THAT S THE GUY! : FEDERAL RULE OF EVIDENCE 801(d)(1)(C) AND OUT-OF-COURT STATEMENTS OF IDENTIFICATION

THAT S THE GUY! : FEDERAL RULE OF EVIDENCE 801(d)(1)(C) AND OUT-OF-COURT STATEMENTS OF IDENTIFICATION Gilbert M. Rein TABLE OF CONTENTS INTRODUCTION... 1540 I. BACKGROUND... 1542 A. Terminology and an Explanation of the Federal Rules of Evidence and the Hearsay Rule... 1542 B. Legislative History of Federal Rule of Evidence 801(d)(1)(C)... 1544 C. Federal Rules of Evidence Advisory Committee Notes on Rule 801(d)(1)(C)... 1546 D. Judicial Treatment of Out-of-Court Statements of Prior Identification Before and After the Adoption of Rule 801(d)(1)(C)... 1546 E. The Risk of Misidentification... 1549 F. Rule 801(d)(1)(C) and the Federal Judiciary s Inconsistent Attempts to Resolve Disagreements in Interpretation... 1550 1. Admission Without Display Procedures... 1551 2. Admission Only When Display Procedures Have Been Used... 1553 G. Rule 801(d)(1)(C) and State Court Attempts to Resolve the Issue... 1555 1. Admissions Without the Use of Display Procedures... 1555 2. Admissions Only After a Display Procedure Has Been Employed... 1556 II. ANALYSIS... 1557 A. Other Attempts to Resolve the Issue... 1558 Articles Editor, Cardozo Law Review. J.D. Candidate (May 2013), Benjamin N. Cardozo School of Law; B.A., summa cum laude, The George Washington University, 2010. Many thanks to the members of the Cardozo faculty who inspired me and offered their advice; to the extraordinary editors of the Cardozo Law Review, including Elizabeth Langston and Todd Grabarsky; and my friends and family for their unwavering support. This Note is dedicated to my parents, Alice and Samuel Rein. 1539

1540 CARDOZO LAW REVIEW [Vol. 34:1539 B. Rule 801(d)(1)(C) and Third Party Testimony... 1559 C. What Is the Plain Meaning of the Rule?... 1560 III. PROPOSAL... 1561 A. A Broad Interpretation of the Rule Does Not Present Traditional Hearsay Problems... 1562 B. Furthering the Adversarial System Through a Broad Interpretation of Rule 801(d)(1)(C)... 1564 C. The Use of Jury Instructions to Alleviate Additional Concerns... 1565 D. A Role for Congress... 1566 E. A Broad Reading Is Akin to Confirmatory Identifications and May Help Reduce the Risk of Misidentification... 1567 CONCLUSION... 1568 INTRODUCTION Lineup and showup procedures are widely used law enforcement techniques, 1 as well as a ubiquitous staple of modern television crime drama. Films like The Usual Suspects 2 and television shows like Law & Order 3 have given the average American some familiarity with police identification procedures. A lineup is a police procedure during which an individual suspected of committing a crime and other individuals (fillers), usually having the same physical characteristics as the suspect, are assembled to be viewed by the victim of or witness to a crime. 4 A showup is an identification procedure in which a suspect is subjected to a one-on-one confrontation with a victim or other witness to a crime. 5 These procedures are intended to give the victim or other witness(es) the opportunity to positively identify the individual allegedly responsible for committing or participating in a crime or other activity. 6 In our modern media-driven society, it is likely that the average American has seen at least one television or big-screen crime drama where a tearful crime victim stands behind a one-way mirror and picks out a potential wrongdoer from a group of assembled individuals. However, most Americans probably have not given much thought to the 1 See People v. Rodriguez, 593 N.E.2d 268, 270 (N.Y. 1992) ( In criminal investigations, the police employ a variety of identification procedures including lineups, one-on-one showups, photo arrays, and... single-photo displays. ). See Shirley K. Duffy, Using an Expert to Evaluate Eyewitness Identification Evidence, 83 N.Y. ST. B.A. J., June 2011, at 41, 42, for an in-depth discussion of police identification procedures. 2 THE USUAL SUSPECTS (MGM Studios 1995). 3 Law & Order (NBC television). 4 BLACK S LAW DICTIONARY 1014 (9th ed. 2009). 5 Id. at 656. 6 Id. at 432.

