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Improperly Admitted Prior Consistent Statement Vacates Conviction

A prior consistent statement usually refers to an extrajudicial statement by a witness which is in agreement with something to which that witness has testified in court. Under evidentiary rules in Tennessee courts (the federal court rule on this subject is different), prior consistent statements of witnesses are generally not admissible. The reasoning for this is that finders of fact in judicial proceedings should primarily consider what the witness has said in court rather than considering the contents of out of court statements. But prior consistent statements may be used to bolster credibility if the credibility of the witness' statement is attacked in court. Even in that case, the statement should only be considered for purposes of evaluating the credibility of the in court testimony.

In the recent Tennessee case of State v. Herron, W2012-01195-SC-R11-CD (Tenn. 3-26-2015), a conviction for rape of a child was reversed and remanded for a new trial. One of the two critical errors resulting in the reversal was that trial court allowed a prior consistent statement of the testifying victim into evidence before the the credibility of the statement had been attacked (it was a forensic interview admitted during direct examination). Even the state acknowledged on direct appeal that this was error. Ultimately, the state Supreme Court determined this error, in addition to an evidentiary error in the admission of impeachment evidence against the defendant, warranted reversal of the conviction and a new trial.

It should be noted that the Tennessee Legislature, in 2014, passed a statute allowing for the admission of qualified forensic interviews of children under the age of thirteen (specifically regarding sex abuse) as long as the witness also testifies. That statute would not have cured the problem in the Herron case, where the witness was sixteen at the time of the forensic interview.

For more information on when prior statements of witnesses are admissible in a court proceeding, contact Hindman & Associates.

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