EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

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Wednesday, August 12, 2009

Can I See Some Identification?: Death Of Victim Precludes Admission Of Pre-Trial Identifications

Sometimes, the legal system works in troubling ways. If defendants shoot a victim, and the victim identifies the defendants as his shooters before trial (during a lineup, photo array, etc.), that identification would be admissible at the defendants' trial as long as the victim testifies at trial. But, as in the case of two Memphis men, if the victim identifies the defendants as his shooters before trial and then dies before trial, that identification would be inadmissible in the defendants' murder trial because the victim could not testify and be subject to cross-examination.

In Septmeber 2006, 21 year-old Bryson Lewis was shot in what might have been payback for Lewis robbing one of the shooters three nights beforeMonkeith Gunn and his brother Travis Mull soon became suspects in the shooting, and Lewis eventually identified Gunn and Mull as his shooters while he was in the hospital. Lewis later died six days after the shooting, which led to the State charging Gunn and Mull with first-degree murder but also led to this key identification evidence being inadmissible at trial and Gunn and Mull being able to accept plea agreements.

Evidence of Lewis' identification was governed by Tennessee Rule of Evidence 803(1.1), which provides an exception to the rule against hearsay for "[a] statement of identification of a person made after perceiving the person if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement." And as the Advisory Commission Comment to the Rule reiterates: "Note that the declarant must also be a witness, affording at least delayed cross-examination as to the extrajudicial statement."

Conceptually, this requirement makes sense because criminal defendants do have a right to confront the witnesses against them. Moreover, historically the hearsay exception for prior statements of identification only allowed for the admission of pre-trial identifications to bolster the credibility of in-court identifications, with it merely being the modern trend to allow admission of these earlier IDs to prove the truth of the matter asserted. But something just seems wrong about defendants being able to benefit (at least legally) from the fact that their murder attempt was successful rather than unsuccessful.

-CM 

http://lawprofessors.typepad.com/evidenceprof/2009/08/tn-idhttpwwwwaaytvcomglobalstoryasps10882804.html

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