2013] THAT S THE GUY 1541 less than intuitive evidentiary implications of this procedure or the general admissibility of identifications during a legal proceeding. They do not realize that the American trial system s rules and procedures are carefully crafted to achieve certain legislative and judicial objectives. This basic unfamiliarity with our system of evidence and its different mechanisms may result in confusion when certain evidence, including evidence of out-of-court identifications, is offered for admission. Rule 801(d)(1)(C) of the Federal Rules of Evidence 7 seeks to govern the admissibility of prior statements of identification at trial, and questions about the rule have lingered since its inception in 1975. 8 Federal courts have interpreted the rule differently: some have interpreted rule 801(d)(1)(C) to allow the introduction of evidence of a prior identification only when it was made pursuant to a display procedure, such as a lineup or showup, while others read the rule more broadly and admit evidence pertaining to prior statements of identification even in the absence of such display procedures. 9 This disagreement among the federal courts requires redress. Without a uniform approach, a defendant tried in one jurisdiction might be subjected to prosecution through the use of evidence that would be clearly inadmissible in other jurisdictions. A clear interpretation of rule 801(d)(1)(C) is necessary to resolve this disparity in the law. This Note argues that the admission of statements of prior identification made in the absence of display procedures is appropriate. This Note also acknowledges the arguments in support of a narrow interpretation of rule 801(d)(1)(C) and recognizes that amending the rule to further alleviate remaining ambiguity is a viable possibility. Part I reviews the initial adoption of rule 801(d)(1)(C), including its rationale and its legislative and judicial history. Part II further explores the different interpretations of the rule and examines the rationale behind opposing case holdings. Part III sets forth the proposition that rule 801(d)(1)(C) should be read broadly and suggests how a uniform interpretation of the rule should be adopted. A broader reading of rule 801(d)(1)(C) would be consistent with the rationale 7 FED. R. EVID. 801(d)(1)(C). 8 See H.R. REP. NO. 94-355, at 7 (1975), reprinted in 1975 U.S.C.C.A.N. 1092, 1975 WL 12424 (noting the dissent of Representative Elizabeth Holtzman and her concern that inclusion of Federal Rule of Evidence 801(d)(1)(C) would result in the admission of all kinds of out-ofcourt eyewitness identification ). 9 See United States v. Lopez, 271 F.3d 472 (3d Cir. 2001) (finding no reason why rule 801(d)(1)(C) could not be applied to a situation where a person comes forward after a commission of a crime and says she saw a particular individual at a particular place); United States v. Davis, 181 F.3d 147, 149 (D.C. Cir. 1999) (affirming admission under rule 801(d)(1)(C) of an identification contained in police notes and tapes); State v. Reaves, 721 N.E.2d 424, 428 (Ohio App. Ct. 1998) (permitting the admission of police investigation tape recordings containing a witness s statement identifying the defendant as a participant in a homicide).

