DOJ-OGR-00006379.jpg

Case 1:20-cr-00330-PAE Document 438 Filed 11/12/21 Page19 of 54 rules allowing admission of prior consistent statements outside of the context of Rule 801(d)(1)(B) in order to rehabilitate a witness after certain attacks on credibility. See, eg., United States v. Pierre, 781 F.2d 329, 333 (2d Cir. 1986). In 2014, the Rule 801 was amended to allow prior consistent statements that were “otherwise admissible for rehabilitation” to come in “substantively as well.” Fed R. Evid. 801 (Advisory Committee’s Note to 2014 Amendment) (“The intent of the amendment is to extend substantive effect to consistent statements that rebut other attacks on a witness—such as the charges of inconsistency or faulty memory.”). Thus, as amended in 2014, Rule 801(d)(1)(B)(i1) “expands the purposes for which prior consistent statements may be offered.” United States v. Purcell, 967 F.3d 159, 196 (2d Cir. 2020). The Second Circuit has relied on subsection (ii) of the amended Rule 801(d)(1)(B) in finding that the district court did not abuse its discretion in admitting prior consistent statements that were introduced to rebut ‘defendants’ attacks on [the declarant’s] credibility and memory,” 2 66 notwithstanding that the defendants’ “challenges to [the declarant’s] memory were brief and were not their main challenges.” United States v. Flores, 945 F.3d 687, 705-06 (2d Cir. 2019) (quoting Fed. R. Evid. 801 Advisory Committee Note (2014) for the proposition that “[t]he intent of the amendment [adding subpart (B)(i1)] is to extend substantive effect to consistent statements that rebut other attacks on a witness—such as the charges of inconsistency or faulty memory.” (emphases in Flores)); see also Purcell, 967 F.3d at 196-98 (affirming admission of statements under Rule 801(d)(1)(B)(ii) where the declarant was accused of making inconsistent statements and defense counsel never suggested “that the accuracy of [declarant’s] trial testimony was marred by recent fabrication or a recently created improper motive or influence”). 18 DOJ-OGR-00006379