Also known as: recent fabrication · improper influence or motive · motive to fabricate · recent fabrication exception · prior consistent statement rebuttal
Written by attorneys · grounded in primary & secondary sources — see below
An express or implied charge that a witness's testimony was recently invented or shaped by an improper influence or motive. The charge opens the door to admission of the witness's prior consistent statements as nonhearsay when those statements predate the alleged fabrication or motive.
Select any source to read its text and confirm it supports the definition.
In a wrongful death suit against Dusk Therapeutics, cardiologist Colby testified that sales representative Neil downplayed stroke risks. Defense counsel implied on cross that Colby's consulting fees created a motive to exaggerate the reassurance. Kent offered Colby's same-day clinic note quoting Neil. The note predated any alleged motive and was admitted to rebut the charge.
Corey sued Star Fitness for breach of contract over endorsement deals. Former assistant Oliver testified that executives omitted veto language from the final draft. Star Fitness implied on cross that Oliver fabricated the account after termination to aid Corey's new agent. Corey offered emails Oliver sent six months before termination repeating the same account. The emails predated the alleged motive and were admitted.
Marvin testified at trial that he never saw loose planking on the scaffolding. Jasper implied on cross that Marvin fabricated warnings after suit was filed. Ash Construct offered a post-accident interview Marvin gave an insurance investigator. The interview postdated the alleged motive and was excluded as hearsay.
Marvin denied issuing any scaffolding warnings at trial. Jasper suggested on cross that Marvin recently fabricated the warnings to help his employer. Ash Construct offered a safety log Marvin created one week before the collapse. The log was offered after the alleged motive arose and was excluded.
The statement must be consistent with the witness's testimony and must predate the alleged fabrication or improper motive. The charge may be express or implied during cross-examination. If the timing requirement is met, the statement is treated as nonhearsay under Rule 801(d)(1)(B)(i).
Supporting sources
Yes. The proponent must show that the statement was made before the alleged motive arose. Ambiguity about the precise timing of the motive does not excuse the requirement. Courts examine the facts to determine whether the statement predates any suggested incentive to fabricate.
…made by a declarant who testifies as a witness, that are consistent with the testimony and are offered to rebut a charge of a "recent fabrication or improper influence or motive." Fed. Rule Evid. 801(d)(1)(B). The question is whether out-ofcourt consistent statements made after the alleged fabrication, or after the alleged improper influence or motive arose, are…
…whether: “(a) The statement was spontaneous; “(b) The child was subjected to repetitive questioning; “(c) The child had a
…service agencies may be critical to showing that the victim has made prior inconsistent
…unexpected of a child of similar age); State v. Kuone , 243 Kan. 218, 221-222, 757 P. 2d 289, 292-293 (1988) (lack of motive to fabricate). Although these cases (which we cite for the factors they discuss and not necessarily to approve the results that they reach) involve the application of various hearsay
Supporting sources
Yes. Rule 801(d)(1)(B)(ii) permits admission of a consistent statement to rehabilitate credibility when the witness is attacked on another ground such as bias. No timing requirement applies to this subsection. The statement need only be consistent with the testimony and offered for rehabilitation.
Supporting sources
The statement cannot qualify under Rule 801(d)(1)(B) because that subsection requires consistency. An inconsistent statement may instead be analyzed under Rule 801(d)(1)(A) if it was given under penalty of perjury in a prior proceeding. Otherwise it remains hearsay.
Supporting sources