Rule Change Eliminates Tome in Federal Cases

There is a significant amendment to the rule on prior consistent statements 801(d)(1)(B).  Up until now, prior consistent statements were non-hearsay only when elicited to rebut a charge of recent fabrication.  The amendment does away with that restriction.  Beginning on December 1, prior consistent statements will be admissible as substantive evidence to rehabilitate the witness after any kind of attack on credibility – memory, perception, etc.  Watch out for more Government sandbagging! While the Committee Comments claim that the rule retains Tome’s restriction (e.g. that the prior consistent-statement has to be pre-motive for fabrication), the proposed amendment makes the concept so difficult to define that Tome lives on in name only. At least that is my prediction, stay tuned.

For a nice history of this amendment, checkout this summary on the Federal Evidence Review
blog.