Say It Once, Say It Twice: Abrogating the Rebuttal Requirement of the Prior Consistent Statement Hearsay Rule

Abstract

Federal Rule of Evidence 801(d)(1)(B) limits the introduction of a witness’s prior statements during court proceedings, even if those statements are consistent with the witness’s in-court testimony. A witness’s previous declarations can only be solicited if (a) the adversarial party directly attacks the witness’s credibility and (b) the offered prior consistent statement directly rebuts the basis of the attack. This Comment refers to these restrictions as the “rebuttal requirement” of Rule 801(d)(1)(B) and argues for its revocation to make statements substantially consistent with a witness’s in-court testimony admissible, subject to the other rules of evidence, regardless of whether the witness’s credibility has been directly attacked. The rationale behind the amendment has to do with the adversarial nature of the American justice system. Witnesses are subpoenaed by one of the parties to provide testimony which supports that party’s theory of the case. That witness is then subject to cross-examination by the opposing party. The very purpose of cross examination is to attack the witness’ credibility. So, whether the witness is impeached or not, every witness’s credibility is necessarily at issue. The jury must decide whether to believe their testimony. Accordingly, that witness’s prior consistent statements and the attendant circumstances of that disclosure may not only be relevant but also necessary for the jury’s due consideration of that witness’s testimony. This Comment argues that Rule 801(d)(1)(B) as currently codified unfairly underestimates the jury’s ability to weigh the reliability of a witness’s prior statements and to use such information only where relevant and helpful. The current rendition of the Rule is needlessly complex, results in unpredictable application by judges, improperly delegates decision-making power to the judge over the jury, and favors exclusion contrary to the intended spirit of the Federal Rules of Evidence. This Comment argues that repealing the rebuttal requirement would simplify Rule 801(d)(1)(B) and re-empower the jury to serve its factfinding function to bring justice in every case.