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