Also known as: prior consistent statements · consistent statement
Written by attorneys · grounded in primary & secondary sources — see below
A witness's out-of-court statement that matches the witness's trial testimony. The statement is admissible as nonhearsay when offered to rebut an express or implied charge that the witness recently fabricated the testimony or acted from a recent improper influence or motive, provided the statement was made before that alleged motive arose.
Parker Phillips testifies that he warned the defendant about product defects six months before the lawsuit. On cross-examination the defendant suggests Parker invented the warning only after the suit was filed to extract a settlement. Plaintiffs then offer an email Parker sent to the defendant weeks before any litigation began that repeats the identical warning. The court admits the email because it predates the alleged motive to fabricate.
Patrick Phan testifies at trial that he reported a safety issue to his supervisor two weeks before an industrial accident. Defense counsel implies on cross that Phan fabricated the report only after learning the company might blame him. Plaintiffs introduce Phan's contemporaneous log entry made before any blame was assigned that records the identical safety complaint. The court admits the log entry to rebut the charge of recent fabrication.
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Pearl Porter testifies that she flagged accounting irregularities to her manager months before an audit. The defense suggests on cross that she created the story only after the audit to shift blame. Plaintiffs offer a memo Pearl wrote to the manager weeks earlier that describes the same irregularities. The court admits the memo because it was created before the alleged motive to fabricate arose.
No. Unlike prior inconsistent statements used substantively, a prior consistent statement offered to rebut recent fabrication need not have been made under oath or in a formal proceeding. The rule requires only that the declarant testify and be subject to cross-examination, that the statement be consistent with the testimony, and that it be offered to rebut a charge of recent fabrication or improper motive.
Supporting sources
The statement must have been made before the alleged motive to fabricate or improper influence arose. A statement made after the motive began does not rebut the charge of recent fabrication and remains inadmissible hearsay for that purpose.
Supporting sources
…prior to October 1981. [^maj-6]: 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). [^maj-7]: 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…