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26.4 Prior Consistent Statements

    26.4.1 Prior Consistent Statements: Purpose And Scope Of Instruction
    26.4.2 Preliminary Factual Finding As To Timing Of Prior Consistent Statement

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    26.4.1     Prior Consistent Statements: Purpose And Scope Of Instruction

RATIONALE: A limited purpose instruction may be appropriate so the jurors understand how to consider evidence of a prior consistent statement offered to rebut a charge of recent fabrication or improper motive.

POINTS AND AUTHORITIES: Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTION 34 [Use Of Witness’s Prior Consistent Statements] (1988); see also FRE 801(d); Imwinkelried, Giannelli, Gillian, Lederer, Courtroom Criminal Evidence (Lexis, 3rd ed, 1998) § 721 pp. 280-84.

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 7.3].

RESEARCH NOTES:

See Manual On Recurring Problems In Criminal Trials [7. Receipt Of Expert Testimony: General Principles].

See also Manual On Recurring Problems In Criminal Trials [7a. Receipt Of Expert Testimony: Prior Consistent And Inconsistent Statements].

See also Manual On Recurring Problems In Criminal Trials [7b. Receipt Of Expert Testimony: Evidence Admissible For One Purpose But Not For Another].

RELATED FEDERAL MODEL INSTRUCTIONS:

See 1st Circuit Pattern Jury Instructions - Criminal 3.07.

See also 6th Circuit Pattern Jury Instructions - Criminal 7.18.

See also 8th Circuit Model Jury Instructions - Criminal 1.03.

See also 8th Circuit Model Jury Instructions - Criminal 3.03.

See also 9th Circuit Model Jury Instructions - Criminal 1.5.

See also Federal Judicial Center, Pattern Criminal Jury Instruction 18.

See also Federal Judicial Center, Pattern Criminal Jury Instruction 19.

See also Federal Judicial Center, Pattern Criminal Jury Instruction 34.

SAMPLE INSTRUCTION:

    _______ testified in the (government's) (defense's) case during the trial. You will recall that it was brought out that before this trial he made statements which were the same as, or similar to, what he said in the courtroom. These earlier statements were brought to your attention to help you decide whether you believe ________'s testimony. If ________ said essentially the same thing on more than one occasion it may be reason for you to believe _________'s testimony.

[Federal Judicial Center, PATTERN CRIMINAL JURY INSTRUCTION 34 [Use Of Witness’s Prior Consistent Statements] (1988).]

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    26.4.2    Preliminary Factual Finding As To Timing Of Prior Consistent Statement

RATIONALE: When a prior consistent statement has been introduced the jury should be aware that it must make a preliminary factual finding that the statement was made before the alleged bias or motive to fabricate.

POINTS AND AUTHORITIES: When the defense claims that a witness' testimony may have been influenced by multiple biases or motives to fabricate, a prior consistent statement is admissible only if it was made before the existence of any one or more of the alleged biases or motives to fabricate. (People v. Hayes (CA 1990) 52 C3d 577, 609 [276 CR 874]; see also State v. Williams (ME 1978) 395 A2d 1158, 1164 [preliminary factual finding made by inference].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 5.8; 7.3].

RESEARCH NOTES:

See Manual On Recurring Problems In Criminal Trials [7. Receipt Of Expert Testimony: General Principles].

See also Manual On Recurring Problems In Criminal Trials [7a. Receipt Of Expert Testimony: Prior Consistent And Inconsistent Statements].

See also Manual On Recurring Problems In Criminal Trials [7b. Receipt Of Expert Testimony: Evidence Admissible For One Purpose But Not For Another].

RELATED FEDERAL MODEL INSTRUCTIONS:

See 1st Circuit Pattern Jury Instructions - Criminal 3.07.

See also 6th Circuit Pattern Jury Instructions - Criminal 7.18.

See also 8th Circuit Model Jury Instructions - Criminal 1.03.

See also 8th Circuit Model Jury Instructions - Criminal 3.03.

See also 9th Circuit Model Jury Instructions - Criminal 1.5.

See also Federal Judicial Center, Pattern Criminal Jury Instruction 18.

See also Federal Judicial Center, Pattern Criminal Jury Instruction 19.

See also Federal Judicial Center, Pattern Criminal Jury Instruction 34.

SAMPLE INSTRUCTION:

    Evidence of a prior consistent statement by witness ________ has been admitted. You may not consider this evidence until you have first made a preliminary finding that the statement was made before the alleged bias or motive to fabricate.