Evidence

Prior Consistent Statements and State v. Viranond
Posted by: Joe Metcalfe
July 27, 2009

Assume Witness 1 is impeached at trial with a prior inconsistent statement. Furthermore, assume Witness 2 was (a) present when Witness 1 made the prior statement; and (b) sat through the trial testimony of Witness 1. Do the rules of evidence permit calling Witness 2 to testify that Witness 1's out-of-court statement and in-court testimony were consistent?

I know what you're thinking. Nope. Can't do it. Not in this country.

You might want to use a lifeline. In State v. Viranond , __ Or __ (July 16, 2009), the Oregon Supreme Court last week held that the prosecutor may, after its cooperating witnesses had been impeached, call a detective to the stand and elicit testimony from the detective that the out-of-court statements and trial testimony of the witnesses were "consistent." In this post, I'll analyze how the Oregon Supreme Court reached this puzzling conclusion. I'll also make some general observations about the rules governing prior consistent statements and conclude with some practical tips to keep in mind when confronted at trial with the state's attempt to rehabilitate a witness through a prior consistent statement under OEC 801(4)(a)(B).

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