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Swindle v. State6/8/1999
olster him. What they're doing, they're trying to introduce improper prior consistent statements." The court stated that the witness had been "questioned about it over and over, so I think the jury is entitled to see it."
. On appeal the parties argue over whether this was a prior consistent or a prior inconsistent statement. It would appear that the trial Judge relied upon neither theory and just determined that since the defense had already discussed the statement at considerable length, it should be admitted into evidence. The majority here allows the admission on the basis of a prior consistent statement. Cited in support of the result is case law that predates the Mississippi Rules of Evidence, which were adopted in 1986. I acknowledge that the precise case used, White v. State, 616 So. 2d 304, 308 (Miss. 1993), is well after the effective date of the Rules. However the case law it quotes are not Rules of Evidence cases. The rule that those cases created and which is quoted in the majority's opinion is that if a witness's veracity has been attacked, the prosecution can introduce that witness's prior statement in order to demonstrate his veracity.
. The Rules of Evidence might be seen as more restrictive, but regardless they control. The rule for admission requires that the prior statement be "consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication. . . ." M.R.E. 801 (d)(1)(B). The question thus becomes whether the defense made at least an implicit charge of recent fabrication. The defense examined the witness with the very statement that the State argues rebuts the implied charge of recent fabrication. In my view it is not possible to make that argument unless the defense was selectively reading the prior statement, or even falsely reading passages, or otherwise allowing a misimpression of the prior statement to be left. Generally the impeachment is from some other source, which then allows the prior consistent statement to be introduced.
. To be clear on my point, if the prior statement is factually inconsistent as argued by the defense, it can be admitted only if it was given "under oath subject to the penalty of perjury at a trial, hearing or other proceeding, or in a deposition," and this statement was none of those things. M.R.E. 801 (d)(1)(A). Else the statement is consistent, which means when the defense used it the statement did not impeach the witness so long as it was a fair description of what was in the document.
. However, even a prior consistent statement can be so selectively used as to appear inconsistent. That concept seems to merge with another admission of evidence rule:
"Rule 106. Remainder of or Related Writings or Recorded Statements When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require him at that time to introduce any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it."
M.R.E. 106. The comment to the Rule calls this "a codification of the common law doctrine of completeness. . . . The rule only applies the doctrine of completeness to written or recorded statements of a specific document." M.R.E. 106 cmt. The supreme court has held that Rule 106 does not permit the introduction of an entire document when a witness was, as here, only cross-examined by reading from a writing and no part of the document was offered. Lester v. State, 692 So.2d 755 (Miss.1997).
. A corollary to that limitation was recently adopted by this Court:
"Michael Washington questioned Luke extensively about portions of each repor
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