fabrication rule in New York

1986Recent fabrication means "that the defense is charging the witness not with mistake or confusion, but with making up a false story well after the event” (People v Singer, 300 NY 120, 124 ). " 'Recently fabricated’ means the same thing as fabricated to meet the exigencies of the case” (id.).

1985Were this the only error and were the other evidence against defendant overwhelming, it could be disregarded as harmless for, had the victim been asked on direct examination about the proceeds of the lawsuit, her direction to the attorney might have been a prior consistent statement admissible under the recent fabrication rule after the defense testimony of a set-up came in (see, People v Singer, 300 NY 120 ; Giordano v Eastern Utils., 9 AD2d 947 ).

1978It is now firmly settled in this State that an impeached witness cannot be rehabilitated by his antecedent consistent statements unless the cross-examiner has created the inference of, or directly characterized the testimony as, a recent fabrication (Crawford v Nilan, 289 NY 444 ; People v Williams, 62 AD2d 1026 ).

1968(Crawford v. Nilan, 289 N. Y. 444 ; People v. Caseria, 19 N Y 2d 18.) The People urge that this testimony is admissible under the recent fabrication rule.

1968(People v. Katz, 209 N. Y. 311, 336-344 ; Ferris v. Sterling, 214 N. Y. 249 ; People v. Singer, 300 N. Y. 120 ; People v. Coffey, 11 N Y 2d 142.) It is argued that various motives to falsify were ascribed to Barnes and some of these motives could have arisen only after Barnes made his original admission to Gonzales.

1968Nevertheless, were we to accept the defendants’ argument, an accomplice’s testimony could almost never be rehabilitated — no matter what the nature of the attack on his testimony—since the desire to save one’s self from punishment would normally be the predominant motive for perjury of any accomplice (People v. Katz, supra, p. 338 ).

1917It may be claimed that both the letter and the extra-judicial confession of the wife are competent to corroborate her evidence claimed to be a recent fabrication under the doctrine of Ferris v. Sterling ( 214 N. Y. 249 ) and People v. Katz (209 id. 311 ), but this evidence was admitted as direct evidence before the wife was called.

1917It may be claimed that both the letter and the extra-judicial confession of the wife are competent to corroborate her evidence claimed to be a recent fabrication under the doctrine of Ferris v. Sterling ( 214 N. Y. 249 ) and People v. Katz (209 id. 311 ), but this evidence was admitted as direct evidence before the wife was called.

1995If such statements are not offered in response to a claim of recent fabrication, they are generally inadmissible. *511 Even this Court's recent decision in People v Seit ( 86 N.Y.2d 92 ), which held that it was error to exclude evidence of a 911 call where the witness's testimony had been attacked as a recent fabrication, involved a pure hearsay statement falling only into the recent fabrication exception, and no other.

1995Even this Court’s recent decision in People v Seit ( 86 NY2d 92 ), which held that it was error to exclude evidence of a 911 call where the witness’s testimony had been attacked as a recent fabrication, involved a pure hearsay statement falling only into the recent fabrication exception, and no other.

1995If a proffered statement also meets the requirements to be admitted as an excited utterance, for example, its admission would be proper, notwithstanding the characterization as a prior consistent statement ( see , People v Alberto , 144 AD2d 368 ; 2 Jones, Evidence § 10:19 at 299 [6th ed 1972] ["the rule * * * is( ) to exclude statements made by a witness which are consistent with his testimony unless they qualify for admission under some conventional hearsay exception" (emphasis added)]).

1995If a proffered statement also meets the requirements to be admitted as an excited utterance, for example, its admission would be proper, notwithstanding the characterization as a prior consistent statement (see, People v Alberto, 144 AD2d 368 ; 2 Jones, Evidence § 10:19 at 299 [6th ed 1972] ["the rule * * * is( ) to exclude statements made by a witness which are consistent with his testimony unless they qualify for admission under some conventional hearsay exception” (emphasis added)]).

1985Were this the only error and were the other evidence against defendant overwhelming, it could be disregarded as harmless for, had the victim been asked on direct examination about the proceeds of the lawsuit, her direction to the attorney might have been a prior consistent statement admissible under the recent fabrication rule after the defense testimony of a set-up came in (see, People v Singer, 300 NY 120 ; Giordano v Eastern Utils., 9 AD2d 947 ).

1978It is now firmly settled in this State that an impeached witness cannot be rehabilitated by his antecedent consistent statements unless the cross-examiner has created the inference of, or directly characterized the testimony as, a recent fabrication (Crawford v Nilan, 289 NY 444 ; People v Williams, 62 AD2d 1026 ).