1542 CARDOZO LAW REVIEW [Vol. 34:1539 behind the rule s enactment. Specifically, such an interpretation would allow for the introduction of evidence obtained at a time when a witness s recollection of an event is more likely to be fresh in her mind and less likely to have been compromised by the efforts of other actors seeking to exert an improper force upon the witness. 10 I. BACKGROUND A. Terminology and an Explanation of the Federal Rules of Evidence and the Hearsay Rule The Federal Rules of Evidence govern the admissibility of evidence and different aspects of trial procedure in all federal courts 11 and have influenced a number of states rules of evidence as well. 12 These rules govern evidentiary procedure in both criminal and civil proceedings at the federal level. 13 The stated purpose of the rules is to ensure the fair administration of all proceedings, while avoiding delay and promoting the truth. 14 In promoting these ends, the rules, in some instances, rely on a grant of discretion to the trial judge to determine what evidence is properly admitted 15 and allow appellate review for error in specifically defined circumstances. 16 Generally, all relevant evidence is to be admitted, subject to certain prescribed restrictions. 17 Also, the trial judge s discretion allows her to prevent the admission of evidence when such evidence, although probative, may result in unwanted consequences. 18 10 MICHAEL H. GRAHAM, HANDBOOK OF FEDERAL EVIDENCE 801:13 (7th ed. 2012) ( [I]ntroduction of [more meaningful] identifications made by a witness when memory was fresher and there had been less opportunity for influence to be exerted upon him. (alteration in original) (quoting United States v. Marchand, 564 F.2d 983, 986 (2d Cir. 1977)) (internal quotation marks omitted)). 11 FED. R. EVID. 101. 12 United States v. Thomas, 41 M.J. 732, 734 (N-M. Ct. Crim. App. 1994) (noting that Military Rule of Evidence 801(d)(1)(C) is an exact reproduction of Federal Rule of Evidence 801(d)(1)(C)); Reaves, 721 N.E.2d at 429 n.6 (noting that the state legislature s committee comment indicates that state rule of evidence 801(d)(1)(C) is identical to the federal rule except for the addition of one additional provision); State v. Shaw, 705 N.W.2d 620, 628 (S.D. 2005) (noting that the South Dakota hearsay rules closely mirror the Federal Rules of Evidence and thus the legislative history of the Federal Rules is instructive (citing State v. McCafferty, 356 N.W.2d 159, 161 (S.D. 1984))). 13 FED. R. EVID. 101. 14 FED. R. EVID. 102. 15 See FED. R. EVID. 403, 601. 16 FED. R. EVID. 103 (setting forth the method for claiming and preserving a claim of error). 17 FED. R. EVID. 402 (explaining that otherwise relevant evidence is to be excluded when exclusion is required by the Constitution, a federal statute, other Federal Rules of Evidence, or rules set forth by the United States Supreme Court). 18 FED. R. EVID. 403 (providing for the exclusion of evidence if its probative value is

2013] THAT S THE GUY 1543 The Federal Rules contain specific instructions regarding the manner in which certain testimony and evidence is to be managed in federal courts. 19 Among these directives is the well-known hearsay rule, which, subject to certain exceptions, 20 specifically prohibits the introduction of evidence in the form of out-of-court statements. 21 The Federal Rules define hearsay as a statement that (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement. 22 This definition of hearsay reveals that any statement of identification made prior to a trial or hearing and subsequently offered to prove the truth of the matter asserted the identification itself would fall within the hearsay prohibition. Such a reading would appear, for example, to forestall the introduction of evidence relating to a victim s identification of a perpetrator at a prior lineup or other identification procedure. The rule does not bar a declarant from testifying that I saw X rob the bank but would bar the declarant from testifying that I said I saw X rob the bank. 23 This subtle variation in phrasing makes all the difference when considering a statement s admissibility. Federal Rule of Evidence 801(d)(1)(C) expressly addresses the question of prior statements of identification in the hearsay context. 24 This rule provides that even though a statement falls within the definition of hearsay, the statement is not considered hearsay if [t]he declarant testifies and is subject to cross-examination about a prior statement, and the statement... identifies a person as someone the declarant perceived earlier. 25 Under this rule, a third party present at the time of a statement of identification is permitted to testify about the prior identification at a subsequent trial or hearing, 26 provided of course substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence ). 19 FED. R. EVID. 801. 20 FED. R. EVID. 803 804. 21 FED. R. EVID. 802. 22 FED. R. EVID. 801(c). The Federal Rules define a statement as a person s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion. FED R. EVID. 801(a). A declarant is the person who made the statement. FED R. EVID. 801(b). 23 The first statement, I saw X rob the bank, does not involve an out-of-court statement, while the second statement, I said I saw X rob the bank, does involve an out-of-court statement. 24 FED R. EVID. 801(d)(1)(C). 25 Id. 26 See United States v. Elemy, 656 F.2d 507, 508 (9th Cir. 1981) (explaining that rule 801(d)(1)(C) does not require that testimony about a prior identification come solely from the individual who made that identification but may also come from a witness to the identification).

