DOJ-OGR-00005488.jpg

Case 1:20-cr-00330-PAE Document 382 Filed 10/29/21 Page 33 of 69 the Second Court explained, was to allow for such statements to be admitted "substantively as well," rather than as non-substantive rehabilitation. See United States v. Flores, 945 F.3d 687, 705-06 (2d. Cir. 2019) (amendment "extend/s] substantive effect to consistent statements that rebut other attacks on a witness — such as the charges of inconsistency or faulty memory") (emphasis in original). Thus, consistent with Pierre and other pre-2014 cases, prior consistent statements may be admissible to rehabilitate a witness or to explain a faulty memory, and any such evidence will now be admitted substantively, but the limits on those prior methods of admitting prior consistent statements for rehabilitation remain applicable post-2014. B. Substantial Limits Remain on Admissibility of Prior Consistent Statements The question at trial will be which of the supposedly prior consistent statements are admissible and for what purpose. On that question, the government is silent. See Mot. at 19 (government "intends to call a number of witnesses to introduce certain of the Minor Victims' prior consistent statements to witnesses about their experiences with the defendant and Epstein") (emphasis added). By not specifying in their Motion which statements they seek to introduce or the specific purposes for which they will move for admission, the government has deprived the defense of an opportunity to challenge the statements' admissibility or for the Court to rule on the admissibility pre-trial. Rule 801(d)(1)(B)'s amendment in 2014 did not alter the landscape so much that any attack on the accusers’ credibility will allow any prior consistent statement. Important limits remain on the admissibility of prior consistent statements. If the government moves to admit particular statements to rebut a charge of recent fabrication or improper motive under Rule 801(d)(1)(B)(i), as the Motion suggests they will, the evidentiary hurdles established by Tome v. United States, 513 U.S. 150, 156 (1995), still apply. In particular, the government must show proof that the motive for fabrication or improper purpose arose after the purported statement. In Zome, the U.S. Supreme Court held that the 29 DOJ-OGR-00005488