The admissibility of prior consistent statements has long been a difficult and contentious issue impacting a wide variety of significant cases, including sex-abuse cases, criminal drug cases, civil rights cases, and many other actions, both criminal and civil.
This Article examines the admissibility of prior consistent statements, concentrating on the premotive rule. The Article concludes that the per se, time-line premotive rule codified in Rule 801(d)(1)(B) is overly restrictive in some instances. The rule can hamper the jury's fact-finding mission by placing an often crucial factual determination where it does not belong—in the hands of the trial judge. Although a per se premotive rule compels the correct result in the vast majority of situations, it does not sufficiently take into account the ebb and flow of an individual's motives and emotions, the infinite array of factual situations in which the issue might arise, or the strength of the jury's ability to weigh evidence. A more flexible approach, one that takes account of the realities of a jury trial, is needed. This need can be met by amending the Federal Rules of Evidence.
Part II of this Article provides background and an historical discussion of the admissibility of prior consistent statements at common law. Part III examines the admissibility of prior consistent statements under the Federal Rules of Evidence, focusing on the premotive rule. Part IV describes the Tome case, including a discussion of the Supreme Court's majority and dissenting opinions. Part V suggests that Rule 801(d)(1)(B) should be amended, and sets forth some issues that the amendment should address.
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