FOUNDATION FOR PRIOR CONSISTENT STATEMENT AT TRIAL

In Commonwealth v. Hatzigiannis(September, 2015), the Court of Appeals reversed a conviction of indecent assault and battery because of the judge’s erroneous admission of a witness’s prior consistent statements. The allegation was that the defendant, an oral surgeon, had touched the breast of a sixteen year old patient who was under sedation following a surgical procedure. The witness who made the allegations was the defendant’s surgical assistant (Aquino). The statements at issue were “made by Aquino to her office manager, … Tatis, shortly after the incident.” Over the defendant’s objection, Tatis testified “that Aquino told her that she had seen the defendant touch the patient’s left breast; that Tatis said, ‘Are you sure?’; and that Aquino said, ‘Yes, one hundred percent.’”movie Beautiful Accident

In its decision, the Appeals Court first stated the evidentiary principles: “‘A prior consistent statement by a witness is generally inadmissible.”  There is, however, an exception to the general rule: “If the court makes a preliminary finding that there is a claim that the witness’s in-court testimony is the result of recent contrivance or a bias, and the prior consistent statement was made before the witness had a motive to fabricate or the occurrence of the event indicating a bias, the evidence may be admitted for the limited purpose of rebutting the claim of recent contrivance or bias.’ The Appeals Court then expressed its agreement with the defendant’s contention “that the foundation for the exception was not met in this case and hence Aquino’s prior consistent statements should not have been introduced.” The Court explained that “the defendant never insinuated that Aquino’s testimony was recently fabricated or the product of bias; the suggestion was only that her perception was faulty, and that she was mistaken as to what she thought she saw prix viagra 50 mg. Nor was there was any suggestion that Aquino ever had any reason to fabricate her allegation. There was no evidence that she had any animus towards the defendant; to the contrary, the evidence was that Aquino liked the defendant and enjoyed working with him.” Regarding prejudice, the Court stated that “the impact of the erroneously admitted evidence surely was amplified by the fact that the jury were not told that they could use the [prior consistent] statements only to evaluate Aquino’s credibility, and not for their truth.”

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