1544 CARDOZO LAW REVIEW [Vol. 34:1539 that the declarant has also testified and been the subject of crossexamination. 27 Rule 801(d)(1)(C) is an attempt to allow for the admission of identifications that take place soon after an event or other crime has occurred. 28 Allowing the admission of such identifications, as opposed to only admitting identifications made in court, is seen as desirable because the identification supposedly comes when observations are still fresh in a witness s mind. 29 Thus, out-of-court identifications differ from other out-of-court statements in this respect. In addition, rule 801(d)(1)(C) allows admission of identifications made before a witness may be subjected to an improper influence, such as a bribe or threat. 30 The rule was designed to speak only to the admissibility of evidence of identifications, not to the weight the evidence is to be given. 31 The weight of evidence refers to the evidence s persuasiveness and its ability to persuade the trier of fact that a specific event did indeed occur as alleged. 32 This differs from admissibility, which is simply the ability of a piece of evidence to be properly entered as evidence in a proceeding. 33 B. Legislative History of Federal Rule of Evidence 801(d)(1)(C) Pursuant to a compromise struck by the House of Representatives and the Senate during conference committee meetings, the original version of the Federal Rules of Evidence did not contain rule 801(d)(1)(C). 34 The Senate had threatened to delay the passage of the Federal Rules if the language of rule 801(d)(1)(C) was included. 35 Thus, in 1975, the Federal Rules of Evidence were adopted without the language of rule 801(d)(1)(C). 36 A year after the initial passage of the rules, a proposal was set forth by Senators Philip A. Hart, John L. McCellan, and Roman Hruska to restore the originally rejected wording of rule 801(d)(1)(C), and this amendment was subsequently adopted. 37 Congress recognized that this new addition to the Federal Rules would 27 FED. R. EVID. 801(d)(1). 28 5 JACK WEINSTEIN & MARGARET A. BERGER, WEINSTEIN S FEDERAL EVIDENCE 801 app. 2 (Joseph M. McLaughlin, ed., 2d ed. 2012). 29 Id. 30 Id. 31 H.R. REP. NO. 94-355, at 3 (1975), reprinted in 1975 U.S.C.C.A.N. 1092, 1975 WL 12424. 32 See BLACK S LAW DICTIONARY 1731 (9th ed. 2006). 33 Id. at 19 20. 34 H.R. REP. NO. 94-355, at 1 (noting an agreement to omit the language of rule 801(d)(1)(C) due to the fear of a prolonged debate in the Senate). 35 Id. at 2 (noting that any final bill which included the House proposal for rule 801(d)(1)(C) would be subjected to extended debate in the Senate). 36 Id. at 1 2. 37 Id. at 2 3.

