The Limitations on Admissibility of Prior Consistent Statements

June 7, 2011

There are few pieces of evidence that attorneys love to lay their hands on more than an opponent’s prior inconsistent statement. Admissibility of these statements is rarely in doubt, and they provide attorneys with a golden opportunity to ask the ever-popular cross-examination question: Were you lying then, or are you lying now?

More troublesome, however, are those pesky prior consistent statements. What should be done when a witness keeps telling the same story, the same way, over and over again?

Offered for the truth of the matter asserted, a prior consistent statement is blatantly inadmissible hearsay. It’s an out-of-court statement offered for the truth of the matter asserted, and no matter how many times a witness has said it before, frequency will not change that basic analysis.

Setting aside the hearsay problem for a moment, most prior consistent statements won’t even meet a threshold test of relevancy, because most prior consistent statements do not tend to prove or disprove a material fact in issue. This is because at best, the probative value of a prior consistent statement requires a leap of faith. In order for a prior consistent statement to be relevant, one must believe that if a person has said something enough times, it’s probably true. Common sense and experience tells us that just because grandpa’s been spinning that same yarn for the last fifty years, doesn’t make the tale any less dubious. Luckily, the Texas Rules of Evidence reflect that basic reality. Otherwise, that’s-my-story-and-I’m-sticking-to-it would become the test for admissibility under the rules.

So, for reasons of relevancy and hearsay, the general rule is that a prior consistent statement is inadmissible:

TRE 613 (c): A prior statement of a witness which is consistent with the testimony of the witness is inadmissible except as provided in Rule 801(e)(1)(B).

However, there may be circumstances when a prior consistent statement may become admissible, providing an exception to the general rule:

TRE 801(e)(1)(B): A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.

Some may argue that Rule 801(e)(1)(B) opens the barn door to admission of virtually all prior consistent statements. It does no such thing. Rule 801(e)(1)(B) narrowly tailors an exception unique to particular factual circumstances. In order to be admissible, there must be: (1) an express or implied charge, (2) against the declarant, (3) of recent fabrication or improper influence or motive. If the other side doesn’t open the door to this testimony by making such a charge, then Rule 801(e)(1)(B) never comes into play, and the statement remains inadmissible.

The language of the rule is highly restrictive. For example, merely impeaching a witness or calling into question a witness’s veracity will not in and of itself invoke the Rule 801(e)(1)(B) exception. Furthermore, a prior consistent statement will remain inadmissible, even under a charge of recent fabrication, if the statement was made shortly before trial, in anticipation of trial, or after a motive to fabricate existed. Beaver v. State, 736 S.W.2d 212 (Tex. App. – Corpus Christi 1987).

Even when there has been an express or implied charge against the declarant of improper influence or motive, a predicate must be laid for the admission of the prior consistent statement. As a general rule, appellate courts will not require a trial judge to be a mind-reader. Unless it is painfully obvious from the context, rules of procedure and evidence require that an attorney, when faced with an objection, articulate to the judge the purpose of any offer of evidence. Under Rule 801(e)(1)(B), an attorney seeking the admission of a prior consistent statement over objection should be prepared to educate the judge as to the reason why the exceptions embraced in Rule 801(e)(1)(B) apply. It is not the judge’s burden to read between the lines and figure out that the statement would rebut the opponent’s charge. The statement must be “offered” into evidence for that purpose. If the attorney fails to lay the proper predicate for the prior consistent statement’s admissibility, then the judge may rightfully reject it.

Likewise, when challenging an opponent’s attempt to offer a prior consistent statement into evidence, an attorney needs to clearly articulate the basis for the objection. Simply saying, “Rule 801, hearsay” in opposition to a prior consistent statement has been held insufficient to put the trial court on notice as to the particular objection being lodged. Meyers v. State, 865 S.W.2d 523 (Tex. App. – Houston [14th] 1993). A concise statement that (1) the statement offered is a prior consistent statement, (2) which does not fall within the exceptions of Rule 801(e)(1)(B), should be adequate both to make clear your objection and to preserve error on the point, if necessary.

I’ve said all of this before, and now I’m saying it again. It’s just got to be true. And admissible. Well, maybe not.

-Judge Bonnie Sudderth, 352nd District Court of Tarrant County, Texas


About Judge Bonnie Sudderth

June 7, 2011

Judge Bonnie Sudderth, at age 30, was the youngest judge ever appointed as Chief Judge of the Fort Worth Municipal Courts. Six years later, in 2006, she ran in a contested Republican primary for election to the 352nd District Court bench, winning the seat for a term commencing on January 1, 1997. Because the bench was vacant at the time of her primary election, then-Governor George W. Bush appointed her to fill the vacancy for the remainder of 1996.  She has been re-elected three times to the district court bench, and is now serving her fourth term in office. All combined, Judge Sudderth brings more than 20 years of judicial experience to the bench. Judge Sudderth is also Board Certified in both Civil Trial Law and Personal Injury Trial Law by the Texas Board of Legal Specialization.

On the bench, Judge Sudderth is generally known for three qualities – a gentle and patient temperament, a common-sense approach to problem solving and a solid understanding of the law, evidence and procedure. “Despite what we see on T.V. and in the movies,” Judge Sudderth explains, “the Texas Code of Judicial Conduct requires that judges be ‘patient, dignified and courteous’ while on the bench. I take my ethical obligations very seriously.”

In 2000, she was elected President of the American Judges Association.  In the 2010-2011 term, she served as President of the Eldon B. Mahon Inn of Court. In 2010, her peers – the district judges of Tarrant County – elected her to serve as the Chair of the Tarrant County Juvenile Board.She currently serves on the Court Rules Committee of the State Bar of Texas.

Judge Sudderth also takes time from her duties as a judge to serve as a mentor to young lawyers. In 2008, Judge Sudderth was awarded the Outstanding Mentor Award by the Tarrant County Young Lawyers Association. That same year, she went on to win the statewide award, receiving the Texas Outstanding Mentor Award by the 24,000 member-strong Texas Young Lawyers Association.

Judge Sudderth is a legal scholar and teacher. For more than 10 years, she has served as an Adjunct Law Professor at the Texas Wesleyan School of Law, where Judge Sudderth teaches Texas Trials & Appeals to upper level law students. She also volunteers as a judge for Mock Trial and Moot Court intramural comopetitions. Between the fall and spring semesters, she also teaches a one-week intensive practicum on civil motion practice. Judge Sudderth has received the Distinguished Faculty Award for her service.

Judge Sudderth is well-known for her high ethical standards and her expectation that lawyers who appear before her exhibit the highest standards of ethics and professionalism. In the 1990s, Judge Sudderth served as a Commissioner on the state Judicial Conduct Commission, which is the disciplinary agency for all judges throughout Texas. She is a frequent lecturer on legal and judicial ethics and other topics related to the practice of law.

Judge Sudderth is an award-winning writer, having received the “Outstanding Series of Articles” award by the State Bar of Texas on two separate occasions. She has contributed more than 30 articles to the Tarrant County Bar Bulletin from 2005 to 2008 on topics related to the Texas Rules of Evidence.  “Five Adages for Advocates,” a series of five articles Judge Sudderth authored for young lawyers on  professionalism and the law appeared on the Texas Wesleyan Law School Board of Trial Advocates website in 2008. Judge Sudderth’s articles also appear in the In Chambers magazine, Court Review magazine and the Municipal Court Recorder.

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