Prove it! Musings on advocacy, evidence, and the problems of proof at trial: Corroborate This!

It was a Thursday afternoon, and I was contemplating a difficult and nuanced issue of evidence law.  My eyes were closed in deep concentration… OK, so I was napping after a big lunch.  My “contemplation” was interrupted by a third-year student who had done quite well in Evidence the previous semester and was interning in the District Attorney’s office under the third-year practice rule.  He was visibly upset and needed to talk.  The District Court judge before whom he was trying a case publicly chastised him because he didn’t know that when the hearsay declarant is also a testifying witness, the hearsay rule is inapplicable.

“Professor Woodruff,” my former student said, “That’s not right; you taught us that if the out-of-court statement was offered for the truth of the matter asserted it is still hearsay, even if the witness and declarant are the same and it is not admissible for its truth value unless it falls within an exception.  The defense attorney didn’t argue a non-hearsay purpose for the statement. The judge didn’t listen to any argument, he just said, ‘Everyone knows it’s not hearsay if the declarant is in court to testify,’ and overruled the objection.  I felt like a fool in front of everyone in the courtroom.”

“I understand how you feel,” I replied, “But you’ve learned two valuable lessons today: First, even judges get it wrong.  But you can still take comfort in knowing that it was the judge, not you, who doesn’t understand the definition of hearsay.  Second, within the walls of the courtroom the judge is right, even when he’s wrong.”

While my assurance that he was correct and the judge was wrong was some comfort, it did little to eliminate the sting of the judge’s public reprimand.  Let me explain why the judge was wrong, and my student was right.

North Carolina Rule of Evidence 801(c) defines hearsay as, “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”

A “statement,” of course, is defined by N. C. R. Evid.  801(a) as an “oral or written assertion or nonverbal conduct of a person, if it is intended by him as an assertion.”  To round out the definitional matrix, N. C. R. Evid.  801(b) tells us that a “declarant is a person who makes a statement.”

Taken as a whole, the simple one-sentence definition of hearsay in N. C. R. Evid.  801(c) requires us to determine three things:  (1) whether offered item of evidence is a “statement,” (2) whether the offered statement was made at some place and time other than from the witness stand at the current trial; and (3) whether the statement is offered for the truth of the matter asserted.  If the answer to all three inquiries is “yes,” the statement is hearsay, and N. C. R. Evid.  802 excludes the statement unless it falls within one of the recognized exceptions.  Note that the definition does not depend upon whether the declarant is also a witness at trial.

The judge in my student’s trial assumed that whenever the declarant and the witness were the same, then the answer to the second question was “no,” and the offered statement did not meet the definition of hearsay.  His assumption, though obviously erroneous, is understandable when we consider the underlying purpose of the rule against hearsay.  Any oral testimony carries the risk of faulty perception, faulty memory, faulty narration, and faulty sincerity.  Those risks are minimized by placing a witness on the witness stand under oath to testify in front of the jury and subjecting him to cross-examination.  Thus, one might think that if the witness and the declarant are the same person, the safeguards of oath, demeanor, and cross-examination are all present and the hearsay rule would not be implicated.   In fact, these very reasons motivated the American Law Institute to promote a reform of the hearsay rule in its Model Code of Evidence in 1945.  The Model Code rejected the traditional view of hearsay and provided, “Evidence of a hearsay declaration is admissible if the judge finds that the declarant . . . is present and subject to cross-examination.”  Model Code of Evidence, §503(b) (1945).    Neither North Carolina, nor any other state, adopted the Model Code’s revision that permitted the admission of out-of-court statements merely because the declarant was present at trial and subject to cross-examination.

If judges were free to admit for the truth of the matter asserted out-of-court statements based upon their own determination of whether adequate safeguards are present or the statement was reliable evidence of the facts asserted, we wouldn’t be having this little chat.  But trial judges are not free to do that.  Judges are charged with applying the rules as they have been enacted by the legislature or handed down by appellate courts.  No doubt the legislature could have crafted a hearsay rule that did not include within its definition out of court statements made by a testifying witness, but it did not.  Quite the contrary, North Carolina’s definition of hearsay is the same as the traditional view at common law and is shared by virtually every other jurisdiction in the nation.

