Corroboration


Corroborating evidence is evidence supporting a proposition that is already supported by some evidence.  Corroboration strengthens the testimony of another witness.  If corroboration tends to strengthen or add credibility to the testimony, corroborative evidence may include new and additional information.  The modern corroboration rule requires only that there be substantial independent evidence which would tend to establish the trustworthiness of a statement[i].

A trial judge shall allow a witness to testify to facts and circumstances corroborative of his testimony and, in this regard, evidence may be admissible within this rule to show a reason for a witness to remember a transaction.  The weaker a witness’s testimony, the greater will be the need for corroborative evidence[ii].  A witness’s good character, reputation for truth, and veracity and proof of his/her prior consistent statements are methods of corroboration.  Videotapes and photographs are admissible as corroboration of testimony.

Some statutes provide that in an action by or against a person who is incapable of testifying, or by or against an executor, administrator, no judgment shall be rendered in favor of an adverse or interested party founded on uncorroborated testimony. The purpose of requiring credible witnesses is to avoid the possibility of fraud and perjury by witnesses who have a direct pecuniary or proprietary interest in the claim.

A witness is expected to tell the truth.  However, evidence to support the reputation for integrity of a witness who has not been impeached is not allowed.  A witness may be impeached by proving that he is not worthy of credit, or that the facts to which he deposes are not true, or by cross-examination, in which he may be shown to be inconsistent; and it is admissible under such circumstances to prove the good character of the witness[iii].

Credibility of a witness is impaired when evidence shows that s/he has made contradictory or inconsistent statements out of court.  A prior statement is not admissible as substantive evidence unless the witness testifies at trial and the witness is subject to cross-examination relating to the statement, and the statement is:

  • Inconsistent with the declarant’s testimony;
  • Was given under oath that was subject to the penalty of perjury at trial, hearing, or other proceeding, or in a deposition; or
  • One of identification of a person made after observing the person[iv].

 

A prior consistent statement is admissible only if it is made before the alleged influence or motive to fabricate arose.  Those statements are admissible non-hearsay only if they are offered to rebut a specific allegation of recent fabrication, not to rehabilitate credibility that has been generally called into question[v].

For warranting the admission of evidence of a witness’s general character or reputation for truth and veracity in support of such witness, there should be some particular element introduced in the case by which such witness is impeached[vi].  A witness’s self-contradictory statements shall suffice to impeach the witness.  Usually, the authorities do not consider the contradiction of a witness by other witnesses as enough to justify the admission of testimony in support of the witness’s reputation for truth, honesty, and integrity[vii].

Instances in which evidence of the character or a trait of character of a person is admissible, proof may be made by testimony as to that person’s reputation or by testimony in the form of an opinion.  Evidence of the habit of a person, whether corroborated or not and irrespective of the presence of eyewitnesses, is necessary to prove that the conduct of the person was in accordance with the habit or routine practice.

Generally, prior consistent statements of a witness are inadmissible[viii].  The testimony of a witness cannot be supported by showing that the witness has made statements out of court that are the same as his/her testimony on the witness stand.  However, there are certain exceptions to this rule.

Pursuant to the Federal Rule of Evidence, [801(d)(1)(B)], an out-of-court statement is not hearsay if it is consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive. The following requirements must be satisfied for a prior consistent statement to be admitted into evidence:

  • the declarant must testify at trial and be subject to cross-examination;
  • there must be an express or implied charge of recent fabrication or improper influence or motive of the declarant’s testimony;
  • the proponent must offer a prior consistent statement that is consistent with the declarant’s challenged in-court testimony; and
  • the prior consistent statement must be made prior to the time that the supposed motive to falsify arose[ix].

 

Bolstering often occurs when one item of evidence is improperly used by a party to add credence or weight to some earlier unimpeached evidence offered by the same party.  Prior consistent statements may not be admitted to counter all forms of impeachment or to bolster the witness merely because s/he has been discredited[x]. Corroboration made after impeachment is not bolstering.  Nothing prevents a party from adding credence to an unimpeached witness or adding credence to other evidence as long as that additional evidence is relevant.

Mere repetition does not enhance the veracity of a statement, because these statements are self-serving and cumulative.  The admission of such statements suggests that credibility depends upon the number of times the witness has repeated the same statement rather than the inherent trustworthiness of the statement[xi].  Any statement made out of court by a witness in an attempt to corroborate testimony is considered as mere hearsay.

The rule of exclusion is generally recognized in every jurisdiction.  If the statement of the witness is made prior to trial, it may be received in corroboration of testimony.  Prior consistent statements are generally admissible to reestablish the credibility of a witness who has been impeached.

The admissibility of a prior consistent statement to rehabilitate a witness who has been impeached with a prior inconsistent statement is a matter within the discretion of the trial judge.  In order to rehabilitate an impeached witness, the trial court should determine if the statements have some probative force bearing on the credibility of the witness[xii].

Prior statements that are consistent shall be admissible under the rules of evidence.  Evidence of prior consistent statements is not evidence of the fact at issue; rather its purpose is to support a witness whose veracity has been attacked.  Generally, in the absence of statute or rule declaring the impeached witness incompetent, s/he may testify to prior consistent statements.  The prior statements in order to be admissible should appear that there is a real or substantial similarity between the sworn and unsworn statements.  Prior statements can either be oral or in writing.

Statements of witnesses consistent with their testimonies are admissible for corroboration; irrespective of the manner in which impeachment occurred.  A witness who has merely been contradicted by witnesses on the other side, and who otherwise has not been impeached, may not be corroborated by proof of previous consistent statements, however sharp the conflict of testimony.

If the credibility of a witness has been attacked on the ground that influence of others has altered his/her testimony, supporting evidence and the nature of prior consistent statements may be introduced.  The mere fact of a prior inconsistent statement is insufficient to ground the admissibility of the antecedent consistent statement under this provision; there must have been an express or implied suggestion that the witness changed his story because of some purported motive to falsify[xiii].

 

[i] United States v. Awan, 2010 U.S. App. LEXIS 12084 (2d Cir. N.Y. June 14, 2010).

[ii] Hyppolite v. United States Ag, 2010 U.S. App. LEXIS 12827 (11th Cir. June 22, 2010).

[iii] La Follettee Coal, Iron & Ry. Co. v. Minton, 117 Tenn. 415 (Tenn. 1906).

[iv] Brim v. State, 624 N.E.2d 27 (Ind. Ct. App. 1993).

[v] United States v. Stepherson, 2010 U.S. App. LEXIS 12502 (11th Cir. Fla. June 17, 2010).

[vi] Kirby v. State, 25 Okla. Crim. 330 (Okla. Crim. App. 1923).

[vii] Kirby v. State, 25 Okla. Crim. 330 (Okla. Crim. App. 1923).

[viii] United States v. Stepherson, 2010 U.S. App. LEXIS 12502 (11th Cir. Fla. June 17, 2010).

[ix] Gov’t of the V.I. v. Muiruri, 340 Fed. Appx. 794 (3d Cir. V.I. 2009).

[x] Gov’t of the V.I. v. Muiruri, 340 Fed. Appx. 794 (3d Cir. V.I. 2009).

[xi] George v. State, 270 Ark. 335 (Ark. 1980).

[xii] Smith v. City of Phila., 2009 U.S. Dist. LEXIS 96594 (E.D. Pa. Oct. 19, 2009).

[xiii] Jones v. Cain, 601 F. Supp. 2d 769 (E.D. La. 2009).