Also known as: Fed. R. Evid. 801(d)(1) · Federal Rule of Evidence 801(d)(1) · FRE 801(d)(1)(A) · FRE 801(d)(1)(B) · FRE 801(d)(1)(C) · hearsay exclusion prior witness statements · prior consistent statement · prior inconsistent statement
Written by attorneys — see sources below.
A provision of the Federal Rules of Evidence that classifies three categories of prior statements by a testifying witness as nonhearsay. The categories include prior inconsistent statements given under penalty of perjury, prior consistent statements offered to rebut charges of recent fabrication or improper motive, and statements identifying a person after perceiving that person.
Felicia Fuentes sued Flagship Logistics after a warehouse accident. At trial Flagship offered a note Fuentes wrote describing the same events to show consistency in her account. The court admitted the note under the rule because it rebutted an implied charge of recent fabrication.
Fumiko Fujimoto testified that a product caused her injury. The defense suggested on cross that her consulting fees created a motive to exaggerate. Fujimoto offered a clinic note written the same day as the original conversation. The note was admitted because it predated the alleged motive and rebutted the charge of recent fabrication.
Felicity French testified at trial that she saw the defendant at the scene. The defense offered her earlier statement denying any recollection. The court admitted the prior statement as nonhearsay under the rule after confirming it was inconsistent and given under oath.
Francesca Fowler testified that a contract contained no veto clause. The plaintiff offered Fowler's earlier deposition testimony given under oath that the clause had been discussed. The court treated the deposition as nonhearsay and admitted it for its truth because it was inconsistent with Fowler's trial testimony.
In January 1967, sixteen-year-old Melvin Porter was arrested for selling marijuana to an undercover police officer. Four days after his arrest, while in the custody of juvenile authorities, Porter told Officer Wade that respondent John Green had supplied him with the marijuana. Porter stated that Green had called him earlier that month, asked him to sell some stuff or grass, and personally delivered a shopping bag containing twenty-nine baggies of marijuana from which Porter made the sale. A week later, Porter testified at Green's preliminary hearing. He again identified Green as his supplier, though he now stated that Green had shown him where to pick up the shopping bag hidden in the bushes at Green's parents' house rather than personally delivering it. Green's counsel, the same attorney who later represented him at trial, conducted extensive cross-examination of Porter at the hearing. At the conclusion of the hearing, Green was charged with furnishing marijuana to a minor. Green's trial took place two months later before a judge sitting without a jury in the Superior Court of San Luis Obispo County. Porter again took the stand as the State's chief witness but proved markedly evasive and uncooperative. He testified that Green had called him and asked him to sell some stuff and that he had obtained twenty-nine baggies of marijuana. Porter claimed he could not remember the events after the phone call because he had taken LSD twenty minutes before Green phoned and the drugs prevented him from distinguishing fact from fantasy. During Porter's direct examination, the prosecutor read excerpts from his preliminary hearing testimony, which were admitted as substantive evidence under California Evidence Code section 1235. Officer Wade also testified about Porter's earlier statement to him. Porter admitted making both prior statements and insisted he had been telling the truth as he then believed it, but he maintained that his current testimony about his inability to remember was also truthful. Green was convicted. The California Court of Appeal reversed the conviction, holding that the use of Porter's prior statements violated the Confrontation Clause. The California Supreme Court affirmed. The United States Supreme Court granted certiorari.
View caseFabian Flynn testified about events at a company meeting. The defense charged that his new consulting arrangement created bias. Flynn offered a podcast recorded after the arrangement began. The court excluded the podcast for rebutting fabrication because it postdated the alleged motive.
Fatima Flores identified the defendant at trial as the person who struck her. The prosecution offered a lineup identification she made the day after the incident. The court admitted the lineup statement as nonhearsay because it was an identification made after perceiving the defendant.
A prior consistent statement is admissible when it rebuts an express or implied charge that the witness recently fabricated testimony or acted from an improper motive. The statement must predate the alleged motive.
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The rule requires only that the statement predate the specific motive alleged by the opponent.
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Yes. The rule permits consistent statements to rehabilitate credibility when the attack rests on any ground other than recent fabrication or improper motive.
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Yes for substantive use under 801(d)(1)(A). The statement must have been given under penalty of perjury at a trial hearing or other proceeding or in a deposition. Statements not meeting that requirement may still be used for impeachment under other rules.
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…prior to October 1981. : In the alternative the court held that Rainey's testimony should have been admitted as a prior consistent statement under Rule 801(d)(1)(B). : Baker involved a police officer's report on an automobile accident. While there was no direct witness as to the color of the traffic lights at the…