Prior Consistent Statements and State v. Viranond

Posted by: Joe Metcalfe
July 27, 2009
Topic: Evidence

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When you investigate cases, you'll get witness statements. At trial, you'll impeach witnesses with these statements. During redirect or rebuttal, the prosecutor will attempt to rehabilitate these witnesses with prior consistent statements. Because this scenario is so common, criminal defense lawyers should have deep familiarity with OEC 801(4)(a)(B). Using the opinion State v. Viranond , __ Or __ (July 16, 2009), as a point of departure, I'll discuss in this post the murky world of prior consistent statements.

Viranond : What Happened At Trial

The defendant in Viranond was convicted of being the ringleader of a home invasion robbery. The state presented evidence that Viranond recruited two henchmen (including an individual named Henderson) and a henchwoman (Burgstahler) to assist in this endeavor. At trial, both Henderson and Burgstahler testified for the state that Viranond was the instigator of the robbery. Henderson testified pursuant to a plea agreement with the state; Burgstahler had no such express agreement but had not been charged with any crimes and thus was similarly vulnerable to a bias impeachment.

Defense counsel aggressively cross-examined both witnesses. Specifically, the defense impeached Henderson with the fact that Henderson did not implicate Viranond during the first two of his three interviews with the police. The defense impeached Burgstahler with inconsistencies, calling attention to differences in her initial statement to the police and her trial testimony.

And now things get interesting. The prosecutor (during rebuttal I assume) called one Detective Napieralski to the witness stand. Reminiscent of the riveting trial scene in "A Few Good Men," the detective had been sitting in the courtroom during the entire trial. The detective had been also present during the earlier interviews with both Henderson and Burgstahler. As the prosecutor began to question the detective about details of Henderson's prior out-of-court statements to the police, the trial court interrupted and said he would not permit the detective to go over Henderson's testimony again in detail.

THE COURT: I am not going to let you go over [Henderson's] entire testimony again. I think we just need, you know, to get on to new subjects or ---
PROSECUTOR: I would be happy to ask Detective Napieralski if he believed Mr. Henderson's testimony to be consistent with the three interviews he's given, but I suspect the defense would object to that. But I could cut it to the point if it ---
THE COURT: You know, I am just trying to move things along here, so we don't take up all afternoon.

Parenthetically, any time a prosecutor says he'd be "happy" to do something, I know I'm not going to like what's about to happen. In my experience, when the prosecutor is happy, I am sad. And vice versa.

Anyway, the prosecutor then asked the detective whether Henderson's testimony at trial was consistent with the three prior police interviews. As the prosecutor predicted, the defense objected:

PROSECUTOR: Is [Henderson's] testimony consistent with the three interviews he gave to you and other members of the Tigard Police Department?
DEFENSE COUNSEL: Objection. Question calls for the witness to comment on the veracity or truthfulness ---
THE COURT: No, it doesn't. Just calls on whether it's consistent or not. Overruled.
...
[DETECTIVE]: I felt that [Henderson's] statements that I've heard this afternoon were consistent with the interviews....

Similarly, the detective was permitted to testify over defense objection that, comparing Burgstahler's trial testimony to her prior police statement, "Right off the top of my head, I can't think of anything that strikes me as - that surprised me." Not sure what that means, but there you have it.

Viranond : What Happened On Appeal

On appeal, the defendant argued that the detective's testimony was an improper comment on the truthfulness of a witness. While conceding that prior consistent statements are admissible under OEC 801(4)(a)(B) in certain circumstances, the defense argued that the detective's opinion that the statements were consistent fell outside the scope of OEC 801(4)(a)(B) but rather was a factual matter for the jury to decide. The Court of Appeals affirmed the defendant's conviction without discussion. State v. Viranond , 221 Or App 133 (2008). The Oregon Supreme Court rejected the defendant's arguments on appeal, holding that the detective's "shorthand summary" of the witness' pretrial statements was not a comment on witness credibility and thus was admissible.

In rejecting the defendant's argument, the court noted that direct or indirect comments about witness credibility is not permitted. See State v. Middleton , 294 Or 427 (1983); State v. Milbradt , 305 Or 621 (1988). True enough. The court also noted that OEC 801(4)(a)(B) permits a party to rehabilitate a witness that has been impeached at trial with that witness' prior consistent statements. So far, so good.

