The Federal Rules of Evidence (FRE) expanded the non-hearsay category of admissible prior consistent statements with FRE 801(d)(1)(B)(ii) to include any statements counsel uses to rehabilitate a declarant’s credibility after that credibility has been attacked. FREV 801(d)(1)(B)(i) and (ii) require that a declarant testify and be subjected to cross-examination about the prior consistent statement. Under these rules, the time at which the declarant made the consistent statement and her reason for making it are critical.
When the declarant does not testify, however, under FRE 806 opposing counsel may still attack the declarant’s credibility. Under these circumstances, it is often challenging to determine the evidence that counsel may use to impeach, and later to rehabilitate, the credibility of the non-testifying declarant. Moreover, lawyers and judges frequently conflate the two uses of prior consistent statements-- non-hearsay substantive evidence with impeachment-credibility evidence. Through the examination and analysis of two recent federal cases, U.S. v. Cotton and U.S. v. Ledbetter, this article attempts to shed some light on the complexities and proper application of these two rules of evidence.
41 American Journal of Trial Advocacy 1 (2017)