Interpretations of the text: In general
Interpretations of the text: Interpretations of “subject to cross-examination”
Prior inconsistent statements: In general
Prior inconsistent statements: Requirement that the statement be given under oath
Prior consistent statements: In general
Prior consistent statements: Interpretations of “charge”
Prior consistent statements: Time at which the motive to fabricate arises
Identification of a person shortly after perceiving the person: In general
Text of the rule
• [A] statement is not hearsay if:
(1) A Declarant-Witness's Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement:
(A) is inconsistent with the declarant's testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition;
(B) is consistent with the declarant's testimony, and is offered to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or
(C) is an identification of a person shortly after perceiving the person.
Interpretations of the text: In general
• [A] statement is not hearsay if it meets the requirements of Indiana Evidence Rule 801(d).
Stephenson v. State, 742 N.E.2d 463, 473 (Ind. 2001), cert. denied, 534 U.S. 1105 (2002)
Interpretations of the text: Interpretations of “subject to cross-examination”
• In the present case, [the witness] was available for cross-examination to the extent that she took the stand, took an oath, and responded willingly to the questions posed to her. She recalled having made the statement to the police which incriminated [the defendant] even though at trial she could no longer remember the actual details of the beating described in the statement. Through cross-examination, [the defendant] effectively attacked the credibility of [the witness’s] trial testimony as well as her prior statement to police by demonstrating her severe memory impairment. We hold . . . that [the witness] was sufficiently available for cross-examination as required by Fed. R. Evid. 801 despite her severe memory impairment.
Brim v. State, 624 N.E.2d 27, 32 (Ind. Ct. App. 1993), trans. denied
• Here, despite the fact that [the defendant] declined to cross-examine [the two witnesses] concerning their prior consistent statements, he clearly was given the opportunity to do so. Therefore, under the circumstances of this case, we find that both [witnesses] were subject to cross-examination concerning their prior consistent tape-recorded statements for purposes of Modesitt v. State, 578 N.E.2d 649 (Ind. 1991) and Fed. R. Evid. 801(d)(1)(B).
Ridenour v. State, 639 N.E.2d 288, 295 (Ind. Ct. App. 1994)
Prior inconsistent statements: In general
• Ordinarily, prior inconsistent statements are used to impeach, not as substantive evidence of the matter reported.
Young v. State, 746 N.E.2d 920, 926 (Ind. 2001)(citing 13 Robert Lowell Miller, Jr., Indiana Practice § 613.101 (2d ed. 1995))
Gray v. State, 982 N.E.2d 434, 437 (Ind. Ct. App. 2013)(quoting Young v. State, 746 N.E.2d 920, 926 (Ind. 2001))(“Our Supreme Court has stated that ‘[o]rdinarily, prior inconsistent statements are used to impeach, not as substantive evidence of the matter reported.’”)
• For information about impeaching witnesses with prior inconsistent statements, please review Impeachment.
• A prior inconsistent statement may be admissible as substantive evidence, but only if the declarant testifies at trial and is subject to cross-examination, and the statement was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition.
Gray v. State, 982 N.E.2d 434, 437 n. 1 (Ind. Ct. App. 2013)(citing Modesitt v. State, 578 N.E.2d 649, 653-54 (Ind. 1991))
• In order for a prior inconsistent statement to be admissible under this Rule: “(1) the statement must have been given under oath subject to penalty for perjury at a trial or other proceeding and (2) the declarant who made the prior statement must both testify and be subject to cross-examination concerning the statement at the trial where the statement is sought to be introduced.”
Clark v. State, 808 N.E.2d 1183, 1189 (Ind. 2004)(quoting United States v. DiCaro, 772 F.2d 1314, 1321 (7th Cir. 1985), reh’g denied, reh’g en banc denied, cert. denied, 475 U.S. 1081 (1986))
Prior inconsistent statements: Requirement that the statement be given under oath
• [The defendant] is correct in his contention that because [the witness’s] prior statement was apparently not made under oath, it was not admissible under Rule 801(d)(1)(A).
Young v. State, 746 N.E.2d 920, 926 (Ind. 2001)
See Stoltmann v. State, 793 N.E.2d 275, 281 (Ind. Ct. App. 2003), trans. denied(“We agree with [the defendant] that a witness's prior inconsistent unsworn statement is not admissible as substantive evidence.”)
