Worthy v. United States: The DCCA on Prior Consistent Statements

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, 100 A.3d 1095 (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.”