Section 16.16 Identification of Person Made After Perceiving the Person

• Library: Evidence 2017

2. (§16.16) Identification of Person Made After Perceiving the Person

The title—Identification of Person Made After Perceiving the Person—of this hearsay exception is a rather cumbersome way of saying that a witness may testify as to their own pretrial identification of a person, usually the accused in a criminal trial. The only qualification is that the declarant testify in court and be subject to cross-examination. State v. Rima, 395 S.W.2d 102 (Mo. banc 1965). The Missouri courts do not even regard this in-court testimony by the declarant to be hearsay. As the Court said in State v. Quinn, 594 S.W.2d 599, 603 (Mo. banc 1980), testimony by the identifying witness “is not hearsay because it is direct testimony as to a fact about which the witness has personal knowledge.” And, it is a prior consistent out-of-court statement offered for the truth of what is stated.

The question is a little trickier when the witness who testifies about the identification is not the one who made the identification, but a person—such as a police officer attending a lineup—who witnessed the identification. This testimony is more clearly hearsay when offered for the truth of the fact that the person identified the suspect. The Supreme Court, however, has resolved that issue in favor of admission as well.

In State v. Harris, 711 S.W.2d 881 (Mo. banc 1986), the State offered the testimony of a police officer who said that the victim of a robbery identified the defendant in a lineup. The victim also testified that she identified the defendant. The Court perceived no real difference between the victim’s testimony that she identified the defendant and the police officer’s testimony to the same effect. Accordingly, testimony of a third party concerning an out-of-court identification is admissible when the “declarant and the corroborating witness both testify and are subject to cross-examination.” Id. at 884. The testimony of both witnesses avoids the confrontation problem. See also State v. Hicks, 456 S.W.3d 426, 431–32 (Mo. App. S.D. 2015) (a review of the evidence for improper bolstering will fail unless there is a proper objection at trial).

What if the identifying witness does not testify? Can the third party who saw and heard the identification tell the jury about it? The answer is no. In State...