Dike v. State11/30/1999
t 703.
I believe Chambers embodies the appropriate interpretation of W.R.E. 801(d)(1)(B), and the United States Supreme Court has held likewise. In Tome v. United States, 513 U.S. 150, 156, 115 S.Ct. 696, 700, 130 L.Ed.2d 574, the Court held that the drafters of F.R.E. 801(d)(1)(B) intended that rule to embody the common law requirement that a prior consistent statement has no relevancy to refute a charge of fabrication unless the consistent statement was made before the source of bias, interest, influence, or incapacity originated. This interpretation was based upon the plain language of the rule, legislative history, and analysis of the policies underlying the adoption of the rule. In reaching its Conclusion, the United States Supreme Court noted that A he Rule speaks of a party rebutting an alleged motive, not bolstering the veracity of the story told.@ Tome, 513 U.S. at 157-58, 115 S.Ct. at 701. Thus, the kind of impeachment contemplated and covered by the rule is the kind for which the premotive temporal requirement makes the most sense:
Impeachment by charging that the testimony is a recent fabri-cation or results from an improper influence or motive is, as a general matter, capable of direct and forceful refutation through introduction of out-of-court consistent statements that predate the alleged fabrication, influence, or motive. A consistent statement that predates the motive is a square rebuttal of the charge that the testimony was contrived as a consequence of that motive. By contrast, prior consistent statements carry little rebuttal force when most other types of impeachment are involved.
Tome, 513 U.S. at 158, 115 S.Ct. at 701.
Without this requirement, parties desiring to fabricate stories would have merely to repeat their stories to numerous people and they would have ready-made witnesses who could sway juries with their numbers. However, Arepetition does not imply veracity.@ Stephens, 774 P.2d at 72. Perhaps more importantly the interpretation accepted by the majority would shift the emphasis in trial to out-of-court statements, not the in-court ones. Tomes, 513 U.S. at 165, 115 S.Ct. at 705. The late Justice Cardine explained:
There is good reason for the rule excluding prior consistent statements. If the rule were otherwise, parties could prepare a multitude of self-serving, biased, inflammatory, video, audio, and written statements for trial; testify; and then introduce into evidence these consistent statements made prior to testifying. There would be no opportunity for cross-examination. The statements, as exhibits, might go with the jury and be used during deliberations. The same testimony would be repeated several times, unduly emphasizing that testimony over all other testimony in the case.
Baum v. State, 745 P.2d 877, 882 (Wyo. 1987) (Cardine, J., specially Concurring).
My research reveals that every state high court addressing the issue has adopted the Tome temporal limitation, reasoning that, to be admissible under Rule 801(d)(1)(B), the prior consistent statement must precede the motive to fabricate. See, e.g., Cole v. State, 818 S.W.2d 573 (Ark. 1991); Shellito v. State, 701 So.2d 837 (Fla. 1997); Bouye v. State, 699 N.E.2d 620 (Ind. 1998); State v. Johnson, 539 N.W.2d 160 (Iowa 1995); Smith v. Commonwealth, 920 S.W.2d 514 (Ky. 1995); State v. Littlefield, 540 A.2d 777 (Me. 1988); Holmes v. State, 712 A.2d 554 (Md. 1998) (adopting Tome but allowing prior consistent statements under unique Maryland rule with no federal counterpart); Owens v. State, 666 So.2d 814 (Miss. 1995); State v. Veis, 962 P.2d 1153 (Mont. 1998); State v. Morris, 554 N.W.2d 627 (Neb. 1996); Peterson v. State, 744 P.2d 1259 (Nev
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