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Dike v. State11/30/1999
d amounted to prejudicial error.
Although this court attempted to clarify its position on this issue in Stephens v. State, 774 P.2d at 70-72, the current state of the law is less than clear ten years later. The general rule is that prior consistent statements are not admissible where the person making those statements has testified fully in open court and been available for cross-examination. Chambers v. State, 726 P.2d at 1273; Stephens v. State, 774 P.2d at 70. Rule 801(d)(1), W.R.E, creates an exception to the general rule which, if satisfied, allows prior consistent statements into evidence. In Chambers, we recited the following rule on admission of prior consistent statements:
A witness=s prior consistent statements are not admissible under Rule 801(d)(1)(B), W.R.E., unless they were made before the alleged fabrication or improper influence. Statements made by a witness after corrupting forces come into play could be just as fabricated as trial testimony and do not rebut the charge of fabrication just because they are consistent with his testimony at trial.
726 P.2d at 1273 (citations omitted).
However, in the later case of Makinen v. State, 737 P.2d 345, 349 (Wyo. 1987), as the majority observes, this court shifted course mid-stream. There the court wrote:
There is no express condition in the rule which states that the prior consistent statement must be made before the alleged improper motive to fabricate arose. In the absence of an express prohibition, we think the trial court should have the discretion to determine whether a prior consistent statement should be admitted whether or not it was made before an improper motive to fabricate arose.
Faced with this inconsistency, the court in Stephens v. State, 774 P.2d 60, attempted to reconcile Chambers and Makinen, drawing a distinction between prior consistent statements used for rehabilitative/credibility purposes and those that would be permitted as substantive evidence. The Stephens court wrote:
Should the trial court find that the improper influence or motive or the claim of recent fabrication antedated the consistent statement, and yet still determine that the probative value justifies admission, a limiting instruction must be given, if requested, to the effect that the statement may be considered only for the limited purpose of evaluating the credibility of the declarant witness and that it should not be considered directly as proof of the matter asserted.
774 P.2d at 71-72.
I find the distinction between rehabilitative/credibility use and substantive use of the statements, as a practical matter, provides a distinction without a difference. First, as the Stephens court recognized, even if the statements are admitted only for rehabilitative purposes, whether the statements were admitted before or after the declarant testified was of little consequence: Apreadmission may be justified as harmless error if the declarant does testify later in a manner that is consistent with a prior statement.@ 774 P.2d at 71. Second, while the Stephens court suggests that a limiting instruction will assist the jury in its consideration of the prior consistent statements, even the Dissenting Justices in Tome recognized that such limiting instructions are either misunderstood or ignored by juries. 513 U.S. at 171, 115 S.Ct. 707-08. Finally, A hen a witness presents important testimony damaging to a party, the party will often counter with at least an implicit charge that the witness has been under some influence or motive to fabricate,@ thus opening the floodgates to prior consistent statements that need only satisfy Rule 403. Id. 513 U.S. at 162, 115 S.Ct. a
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