The Hearsay Rule on Steroids: Exclusion or Admissibility of a Witness’s Prior Statements under the 2020 Rules on Evidence

INTRODUCTION

The hearsay rule is one of the most complex areas of the law on evidence. Its intricacies have fascinated – and bedeviled – law professors and law students alike. Nonetheless a thorough understanding of the hearsay rule cannot be overemphasized. For the trial lawyer, mastery of the hearsay rule can spell the difference between the thrill of victory and the agony of defeat. For the trial judge, the deft application of the hearsay rule can decide whether an appeal would result in a reputation-burnishing affirmance or an ego-deflating reversal.

As if the hearsay rule was not challenging enough, the 2020 amendments to the Rules on Evidence added another level of difficulty. This is the second paragraph of Section 37 of Rule 130 (S37 R130) which provides for the treatment of an in-court witness’s prior out-of-court statements. This paragraph was adopted from Rule 801(d)(1) of the U.S. Federal Rules of Evidence (FRE) on a declarant-witness’s prior statements. In fine, the second paragraph of S37 R130 would exclude such statements for being hearsay unless they fall within any of the exclusions mentioned therein, a departure from the prevailing practice in Philippine trial courts.

Even in the United States, FRE 801(d)(1), especially that portion on the declarant’s prior consistent statements, has been described as “exceedingly confused and complex” and “as perplexing as any in the law of evidence.” Nonetheless despite its bemusing nature, FRE 801(d)(1) has been incorporated into our 2020 Rules on Evidence. Hence trial lawyers and judges have no choice but to start grappling with its nuances and intricacies. This brief article hopes to provide some guidance to members of the bench and bar on the second paragraph of S37 R130.

Definition of Hearsay

In a 2016 case the Supreme Court defined the hearsay rule as one which “renders inadmissible as evidence out-of-court statements made by persons who are not presented as witnesses but are offered as proof of the matters stated.”

Implicit from this definition is that an out-of-court statement is not hearsay if the person who made it (i.e., the declarant) is presented as a witness. The prevailing practice before our trial courts is to consider as non-hearsay an out-of-court statement made by a declarant if the declarant is presented in court as a witness and is subject to cross-examination regarding the statement. Implied recognition of this practice may be gleaned in numerous Supreme Court decisions which hold by clear implication that a witness’s affidavit is admissible in evidence if the affiant is presented in court and subject to cross-examination on the affidavit.

The 2020 Amendment to the Hearsay Rule

The 2020 Rules on Evidence now provide for a definition of hearsay in the first paragraph of S37 R130.

“Sec. 37. Hearsay. – Hearsay is a statement other than one made by the declarant while testifying at a trial or hearing, offered to prove the truth of the facts asserted therein. A statement is (1) an oral or written assertion or (2) a non-verbal conduct of a person, if it is intended by him or her as an assertion. Hearsay evidence is inadmissible except as otherwise provided in these Rules.”

Another way of putting it is that hearsay is an out-of-court statement offered to prove the truth of the facts asserted therein. Essentially there is nothing earth-shaking about the first paragraph for it merely codifies the jurisprudential definition of hearsay.

What is “revolutionary” in the 2020 Rules is the second paragraph of S37 R130 which provides thus:

“A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (a) inconsistent with the declarant’s testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition; (b) consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive; or (c) one of identification of a person made after perceiving him or her.”

Deconstructing the second paragraph, we glean that it treats a declarant’s prior out-of-court statement as hearsay even if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement unless such statement falls within any of the cases enumerated in S37(a), (b), and (c). This is a departure from the heretofore prevailing practice that the declarant’s out-of-court statement is not hearsay if the declarant will later on testify and be subject to cross-examination concerning the statement.

These statements which are considered as non-hearsay are the declarant-witness’s (a) prior inconsistent statement, (b) prior consistent statement, and (c) identification statement.

An important point for practitioners and judges to remember is that the statements in (a), (b), and (c) may be offered to prove the truth of the fact asserted therein or in the parlance of U.S. evidentiary law, as “substantive evidence.”

DECLARANT-WITNESS’S PRIOR INCONSISTENT STATEMENT

S37(a) R130 provides that a statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is inconsistent with the declarant’s testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition.