Then things go a bit haywire. The court says that the detective's testimony was properly admitted because "the primary purpose of Napieralski's testimony was not to bolster or establish the witnesses' veracity; a story told consistently can be false in all of its iterations." (Emphasis added.) This idea - that as a matter of logical relevance a prior consistent statement has no bearing on the truthfulness of the witness - is so critical to the Viranond opinion that the court repeats it. Two more times. What about State v. Stevens , 127 Wash App 269, 110 P3d 1179 (2005) (testimony that prior statements to the police were consistent suggested that the victims were "truthful and accurate" and thus inadmissible)? The Oregon court found that case "unhelpful." Why, pray tell? You guessed it. "[A]t least as to the facts presented here: consistency has no necessary connection with veracity." (Emphasis added.) Take that, Washington!

Finally, the court in Viranond held that the detective was permitted to offer a summary by testifying that the prior out-of-court statements and in-court testimony were "consistent." Whether the prior statements are elicited in "painstaking detail or in more cursory form" matters not. The trial judge, according to the Oregon Supreme Court, "did nothing more than enforce [OEC 801(1)(a)(B)] according to its terms."

Before turning to a critique of the Viranond opinion, we need to take a step back and quickly review the core principles underlying the rules governing the admissibility of prior consistent statements.

Prior Consistent Statements - Back to Basics

Traditionally, courts have excluded out-of-court statements consistent with a witness' trial testimony for two distinct reasons. If the proponent is attempting to admit such statements to prove the truth of the matter asserted (i.e., for substance), the testimony is barred under traditional hearsay rules. In addition, courts historically excluded prior statements even for the limited purpose of bolstering a witness' credibility. As Wigmore puts it: "The witness is not helped [by the prior consistent statement]; even if it is an improbable or untrustworthy story, it is not made more probable or more trustworthy by any number of repetitions of it." 4 Wigmore, Evidence, Section 1224, at 255 (Chadbourn rev. 1972). In other words, a deceitful witness may very well be spreading the same lie every time he speaks and prior consistent statements would thus have little actual bearing on whether the witness is truthful in court.

The Oregon Rules of Evidence recognize an exception to this rule barring the admissibility of prior consistent statements. Under OEC 801(4)(a)(B), prior consistent statements are admissible as substantive evidence if offered to rebut either an "inconsistent statement" or an "express or implied charge against the witness of recent fabrication or improper influence or motive." Such prior consistent statements are thought relevant because they directly respond to an attack on a witness' credibility (fabrication, bias, forgetfulness, whatever).

Past Oregon appellate cases have remained faithful to these principles, permitting introduction of prior consistent statements when the statements forcefully rebut an alleged fabrication or improper motive. Consider Keys v. Nadel , 325 Or 324 (1997), a medical malpractice case in which the plaintiff testified that she complained to her doctor of symptoms, an assertion that the doctor denied in his own testimony. The court held that the plaintiff was entitled to introduce the testimony of two of her friends that the plaintiff told these friends she had reported the symptoms to her doctor. Or consider State v. Resendez , 82 Or App 259 (1986), a child sex abuse prosecution. There, the complainant was impeached with the fact that, on the night of the incident, she did not tell her babysitter or investigating officer the full extent of the abuse. The Oregon Court of Appeals held that the trial court properly allowed the state to introduce testimony from a Children's Services Division social worker that four days after the initial report, the complainant told the social worker details of the abuse consistent with the complaint's trial testimony. In these and other published opinions, Oregon appellate courts have recognized that prior statements are relevant and admissible to rehabilitate a witness when the prior consistent statement directly rebuts an inference suggested by a cross-examination about the witness' memory or motives.

This truncated discussion of prior consistent statements barely scratches the surface. For those interested in more detail, a good place to start is Kirkpatrick, Oregon Evidence (5 ^th Ed. 2007), Section 801.02[3][c], at 667-671. But now, let's return to the Viranond opinion itself.

Viranond : What Went Wrong On Appeal

Recall that the court in Viranond approved the admission of Detective Napieralski's testimony because the "primary purpose" of the detective's testimony was not to bolster the credibility of Henderson and Burgstahler. We are told that, because a "witness may repeat the same lie multiple times," the detective's testimony was in fact not a comment on witness credibility. If this concept sounds familiar, it should. In point of fact, the principle that a consistently told story may be false in all of its iterations is why prior consistent statements have traditionally been excluded as irrelevant on the question of a witness' credibility. Thus understood, the court's reasoning hardly supports admission of the detective's testimony. If the jury is to take nothing from the fact that Henderson and Burgstahler made prior consistent statements, then this is an easy case - the detective's testimony should have been excluded because it was irrelevant. To put it another way, a prior consistent statement is admissible under OEC 801(4)(a)(B) only when the prior statement has a bearing on credibility.

