Military rules of evidence have changed slightly with regard to prior consistent statements.
Recently, in May 2016, an amendment was made to Military Rules of Evidence (M.R.E.) 801(d)(1)(B) which discusses the admissibility of a prior consistent statement. What is a prior consistent statement? It is a statement that a witness on the stand has made prior to the court-martial that is consistent with the statement that the witness is making during the actual court-martial testimony. For example, if an alleged victim of sexual assault is testifying at a court-martial, she might state that the sexual activity that occurred was not consensual and that she screamed “no” during the act. A defense counsel might then stand and ask that alleged victim questions that imply that she was coached by her prosecutor to specifically state that she screamed “no” during the act. In this scenario, the rules allow for the prosecutor to then rehabilitate her credibility by unveiling the fact that she testified at the Article 32 hearing that she screamed “no” during the act and this was held before she had spoken to the prosecutor. This would show the court-martial panel or military judge that, even prior to any opportunity for coaching by the prosecutor, the alleged victim made this consistent statement. This demonstrates that her statement may be credible. Prior to the recent amendment to 801(d)(1)(B), the prior consistent statement could not be provided to the court-martial panel or military judge as “substantive” evidence. The panel or military judge could only consider that prior statement for its rehabilitative purposes. Now, based on the recent amendment, the prior consistent statement may be considered as actual evidence supporting the likelihood that the offense occurred. This amendment simply means that a defense counsel needs to think through their strategy at the court-martial and determine whether attacking an alleged victim’s motive to lie is going to be beneficial for their client’s case. In most cases, it may still be very important to show an alleged victim’s motive to lie despite this amendment regarding prior consistent statements. However, it will really depend on the circumstances of the case. The bottom line is that if you or your loved one is facing a court-martial, he or she needs an advocate by their side that is well versed on even the most current amendment to the rules of evidence. You need someone who is experienced enough to know what may work and what may not work in a court-martial. You need someone who understands the military courtroom and knows how to strategize. To speak to an experienced court-martial and military defense attorney, call Bill Cassara at 706-860-5769 for a free consultation.