United States v. Frost

United States Court of Appeals for the Armed Forces · 2019 · Evidence

EvidenceHearsayPrior Consistent StatementsM.R.E. 801(d)(1)(B)(i)prior consistent statementhearsayimproper influencemotive to fabricate

Facts

The defense theory at trial was that DF's mother, Ms. Moore, coached DF to accuse Appellant of sexual abuse in order to avoid sharing custody. DF allegedly made an August 24, 2013 statement in a car that her father put his penis in her mouth, but she later repeatedly denied abuse during forensic interviews, an Article 32 hearing, and a prosecutor interview. In August 2015, DF attended counseling sessions with Dr. Landry and disclosed abuse there. Over defense hearsay objections, the military judge admitted DF's 2013 statement to Ms. Moore and Mr. Casey as prior consistent statements on the theory that they predated an alleged improper influence arising during the 2015 counseling sessions.

Issue

Did the military judge abuse his discretion by admitting DF's August 24, 2013 hearsay statement as a prior consistent statement under M.R.E. 801(d)(1)(B)(i) when the defense theory was that the improper influence by Ms. Moore arose before that statement, not during the later counseling sessions with Dr. Landry? If so, was the error prejudicial?

Rule

Under M.R.E. 801(d)(1)(B)(i), a prior consistent statement is admissible only when: the declarant testifies and is subject to cross-examination about the prior statement; the statement is consistent with the declarant's testimony; and it is offered to rebut an express or implied charge of recent fabrication or recent improper influence or motive. In addition, the prior statement must precede the specific motive to fabricate or improper influence it is offered to rebut; where multiple motives or influences are asserted, the statement need only predate the particular one being rebutted.

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In a court-martial in San Diego, nine-year-old Lila testifies that Sergeant Owen abused her in 2024. On cross, defense counsel argues that Lila’s aunt coached her to accuse Owen in March 2024 because of a bitter guardianship dispute. The government offers Lila’s April 2024 out-of-court statement to the aunt, which matches Lila’s trial testimony, and argues the statement should come in because it predates counseling sessions in 2025.

Is the April 2024 statement admissible as a prior consistent statement under M.R.E. 801(d)(1)(B)(i)?

Explanation. A prior consistent statement is admissible only if it rebuts an express or implied charge of recent fabrication or improper influence and predates the particular motive or influence being rebutted. Here, the defense theory is that the aunt’s coaching began before the April 2024 statement, so that statement cannot rehabilitate Lila against that charge. The fact that it predates later counseling does not matter if counseling was not the alleged source of fabrication. (Derived from United States v. Frost (n.d.).)