Just because you repeat something over and over does not make it true.  Nor are you permitted to “bolster” your own witness.

A “prior consistent statement” – a witness’ previous statement that is consistent with something the witness testifies to while on the stand – is generally inadmissible.  If it is an out-of-court statement offered for the truth of the matter, it is hearsay and can only be admitted through some type of hearsay exception.  Generally, it is also deemed irrelevant.  As the D.C. Court of Appeals has put it, “[m]ere repetition does not imply veracity.”

An exception to the rule against prior consistent statements is when the statement is “offered to rebut an express or implied charge against the witness of recent fabrication or improper influences or motives.”  In other words, the statement can become relevant – and therefore admissible – the moment the witness’ testimony is impeached.  This assumes that (1) the witness is subject to cross-examination and (2) the statement was made at a time before the witness had a motive to fabricate.   If both these conditions are satisfied, the statement falls within an exception to the hearsay rule and can be offered as substantive evidence (that is, it can be offered as the truth).

In Julius L. Worthy v. United States, ___ A.3d ___ (D.C. 2014), the trial court admitted into evidence the prior consistent statement by the complaining witness that the defendant had hit her several times in the face, as charged, and that he had threatened to kill her.  This was after the complainant had testified to these allegations on direct examination.  Moreover, it was after the defense had impeached the complainant with her statement to another detective that the defendant had not done anything to her.

All the requirements for admitting the complainant’s prior consistent statement were satisfied in this case.  First, the complainant was subject to cross-examination while testifying.  Second, she had been impeached with her statement to the detective that the defendant had not done anything to her.  Finally, the “impeaching event” – her statement to the detective – occurred in the intervening period between the prior consistent statement and her trial testimony.

The D.C. Court of Appeals then went beyond this rather narrow ruling.  Specifically, it held that prior consistent statements are admissible to rehabilitate a witness whenever “the facts and circumstances have particular relevance in refuting the theory of impeachment that has been advanced.”

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“I Make Over Six Figures A Year. What Am I Doing Here?”

by Jamison Koehler on October 14, 2014

Guest Post by Tyler Wolff*

These are the first words that went through my head when the jury found me guilty of my second DUI.  The first one was a dangerous mistake:  I was young, underage, drinking with a fake ID, and hadn’t consumed much alcohol in my life up to that point.  Really, growing up, I didn’t drink much.  Working in a new city with new faces and friends, I liked the competitiveness of the “drinking” scene.  All you have to do to become the bigger man is to drink more shots than the next guy?  Sure, done.  No problem.  On it.

However, I wasn’t aware that my judgment would become impaired to the point that I would think it a good idea to drive even in spite of having a hard time putting one foot in front of the other.  I don’t remember the accident.  In fact, I don’t remember getting into my car, much less starting it and doubtlessly weaving down the street.  All I remember before the passenger side of my car was slammed into by another driver at high speeds is the brief flash of headlights in my passenger side window.

When I saw my car, about a week later, I saw I had gotten hit so hard that the glovebox had been relocated to where the emergency brake lever used to be.  I don’t remember the impact.  I do remember sitting on the side of the road, my broken car smoking and dripping fluid.  I do remember being handcuffed with blood running down my face.  This was my first DUI which was promptly sealed and hidden away in court records due to my being a minor and my promise that I would complete a number of driver safety programs and court-ordered supervision, which included regular drug testing and community service.

I didn’t really care for drugs so this was fine.  I also really enjoyed volunteering in my off-hours, so this was also fine.  Basically, it was all fine until years later.  Flash forward, these days I was considered a model, upstanding, tax-paying citizen, renting a two-bedroom townhouse where I lived with my wife and our two dogs.    Here’s the truth of the matter:  As beautiful as this woman was, and as pleasant as our life appeared to be on the surface, we fought.  A lot.  In fact, we were in regular, weekly marriage counseling in which some pleasant older fellow told us how to have a wonderful marriage, just like his.

I always thought to myself:  “I bet you guys fight too.  I bet you pretend you don’t so that you can charge me by the hour to tell me how not to fight. “  That’s just an aside.

One night, after a long party to celebrate my wife, we went home and, surprise, a fight started.  Had I flirted with someone too much?  Did I give the wrong woman the wrong glance?  Whatever it was, my wife was furious.  And I thought about the advice that the older fellow, our marriage counselor, had given us:  “If you fight, and it’s escalating, and you’re shouting and you don’t see any end to it, just leave.  Get distance, get to a safe place, and then you can talk about it the next day.”

Cue me driving driving down a D.C. city street at 3:00 am on the morning, desperately seeking a safe place.  My agitated mind had made the decision that the “safe place” would be my office.  At my office I would book a hotel.  I would sleep a few hours in that hotel, let things settle and then go talk to her in the early morning before work.  Cue flashing lights behind me.  The officer later said that I crossed over a line which made him think I was under the influence.  He later said that I was extremely polite, that I explained where I was going and why, and that I fully cooperated in every instance.

Basically, I was pretty nice about the whole thing.  I still got to spend the night in a holding cell.  Fortunately I was released early enough to go home, take a shower, put a tie on and go to work – that was also nice.  I said maybe three words to the wife – understandably — I think at least – upset about the situation.  I now had a court date for my second DUI.

And we tried everything.  With the assistance of my lawyer, we called an expert witness to testify that the science behind alcohol breath-testing is flawed and that the field sobriety tests and breath machine were improperly administered in my case.   We called a jury to decide the verdict.  The whole process stretched out for months, which gave me time to figure out what to tell my colleagues at the firm in the event that things went south.

“Things going south” meant that, when I went to court for my second DUI, an emergency law of some sort (note, I’m not a lawyer, so don’t quote me on this) had been passed that made my second DUI a mandatory 10 days in prison.  Considering a high-stress job in which my assistance was needed not only during the obligatory 50-hour weeks but also on weekends, this concerned me.

I remember the judge looking apologetic when the jury read the verdict.  I remember my lawyer giving me a “we did our best” face (and we most certainly did).  Then I was handcuffed and led to yet another holding cell, and those words ran through my head:  “I make over six figures a year, what am I am doing here?”

Note:  This is part I of a two-part series, primarily because this experience happened late last year and I want to be able to remember as much as possible of the finer details to write them out and share with you.  Up next is the full story of what it’s like in a D.C. prison for 10 days.

* * * * *

*Not his real name

Related blog entries:

And Sometimes You Go To Jail

DUI Trial Transcript:  Horizontal Gaze Nystagmus

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Thank You For Your Vote Of Confidence

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Dear Juvenile Client: You must think I am one really, really good lawyer. Why else would you violate every condition of your pre-trial probation — knowing that this would result in your being locked up until forever — unless you were absolutely convinced that I was going to beat the case? You are the boss. […]

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H/T A Public Defender

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In Defense of a Well-Timed Stink

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“Leteracy Night”

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“Darling, I Love You But Give Me Park Avenue”

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We live on Park Avenue. It is a beautiful tree-lined street in an historic part of town.  But it is not what you think:  It is not Park Avenue in New York City. And that is because we live in Baltimore. That is the thing about this city.  For every street, bridge, monument, or tourist […]

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