The statutory North Carolina definition of hearsay is adopted word for word from the definition of hearsay in Federal Rule of Evidence 801(c).  Statements offered for the truth of the matter asserted and made at a time and place other than the trial at which it is offered, even when the witness and the declarant are the same person, fall squarely within the definition of hearsay.  The Federal Rules contain subsection (d) that specifically exempts from the definition of hearsay in Fed. R. Evid. 801(c) three categories of statements by witnesses who also testify at trial:  (1) certain prior inconsistent statements; (2) certain prior consistent statements; and (3) statements of identification.  But for the exemption in Fed. R. Evid. 801(d), these statements would all be excluded by the hearsay rule, if offered for the truth of the matter asserted because they were made other than “while testifying at the current trial or hearing.”  It took an act of Congress to exempt them from the operation of the definition of hearsay in Fed. R. Evid. 801(c), the same definition adopted by North Carolina.

While North Carolina adopted the Federal definition of hearsay, the North Carolina legislature did not see fit to remove from the scope of that definition the prior statements of testifying witnesses that we find in Fed. R. Evid. 801(d).  The only conclusion one can draw is that statements by testifying witnesses that were made at other than the trial or hearing at which they are offered are hearsay if offered for the truth of the matter asserted.  Professor Kenneth Broun noted as much in Brandis & Broun, North Carolina Evidence, §192, note 1, (7th ed. 2011) (“Pre-Rule case law also classified prior statements of a witness as hearsay….”).  Indeed, the official commentary to the North Carolina rules noted, “Subdivision (d)(1) of Fed. R. Evid. 801 departs markedly from the common law in North Carolina by excluding from the hearsay ban several statements that come within the common law definition of hearsay.”  Blakey, Loven, & Weissenberger, North Carolina Evidence, 2012 Courtroom Manual, App. I, (Matthew Bender 2012).

The North Carolina pre-rules case law referred to by Professor Broun and the common law of North Carolina mentioned in the official commentary to N. C. R. Evid.  801 is exemplified by Andrews v. Builders & Finance, Inc., 23 N.C. App. 608, 209 S.E.2d 814 (N.C. App. 1974).  In Andrews, the plaintiff testified during his direct examination, over a defense objection, to statements he had made to a bank loan officer in order to obtain a loan.  In discussing whether the prior statements were hearsay, Judge Parker said, “Here, the prior statements which the witness testified he had made to the lending officer were hearsay in the sense that at the time the statements were made the witness was not under oath or then subject to cross-examination, though at the time he testified concerning them both of these conditions prevailed.”  Id. at 611.

Further evidence of the N. C. R. Evid. 801(c) definition encompassing statements when the declarant and the testifying witness are the same is found in N. C. R. Civ. P. 32(a)(2): “The deposition of a person called as a witness may also be used as substantive evidence [i.e., for the truth of the matter asserted] by any party adverse to the party who called the deponent as a witness and it may be used by the party calling deponent as a witness as substantive evidence [i.e., for the truth of the matter asserted] of such facts stated in the deposition as are in conflict with or inconsistent with the testimony of deponent as a witness.” (Italics added).  If the judge in my student’s trial was correct, that out-of-court statements made by testifying witnesses are not hearsay, there would be no need for N. C. R. Civ. P. 32(a)(2).  The out-of-court statement would be admissible for the truth of the matter asserted, without the need for this provision in the Rules of Civil Procedure.

If the pre-rules case law supports the inclusion of prior statements of testifying witnesses as hearsay and if the definition of hearsay in the modern rule does not exempt from hearsay out-of-court statements when the declarant and the witness are the same person, how did the judge in my student’s trial come to believe that the hearsay definition does not extend to those statements?  I suggest the root of the confusion stems from the long-standing and liberal use of out-of-court statements for “corroboration” in North Carolina practice.  The Court of Appeals recognized this fact in Andrews v. Builders & Finance, Inc., “Whether former assertions of the witness himself, related by him in his testimony, are hearsay is of no particular consequence in North Carolina, in view of their free admissibility for purposes of corroboration.” 23 N.C. App. at 611.  If the Andrews court left any doubt about the use of prior consistent statements as corroborating evidence, the Supreme Court eliminated it in State v. Perry, 298 N.C. 502, 505 259 S.E. 2d 496, 498 (N.C. 1979) by holding, “prior consistent statements of a witness in North Carolina are admissible as corroborative evidence even when that witness has not been impeached.”

The import of Perry cannot be overstated.  First, the Court departed from the common law tradition that excluded evidence to bolster the credibility of a witness until the witness’ credibility had been attacked, either through cross-examination or extrinsic impeachment evidence.   Second, it ignored the hearsay implications by admitting prior consistent statements to accomplish this bolstering effect without considering whether the relevance of the prior statement as credibility-enhancing evidence was dependent upon the truth of the prior statement.  Basically, the Court assumed that prior consistent statements were relevant to bolster credibility, even if the prior statements (and by implication the consistent in-court testimony) were false!  Categorizing such statements as hearsay on the one hand, and then recognizing their “free admissibility” for the non-hearsay use to corroborate in-court testimony without considering whether they logically enhanced the witness’ credibility regardless of their truth value, on the other hand, leaves little wonder that courts and lawyers in our state think that the hearsay rule does not apply whenever the in-court witness testifies to his own out-of-court statements.