See also Martin v. State, 736 N.E.2d 1213, 1217 (Ind. 2000)(“[B]ecause [the] prior statement was not made under oath, that exception is not available here.”)
• By permitting only those prior inconsistent statements made under oath to be considered substantive evidence, we hoped to impress upon a witness the “solemnity and importance” of his or her statements and remind the witness that being dishonest may result in a perjury indictment.
Appleton v. State, 740 N.E.2d 122, 124 (Ind. 2001)(quoting Modesitt v. State, 578 N.E.2d 649, 653 (Ind. 1991))
• We also attempted to restrain the practice of calling numerous persons to testify about the same statement given by a particular witness, thereby preventing a “drumbeat repetition” of the witness's original story.
Appleton v. State, 740 N.E.2d 122, 124 (Ind. 2001)(citing Modesitt v. State, 578 N.E.2d 649, 653 (Ind. 1991))
Prior inconsistent statements: Requirement that the declarant testify and be subject to cross-examination
• If a declarant has not been cross-examined, his availability for recall for cross-examination satisfies the requirement that he be available for cross-examination.
Clark v. State, 808 N.E.2d 1183, 1189 (Ind. 2004)(citing Kielblock v. State, 627 N.E.2d 816, 821 (Ind. Ct. App. 1994), reh’g denied, trans. denied)
Prior consistent statements: In general
• We conclude . . . that the adoption of Rule 801 did not replace the admissibility of prior consistent statements to rehabilitate a witness, but merely allowed a certain subset of these statements to be used as substantive evidence of the truth of the matter asserted.
Moreland v. State, 701 N.E.2d 288, 293 (Ind. Ct. App. 1998)
See Bassett v. State, 895 N.E.2d 1201, 1214 (Ind. 2008), cert. denied, 556 U.S. 1171 (2009)(“We adopt Judge Kirsch's opinion in Moreland on this issue . . . .”)
• For information about rehabilitating witnesses with prior consistent statements, please review Rehabilitation.
• Under Indiana Evidence Rule 801(d)(1)(B), a statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (1) consistent with the declarant's testimony, (2) offered to rebut an express or implied charge against the declarant or [sic] recent fabrication or improper influence or motive, and (3) made before the motive to fabricate arose.
Stephenson v. State, 742 N.E.2d 463, 473 (Ind. 2001), cert. denied, 534 U.S. 1105 (2002)
Holsinger v. State, 750 N.E.2d 354, 359 (Ind. 2001)
See Townsend v. State, 33 N.E.3d 367, 370 (Ind. Ct. App. 15), trans. denied(“Indiana Evidence Rule 801(d)(1)(B) provides that a statement is not hearsay if the declarant testifies and is subject to cross-examination about a prior statement, the statement is consistent with the declarant's testimony, and the statement is offered to rebut an express or implied charge that the declarant recently fabricated the statement or acted from a recent improper influence or motive for testifying.”)
Prior consistent statements: Requirement that the prior statement be consistent with the declarant’s testimony
• [S]ome inconsistencies between trial testimony and prior statements may not necessarily render the prior statements inadmissible for purposes of Evid. R. 801(d)(1)(B).
Brown v. State, 671 N.E.2d 401, 407 (Ind. 1996)(citing Willoughby v. State, 660 N.E.2d 570, 579 (Ind. 1996))
See Stephenson v. State, 742 N.E.2d 463, 474 (Ind. 2001), cert. denied, 534 U.S. 1105 (2002)(observing that the defendant had acknowledged that inconsistencies between trial testimony and prior statements do not automatically render the prior statements inadmissible)
• A prior statement need not be completely consistent to meet the requirements of 801(d)(1)(B). Rather, the statement only needs to be “sufficiently consistent.”
Cline v. State, 726 N.E.2d 1249, 1253 (Ind. 2000)(quoting Willoughby v. State, 660 N.E.2d 570, 579 (Ind. 1996))
Prior consistent statements: Prior consistent statements may be used to rebut charges of recent fabrication or improper influence or motive
• [T]he prior consistent statement rule is not limited to rebutting a charge of recent fabrication. The rule also encompasses efforts to rebut an express or implied charge of improper motive. . . . [A]t trial, defense counsel initiated questions regarding the March 29th conversation between Funk and Utzman in an effort to impeach Funk. It appears that this line of questioning sought to establish not only fabrication but also improper motive, i.e., a motive to shift blame on Defendant. The State properly offered to rebut this charge by utilizing Utzman's testimony. The second requirement of the prior consistent statement rule has been met.
