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.

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