EvidenceProf Blog

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

Friday, June 15, 2018

Should Courts Allow for the Admission of Pre-Trial Identifications by Witnesses Who Can't Remember Making Them?

The leading cause of wrongful convictions in this country is eyewitness misidentifications. Specifically, "eyewitness misidentification testimony was a factor in 75 percent of post-conviction DNA exoneration cases in the U.S., making it the leading cause of these wrongful convictions." So, can we square this empirical data with a rule of evidence that applies across this country?

Similar to its federal counterpartLouisiana Code of Evidence Article 801(D)(1)(c) 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:...

One of identification of a person made after perceiving the person.

Now, of course, this rule make sense...broadly speaking. Imagine a classic case in which an eyewitness picks the defendant out of a lineup hours/days/weeks after a crime and then is unable to identify the defendant at trial months/years later. In such a scenario, it would seem to make sense to allow for the prior identification. But what about when the witness doesn't even remember making the identification?

That was the scenario in State v. Coleman, 2018 WL 1773099 (La.App. 1st Cir. 2018), in which Rodrick D. Coleman was charged with second degree murder. Prior to trial, Coleman was identified by both Bobby Singleton and Linda Taylor. At trial, "both witnesses testified that they did not recall making the pretrial out-of-court statements identifying the defendant, and neither witness was able to identify the defendant as the perpetrator in court."

According to the court, this did not present a problem under Article 801(D)(1)(c) because

a prior statement by a witness which is “[o]ne of identification of a person made after perceiving the person,” is non-hearsay when the witness appears and is cross-examined on the statement....Such a statement may be used assertively, as substantive evidence of guilt, and may be established through the testimony of one to whom the statement was made. This is so even if the witness denies making an identification or fails or is unable to make an in-court identification....Thus, pursuant to La. Code Evid. art. 801(D)(1)(C), the statements of prior identification of the defendant by Taylor and Singleton were non-hearsay, and any discrepancy between their prior statements and the in-court testimony was a matter for the jury to weigh.

This is a correct application of the rule. See United States v. Owens. But it seems to me that the rule might need re-examination given the data from DNA exonerations. To me, there seem to be fundamental differences between (1) a witness who remembers making a pre-trial identification but can't identify the defendant in court; and (2) a witness who can't even remember making a pre-trial identification.

I have questions about the reliability of the eyewitness in category (1), but that witness made a pre-trial identification and remembers making it. I can see introducing their identification and allowing the jurors to decide whether it is credible. But, as for the witness in category (2),...I'm left with serious questions about their reliability. I think those questions might be enough to exclude their identification altogether. Barring that, pre-trial identifications are still subject to the Rule 403 balancing test, and I think any probative value of a pre-trial identification by an eyewitness who doesn't even remember making it is substantially outweighed by many dangers.



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