Stephenson v. State, 742 N.E.2d 463, 474 (Ind. 2001), cert. denied, 534 U.S. 1105 (2002)
Prior consistent statements: Charges of recent fabrication or improper influence or motive may be express or implied
• [The defendant] maintains that he did not intend to imply that [the witness] recently fabricated his testimony. However, “[t]he fact that . . . counsel may not have intended to imply that [the witness's] story was fabricated ... is irrelevant if that inference fairly arises from the line of questioning he pursued.”
Horan v. State, 682 N.E.2d 502, 512 (Ind. 1997), reh’g denied(quoting United States v. Baron, 602 F.2d 1248, 1253 (7th Cir.1979), reh’g denied, reh’g en banc denied, cert. denied, 444 U.S. 967 (1979))(some alterations in the original)
See Brown v. State, 671 N.E.2d 401, 408 (Ind. 1996)(“We believe that defendant, at the very least, implied through this line of questioning that [the witness] had an improper motive—which is all that Evid. R. 801(d)(1)(B) requires.”)
Prior consistent statements: Interpretations of “charge”
• [C]ases have made clear that there is a difference between merely challenging a witness's credibility versus making an express or implied charge of fabricated testimony or improper influence or motive.
Corbally v. State, 5 N.E.3d 463, 469 (Ind. Ct. App. 2014)
Townsend v. State, 33 N.E.3d 367, 372 (Ind. Ct. App. 2015), trans. denied(quoting Corbally v. State, 5 N.E.3d 463, 469 (Ind. Ct. App. 2014))(“In particular, we noted that . . . .”)
• If there has only been general impeachment of a witness's credibility, then prior consistent statements by the witness are hearsay and not admissible as substantive evidence.
Corbally v. State, 5 N.E.3d 463, 469 (Ind. Ct. App. 2014)(citing Horan v. State, 682 N.E.2d 502, 511-12 (Ind. 1997), reh’g denied)
Townsend v. State, 33 N.E.3d 367, 372 (Ind. Ct. App. 2015), trans. denied(quoting Corbally v. State, 5 N.E.3d 463, 469 (Ind. Ct. App. 2014))
• Also, general attacks upon a witness's memory do not constitute a charge that the witness fabricated testimony and do not permit the admission of prior consistent statements by the witness.
Corbally v. State, 5 N.E.3d 463, 469 (Ind. Ct. App. 2014)(citing Thomas v. State, 749 N.E.2d 1231, 1233-34 (Ind. Ct. App. 2001))
Townsend v. State, 33 N.E.3d 367, 372 (Ind. Ct. App. 2015), trans. denied(quoting Corbally v. State, 5 N.E.3d 463, 469 (Ind. Ct. App. 2014))
See Lovitt v. State, 915 N.E.2d 1040, 1043 (Ind. Ct. App. 2009)(citing Thomas v. State, 749 N.E.2d 1231, 1233-34 (Ind. Ct. App. 2001))(“Challenging a witness's recall of events due to faulty memory is not necessarily an ‘implied charge of recent fabrication’ under Evidence Rule 801(d)(1)(B).”)
Cf. Thomas v. State, 749 N.E.2d 1231, 1233 (Ind. Ct. App. 2001)(“We decline to hold that every lapse of memory on the part of a witness amounts to a fabrication of testimony. Such an interpretation of that hearsay exception would quickly subsume the rule.”)
Prior consistent statements: Requirement that the statement be made before the motive to fabricate arose, or the improper influence or motive originated
• We agree with the United States Supreme Court in Tome v. United States, 513 U.S. 150, 167 (1995), which held that under Federal Evidence Rule 801(d)(1)(B), a declarant's consistent out-of-court statements may be admitted “to rebut a charge of recent fabrication or improper motive only when those statements were made before the charged recent fabrication or improper influence or motive.”