Perhaps the confusion is caused by the unfortunate use of the word “corroboration” to describe the non-hearsay purpose of the prior statements.  Generally speaking, we say that evidence consistent with other evidence in the case “corroborates” the other evidence.  If the Plaintiff in a motor vehicle accident testified that the light was green when he entered the intersection and By Stander, a witness to the accident, testified that the light was green when the Plaintiff entered the intersection, we would say that By Stander’s testimony corroborates the Plaintiff’s testimony.  Of course, By Stander is testifying from personal knowledge, under oath, in the trial of the personal injury action and is subject to cross-examination.  His testimony corroborates Plaintiff’s version of the facts only if the jury can consider By Stander’s testimony as substantive evidence of the color of the light.  Because two different witnesses with personal knowledge testified the light was green in Plaintiff’s favor, we can also say that By Stander’s testimony not only corroborates the existence of that fact as a matter of historical accuracy, but it also, to some extent, supports Plaintiff’s credibility, and vice versa.  Thus, By Stander’s testimony based on his personal knowledge gives Plaintiff a twofer:  (1) it is substantive evidence of the color of the light when the Plaintiff entered the intersection, and (2) it supports Plaintiff’s credibility as a witness because it is consistent with Plaintiff’s testimony concerning the color of the light.  Note, however, that we only get these two benefits of By Stander’s testimony if By Stander’s version of events is true, i.e., it is admitted “for the truth of the matter asserted.”  By Stander’s testimony is substantive evidence of the color of the light and supports Plaintiff’s credibility only if By Stander accurately perceived the color of the light as Plaintiff entered the intersection, he accurately remembered the color of the light by the time he testified at trial, he accurately conveyed to the jury what he saw at the intersection that day, and he told the jury the truth about what he perceived at the scene of the accident.  If cross-examination or other appropriate impeachment of By Stander causes the jury to give little or no weight to his version of events, we lose both the substantive value of his testimony as well as its credibility-supporting value.  Of course, the cross-examination and/or impeachment do not destroy the admissibility of By Stander’s testimony, but it does illustrate that in order for By Stander’s testimony to logically support Plaintiff’s credibility, By Stander’s testimony must be considered for its truth value.

But in North Carolina practice, out-of-court statements offered to corroborate in-court testimony are not offered for the truth of the matter asserted.  As we have seen, statements offered only for “corroboration” are not excluded by the hearsay rule precisely because they are not offered for the truth of the matter asserted.  Now, here’s where it gets confusing.  In the above example we would not, or at least we should not, permit Bubba, a third party, to testify in court that By Stander told him that the light was green when Plaintiff entered the intersection.  By Stander’s out-of-court statement to Bubba only proves the light was green in Plaintiff’s favor if it is true.  By the same token, it only corroborates Plaintiff’s in-court testimony if By Stander’s statement is true.  Only if the jury receives By Stander’s out-of-court statement for the truth of the matter asserted does it have any tendency to make Plaintiff’s version of events more credible.  But since we are now attempting to get By Stander’s out-of-court statement to the jury through the conduit of Bubba, we are offering an out-of-court statement for the truth of the matter asserted; hearsay plain and simple, even if we claim By Stander’s statement is only offered to “corroborate” Plaintiff’s testimony.  Offering By Stander’s statement through Bubba illustrates that even statements offered solely for corroboration are relevant to corroborate only if they are true.  The logic that prior statements must be considered true in order to corroborate in-court testimony applies equally in situations where the declarant and the witness are the same.  The North Carolina practice admitting the prior consistent statement of a testifying witness, however, adopts the unique position that a prior consistent statement provides support for the credibility of the witness merely because it was uttered, not because it is true.

Declaring prior consistent statements relevant to bolster credibility irrespective of their truth value, as our Supreme Court did in Perry, avoids exclusion under the hearsay rule but fails to consider how the prior statement, as a matter of relevance, can logically bolster the witness’ credibility if it is not true.  In other words, the theory in North Carolina practice is the prior consistent statement of the testifying witness is offered to prove only that the witness has told the same story on prior occasions and we assume the consistency between the prior statement and the in-court testimony lends credibility to the sworn in-court testimony.  The prior statements are hearsay if offered for their truth value but are non-hearsay if offered to “corroborate” the in-court testimony.  Thus, it is fundamentally incorrect to say, as the judge did in my student’s trial, that the hearsay rule does not apply when the declarant and the witness are the same.  The question that determines admissibility in that situation is not just whether the witness and the declarant are the same, but whether the witness and the declarant are the same and the out of court statement is offered for the non-hearsay purpose of “corroboration,” and whether the out of court statement can, as a matter of relevance, support the credibility of the witness without regard to its factual accuracy.