2013] THAT S THE GUY 1545 permit the admission of out-of-court identifications made in different contexts, including after certain types of police identification procedures were conducted. 38 The legislative record indicates that although there had been differing opinions about whether statements of prior identification should ever be admissible during court proceedings, some courts had adopted the practice and had begun to admit such statements as substantive evidence. 39 The House Report, compiled before final passage of rule 801(d)(1)(C), notes this evolution and references previous federal court admissions of out-of-court statements of identification in criminal proceedings. 40 However, the actual language of the rule does not specify use in any specific type of setting. 41 Before the passage of rule 801(d)(1)(C), congressional reports addressed the importance of amending the Federal Rules of Evidence to permit the admissibility of previously inadmissible prior statements of identification. 42 The House Judiciary Committee report argued that allowing the admission of this category of out-of-court statements would allow for the introduction of more accurate and reliable evidence. 43 Although it recognized lingering concerns about acceptance of the rule, including a fear that too much weight would be given to identification statements, it indicated that the rule was not intended to address the sufficiency, or weight, of evidence necessary to send the case to a jury, but only the admissibility of the evidence. 44 One member of the judiciary committee did express a dissenting view after the 38 Id. at 2 (explaining that identification may occur after pre- or post-indictment lineups, one-person showups, or the viewing of photographs). Throughout this Note, police identification procedures will generally be referred to as display procedures. 39 Id. ( The recent trend... is to admit the prior identification under the exception that admits as substantive evidence a prior communication by a witness who is available for crossexamination at trial. ). 40 Id. (citing United States v. Lincoln, 494 F.2d 833 (9th Cir. 1974); United States v. Cooper, 472 F.2d 64 (5th Cir. 1973); United States v. Shannon, 424 F.2d 476 (3d Cir. 1970); United States v. Fabio, 394 F.2d 132 (4th Cir. 1968); Clemons v. United States, 408 F.2d 1230 (D.C. Cir. 1968); United States v. Miller, 381 F.2d 529 (2d Cir. 1967); Eidson v. United States, 272 F.2d 684 (10th Cir. 1959); and Bolling v. United States, 18 F.2d 863 (4th Cir. 1927)). 41 See FED. R. EVID. 801(d)(1)(C); see also Randolph N. Jonakait, The Supreme Court, Plain Meaning, and the Changed Rules of Evidence, 68 TEX. L. REV. 745, 779 (1990) ( The words of the Rule, however, do not limit it to criminal matters. ). 42 H.R. REP. NO. 94-355, at 3 (1975), reprinted in 1975 U.S.C.C.A.N. 1092, 1975 WL 12424. 43 Id. (noting that out-of-court statements are more reliable because they are made outside the suggestive circumstances found inside the courtroom, outside the presence of the defendant, and soon after the event in question has taken place, before a witness s memory has time to fade). 44 Rule 801(d)(1)(C) was removed from the original version of the Federal Rules of Evidence because members of Congress were concerned that admitting prior out-of-court statements of identification might result in the conviction of an individual solely on the basis of these statements. Id.

1546 CARDOZO LAW REVIEW [Vol. 34:1539 committee reported the legislation amending the Federal Rules to the full House, 45 but despite these concerns, the rule change was adopted. C. Federal Rules of Evidence Advisory Committee Notes on Rule 801(d)(1)(C) The Federal Rules of Evidence Advisory Committee s notes also articulate the rationale behind the adoption of Rule 801(d)(1)(C). 46 The committee argued that the rule was necessary because of the generally unsatisfactory and inconclusive nature of courtroom identifications as compared with those made at an earlier time under less suggestive conditions. 47 The Supreme Court would later take note of the advisory committee s rationale when considering certain applications of the rule. 48 Interestingly, the advisory committee s notes refer to the fact that the Supreme Court had restricted the admissibility of certain types of police identification procedures, including lineups, when conducted without the presence of the accused s attorney. 49 Recognition of this restriction indicates that the advisory committee was aware of some of the constitutional issues such as the Sixth Amendment right to counsel and right to confront one s accuser(s) that might arise after the enactment of a Federal Rule of Evidence that specifically addressed the admission of out-of-court statements of identification. D. Judicial Treatment of Out-of-Court Statements of Prior Identification Before and After the Adoption of Rule 801(d)(1)(C) As indicated in the House Judiciary Committee s 1975 report on rule 801(d)(1)(C), federal courts had recently begun to admit prior outof-court statements of identification into evidence. 50 However, even 45 Id. at 4 (expressing the dissenting views of Representative Elizabeth Holtzman, specifically her fears that eyewitness testimony is unreliable and that the acceptance of the new rule would allow for the admission of prior statements of identification even after the declarant has subsequently retracted them). 46 FED. R. EVID. 801(d)(1) advisory committee s note. 47 Id. 48 United States v. Owens, 484 U.S. 554, 562 (1988) (noting that rule 801(d)(1)(C) was proposed in an effort to combat concerns about the inadequacy of in court identifications and the fear of suggestiveness that inherently came with them). 49 See FED. R. EVID. 801 advisory committee s note (explaining the Supreme Court s holding in Gilbert v. California, 388 U.S. 263 (1967)). 50 H.R. REP. NO. 94-355, at 2 (1975), reprinted in 1975 U.S.C.C.A.N. 1092, 1975 WL 12424 (noting that although there had been a split in authority, courts had recently begun to admit statements of prior identification).

