specially concurring.
I concur in the result in this case. However, I write separately to specially concur with the result in Part I of the opinion here, but on a different basis from that adopted by the majority.
I am aware of the law and policy underlying the rule announced by the majority of the United States Supreme Court in Tome v. United States, — U.S.-, 115 S.Ct. 696, 130 L.Ed.2d 574 (1995), concerning the federal equivalent of CRE 801(d)(1)(B). I disagree with the rubric of Part I of this opinion that the analysis in Tome should be persuasively controlling in Colorado, partly because I view the resulting rule of evidence as unnecessarily rigid for application under the liberalized rules of evidence.
I believe that, in Colorado, the judiciary and any litigants having issues arise under CRE 801(d)(1)(B) are better served by the rule announced in People v. Koon, 724 P.2d 1367 (Colo.App.1986). In regard to prior statements offered to show consistency with trial testimony which otherwise meet the requirements of CRE 801(d)(1)(B), and which are offered to rebut a charge, express or implied, of recent fabrication or improper influence or motive, I generally agree with the proposition that the time when the prior statement is made is an element going to the weight of the evidence and not its admissibility-
Thus, I would continue to hold “that the rule encompasses statements made both before and after the time of the alleged impropriety or the time when the supposed motive to falsify arose.” People v. Koon, supra, 724 P.2d at 1374. It seems to me that the holding in Koon furthers the purpose of the rules of evidence to liberalize the rules for admission of relevant evidence. The rules of evidence direct that, generally, all evidence should be admitted having “any tendency” to make the existence of a material fact “more probable or less probable than it would be without the evidence.” CRE 401, 402. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)(liberalized relevancy portions of the rules of evidence can supersede a pre-existing, rigid rule of evidence).
In addition, determinations by the trial court of relevancy under CRE 401, its balancing of probative value against the danger of unfair prejudice, its limiting presentation of cumulative evidence, and its providing limiting instructions on the use of such prior consistent statements, combined with the universally recognized ability of juries to ferret out more credible evidence from less credible evidence, will continue to serve as useful tools in assuring that statements offered pursuant to CRE 801(d)(1)(B) will be given the proper attention in each instance. Moreover, the trial judges of this state will continue to use their best judgment and discretion in determining, based on the facts *271and circumstances of each individual case, when evidence should properly be admitted under ORE 801(d)(1)(B).
Hence, I would hold that, based on the rubric in People v. Koon, supra, I determine that the trial court did not err in admitting the prior statements of the two victims here.