But let's get back to reality. Obviously the prosecutor called Detective Napieralski for one purpose and one purpose only - to bolster the credibility of Henderson and Burgstahler after the defense cross-examination. That's the point, isn't it? See 2 McCormick on Evidence, Section 251, at 121-122 (Strong rev. 1992) ("While prior consistent statements are hearsay by the traditional view and inadmissible as substantive evidence, they have nevertheless been allowed a limited admissibility for the purpose of supporting the credibility of a witness, particularly to show that a witness whose testimony has allegedly been influenced told the same story before the influence was brought to bear." (emphasis added)). Why else would the state call the detective to the stand?

The court in Viranond also held that the detective was permitted to offer a summary of the prior consistent statements by testifying generally that the witness' prior statements and in-court testimony were "consistent." The rules of evidence, said the court, permit prosecutor to elicit from the witness the prior statements in "painstaking detail or in more cursory form." The text of OEC 801(4)(a)(B) provides no support for this conclusion; it permits the introduction of prior statements, not a "summary" or conclusory opinion regarding the consistency of statements presented to the jury. Moreover, the proper rehabilitation of a witness under this rule typically will be short and to the point, focusing on those prior consistent statements that directly rebut the inferences suggested during cross-examination. Indeed, the trial court grew impatient with the questioning of the detective precisely because it appears the prosecutor was asking about prior statements of Henderson that had nothing to do with the impeachment. It is to this final topic I now turn.

The Question That Was Not Asked

Perhaps the clearest reason why the Viranond opinion rests on shaky ground turns on the specific facts of the case, at least as much as we can tell from the record as reproduced in the opinion. Consider witness Henderson. He testified for the state on direct, implicating Viranond as the ringleader. He is then impeached by the defense with his failure to mention Viranond's involvement in the first two of Henderson's three police interviews.

At this point, under a proper reading of OEC 801(4)(a)(B), what options were available to the prosecutor? What if Henderson told his neighbor the day following the burglary (and before Henderson was interviewed by the police) that Viranond was the ringleader? That prior consistent statement would surely be admissible under OEC 801(4)(a)(B) because it would logically refute the defense argument that Henderson was only implicating Viranond to curry favor with the prosecutor. Or assume that during the first two police interviews Henderson had in fact fingered the defendant. If that had been the case, the following would have been a proper question to rehabilitate Henderson:

QUESTION: Detective Napieralski, during Mr. Henderson's first two interviews with the police, did he ever implicate the defendant as being the ringleader?

So if such a question was permissible and if the answer to that question is "yes," why didn't the prosecutor ask it? Why instead do we see the trial judge interrupting the prosecutor by telling him, "I'm not going to let you go over [Henderson's] entire testimony again"?

The reason, I surmise, is because the answer to the above question would in fact be "no." Henderson failed to mention Viranond during the first two interviews with the police. Period. Henderson made no prior consistent statements to the police that rebutted the specific defense attack on his credibility. And because there were no actual prior statements, the prosecutor did the next best (i.e., improper) thing - he started asking the detective about other things Henderson said during the earlier statements that had nothing to do with the impeachment.

As for Burgstahler, she was impeached on cross-examination with prior inconsistent statements. If the state had prior consistent statements Burgstahler made to the police, those statements might properly be elicited under OEC 801(4)(a)(B). But instead of specifics, here is what we have below:

PROSECUTOR: And you also heard Ms. Burgstahler's testimony?
[DETECTIVE]: I did.
PROSECUTOR: And was that consistent with the version she gave you?
...
[DETECTIVE]: Right off the top of my head, I can't think of anything that strikes me as - that surprised me.

The detective's unilluminating answer - that nothing about Burgstahler's testimony "surprised" him - reminds us why certain opinion testimony of lay witnesses is inadmissible. See OEC 701(1) (opinion by lay witness permissible if based on witness' perception and "helpful to a clear understanding of testimony of the witnesses or the determination of a fact in issue"). It is for the jury to decide whether Burgstahler's trial testimony was consistent with her out-of-court statements. To aid in this task, OEC 801(4)(a)(B) permits only the introduction of prior statements that serve to bolster's a witness whose credibility has been attacked on cross-examination. Nothing more, and certainly not another witness' opinion that Burgstahler had consistently described the events in question.

Conclusion

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