Second Circuit Confirms That a 2014 Amendment to Fed. R. Evid. 801(d)(1)(B) Expands Admissibility of Prior Consistent Statements

In United States v. Purcell, No. 19-238 (2d Cir. July 23, 2020), affirming in substantial part a conviction for operating a prostitution ring, the court considers a challenge to the admissibility of prior consistent statements of a witness, under the recently-amended Fed. R. Evid. 801(d)(1)(B)(ii).

A prosecution witness, Wood, was cross-examined by the defense about an interview that she gave to local police: “[D]efense counsel repeatedly questioned Wood about statements made in that interview. Defense counsel highlighted apparent discrepancies between Wood’s statements to the State College police and her direct examination testimony at trial.” To rehabilitate Wood, the U.S. Attorney offered the testimony of an officer who took Wood’s statement – named Royer – who “recounted in detail Wood’s statements in her police interview.” The defense failed to object, but on appeal challenged Royer’s testimony as inadmissible hearsay.

The Second Circuit sustains the admissibility of Royer’s testimony. Historically, prior consistent statements under the Federal Rules of Evidence could be admitted as non-hearsay only for the limited purpose of rebutting a charge “that the declarant recently fabricated [their testimony] or acted from a recent improper influence or motive in so testifying.” But in 2014, the rule was amended by adding subsection (ii), also allowing admission “to rehabilitate the declarant’s credibility as a witness when attacked on another ground.”

The Second Circuit holds that Royer’s testimony was admissible under this new subsection. The panel allows that it would not have come in under the pre-amended rule: “while defense counsel’s goal may have been to sow doubts about Wood’s candor and veracity generally, it did not directly suggest that the accuracy of Wood’s trial testimony was marred by recent fabrication or a recently created improper motive or influence.” On the other hand, under the new expanded rule, “[b]y introducing Royer’s testimony, which recounted Wood’s statements to police in full and largely matched the version of events that Wood had recounted at trial, the government plainly sought to rebut the charge of inconsistency and to rehabilitate Wood’s credibility by placing the alleged discrepancies in context.”