In a criminal trial, testimonial evidence from witnesses is presented by the witness’ live testimony at trial, subject to cross-examination by the opposing party. Generally, a prior (out of court) statement of a witness consistent with the witness testimony is not admissible to bolster the credibility of the testimony. There are exceptions to this rule though. If an opposing party challenges the testimony by suggesting it was recently fabricated, deliberately false, or inconsistent with a prior statement of the witness, then a prior (out of court) consistent statement may be introduced. This occurred in the recent case of State v. Beu, E2012-00176-CCA-R3-CD (Tenn.Crim.App. 12-20-2012).

The Beu case was also the subject of a previous post here, looking at the issue of the sufficiency of the evidence in that case. The allegation was that the Defendant had committed sexual battery by an authority figure. The Defendant’s fifteen-year old second cousin had testified she was at the Defendant’s residence, having contracted to scan some photographs for him. According to the witness, the Defendant forcibly removed the witness’ clothes and drew pictures on her hip, lower back, and groin area, including initials which allegedly stood for “Bad Girl Lesbian Slave.” One issue in the direct appeal of this case was the introduction of the witness’ written statement to DCS, where she described what happened to her. The witness testified in court. Generally her prior written statement, consistent with her trial testimony, would not be admissible evidence.

In the Beu case though, the written statement became admissible when Defense counsel, during cross examination of the witness, suggested that the witness had fabricated her story to retaliate against her parents for grounding her. To rebut the allegations of fabrication, the State was allowed to then introduce her prior consistent written statement, in order to argue that her trial testimony was not a recent fabrication but was indeed consistent with what she told DCS shortly after the incident occurred.

For more information on evidentiary issues in a criminal trial, contact The Lanzon Firm.