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Univ. of South Carolina School of Law

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Friday, March 14, 2008

Identify These Tears Of Mine: Maryland Judge Finds Prior Identifications Admissible In Rape Trial

Anne Arundel Circuit Judge Paul Hackner has ruled that a rape victim's prior identifications of her assailant will be admissible at his upcoming trial.  The victim was allegedly raped at a Linthicum, Maryland light rail station while waiting for a train in October 2007.  At a pre-trial hearing, the victim testified that she was upset as she escorted police to where she had been raped moments earlier and saw Waller come out of the woods.  According to the victim, upon seeing Waller, she began screaming, "That's him!"  The victim testified, "I saw the man that I had described to police....I was very persistent to police that it was him."  Police then chased and caught Waller, and the victim identified him a second time.  Over defense counsel's objections, Judge Hackner deemed these identifications admissible at Waller's first degree rape trial, scheduled for April 15th.

While the article on the case does not explain why the judge found the prior identifications admissible, he could have done so on a few grounds.  First, under Maryland Rule of Evidence 5-802.1(c), if a witness testifies at a trial or hearing and is subject to cross-examination, her "statement that is one of identification of a person made after perceiving the person" is not excluded by the hearsay rule.  This provides the clearest rule under which both identifications were admissible. 

Furthermore, under Maryland Rule of Evidence 5-803(b)(1), "[a] statement describing an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter" is admissible under the present sense impression exception to the rule against hearsay.  Here, the victim identified her assailant "moments" after being raped, making it possible that she made first identification "immediately []after" the event, allowing for the statement's admissibility.

Finally, under Maryland Rule of Evidence 5-803(b)(2), "[a] statement relating to a startling event or condition made while declarant was under the stress of excitement caused by the event or condition" is admissible under the excited utterance exception to the rule against hearsay.  Here, rape would constitute a startling event, and the victim indicated that she was "upset" when she identified her assailant by screaming, making it likely that her first identification was an excited utterance.



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