The opinion
Robert H. Dudley, Justice, dissenting. The majority opinion may well necessitate a change in the way attorneys prepare for trial in both civil and criminal cases. In order to make the holding of the majority opinion and this dissent as clear as possible, this dissent is divided into parts.
I. FACTS
A.
On October 18, 1992, the Bentonville Police Department received a call reporting that a woman had been shot. Police were dispatched to the scene where they found Bobby Jones and the corpse of Wynona Frazier. Jones told the police that he was in Wynona Frazier’s home when he heard defendant, who was Wynona Frazier’s estranged husband, break through a window. He said defendant, after breaking in, shot him twice, and then shot and killed Wynona Frazier, and fled in his vehicle. Defendant was subsequently charged with the attempted capital murder of Bobby Jones and the capital murder of Wynona Frazier. The charges were joined.
B.
Over two years later, on January 7, 1994, in preparation for the trial, defendant’s attorneys interviewed Bobby Jones, who was the only eyewitness to the crimes. As would be expected, they asked numerous questions trying to learn all they could about the State’s primary witness. Their recorded interview was solely for their own benefit. It was not given under oath. They began the interview by asking Jones where he was born, where he grew up, where he lived, how he met the defendant, whether he was married, whether he was divorced, what caused his divorce, whether he had children, whether he had an affair with Wynona, what he knew about the married life of defendant and Wynona, why Wynona filed for divorce against defendant, whether defendant paid child support to Wynona, how defendant treated Wynona, and how the crimes took place.
Since the interview was solely for defense counsel’s benefit, they likely did not consider the possibility that a trial court might order a full transcription of the interview admitted into evidence; therefore, they asked questions they would not otherwise have asked, such as whether defendant paid child support while separated from Wynona, whether Wynona was afraid of the defendant, and whether she was afraid he was going to kill her. One answer even revealéd that defendant had refused to attend his grandchild’s birthday party. The interview was extensive. It contained fifty-three pages when transcribed in the lawyer’s office.
In one answer Jones told defense counsel that defendant had asked him if he and Wynona were having an affair. In another he said that, on the night of the shooting, he arrived at Wynona’s house around 9:00 or 10:00. In yet another answer he said that the defendant broke the window with “some kind of board,” but he wasn’t sure what kind.
C.
At trial, in the State’s case-in-chief, Jones testified that the defendant told him in October of 1992 that Wynona had said he was making “obscene eyes” at her. He said that he arrived at the house around 9:30 or 10:00 on the night of the shooting. He said that he heard a noise and then “seen a two-by-four knocking out the window.”
On cross-examination, defendant’s attorney asked Jones if he told the prosecutor that he had made sexual advances toward Wynona and whether he told one policeman that he arrived at Wynona’s house at 6:00 or 6:30, and told another that he got there at 8:00 or 9:00. He was asked whether he told one policeman that appellant broke the window with a “wooden stick” and told another that he did not know what type of object was used to break the window.
In the defendant’s case, defense counsel began direct examination by asking Jones if he remembered the January 7 interview with the defense attorneys. Then Jones was asked if he knew that defendant had accused Wynona and him of having an affair in 1992. He said that he did not remember such an incident. He subsequently testified that, in the two weeks before the alleged crimes, he had not been to Wynona’s house very often. He was then asked whether he had told the police that he had stopped at Wynona’s every day at 4:00 a.m. after he got off work, and that he had done that every day for the two weeks before the crimes. Again, he said that he did not remember. When asked about the murder weapon, he said that he did not know how large the gun was or what it looked like, and defense counsel then asked if he remembered telling police that the gun was “little bitty” and that it had a brown handle and a blackish-brown barrel. The examination brought out inconsistencies regarding where Jones had said Wynona was before the shooting, and revealed that he told police he was not really clear on a lot of the details.
