Consistent Rules for Prior Statements: Advocating for the Substantive Use of Prior Consistent Statements in Massachusetts Courts

Presently, Massachusetts courts lag behind courts of federal jurisdiction with regard to the use of prior consistent statements at trial.  While the Advisory Committee notes accompanying Federal Rule of Evidence 801 explicitly state that “no sound reason is apparent why” prior consistent statements made under oath “should not be received generally [at trial],” in Massachusetts, prior statements are not admissible for the truth of what they assert when they are consistent with testimony at trial.  Instead, pursuant to a variety of Massachusetts Supreme Judicial Court (SJC) and Appeals Court decisions, such prior statements are admissible only to suggest to the fact-finder that the witness is credible.  Contrastingly, when these statements are sufficiently inconsistent with testimony at trial, they are admitted for their full probative value.