DOJ-OGR-00005490.pdf

Case 1:20-cr-00330-PAE Document 382 Filed 10/29/21 Page 35 of 69 Finally, admissibility of the number and type of prior consistent statements still is guided by Rules 401 and 403, including whether the prior consistent statements are reliable, cumulative, or unfairly prejudicial; the Court may choose to exclude prior consistent statements when the quantity and type of prior consistent statements form the bulk of the government's case rather than the trial testimony of the witnesses. Tome v. United States, 513 U.S. 150, 165 (1995) ("If the Rule were to permit the introduction of prior statements as substantive evidence to rebut every implicit charge that a witness' in-court testimony results from recent fabrication or improper influence or motive, the whole emphasis of the trial could shift to the out-of-court statements, not the in-court ones."); Wright & Miller, supra, § 6754 ("The danger of substantive use of the prior statement remains on the unfair prejudice side of the ledger."). "One thing the courts all agree on is that there is 'no rule admitting all prior consistent statements simply to bolster the credibility of a witness." Id. (emphasis supplied). As to introduction of these prior consistent statements through other witnesses, the Second Circuit is clear that "where the declarant has already testified and the prior consistent statement is proffered through the testimony of another witness, the Rule's 'subject to cross-examination' requirement is satisfied if the opposing party is not denied the opportunity to recall the declarant to the stand for cross-examination concerning the statement." United States v. Caracappa, 614 F.3d 30, 39 (2d Cir. 2010). Thus, if the government elicits prior consistent statements from third-party witnesses, then they will be obliged to make the declarant-Accuser available for recall to be subjected to cross examination concerning those statements. In sum, the Court's rulings regarding admissibility of prior consistent statements can only come at the time the government proffers them, explains the purpose for which they are offered (whether under subpart (i) or (ii) of Rule 801(d)(1)(B)) and clears the other evidentiary hurdles 27 DOJ-OGR-00005490