Mason v. U.S.: When Is A Prior Consistent Statement Admissible?

I love appellate cases on evidentiary issues – which the D.C. Court of Appeals seems to be doing a lot lately — because they allow me to take out my handy-dandy McCormick on Evidence guide.

According to McCormick, there are three things you need to know about the credibility of a witness:  bolstering, impeachment, and rehabilitation. Impeachment and rehabilitation are straight-forward. As for bolstering, the general rule is that you are not allowed to sing the praises of your own witness until that witness has been challenged or impeached. Only then can you begin to think about rehabilitation.

That is the simplified version. The D.C. Court of Appeals dealt with a twist on the bolstering issue in Andre Mason v. United States, 53 A.3d 1084 (D.C. 2012), an opinion it issued last week on prior consistent statements. Because, after all, life is never easy and the law is far too interesting.

Kevin Crouch testified before the Grand Jury that he saw the defendant in his apartment on the night the deceased was shot. This was the prior consistent statement. We just didn’t know it yet.

A couple of months later, Crouch told the defendant’s investigator that it had actually been someone else he had seen in the apartment. This was the prior inconsistent statement.

Finally, at trial, Crouch testified that he had in fact seen the defendant in the apartment that night. The only reason he told the defendant’s investigator that he had seen someone else was because he knew that whatever he said would get back to the defendant.

The defense impeached Crouch’s trial testimony with the inconsistent statement he had given to the investigator. In what would turn out to be the determining factor in the outcome of the case on appeal, the defense also asked Crouch about his recent conviction for carjacking in Maryland. The defense implied that Crouch was using his testimony to ingratiate himself with the government for more favorable treatment at sentencing.

With the impeachment concluded, the door was now open for rehabilitation, and the government asked Crouch on re-direct about his prior consistent statement before the Grand Jury. The defense objected.

The defense argued that Crouch’s prior consistent statement should have been ruled inadmissible. Prior consistent statements – in D.C. anyway — only come in if the statement was made at a time or under circumstances when the witness had no motive to fabricate.  And in this case, Crouch’s motive to fabricate (he wanted to protect himself and his family from criminal charges related to the weapons found in their apartment) was the same on the day of trial as it was when he made it before the Grand Jury.  As such, the prior consistent statement was no more trustworthy than the same statement at trial.   “Repetition does not imply veracity.”

The government, by contrast, pointed to the additional and different grounds for bias that arose after the prior consistent statement was made (i.e., Crouch’s interest in a more favorable sentence with respect to his conviction for carjacking). It argued that Crouch’s Grand Jury testimony should be admissible to rebut these more recent grounds for alleged fabrication, even if Crouch already had a motive to lie at the time he testified the first time.

The Court of Appeals agreed with the government:

To be clear, there may well be circumstances where allegedly “different” motives to fabricate are more properly characterized as “smaller subsets of [a] larger theme . . . but this is a distinction that we need not address here.  Where the relevant ground of impeachment involves an independent criminal action arising in a different jurisdiction, which has had a significant fabrication-inducing development just two weeks prior to trial (in this case, the filing of a motion for resentencing), it is accurate to label the new motive to fabricate as “different.”  Accordingly, [Crouch’s] prior consistent statement . . . was admissible to rebut defense counsel’s charge that he had a current reason to curry favor with the government notwithstanding that the witness also had other, unrelated motives to lie at the time the statement was made.  It is critical to our analysis that the jury was well aware of those other motives, and thus able to weigh the prior consistent statement accordingly.

The Court continued:

Prior to the admission of [Crouch’s] prior consistent statement, the defense had elicited a prior inconsistent statement – [Crouch’s] statement to the defense investigator implicating [another party] – and then attempted to explain [Crouch’s] trial testimony implicating [the defendant] by reference to an intervening motive to lie.  This combination, without more, would have strongly suggested to the jury that [Crouch] had fabricated his trial testimony.  As explained by the trial court:  “It would be extremely misleading to permit the jury to conclude that the only pronouncement that the witness has ever made about this case was the one he made to the investigator, and that the reason he’s now changed his testimony is an intervening discussion wit hthe prosecutor and concern about his own sentence.”  We agree with the trial court.  If one party could impeach a witness with the later motive to fabricate, no matter how powerful it may be, knowing full well that the other party would be prohibited from rehabilitating that witness with prior consistent statements, the overall impact of the witness’s impeachment would be rendered misleading  Where the jury has been exposed to the witness’s motive to fabricate both before and after the prior consistent statement was made, the better rule is to allow counsel to argue their inferences to the jury and let the juror weigh the evidence.

Because the defense counsel could not have foreseen the exact course of events with respect to this case, it is unfair to judge him or her on the basis of what we know today.  At the same time, looking at things in retrospect, he or she probably should have impeached Crouch on the witness’s initial motive for fabricating evidence and left the more recent carjacking matter alone.  This should have kept out the Grand Jury testimony.

In the meantime, there is a certain logic to the opinion that continues to escape me.  Just because there were multiple reasons for impeaching the government’s witness — not just one — does not make the initial statement any more reliable.