Because, as the Court of Appeals noted in Andrews, such statements enjoy “free admissibility” when offered for corroboration, we should pause a moment and consider whether merely repeating the same story on multiple occasions really tells us anything about the witness’ credibility.  We all understand how a prior inconsistent statement impeaches a witness.  One who tells different stories at different times may not be a reliable witness to the facts.  He can’t keep his story straight.  Maybe he can’t remember accurately.  Maybe he didn’t see the event clearly.  Maybe he has become confused over time or his memory has faltered.  Or, maybe he’s lying in court.  All of these possibilities raise questions about the weight the jury should give the in-court testimony of the witness who has said different things on different occasions.

Can the same be said for the witness who tells the same story on multiple occasions?  Can a prior consistent statement really corroborate the in-court testimony if the prior statement is not considered for its truth?  Does mere consistency in this setting really tell us that the witness has a good memory of the event or incident?  Does it really tell us that the witness was able to see things clearly?  Does mere consistency between the in-court testimony and the out-of-court statement really mean the witness is a reliable source of historical facts?    Or, does it mean that he’s got his story and he’s sticking to it, regardless of its accuracy or reliability?  The common law recognized that some prior consistent statements may circumstantially bolster the witness’ credibility even if not offered for the truth of the matter asserted.  The so-called “fresh complaint” rule in sexual assault cases serves as an example.  Prior consistent statements offered to rebut a charge of recent fabrication or improper motive, if made before the motive to fabricate arose, are another.  Unfortunately, the North Carolina courts have not limited the admissibility of prior consistent statements to only those that are relevant to rehabilitate an impeached witness irrespective of the statement’s truth. In fact, as the Perry court noted, we admit the corroborating statements even before the witness’ credibility has been attacked!  In our practice, “corroboration” becomes a magic word that makes the hearsay rule evaporate.  Poof!  Just like that.

When we consider the rather limited probative value of the non-hearsay use of most prior statements admitted for corroboration and the confusion and misunderstanding it causes among bench and bar concerning the basic definition of hearsay, maybe we should revisit whether freely admitting prior consistent statements is a good idea.  Perhaps we ought to give some consideration to whether a statement offered for the non-hearsay purpose of corroboration has any tendency to bolster the witness’ credibility.  On the other hand, the basic facts are already in evidence through the in-court testimony of the witness who was under oath, on the stand, and subject to cross-examination.  What harm can it really do if the jury improperly uses the prior consistent statement for its truth value?  The jury already has admissible evidence of those historical facts, so the harm in the case being tried is minimal.

While the harm in the specific case may be minimal, the same cannot be said of the harm to our system when courts routinely ignore the duly enacted rules that are to guide the admissibility of facts at trial.  What good is a rule defining hearsay if courts can ignore it?  Why adopt a rule conditioning admissibility on relevancy if courts can disregard it and assume rather than analyze whether the prior statement has any tendency to bolster the witness’ credibility?

Here’s the takeaway from this situation:  First, the judge in my student’s trial was wrong about the basic definition of hearsay.  Second, the judge’s error on the hearsay question was compounded by his failure to analyze the relevance of the out-of-court statement for the non-hearsay use of bolstering the witness’ credibility.  Third, analysis, not assumption, should always be the first step in sorting out what is and what is not hearsay and whether an item of evidence is relevant for the proposition for which it is offered.  Fourth, even when the judge is wrong, lawyers sometimes have to publicly bear the brunt of the judge’s mistake.  Fifth, law professors enjoy the luxury of calm reflection on these issues and do not have to decide difficult questions and do not have to deliver a quick and cogent explanation in a patient and professional manner during the heat of a trial.  That’s my story and I’m sticking to it.


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About Professor Woody Woodruff (10 Articles)
Professor Woodruff has been teaching evidence and trial advocacy at Campbell University School of Law for over 20 years. Prior to joining the Campbell faculty, he was a colonel in the Army Judge Advocate General’s Corps and was responsible for defending the Army in civil litigation. Professor Woodruff graduated from the University of Alabama and received his J.D., magna cum laude, from the University of South Carolina. Click here to view Professor Woodruff's full bio on the Campbell Law website.
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