(i) such as when the prior consistent statement serves to explain or modify a fragment thereof introduced by the opposite party for purposes of impeachment, or if it is otherwise related to or supportive of a denial or explanation offered in response to impeachment of a witness by an alleged self-contradiction, whether an inconsistent statement or a failure to speak when natural to do so, Fed.R.Evid. 613, or to rebut a charged faulty memory, Fed.R.Evid. 801(d)(1)(B)(ii). Prior Statement of Identification: When a witness testifies and is subject to cross-examination, his prior statement identifying a person made after perceiving the person again after an event, usually at a lineup, a one on one viewing often called a show-up, in a photograph or a sketch, or at a prior hearing, is exempt from the bar of the rule against hearsay, Fed.R.Evid. 802, through definition as not hearsay, Fed.R.Evid. 801(d)(1)(C). Prior to restyling in 2011, Fed.R.Evid. 801(d)(1)(C) spoke of an identification of a person made after perceiving the person. A question arose as to whether the perception of the person or representation of him had to be “once again” after the event in question. A “yes” answer was correct, United States v. Marchand, 564 F.2d 983 (2d Cir. 1977), but not always given. See United States v. Lopez, 271 F.3d 472 (3d Cir. 2001). While restyling was not intended to be substantive, the current wording of Fed.R.Evid. 801(d)(1)(C), i.e., “identifying a person as someone the declarant perceived earlier”, reinforces the correct view that an earlier perception is in fact a necessary condition for admissibility, i.e., “again” is an element. There is no requirement that the witness first be impeached. The theory is that courtroom identification is so unconvincing as practically to impeach itself thus justifying the corroboration. The purpose of the rule is to permit the introduction of more meaningful identifications made by a witness when memory was fresher and there had been less opportunity for influence to be exerted upon him. The circumstances of the prior identification may, of course, be considered by the trier of fact in determining the weight to be accorded. The statement of identification need not occur “soon” after the perception. The word “soon” appearing in early drafts of Fed.R.Evid. 801(d)(1)(C) was stricken on the basis of a comment of the Justice Department quoted in 4 Weinstein’s Evidence ¶ 801(d)(1)(C)[01] at 215-16 (1990). Fed.R.Evid. 801(d)(1)(C) requires by its terms only that the person who made the identification testify at the trial or hearing and be subject to cross-examination. It seems reasonable to assume that the rule also contemplates that the declarant will testify in court on the subject of identification and not simply be available to be recalled to the stand by the defendant for cross-examination. The rule does not limit testimony as to the statement of identification made after perception solely to that of the identifying witness; testimony of any person who was present, for example a police officer, is admissible. Of course, overproof may unduly emphasize the prior identification to the extent of misleading the jury and consequently is subject to the court’s discretionary control under Fed.R.Evid. 403. Fed.R.Evid. 801(d)(1)(C) does not require on its face, nor has a requirement been imposed, that the identifying witness make a positive in court identification or identify the defendant in court at all. Similarly, nothing in the text of the rule prohibits introduction of the out of court statement identifying the defendant made by a declarant who in court denies making or repudiates the identification and denies that the defendant is the person involved in the crime. In addition, while it can be argued that a witness who lacks recollection as to the identity of the individual, whether such lack of recollection is real or feigned, is not “subject to cross-examination about the statement” as provided in Fed.R.Evid. 801(d)(1), legislative history indicates substantial support for applicability of Fed.R.Evid. 801(d)(1)(C) in this context. Moreover, the mere fact of lack of recollection itself impeaches the probative force of the prior statement of identification thus producing a greater effect on credibility than usually attained through cross-examination. Judicial opinion is in accord. In short, the text, the legislative history, as well as judicial opinion interpreting Fed.R.Evid. 801(d)(1)(C) place no restrictions upon admissibility other than having the alleged out of court declarant in court on the witness stand subject to cross-examination concerning the statement.