Chapter 3 - §15. Exception—Statement of identification

• Jurisdiction: United States

§15. Exception—Statement of identification

A witness's prior statement of identification is admissible as an exception to the hearsay rule. Evid. C. §1238.

§15.1. Overview. When a witness testifies that she previously identified a person involved in a crime or other occurrence, the prior statement of that identification is admissible as an exception to the hearsay rule if certain conditions are met. Evid. C. §1238. This allows a witness to bolster her in-court identification by discussing consistent out-of-court identifications she previously made (e.g., at the scene of the crime, at a lineup, with a photo array). See id. It also permits prior on-scene identifications to be presented by a witness who for some reason (e.g., passage of time, uncertainty, physical incapacity) is unable to make, or simply does not make, an in-court identification. See People v. Boyer (2006) 38 Cal.4th 412, 480; 7 Cal. Law Revision Comm'n Rep. (1965) p. 1232.

§15.2. Requirements for exception. For a prior statement of identification to be admissible as a hearsay exception, the following criteria must be met:

1. Statement identified participant in crime. The witness's statement must be an identification of the defendant or someone else who was a participant "in a crime or other occurrence." Evid. C. §1238(a). The prior identification can be based on the adoption of a composite drawing as long as a proper foundation is established for the composite identification. People v. Cooks (1st Dist.1983) 141 Cal.App.3d 224, 308-09. A proper foundation is laid if it is shown that (1) the drawing was made when the crime was fresh in the witness's memory and (2) the drawing is offered after the witness testifies that she made the identification the drawing was based on and that it was a true reflection of her opinion at the time. Id. at 309.

2. Statement admissible as testimony. The identifying statement must have been admissible if it were made by the witness while testifying. Evid. C. §1238. Presumably, this means the witness must have had an adequate opportunity to perceive or observe the person identified as a basis for the out-of-court identification.

3. Statement made while crime was fresh. The witness must have made the prior identification when the crime or other occurrence was fresh in her memory. Evid. C. §1238(b); see People v. Garcia (4th Dist.2016) 244 Cal. App.4th 1349, 1359 (show-ups for in-field identification are encouraged because events are still fresh in witness's mind).

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