Cite as: 513 U. S. 150 (1995)
Breyer, J., dissenting
Justice Breyer, with whom The Chief Justice, Justice O'Connor, and Justice Thomas join, dissenting.
The basic issue in this case concerns not hearsay, but relevance. As the majority points out, the common law permitted a lawyer to rehabilitate a witness (after a charge of improper motive) by pointing to the fact that the witness had said the same thing earlier—but only if the witness made the earlier statement before the motive to lie arose. The reason for the time limitation was that, otherwise, the prior consistent statement had no relevance to rebut the charge that the in-court testimony was the product of the motive to lie. The treatises, discussing the matter under the general heading of "impeachment and support" (McCormick) or "relevancy" (Wigmore), and not "hearsay," make this clear, stating, for example, that a
" 'prior consistent statement has no relevancy to refute [a] charge [of recent fabrication, etc.,] unless the consistent statement was made before the source of the bias, interest, influence or incapacity originated.' " Ante, at 156 (quoting E. Cleary, McCormick on Evidence § 49, p. 105 (2d ed. 1972) (hereinafter McCormick)).
The majority believes that a hearsay-related rule, Federal Rule of Evidence 801(d)(1)(B), codifies this absolute timing requirement. I do not. Rule 801(d)(1)(B) has nothing to do with relevance. Rather, that Rule carves out a subset of prior consistent statements that were formerly admissible only to rehabilitate a witness (a nonhearsay use that relies upon the fact that the statement was made). It then says that members of that subset are "not hearsay." This means that, if such a statement is admissible for a particular rehabilitative purpose (to rebut a charge of recent fabrication or improper influence or motive), its proponent now may use it substantively, for a hearsay purpose (i. e., as evidence of its truth), as well.
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