The one presenting the prior inconsistent statement is usually the adverse party but it could be the party who had presented the declarant-witness if such witness is an adverse-party witness or a hostile or unwilling witness. (See S11 & 13 R132).

S37(a) considers a declarant witness’s prior inconsistent statement as non-hearsay if the following requisites are complied with:

1. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement.

2. The statement was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition.

One will immediately note a similarity between S37(a) R130 and impeachment of a witness by prior inconsistent statement under S11 R132.

S11 R132 provides as follows:

“Sec. 11. Impeachment of adverse party’s witness. – A witness may be impeached by the party against whom he or she was called, by contradictory evidence, by evidence that his or her general reputation for truth, honesty, or integrity is bad, or by evidence that he or she has made at other times statements inconsistent with his or her present testimony, but not by evidence of particular wrongful acts, except that it may be shown by the examination of the witness, or record of the judgment, that he or she has been convicted of an offense. (11a)”

(Emphasis supplied)

There are however significant differences. First, the prior inconsistent statement in S11 R132 is used only for the limited purpose of impeaching the witness while the prior inconsistent statement in S37(a) is offered as substantive evidence.

Second, the prior inconsistent statement in S37(a) must have been given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition. This is not a requirement for a prior inconsistent statement used for impeachment under S11 R132. The reason is that the prior inconsistent statement in S37(a) is being offered to prove the truth of the fact asserted therein.

A litigator should note the distinction between the two in order to successfully introduce the prior inconsistent statement into evidence. It is advised that the lawyer offer the statement for both purposes so that if not admitted for one purpose it may still be admitted for the other.

A lawyer seeking to use a prior inconsistent statement under S37(a) R130 should still follow the procedure for laying the predicate under S14 R132. Hence the lawyer should give the declarant-witness an opportunity to explain the inconsistency.

The reason for admitting as substantive evidence the prior inconsistent statement under S37(a) is that it is more reliable, being more likely to be true since it is nearer the event as well having been given under oath subject to the penalty of perjury.

Illustration

Defense presents DW as witness in which she testified that accused was not the one who shot the victim. DW was asked on cross whether she had made a prior statement to a police investigator to the contrary and she replied in the negative. The prosecution then presents the police investigator who testified over hearsay objection that shortly after the shooting, DW had told him that it was the accused who shot the victim. The court received DW’s prior inconsistent statement not only for purposes of impeaching DW but also as substantive evidence that it was the accused who shot the victim, and a conviction ensued. On appeal, the judgment was reversed, the appellate court stating that the trial court should have received the statement only for the purpose of impeaching DW since the prior inconsistent statement was not given under oath subject to the penalty of perjury at a trial, hearing, other proceeding, or deposition.

Illustration

Defense presents DW as witness in which she testified that accused was not the one who shot the victim. DW was asked on cross whether she had made a prior statement in a related civil action for damages to the contrary and she replied in the negative. The prosecution then presents the transcript of DW’s testimony in the civil case wherein DW stated that the accused was the one who shot the victim. The court can receive DW’s prior inconsistent statement as substantive evidence that it was the accused who shot the victim. DW’s statement was given under oath subject to the penalty of perjury at a trial.

Effect of S37(a) R130 on S4(a) R23

S4(a) R23 on deposition pending action provides that a deposition may be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness. In light of S37(a) R130, a deposition containing a prior inconsistent statement may be used not only for purposes of impeachment but also as substantive evidence.

DECLARANT-WITNESS’S PRIOR CONSISTENT STATEMENT

S37(b) R130 provides that a statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.

Here the party presenting the prior consistent statement is the party who had presented the declarant-witness and the aim is to reinforce the witness’s in-court testimony with his prior consistent out-of-court statement.

S37(b) considers a declarant-witness’s prior consistent statement as non-hearsay if the following requisites are complied with:

1. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement.

2. The statement is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.

Otherwise put a declarant-witness’s prior consistent statement is still hearsay even if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement unless the statement is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive. S37(b) is known as the prior consistent statement rule. The rule does not distinguish whether the one testifying on the prior consistent statement is another witness or the declarant-witness himself.