On cross-examination, the prosecutor asked Jones if he had told the truth in the January 7, 1994, statement taken by the defense attorneys, and if he had said the same things to defense counsel that he had said to police. The State then moved to introduce the fifty-three page transcription of defense counsel’s interview. Appellant made an extensive objection based on hearsay. The State countered that it was offering the complete transcript of the interview by defense counsel to rebut the insinuation of a recent fabrication. The court admitted the fifty-three page transcription under Ark. R. Evid. 801 (d)(l)(ii). Defendant appeals. The majority opinion holds that the transcription of defense counsel’s unsworn interview with the witness was properly admitted as evidence. I dissent.
II. LAW
B.
Rule 801 of the Arkansas Rules of Evidence provides that “A statement is not hearsay if . . . [t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is . . . consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive.” Ark. R. Evid. 801 (d)(1)(H) (emphasis added). The theory underlying the rule is that evidence which counteracts a suggestion that the witness has changed his story in response to a motive for fabrication, by showing the response was the same prior to external pressure being applied, is highly relevant in shedding light on the witness’s credibility at trial. Pennington v. State, 24 Ark. App. 70 , 749 S.W.2d 680 (1988). Examples of the correct application of the rule can be found in the following federal cases. In United States v. Gonzalez, 700 F.2d 196 (5th Cir. 1983), the court held that the defendant should have been allowed to introduce evidence of his prior consistent statement to his wife where there was implication that he had fabricated lack of criminal intent. In United States v. Fieldman, 711 F.2d 758 (6th Cir. 1983), the court affirmed a ruling admitting the prior consistent statement of a government witness where defense counsel, during cross-examination and opening and closing argument, impliedly charged that a government “deal” motivated the witness to fabricate his trial testimony and that the prior statement was made before the witness entered into a plea agreement with the government. Finally, in United States v. Albert, 595 F.2d 283 (5th Cir. 1979), cert. denied, 444 U.S. 963 (1979), the court held that it was not error to admit into evidence a tape recording between the witness and a drug dealer, portions of which corroborated the witness’s testimony, where on cross-examination defense counsel brought out that the witness had not agreed to testify until an arrangement had been reached about a disposition of the charges against defendant. See 4 Jack B. Weinstein and Margaret A. Berger, Weinstein’s Evidence, ¶ 801 (d)(1)(B)[01 ] (1995).
Here, there was no showing of a motive to fabricate testimony which arose between the interview with defendant’s attorneys and the testimony at trial. The witness was not charged with a crime, there was no attempt at a “deal,” and there was no threat of him being charged. There was no attempt to work out anything with anybody on the part of the witness. The majority opinion does not suggest even a remote possibility of a motive to fabricate that could have arisen between defense counsel’s interview and the trial. Such a showing, either express or implied, is essential under the clear language of the Rule. Jones v. State, 318 Ark. 704 , 889 S.W.2d 706 (1994); Rock v. State, 288 Ark. 566 , 708 S.W.2d 78 (1986).
Evidence of prior consistent statements cannot be used to bolster credibility unless they come within the requirements of Ark. R. Evid. 801(d)(1)(ii) or (iii). Todd v. State, 283 Ark. 492 , 678 S.W.2d 345 (1984); Pennington v. State, 24 Ark. App. at 72 , 749 S.W.2d at 681 . A prior consistent statement may not be introduced simply to bolster the testimony of a witness at trial. Pennington v. State, 24 Ark. App. at 72 , 749 S.W.2d at 681 (quoting Weinstein, supra ¶ 801(d)(1)(B)[01] (1987)). Thus, the ruling admitting the interview was in error.
Even if some part of the interview had been admissible within the purview of Ark. Rule Evid. 801 (d)(1)(h), it was admissible only to the extent that it related to the same subject matter. The rest of it was hearsay and not admissible. United States v. Dennis, 625 F.2d 782 (8th Cir. 1980).
B.
The majority opinion is far reaching. Since Rule 801 applies to all trials, it will apply to all future trials, both civil and criminal. The majority opinion holds that prior consistent statements, without more, are admissible to bolster a witness’s testimony. No other jurisdiction so construes Uniform Rule 801(d)(1)(h). The result may well be that, in this jurisdiction, an attorney can no longer take complete statements of witnesses because such an interview can now be used by opposing counsel to bolster the opposing party’s testimony.