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Lancaster v. State3/28/2002
onor, also, I would mention that it's not a prior consistent statement. There is not a prior consistent statement, because they are offering it to - its - it was well after the events. And they are offering it to bolster his testimony here today. So it's not a prior consistent statement, and it certainly is not under oath.
[PROSECUTOR]: I agree it's not under oath.
THE COURT: If court could come to order.
We are back. The jury is not present.
I have reviewed the tape. After having reviewed the tape, my decision is that the objection of [defense counsel] is overruled, and the State may - the tape may be played for the jury almost in its entirety. There is a part towards the end of the tape - there's just a few minutes or seconds left at the end of the tape, there's a pause, and Detective Kirkendall says, Were you in fear of your life. The tape should be stopped before that question is asked and answered. It's right toward the end of the tape. And you might want to fast forward and find that. But there's an obvious pause, and then Detective Kirkendall asks that question.
[PROSECUTOR]: Judge, I just - to clarify for the record, it's as a prior consistent statement. It's offered for purposes of rehabilitation not for the truth of the matter asserted. I misspoke that a little bit earlier during my argument.
THE COURT: And the defense, if they wish, may have a limiting instruction to that effect.
[DEFENSE COUNSEL]: We would request a limiting instruction, Your Honor, although I don't have it right now. I didn't anticipate, frankly, that this statement was going to be admitted.
[ ] These passages have been quoted at length to show the specific positions taken at trial in regard to the issues now before this Court. The State's arguments may be summarized as follows:
1. The videotape is offered as a prior consistent statement.
2. The videotape is offered for the purpose of rebutting allegations that Hanson either had poor memory as a result of intoxication and use of marijuana or he was lying.
3. The videotape is not offered to prove the truth of the matters asserted therein.
[ ] In turn, the appellant's arguments are as follows:
1. The objection is fundamentally a hearsay objection.
2. The total videotape cannot be admitted as non-hearsay under W.R.E. 801(d)(1)(B) because the total videotape is not a prior consistent statement.
3. The total videotape contains much more than a possible consistent statement, including the fact that it is a re -enactment and that it contains "different things" such as "inadmissible testimony" and "character stuff."
4. The videotape is offered to bolster Hanson's trial testimony.
[ ] In its appellate brief, the State defends the position taken by the prosecutor that a general attack on a trial witness's credibility is sufficient to invoke W.R.E. 801(d)(1)(B), citing Humphrey, 962 P.2d at 871-72, Curl, 898 P.2d at 374, and Mitchell v. State, 865 P.2d 591, 600 (Wyo. 1993). A review of these cases reveals that they do, indeed, countenance this rather broad interpretation of the use of prior consistent statements. The appellant contends that it is "ludicrous" to interpret W.R.E. 801(d)(1)(B) in this fashion because such an interpretation would allow litigants to make a videotape of all witnesses, and then, when each witness is cross-examined, play the videotape for the jury. The outcome, according to the appellant, would be a battle of videotapes made to rehabilitate witnesses before the trial begins. *fn7
[ ] We have detailed the parties' trial court contentions in order to compare them to the argume
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