State v. McWilliams

Penoyar, J.

¶40 (concurring) — I concur in the result but write separately to question the logic and continuing validity of one of the preconditions to the availability of the prior consistent statement exception to the hearsay rule. According to the case law, one of the requirements for an admissible prior consistent statement is that the declarant was unlikely to have foreseen the legal consequences of his statement. This “legal consequences” requirement first appeared in State v. Murley, 35 Wn.2d 233 , 212 P.2d 801 (1949), and subsequent cases have continued to cite it despite its inapt narrowing of the prior consistent statement exception.

¶41 The hearsay rule is founded on the theory “that the many possible sources of inaccuracy and untrustworthiness *158 which may lie underneath the bare untested assertion of a witness can best be brought to light and exposed, if they exist, by the test of cross-examination.” 5 John Henry Wigmore, Evidence in Trials at Common Law § 1420, at 251 (James H. Chadbourn rev. ed. 1974). The hearsay rule will also usually exclude prior statements by witnesses who testify at trial. 5 Wigmore, supra, § 1363, at 10. An exception to this exists when a witness is impeached in cross-examination for bias, interest, or corruption. 4 John Henry Wigmore, Evidence at Trials in Common Law § 1128, at 268 (James H. Chadbourn rev ed. 1972). “A consistent statement, at a time prior to the existence of a fact said to indicate bias, interest, or corruption, will effectively explain away the force of the impeaching evidence.” 4 Wigmore, supra, § 1128, at 268. This prior consistent statement exception to the hearsay rule allows a witness to have his credibility affirmed after it has been attacked:

A statement is not hearsay if—

(1) Prior Statement by Witness. The declarant testifies at the trial or hearing and is subject to cross examination concerning the statement, and the statement is ... (ii) consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.

ER 801(d). Murley added a third requirement to the exception: that “the prior out-of-court statements were made under circumstances minimizing the risk that the witness foresaw the legal consequences of his statements.” 35 Wn.2d at 238 .

¶42 In Murley , a nine-year-old sexual assault victim made statements to police, which the defense tried to exclude. 35 Wn.2d at 234, 236 . The court found these statements reliable and therefore admissible because the victim was too young to realize the legal consequences of making them. Murley, 35 Wn.2d at 238-39 .

¶43 Murley claims to summarize the principles of the prior consistent statement exception. 35 Wn.2d at 238 . But *159 the cases preceding Murley do not mention foreseeing legal consequences. Instead, they rely on a broader rule paralleling the language of ER 801(d)(l)(ii): “ ‘[prior consistent statements are admissible] where the testimony is assailed as a fabrication of a recent date, or a complaint recently made; for there, in order to repel such imputation, proof of the antecedent declaration of the party may be admitted.’ ” State v. Manville, 8 Wash. 523, 525 , 36 R 470 (1894) (quoting Ellicott v. Pearl, 35 U.S. (10 Pet.) 412, 413 , 9 L. Ed. 475 (1836) (holding that evidence of a prior consistent statement was admissible as an exception to hearsay)). 12

¶44 In the half-century from Manville to Murley , Washington courts recognized a “foreseeable” element to the prior consistent statement test, but this was not limited to legal consequences. For example, our Supreme Court held that a prior statement was admissible to restore a witness’s credibility if it was made “before the time when its ultimate effect and operation could be foreseen.” Sweazey v. Valley Transp., Inc., 6 Wn.2d 324, 335 , 107 P.2d 567 (1940). In a negligence suit against a streetcar company, the court employed similar language approving the admissibility of a statement given “before its effect and operation could be foreseen.” Callihan v. Wash. Water Power Co., 27 Wash. 154, 162 , 67 P. 697 (1902).

¶45 Despite the lack of precedent for the legal consequences requirement, Murley continues to be broadly cited. In another sexual assault case the Court of Appeals emphasized the rule created in Murley , stating that “a charge of recent fabrication can be rebutted by the use of prior consistent statements only if those statements were made under circumstances indicating that the witness was un *160 likely to have foreseen the legal consequences of his or her statements.” State v. Makela, 66 Wn. App. 164, 168-69 , 831 P.2d 1109 (1992) (emphasis added). There, the court admitted the underage victim’s testimony of prior allegations because no motive to fabricate existed when the statements were made. Makela, 66 Wn. App. at 167-68 .

¶46 Murley’s language that prior out-of-court statements must be made “under circumstances minimizing the risk that the witness foresaw the legal consequences of his statements” was an acknowledgement of the youth and guilelessness of the victim-declarant. 35 Wn.2d at 238 . This narrow holding should not be unnecessarily extended. There remain many motive-based reasons to exclude prior statements. Whether a witness foresaw the legal consequences of his statement is but one. Alternately, if he foresaw the legal consequences of his statement, this does not always make his statement unreliable or inadmissible. The correct test to admit prior consistent statements is whether the statement was made before the motive to fabricate arose. It remains for the trial court to decide as a threshold matter whether the evidence of a motive rises to the level needed to exclude a prior consistent statement. Makela, 66 Wn. App. at 173 .

Review denied at 179 Wn.2d 1020 (2014).

Murley also cites a law review article surveying various states’ rules on the admissibility of prior consistent statements. 35 Wn.2d at 237 . There is no mention in this article of foreseeing legal consequences, but the author synthesizes a rule that a witness may repel accusations of recent fabrication by proving he made the same statement “at a time when its ultimate effect and operation arising from a change of circumstances could not be foreseen.” Herald A. O’Neill, Admissibility of Previous Consistent Statements By a Witness, 6 Wash. L. Rev. 112 , 113 (1931).