Suppose a witness testifies that the light was green, and the proponent of the witness wishes to put into evidence the witness’ prior out-of-court statement (oral or writing) that the light was green. Is the prior statement admissible, and if so, what is its evidentiary status, e.g., substantive evidence admissible as proof of the facts asserted or rehabilitative evidence admissible solely for credibility purposes? The answers depend upon whether the governing law is New York evidence law or the Federal Rules of Evidence (FRE).
Ever since the 1840 decision of the Supreme Court of Judicature of New York in Robb v. Hackley, 23 Wend. 50, it has been the settled rule in New York that evidence of a witness’ prior consistent statement is admissible solely for rehabilitative purposes, and even then only when the witness’ trial testimony has been attacked as a recent fabrication and the statement predated the charged motive to falsify.1 On the other hand, FRE 801(d)(1)(B) allows a prior consistent statement to be received, as provided since its adoption in 1975, either for substantive truth or credibility rehabilitative purposes; and, as a result of an amendment that became effective on Dec. 1, 2014,2 admissible in a wider range of situations than allowed in New York.3 The FRE treats prior consistent statements more liberally for admissibility purposes than New York’s common law. This difference in treatment will be explored in this column.
New York Rule
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