Nebraska & The Inadmissibility of Prior Statements of (Non)Identification

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

A statement that meets the following conditions is not hearsay:...

The declarant testifies and is subject to cross-examination about a prior statement, and the statement:...

identifies a person as someone the declarant perceived earlier.

So, assume that Eve

-is an eyewitness to a crime;

-is shown a photographic lineup that includes Doug, the defendant; and either

-picks Doug out of the lineup; or

-is unable to pick Doug out of the lineup.

If Eve later testifies at Doug's trial, her prior identification or non-identification of Doug would be admissible. As far as I know, 49 states have a similar doctrine in their state rules of evidence or precedent. As is made clear by the recent opinion of the Supreme Court of Nebraska in State v. McCurry, 891 N.W.2d 663 (Neb. 2017), the Cornhusker state seems to be the only exception.

In McCurry, the facts were as stated above, with Corleone McCurry was charged with first degree murder, use of a firearm to commit a felony, and possession of a firearm by a prohibited person. Jessica Simpson was an eyewitness to the murder. When Simpson was shown a photographic lineup spread of six individuals, one of whom was McCurry, she was not able to identify anyone from the photographic lineup but did state that one of the men, who was not McCurry, looked familiar.

At trial, McCurry tried to introduce evidence of this non-identification, but the court prevented him from doing so, and he was convicted. On appeal, the Supreme Court of Nebraska agreed, with the trial court. It did so by citing to Nebraska Rule of Evidence 27-801(4)(a), which is Nebraska's counterpart to Federal Rule of Evidence 801(d)(1).

Nebraska's rule 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 (i) inconsistent with his testimony and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (ii) consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive.

In other words, Nebraska's rule allows for the admission of prior inconsistent and prior consistent statements. But it does not allow for the admission of prior statements of (non)identification.

-CM