Connecticut Law Review Volume 46 - Issue 3

Seeking Consistency for Prior Consistent Statements: Amending Federal Rule of Evidence 801(d)(1)(B)

The Advisory Committee for the Federal Rules of Evidence was hard at work in 2013 trying to bring resolution to a mystery that has plagued Rule 801(d)(1)(B) since its enactment thirty-eight years ago.  Scholars, judges, and litigants have long pondered why the drafters of Rule 801(d)(1)(B) carved out a hearsay exemption for prior consistent statements admitted to repair impeaching attacks on witness motivations, but failed to extend the same treatment to other similarly situated prior consistencies admitted to repair other types of impeaching attacks.  In May 2013, the Advisory Committee proposed an amendment to Rule 801(d)(1)(B) in an effort to end the mysterious disparate treatment of prior consistent witness statements by expanding the hearsay exemption to include prior consistent statements ignored by the original Rule.  Although the proposed amendment is on track to take effect December 1, 2014, it has encountered strong criticism regarding its potential to liberally admit witness hearsay.  This Article seeks to find a constructive path forward by highlighting the beneficial purposes of the proposed amendment and exploring criticisms levied against it.  The Article concludes that an amendment of Rule 801(d)(1)(B) is in keeping with the policies underlying the original Rule and with the broader operation of the Federal Rules of Evidence.  After examining several drafting alternatives for an amended Rule 801(d)(1)(B), however, the Article concludes that a simple and straightforward amendment that applies a single standard to substantive availability of all prior consistent statements would be superior to the proposed amendment because it would eliminate the confusion that has plagued the existing Rule and chart a clear course for prior consistent statements in the future.

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