Stephenson v. State, 742 N.E.2d 463, 474 (Ind. 2001), cert. denied, 534 U.S. 1105 (2002)
See Lovitt v. State, 915 N.E.2d 1040, 1043-44 (Ind. Ct. App. 2009)(“Even if we were to conclude that the State implied that [the witness] fabricated her testimony, her statement . . . must have been made before the motive to fabricate arose.”)
See also Thompson v. State, 690 N.E.2d 224, 232 n. 8 (Ind. 1997)(“To be admissible under this Rule, [the witness’s] motive to fabricate had to have arisen after the prior statement was made.”)
• The purpose behind the temporal requirement in 801(d)(1)(B) has been explained as follows: “‘[T]he prior consistent statement has no relevancy to refute the charge [of recent fabrication] unless the consistent statement was made before the source of the bias, interest, influence or incapacity originated.’”
Sturgeon v. State, 719 N.E.2d 1173, 1179 (Ind. 1999)(quoting Tome v. United States, 513 U.S. 150, 156 (1995)(quoting E. Cleary, McCormick on Evidence § 49 (2d ed.1972)))(alteration in the original)
• The rationale behind the pre-motive rule is that if the consistent out-of-court statements were made before the motive to fabricate arose, we are assured that the statements were not “contrived as a consequence of that motive.”
Stephenson v. State, 742 N.E.2d 463, 474 (Ind. 2001), cert. denied, 534 U.S. 1105 (2002)(quoting Tome v. United States, 513 U.S. 150, 158 (1995))
Prior consistent statements: Time at which the motive to fabricate arises
• In Sturgeon v. State, 719 N.E.2d 1173 (Ind.1999), a unanimous opinion authored by Chief Justice Shepard, we evaluated prior Indiana case law concerning the temporal requirement contained in the prior consistent statement rule and categorized the cases under two separate scenarios: (1) where the declarant was the defendant or equally culpable to the defendant in the crime, such as a co-defendant, and (2) where the declarant was involved before and after but not during the crime.
Stephenson v. State, 742 N.E.2d 463, 474 (Ind. 2001), cert. denied, 534 U.S. 1105 (2002)
See Bullock v. State, 903 N.E.2d 156, 161 (Ind. Ct. App. 2009)(quoting Stephenson v. State, 742 N.E.2d 463, 474 (Ind. 2001), cert. denied, 534 U.S. 1105 (2002))(“Our Indiana Supreme Court has identified two common scenarios when timing is an issue: ‘(1) where the declarant was the defendant or equally culpable to the defendant in the crime, such as a co-defendant, and (2) where the declarant was involved before and after but not during the crime.’”)
• When the declarant falls under the first category, the motive to fabricate “likely arises immediately upon the commission of the crime.”
Bullock v. State, 903 N.E.2d 156, 161 (Ind. Ct. App. 2009)(quoting Stephenson v. State, 742 N.E.2d 463, 475 (Ind. 2001), cert. denied, 534 U.S. 1105 (2002))
See Stephenson v. State, 742 N.E.2d 463, 475 (Ind. 2001), cert. denied, 534 U.S. 1105 (2002)(quoting Sturgeon v. State, 719 N.E.2d 1173, 1179 (Ind.1999))(“Under the first category, we acknowledged that ‘[w]here the declarant was the defendant or co-defendant, we have been willing to conclude that a motive to fabricate likely arises immediately upon the commission of the crime.’”)(alteration in the original)
• In identifying the second category in Sturgeon, we said, “Where the declarant became involved in the crime after it was committed . . . the role of timing is not as clear.”
Stephenson v. State, 742 N.E.2d 463, 475 (Ind. 2001), cert. denied, 534 U.S. 1105 (2002)(quoting Sturgeon v. State, 719 N.E.2d 1173, 1179 (Ind.1999))(alteration in the original)
• In short, there is no bright-line rule for determining whether or when a motive to fabricate has arisen even if the declarant was (1) equally culpable as the defendant, such as a co-defendant; (2) involved after the crime . . . ; or (3) arguably involved before, during, and after the crime . . . . Determining the existence of a motive or when it arose is a fact-sensitive inquiry.
Stephenson v. State, 742 N.E.2d 463, 475 (Ind. 2001), cert. denied, 534 U.S. 1105 (2002)(citing Sturgeon v. State, 719 N.E.2d 1173, 1178 (Ind.1999))
See Bullock v. State, 903 N.E.2d 156, 161 (Ind. Ct. App. 2009)(citing Stephenson v. State, 742 N.E.2d 463, 475 (Ind. 2001), cert. denied, 534 U.S. 1105 (2002))(“However, there is no bright-line rule for determining whether a motive to fabricate has arisen; it is a fact-sensitive inquiry.”)
