§ 32.04 Statements of Identification: FRE 801(d)(1)(C)

• Jurisdiction: United States

§ 32.04 Statements of Identification: FRE 801(d)(1)(C)

A witness's prior statement identifying a person as someone that the witness had perceived earlier is admissible as substantive evidence.²⁴ In effect, the rule recognizes that the typical in-court identification of the accused as the perpetrator of a crime is more "show" than substance and that a prior identification is more reliable.²⁵ For example, an identification made at a lineup, show-up (one-on-one confrontation), photographic display, or prior hearing falls within the rule, i.e., "That's the person who did it." Nevertheless, the rule is not restricted to "formal" identification procedures.²⁶

Before the enactment of the Federal Rules, many jurisdictions admitted prior identifications as corroborative, rather than substantive, evidence.²⁷ Under the corroboration (bolstering) theory, the witness had to make an in-court identification before evidence of a prior identification could be admitted. Stated another way, there first needed to be an "identification" at trial in order for it to be corroborated by a prior identification. Otherwise there was nothing to corroborate.

In contrast, prior identifications are admissible as substantive evidence under Rule 801(d)(1)(C). Thus, the rule applies whether or not the witness makes an in-court identification.²⁸ So long as the witness is "subject to cross-examination" about the identification at trial, the testimony of other witnesses who were present at the time of the identification is admissible.²⁹ For example, a robbery victim may have identified the defendant at a lineup when the defendant had a beard. If the victim cannot positively identify the defendant at trial because the beard has been shaved, the lineup identification is nevertheless admissible through the testimony of a police officer who was present at the lineup.³⁰

[A] Cross-Examination Requirement

In United States v. Owens,³¹ a hospitalized witness, who had suffered a fractured skull, identified Owens as his attacker and picked his picture from an array of photographs. At trial, the witness testified about the attack, including his identification of Owens while in the hospital. On cross-examination, however, the witness admitted that he could not remember seeing his assailant. The Supreme Court held that Rule 801(d)(1)(C) had been satisfied. The witness had been subjected to cross-examination about the statement. He took the stand and responded willingly to questions. The witness's impaired...