State v. Nichols

Harsha, Judge,

concurring.

I respectfully disagree with the principal opinion’s conclusion that only prior consistent statements made

before

the inconsistent statement (impeaching statement) may be used to rehabilitate the witness. In doing so, I must confess to adopting the minority view on this issue.

The fact that a witness has made a prior statement that is inconsistent with her trial testimony suggests that the witness’s present testimony is the product of either a faulty memory or a conscious effort to mislead the jury. The majority view, expressed by the principal opinion, holds that it then becomes relevant to show that the witness made a consistent statement

before

the witness’s memory purportedly failed, or before a motive to fabricate arose. It is interesting to note that in this case any motive to fabricate would have to have arisen prior to the victim’s giving any statement at all, consistent or otherwise. In other words, her motive to lie occurred prior to alleging the rape, rather than after having given an initial statement. Thus, the timing requirement does not seem appropriate here.

Nonetheless, I believe that once the credibility of the witness has been impeached by introduction of a prior inconsistent statement, a prior consistent statement may be introduced to bolster the credibility of the trial testimony, regardless of whether the bolstering statement was made before or after the inconsistent statement. See

United States v. Scholle

(C.A.8, 1977), 553 F.2d 1109, 1121-1122 ;

United States v. Rios

(C.A.10, 1979), 611 F.2d 1335, 1349 , and the cases cited at fn. 5 of the principal opinion. Where the prior consistent statement tends to rehabilitate the witness’s trial testimony, it should be admitted. Witnesses are always subject to cross-examination by references to discrepancies between their current trial testimony and parts of previous statements. It should be up to the trier of fact to determine whether the inconsistencies are such as to destroy the witness’s credibility. As one commentator has stated:

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“Of course, some prior consistent statements have minimal probative value. For example, a statement made by a party to the party’s lawyer shortly before trial, consistent with the party’s testimony at trial, would fall into this category.

“The most sensible thing the courts could do would be to treat a prior consistent statement like any other circumstantial evidence, the admissibility of which depends upon its relevance. The trial judge should have substantial discretion to weigh its probative value, if any, against the danger of confusion of issues, waste of time, needless presentation of cumulative evidence, and other factors listed in Fed.R.Evid. 403. The trial judge should not be strait-jacketed by arbitrary rules dealing with whether, when, or how the credibility of a witness was impeached, or the time when a motive to fabricate arose, if indeed it did arise, or whether the consistent statement was made before, or after, or contemporaneously with, a prior inconsistent statement.” Binder, Hearsay Handbook (3 Ed.), Section 2.12, at 79.

Because I believe evidence of the victim’s prior consistent evidence was properly admitted, there is no need to conduct either a harmless error or waiver analysis.

Concerning the fourth assignment of error, both the defendant and his wife repeatedly answered on both direct and cross-examination that they had no idea why the victim would lie about the incident. In short, counsel for appellant was able to inquire about the motive for lying but did not receive responses which were beneficial to his defense. See the record at 89-89, 99, 103, 113, 128, 134.

With the above-noted exceptions, I therefore concur in judgment and opinion.