• The bottom line on this authority is that in situations where there is no evidence tending to implicate the declarant in the crime, the question of when the motive to fabricate arose is a sufficiently fact-sensitive inquiry (in contrast to situations in which the declarant is implicated in the crime when a motive to fabricate likely arises immediately upon the commission of the crime) that we will defer to the trial court's decision whether or not to admit the statement.
Bassett v. State, 895 N.E.2d 1201, 1211-12 (Ind. 2008), cert. denied, 556 U.S. 1171 (2009)
Identification of a person shortly after perceiving the person: In general
• Statements of identification are not hearsay if they are made shortly after perceiving the person, and the declarant is available for cross-examination concerning the statement at trial.
Dickens v. State, 754 N.E.2d 1, 6 (Ind. 2001)(citing Evid. R. 801(d)(1)(C))(footnote omitted)
Identification of a person shortly after perceiving the person: Interpretation of “identification of a person”
• The State argues that [the witness’s] testimony about [the victim’s] statement is not hearsay because the statement was one of identification of a person made shortly after perceiving a person, pursuant to Indiana Evidence Rule 801(d)(1)(C). We disagree. There was no dispute at trial that [the defendant] stabbed [the victim]; thus, [the victim’s] statement was one of explanation rather than identification.
Bryant v. State, 984 N.E.2d 240, 247 (Ind. Ct. App. 2013), trans. denied(quotation marks omitted)
Identification of a person shortly after perceiving the person: Interpretation of “shortly after perceiving”
• [W]e believe that the requirement that the identification be made “shortly after perceiving” was added to further buttress the reliability and accuracy of the identification. . . . We note that the term “shortly” is relative rather than precise. We believe it was chosen to permit courts to effectuate the purpose of the rule in the context of the facts before the court.
Robinson v. State, 682 N.E.2d 806, 811 (Ind. Ct. App. 1997)
See Davis v. State, 13 N.E.3d 939, 945 (Ind. Ct. App. 2014), trans. denied(citing Dickens v. State, 754 N.E.2d 1, 6 n. 6 (Ind. 2001))(“The term ‘shortly’ is relative, not precise; the purpose of the rule is to assure reliability.”)
See also Beasley v. State, 30 N.E.3d 56, 69 (Ind. Ct. App. 2015), reh’g denied(quoting Davis v. State, 13 N.E.3d 939, 945 (Ind. Ct. App. 2014), trans. denied)(“The term ‘shortly’ is relative, not precise; the purpose of the rule is to assure reliability.”)
Identification of a person shortly after perceiving the person: No requirement that the statement be given under oath
• [T]he requirement that the prior statement be made under oath applies only to Evid. R. 801(d)(1)(A). Evid. R. 801(d)(1)(C) does not require that the prior statement be made under oath.
Kendall v. State, 790 N.E.2d 122, 127 n. 6 (Ind. Ct. App. 2003), trans. denied
Relationship to the right of confrontation
• [W]here the declarant is not absent, but is present to testify and to submit to cross-examination, our cases, if anything, support the conclusion that the admission of his out-of-court statements does not create a confrontation problem.
California v. Green, 399 U.S. 149, 162 (1970)
Clark v. State, 808 N.E.2d 1183, 1189 n. 2 (Ind. 2004)(quoting California v. Green, 399 U.S. 149, 162 (1970))(“[T]he Court expressly noted that, ‘where the declarant is not absent, but is present to testify and to submit to cross-examination, our cases, if anything, support the conclusion that the admission of his out-of-court statements does not create a confrontation problem.’”)
• [W]e reiterate that, when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements.
Crawford v. Washington, 541 U.S. 36, 59 n. 9 (2004)
Clark v. State, 808 N.E.2d 1183, 1189 n. 2 (Ind. 2004)(quoting Crawford v. Washington, 541 U.S. 36, 59 n. 9 (2004))(“The Court specifically noted that its holding does not alter the rule that ‘when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements.’”)
• For more information about the right of confrontation, please review Right of Confrontation.