In 2014, this Court expanded Federal Rule of Evidence (FRE) 801(d)(1)(B) to allow the admission of prior consistent statements when a witness's credibility is attacked on any ground. This expansion includes attacks based on incapacity —such as faulty memory. Before the 2014 change , this Court noted a temporal requirement : that to be admissible, the common law required a prior consistent statement to be made before the onset of the incapacity. Tome v. United States , 513 U.S. 150, 156 (1995) . Seven federal appeals courts have disparately analyzed whether that temporal requirement applies to the expanded Federal Rule of Evidence , some noting that it is an "open question" and "unclear." This Court has not yet considered this issue.

Here, the trial court admitted a statement even though it was made after the onset of the incapacity. The Defense attacked a witness's capacity to testify accurately due to her severe intoxication . The Government rehabilitated her credibility with a statement she made about the events during her intoxication . The lower court sided with the Eighth Circuit and declin ed to apply the temporal requirement .

The question presented is:

Does the common law temporal requirement apply to Military/Federal Rule of Evidence 801(d)(1)(B)(ii)?

Does the common law temporal requirement apply to Military/Federal Rule of Evidence 801(d)(1)(B)(ii)?