Rationale for the Prior Consistent Statement Rule

The rationale why a declarant-witness’s prior consistent statements are excluded are first because they are hearsay and second because admitting the same would result in “improper or impermissible bolstering.” American courts have stated that “the repetition of a previous statement bolsters the in-court testimony without making its truth more probable or the witness more trustworthy.” As put in another case, “the repetition of a story does not render it any more trustworthy.”

On the other hand the reason for admitting prior consistent statements as non-hearsay if they are offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive is that the adverse party opens the door for the introduction of the statements if he makes such a charge. In this case, introduction of the prior consistent statements would constitute permissible bolstering.

The wordings of S37(b) may give the impression that the prior consistent statement is admissible only for the limited purpose of rebutting the charge of fabrication or improper influence or motive and not as substantive evidence. However U.S. evidentiary law is clear that the prior consistent statement is admissible as substantive evidence. Hence a litigator should weigh carefully the pros and cons of attacking a witness with a charge of fabrication or improper influence or motive as it would open the door for the introduction of potentially damaging out-of-court statements of the witness.

Illustration

Prosecution of accused for rape of X. The prosecution states that it will present as witnesses: (1) Y (friend of X) who will testify on X’s out-of-court statement that accused raped her and then (2) X herself who will testify that accused raped her. May the defense object to the offer of Y’s testimony?

Yes on the ground of hearsay. The declarant-witness’s prior consistent statement is hearsay even if she is subject to cross-examination concerning the statement since it was not offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.

Illustration

Prosecution of accused for rape of X. X testified that accused, her former co-employee, had raped her. On cross-examination, X was asked whether it was true that the accused had recommended to their boss that she be fired. After X’s cross-examination, the prosecution will present Y (X’s friend) who will testify that X had confided to her that she had been raped by accused. May the defense object on the ground that Y’s testimony is about hearsay?

No. X’s statement is non-hearsay. It is being presented as a prior consistent statement in order to rebut the implied charge of recent fabrication or improper influence or motive. The defense had opened the door for the introduction of the statement by implying that X had fabricated the rape charge in order to get even with the accused.

Meaning of “fabrication”

“Fabricate” means to make up for purposes of deception. It indicates conscious and purposeful deception.  Mere differences in testimony do not amount to a charge of recent fabrication.

Illustration

P sued police officer C for damages. P testified on direct that C, during an arrest, had forcibly pulled him out of the car he was riding in although he was a paraplegic, causing him injuries. C testified that he never touched P. P then seeks to introduce the testimony of the car driver’s wife W to the effect that P had told her that C had dragged him out of the car. May W’s testimony be allowed over hearsay objection?

No. Mere contradictions in testimony do not amount to a charge of recent fabrication. Many trials involve a difference in testimony about facts. To allow the introduction of prior consistent statements in such cases would obliterate the rule against improper bolstering.

Meaning of “recent”

The meaning of the term “recent” in “recent fabrication” is unclear. Some U.S. commentators say that it embodies the premotive rule while others consider the term superfluous.  A commentator wrote that “recent” means that the testimony was contrived at some point after the impeaching event, rather than proximate to its being given at the trial.  In a U.S. case,  it was stated that a “fabrication” is “recent” if the in-court testimony is expressly or impliedly charged to have been consciously fabricated at any time after the impeaching event. One may just as well discount the term altogether.

Declarant-witness testifying regarding his own prior consistent statement

Note that for purposes of the prior consistent statement rule, it is irrelevant whether the prior consistent statement is elicited from the declarant himself or from other witnesses. Hence the statements would still be hearsay even if the witness reporting thereon is the declarant himself.

This should not be taken to mean however that a witness cannot report on his own out-of-court utterances. Note that for purposes of the hearsay rule, a “statement” is one offered to prove the truth of the facts asserted therein. Thus many prior extrajudicial utterances of a witness would not be hearsay, especially those on preliminary or “background” matters. Independently relevant statements, including those offered merely to prove the fact of utterance and verbal acts, would be admissible even if made out of court.

