In State v. Moorer, A-2922-14, decided on December 29, 2016, the New Jersey Appellate Division held that under New Jersey’s evidence rule permitting substantive use of consistent statements to rebut “recent fabrication,” N.J.R.E. 803(a)(2),
fabrication is “recent” if it post-dates a prior consistent statement.
N.J.R.E. 803(a)(2) provides:
A statement previously made by a person who is a witness at a trial or hearing [is not excluded by the hearsay rule], provided it would have been admissible if made by the declarant while testifying and the statement . . . is consistent with the witness’ testimony and is offered to rebut an express or implied charge against the witness of recent fabrication or improper influence or motive.
“A ‘charge’ of recent fabrication can be effected through implication by the cross-examiner[.]” State v. Johnson, 235 N.J. Super. 547, 555 (App. Div.) (quoting State v. King, 115 N.J. Super. 140, 146 (App. Div.), certif. denied, 59 N.J. 268 (1971)), certif. denied, 118 N.J. 214 (1989). Further, such a charge can be implied in the opening statement and confirmed by the closing argument.
This case stands for the proposition that a fabrication is “recent” if it post-dates a prior consistent statement.