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00-1513 U.S. v. Green

By: dmc-admin//July 30, 2001//

00-1513 U.S. v. Green

By: dmc-admin//July 30, 2001//

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“In United States v. West, 670 F.2d 675, 687 (7th Cir. 1982), we interpreted Rule 801(d) (1)(B)’s requirement of cross-examination to mean that the out-of-court statement must be elicited through the declarant, and not through a third party to whom the declaration was made. … At the time West was decided, we acknowledged that our interpretation of Rule 801(d)(1)(B) differed from the interpretation of six other circuits that permit a third party to testify about another witness’s prior consistent statement, so long as the witness who made the out-of-court statement is available for cross-examination at some time during the trial… In the 19 years since West was decided, our interpretation has not garnered support. None of the remaining circuits has followed West, leaving us a ‘minority of one.’

“The justification we provided in West was that Rule 801(d)(1)(B) requires not only that the declarant generally be available for cross-examination, but that he be available for cross-examination about the statement… But, as other courts have observed, this justification does not compel the limitation we imposed in West… Cross-examination about the statement can be accomplished whether or not the statement is introduced by the declarant; if the statement is elicited from a third party, the declarant may be recalled for further examination. Id. West thus goes beyond its justification and imposes a precondition for admissibility relating to the order and manner that evidence is presented, a precondition not contained in Rule 801(d)(1)(B). And although this limitation avoids having to recall the declarant and therefore may serve some benefit in terms of trial management, we think this consideration is better left to the discretion of the trial court.

“We therefore believe that it is time to join our sister circuits and hold that Rule 801(d)(1)(B) does not bar the introduction of a prior consistent statement through the testimony of someone other than the declarant, so long as the declarant is available for cross-examination about the statement at some time during trial.”

Affirmed.

Appeal from the United States District Court for the Northern District of Indiana, Lozano, J., Williams, J.

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