Professor Laird C. Kirkpatrick and Professor Christopher B. Mueller · December 2016
84 Geo. Wash. L. Rev. Arguendo 193
A recent amendment to Federal Rule of Evidence 801(D)(1)(B) expands the
situations in which prior consistent statements by testifying witnesses can be
used as substantive evidence, and not merely as rehabilitating evidence. In this
piece, the Authors argue that the revised rule may mislead judges and lawyers
to conclude that prior consistent statements are always usable as
substantive evidence when offered to rehabilitate a witness. Nothing could be further from the truth. The intent,
although hard to discern on the face of the revised rule, is only to allow
substantive use of consistent statements that are otherwise admissible to
rehabilitate the testimony of a witness whose credibility has been attacked in a
way that can be properly answered by proving prior consistencies. Thus the
rule allows substantive use of consistent statements when they are relevant to
repair attacks charging the witness with having forgotten what actually
happened or charging the witness with making prior inconsistent statements in
those limited cases in which proving consistent statements could refute such an
attack. Perhaps most importantly, the revised rule does not do away with the
premotive requirement adopted by the Supreme Court in the Tome case more
than 20 years ago.
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