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Univ. of South Carolina School of Law

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Friday, June 25, 2010

Just The Facts, Man: D.C. Case Reveals Broadness Of D.C.'s Prior Identification Rule

Federal Rule of Evidence 801(d)(1)(C) provides that

A statement is not hearsay if...[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is...one of identification of a person made after perceiving the person.

Washington D.C. does not have codified rules of evidence, but D.C. Code Section 14-102(b)(3) provides that

A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is...an identification of a person made after perceiving the person

In other words, as the District of Columbia Court of Appeals found in its recent opinion in Lewis v. United States, 2010 WL 2516135 (D.C. 2010), "FED.R.EVID....is essentially identical to D.C.Code § 14-102(b)." As the court's opinion reveals, though, the D.C. rule may go even farther.

In Lewis, Rodney Lewis and Jonathan Price, were tried on charges of armed robbery and possession of a firearm during a crime of violence. And while the jury was unable to agree on these charges, it found both men guilty of the lesser included offense of robbery. At trial,

Detective Roberts testified that [Aaron] Gibson [(the alleged victim of the appellants' crimes)] told him that "JB" and "Rodney" had driven up in a silver SUV and robbed him. Roberts said that Gibson described the gun as a black semi-automatic handgun held by JB and that he identified JB as the driver, although he was not certain whether JB had actually driven the SUV away from the scene. Roberts described Gibson as "highly upset" and "still a little nervous" and stated that, despite what Gibson told him, he "had the impression that [Gibson] wasn't a hundred percent sure" which of the two suspects had been the driver and which had been the passenger when the SUV first pulled up.

About an hour later, Detective Roberts received a telephone call from Gibson providing the name "Jonathan Price" for the person he had previously identified as "JB." He used that information to assemble an array of nine photographs, one of which was a picture of appellant Price. Roberts then went to reinterview Gibson at his home, and Gibson identified Price from the array as one of the robbers, saying, "That's JB, yeah, that's him."  

After they were convicted, the appellants appealed, claiming, inter alia, that this testimony was improperly received, but the District of Columbia Court of Appeals disagreed because Gibson testified at trial, rendering this testimony admissible under D.C. Code Section 14-102(b)(3). Moreover, the court found that

Insofar as those statements went beyond mere identifications and included information about the crime itself, the trial court ruled, and we agree, that such information was needed to put the identifications "in context" and to clarify each appellant's individual role in the robbery.

I'm not aware of any court interpreting Federal Rule of Evidence 801(d)(1)(C) in this way, and I think that the D.C. rule goes too far. I guess in theory I can see how certain testimony might be necessary to place identifications in context. But how, for instance, is testimony about the type of gun held by one of the victim's assailants necessary to put the victim's identification in context?

-CM

http://lawprofessors.typepad.com/evidenceprof/2010/06/prior-id--lewis-v-us----a2d------2010-wl-2516135dc2010.html

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