Premotive Rule

The premotive rule states that a prior consistent statement introduced to rebut a charge of recent fabrication or improper influence or motive is admissible if the statement had been made before the alleged fabrication, influence, or motive came into being, but is inadmissible if made afterwards.

In the United States, the premotive rule is deemed as a requirement for the admission of a prior consistent statement under FRE 801(d)(1)(B)(i). This is a result of the U.S. Supreme Court decision in Tome v. United States, 513 U.S. 150 (1995).   In Tome the U.S. Supreme Court addressed the question of “whether out-of-court consistent statements made after the alleged fabrication, or after the alleged improper influence or motive arose, are admissible under” Federal Rule of Evidence 801(d)(1)(B). In a 5-4 decision, the Court explained that such statements—postmotive prior consistent statements—are not admissible as substantive evidence under FRE 801(d)(1)(B).

The following example illustrates the application of the premotive rule.

Illustration

Prosecution of accused for rape of X. X testified that accused, her former co-employee, had raped her. On cross-examination, X was asked whether it was true that the accused had recommended to their boss that she be fired. After X’s cross-examination, the prosecution presented Y (X’s friend) who testified over hearsay objection that X had confided to her that she had been raped by accused. On cross, Y stated that X had told her about the rape after she had been fired. May X’s prior consistent statement be admitted as substantive evidence?

No. X’s statement is hearsay. Under the premotive rule, the prior consistent statement must have been made before the alleged fabrication or the alleged improper influence or motive arose. Here X’s statement was made after she was fired on the accused’s recommendation and thus after a motive to fabricate had arisen.

Is the premotive rule applicable to S37(b) R130? It is opined that the answer should be in the affirmative.  It is a cardinal rule of construction that where a statute is adopted from a foreign jurisdiction, the construction placed upon the statute by the courts of such jurisdiction should be properly considered. Moreover, the FRE advisory committee note, which is of strong persuasive value, states that the FRE retains the premotive rule.  It is the author’s opinion that a lawyer offering a prior consistent statement under S37(b) R130 should lay the predicate for the offer by showing that the statement is premotive.   

Prior statements of a child witness under the Rule on the Examination of a Child Witness

Section 28(a) of the Rule on Examination of a Child Witness provides for a hearsay exception in cases of prior out-of-court statements of a child witness in a child abuse case.

“Section 28. Hearsay exception in child abuse cases. – A statement made by a child describing any act or attempted act of child abuse, not otherwise admissible under the hearsay rule, may be admitted in evidence in any criminal or non-criminal proceeding subject to the following rules:

“(a) Before such hearsay statement may be admitted, its proponent shall make known to the adverse party the intention to offer such statement and its particulars to provide him a fair opportunity to object. If the child is available, the court shall, upon motion of the adverse party, require the child to be present at the presentation of the hearsay statement for cross-examination by the adverse party. When the child is unavailable, the fact of such circumstance must be proved by the proponent.”

It is to be noted that the child-witness’s prior statements may be introduced even if there is no charge of recent fabrication or improper influence or motive. Also, it appears that the presentation of the witness or witnesses who will testify on the child’s statements should be done ahead of the child witness.

Rehabilitation of witness by prior consistent statements if attacked on other grounds

S37 R130 did not adopt FRE 801(d)(1)(B)(ii) which provides for a hearsay exclusion for prior consistent statements used to rehabilitate a declarant’s credibility as a witness when attacked on grounds other than recent fabrication or improper influence or motive.

This indicates that the intention of the framers of the 2020 amendments is to retain the prevailing rule that prior consistent statements may not be used to rehabilitate a witness.

DECLARANT-WITNESS’S PRIOR IDENTIFICATION STATEMENT

S37(c) R130 provides for a hearsay exclusion for a declarant-witness’s prior statement which identifies a person as someone the declarant perceived earlier. Note that in this exception, the declarant-witness had identified a person whom he had earlier perceived. The usual case is the identification by a witness of a suspect in a police line-up or in a photo-spread line-up.

Illustration

The prosecution presents as witness a police officer who will testify that eyewitness had identified the accused as the gunman. A hearsay objection will be overruled if the eyewitness had been presented or will be presented to testify regarding his identification statement to the police officer.

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