EvidenceProf Blog

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

Sunday, April 17, 2011

Can I See Some ID?: EDNY Opinion Reveals Differences Between Federal & NY Prior ID Rules

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....

As the recent opinion of the United States District Court for the Eastern District of New York in Linton v. Bradt, 2011 WL 1252752 (E.D.N.Y. 2011), reveals, New York also allows for 

In Bradt, WIlliam Bradt was convicted of second-degree murder in New York state court. ABout five minutes after Bradt allegedly shot the victim, a detective interrogated two eyewitnesses, who indicated that Bradt shot the victim. These statements were admitted at Bradt's trial as excited utterances. After Bradt unsuccessfully appealed in the New York state court system, he filed a habeas petition with the United States District Court for the Eastern District of New York.

The court found that there was no error, and certainly no constitutional error, in admitting these statements as excited utterances. Moreover, it noted that these statements also could have been admitted under Federal Rule of Evidence 801(d)(1)(C) as prior statements of identification. The court then noted that while New York courts have apply a more defendant-protective evidentiary rule,

the New York Court of Appeals has held that prior identifications can be introduced, notwithstanding objections based on bolstering or hearsay, when the identification is the key issue in the case and the prior identification is only offered to show "the opportunity to observe at the time of the crime, and the reliability of her memory at the time of the corporeal identification..." In that situation, a limiting instruction is appropriate.

In other words, under federal law, prior identifications are always admissible and admissible to prove the truth of the matter asserted (because they are non-hearsay), while, under New York law, prior identifications are only sometimes admissible and only for some purposes.




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In Linton v. Bradt the defendant had fled the country when the witnesses spoke to the police and identified the defendant as the culprit. In Linton v. Brandt Judge Cogan assumes that a statement identifying someone is admissible under FRE 801(d)(1)(C) even if neither the person identified nor the person's image is shown to the witness when the witness makes the statement identifying the person. I wonder if this assumption is correct. There are at least several decisions that discuss whether an identification is admissible if a photograph of the person identified is shown to the witness instead of the person himself or herself. (The courts held that such pretrial "photographic identifications can satisfy 801(d)(1)(C).) These courts apparently thought that "after perceiving the person" means "after perceiving the person _again_." If neither the person identified nor the person's image need to be shown to the witness, it would not make sense for these courts to have worried about whether a "photographic identification" can pass muster under Rule 801(d)(1)(C).

Posted by: observer | Apr 22, 2011 10:26:12 AM

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