EvidenceProf Blog

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

Friday, July 22, 2011

Total Recall: 7th Circuit Finds No Problem With Introducing Prior ID After Declarant Testifies

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...

But does the statement of identification have to be introduced contemporaneous with the declarant's testimony, or can it be introduced later as long as the opposing party is allowed to recall the declarant as a witness? According to the recent opinion of the Seventh Circuit in United States v. Foster, 2011 WL 2909455 (7th Cir. 2011), contemporaneity is not required.

In Foster, Napoleon Foster was found guilty of orchestrating an armed robbery of a Acme Continental Credit Union and related firearms charges. At trial, the prosecution introduced

a photographic array admitted as proof that Foster owned the black Cadillac used in the Acme robbery and that Foster was with [an accomplice] on the day of the robbery. At trial, Daniel Kotlajich testified that he had sold a black Cadillac to Foster in October 2005. He identified the bill of sale and vehicle title that Foster had signed in that sale. Kotlajich also testified that Foster had accompanied [the accomplice] when she purchased a black Olds-mobile from Kotlajich on the day of the Acme robbery.

That said,

Kotlajich could not identify Foster at trial. Kotlajich did say, however, that when previously shown a photographic array, he was able to identify the man who had purchased the black Cadillac and who had accompanied [the accomplice] when she purchased the black Oldsmobile. He testified that he had initialed the photo of the man he identified in that array.

After, calling Kotlajich,

The government later called FBI Special Agent Lori Warren, who testified that she had spoken to Kotlajich and shown him a photo array that included a photo of Foster. According to Agent Warren, Kotlajich had identified and initialed Foster's photo in that array. The government then offered the photo array into evidence. Foster objected on the ground that he had not been able to cross-examine Kotlajich regarding that array. The district court agreed that Foster had not been given sufficient opportunity to cross-examine Kotlajich about the photo array, but overruled that objection after granting Foster the opportunity to recall and cross-examine Kotlajich during his case-in-chief. Foster never took advantage of that opportunity to recall Kotlajich, however, and rested his case without calling any witnesses in his defense.

After he was convicted, Foster appealed, claiming, inter alia, that "he was denied an opportunity to cross-examine a witness who identified him in a photographic array." The Seventh Circuit disagreed, holding that

The better course, obviously, is to provide the photo array or other evidence of the prior identification immediately, while the declarant is still on the witness stand. But events at trial sometimes make the better course impractical. In such circumstances, a meaningful opportunity to cross-examine a declarant regarding his prior identification is enough to satisfy the requirements of Rule 801, even if the defendant chooses not to use the opportunity....The district court provided Foster such a meaningful opportunity to cross-examine Kotlajich when it granted Foster permission to recall Kotlajich as a witness to pursue this matter further.



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