A proposed amendment to the Federal Rules of Evidence would significantly expand the admissibility of prior consistent statements as substantive evidence. The Committee on Rules of Practice and Procedure has circulated for public comment a proposal to amend Fed. R. Evid. 801(d)(1)(B) to provide that all prior consistent statements admitted to rehabilitate a witness are not hearsay and hence may be considered by the jury for their truth.

The committee’s stated rationale for amending the rule is that “juries have a very difficult time understanding an instruction about the difference between substantive and nonsubstantive use” and such a distinction often lacks “practical meaning.” Whether this is true or not is certainly open to debate. When prior statements not admissible as substantive evidence are offered, a jury instruction is typically given as follows: “Ladies and gentlemen of the jury: What counts in this trial is the truthfulness of the witness’s testimony on the stand. Other prior statements by the witness, whether inconsistent or consistent with the witness’s testimony, have been admitted only to help you determine the credibility of the witness in testifying before you today.” Such an instruction is not beyond the ability of jurors to understand. There are a number of other evidentiary concepts, such as those arising under the rules relating to character and impeachment, that are far more difficult to explain to jurors than the proper use of prior consistent statements.

Unlike hearsay exceptions, there is nothing inherently reliable about prior consistent statements. They are not required to be made under oath or in formal settings. They may be the product of suggestive questioning or a motive to fabricate or to bolster trial testimony. As courts have observed, mere repetition does not imply veracity. If the jury believes the trial testimony, then of course any prior consistent statements become inconsequential. But if the jurors are uncertain, they may give significant weight to the prior consistent statements. It is true that the witness can be cross-examined about the prior consistent statements, but the traditional view of lawyers and judges is that out-of-court statements cannot be as effectively tested by cross-examination as trial testimony.

Although some commentators advocated that all prior statements of testifying witnesses be classified as not hearsay, this view was specifically rejected by the Federal Rules of Evidence. Instead, Rule 801(c) defines hearsay as a statement made by the declarant other than “while testifying at the current trial or hearing” that is offered for its truth. Rule 801(d)(1) sets forth three limited categories of prior statements by witnesses allowed into evidence as “not hearsay.” The committee has not provided a compelling justification for further modifying the long-standing definition of hearsay. In a survey of federal judges conducted by the committee, 72 percent said they believed the proposed amendment would lead to more prior consistent statements being admitted, yet less than half of them thought that this would be a good result.


The amendment could lead to an increased number of reversals in cases in which prior consistent statements are found to have been erroneously admitted. Under current law, if a prior consistent statement is admitted improperly, for example by relating facts going beyond the trial testimony, courts often find the error to be harmless by relying on the fact that the statement was not admitted for substantive purposes. But under the proposed amendment such statements would become substantive evidence upon which the jury could rely, making a finding of harmless error more difficult.

The most significant concern about the proposed amendment is that it would have the effect, at least in many circuits, of overturning a major U.S. Supreme Court precedent without any apparent consideration by the committee of this effect or its desirability. In Tome v. U.S., 513 U.S. 150 (1995), the Supreme Court held that when a witness is impeached on grounds of having a motive to fabricate, a prior consistent statement made after the motive arises is not admissible as substantive evidence. Many courts have interpreted Tome as applying only when the prior consistent statement is offered under Rule 801(d)(1) and therefore admit post-motive statements offered solely for rehabilitation. In fact the only case cited in the committee note, U.S. v. Simonelli, 237 F.3d 19 (1st Cir. 2001), is a leading authority adopting that view, which it describes as the “majority view” in federal courts.

To the extent that post-motive statements are admitted to rehabilitate a witness, the proposed amendment would now make them substantive evidence, thus doing an end-run around the holding of Tome. It is highly unusual to overturn a Supreme Court precedent through the rule-making process, and it is certainly inappropriate to do so without notifying and inviting input from the legal community about the desirability of such a change. The committee did not consider or debate this issue. The federal judges surveyed were not asked whether they thought Tome should be overturned, whether post-motive statements should be admitted to rehabilitate a witness and, if so, whether post-motive statements should now be turned into substantive evidence.

Before the committee proceeds further with the proposed amendment it should give notice to the legal community of its potential impact on Tome. The committee should also reconsider why prior consistent statements need to be elevated to the status of substantive evidence when they are being offered only for the nonhearsay purpose of repairing the credibility of a witness.

Laird C. Kirkpatrick is the Louis Harkey Mayo Research Professor of Law at George Washington University Law School.