Baum v. State

CARDINE, Justice,

specially concurring, in which URBIGKIT, Justice, joins.

The victim testified in this case, and then his prior consistent statements to Officer Dahmer and Mr. Terrill were permitted into evidence. The general rule is that prior consistent statements are not admissible where the person making those statements has testified fully in open court and been available for cross-examination. See Chambers v. State, Wyo., 726 P.2d 1269 (1986). Rule 801(d)(1), W.R.E., creates an exception to the general rule which, if satisfied, allows prior consistent statements into evidence. The rule is clear. Such statements are admissible as an exception to rebut charges of recent fabrication. The court in its opinion now suggests that in Makinen v. State, Wyo., 737 P.2d 345, 349 (1987), we modified Rule 801, abolished the exception, and made prior consistent statements admissible in the discretion of the trial court. I note that in Makinen three justices specially concurred. I am firmly of the opinion that we have not modified Rule 801; that it means exactly what it says; and that prior consistent statements are admissible only if brought within an exception to the general exclusionary rule.

There is good reason for the rule excluding prior consistent statements. If the rule were otherwise, parties could prepare a multitude of self-serving, biased, inflammatory, video, audio, and written statements for trial; testify; and then introduce into evidence these consistent statements made prior to testifying. There would be no opportunity for cross-examination. The statements, as exhibits, might go with the jury and be used during deliberations. The same testimony would be repeated several times, unduly emphasizing that testimony over all other testimony in the case.

*883I concur in the court’s opinion because of its holding that these statements were admissible to rebut charges of recent fabrication, not because we amended Rule 801 to allow discretionary admission of such statements. Otherwise, I continue to adhere to that stated in my specially concurring opinions in Brown v. State, Wyo., 736 P.2d 1110 (1987), and Makinen v. State, supra, 737 P.2d 345.