2013] THAT S THE GUY 1547 before the enactment of the Federal Rules of Evidence, the judiciary was confronted with difficult choices arising from fears about the appropriateness of admitting out-of-court statements of prior identification. In Gilbert v. California 51 and United States v. Wade, 52 the Supreme Court was asked to consider certain constitutional implications of admitting out-of-court statements of prior identification. 53 The Gilbert Court noted that before the adoption of uniform rules of evidence, there was still a split as to the admissibility of prior out-of-court statements of identification that, absent an explicit exception allowing their introduction at trial, would otherwise be considered classic hearsay. 54 In Gilbert, the Court recognized the invaluable role played by out-of-court statements, but noted that procedures authorizing their admission, like all other procedures, still had to comport with Sixth Amendment prerequisites. 55 Since the adoption of rule 801(d)(1)(C), the Supreme Court has considered additional issues arising from the admission of out-of-court statements of prior identification. 56 In United States v. Owens, 57 the Supreme Court reversed the Ninth Circuit and held that rule 801(d)(1)(C) s requirement that the declarant testify at trial and be subject to cross examination was still met when the declarant s testimony was affected by severe memory loss. 58 In Owens, the defendant, James Owens, had been convicted of assaulting the declarant, John Foster, who subsequently identified Owens to an FBI agent and also identified Owens in a photospread. 59 Although asked to directly consider the implications of rule 801(d)(1)(C), the Court did not entertain the question of the actual manner in which an out-of-court statement of identification must be made. 60 Rather, the Court focused 51 388 U.S. 263 (1967). 52 388 U.S. 218 (1967). 53 See id. at 226 27; see also Gilbert, 388 U.S. at 272 ( [A] post-indictment pretrial lineup at which the accused is exhibited to identifying witnesses is a critical stage of the criminal prosecution; that police conduct of such a lineup without notice to and in the absence of his counsel denies the accused his Sixth Amendment right to counsel and calls in question the admissibility at trial of the in-court identifications of the accused by witnesses who attended the lineup. ). 54 Gilbert, 388 U.S. at 274 n.3. However, the Court did note that [t]he recent trend... is to admit the prior identification under the exception that admits as substantive evidence a prior communication by a witness who is available for cross-examination at trial. Id. 55 Id. at 272 ( [P]olice conduct of such a lineup without notice to and in the absence of his counsel denies the accused his Sixth Amendment right to counsel.... ). 56 See United States v. Owens, 484 U.S. 554, 560 (1988). 57 Id. 58 Id. at 564 ( [W]e hold that neither the Confrontation Clause nor Federal Rule of Evidence 802 [the prohibition on hearsay] is violated by admission of an identification statement of a witness who is unable, because of memory loss, to testify concerning the basis for the identification. ). 59 Id. at 556. 60 See generally Owens, 484 U.S. 554 (lacking a discussion of the precise mechanism by

1548 CARDOZO LAW REVIEW [Vol. 34:1539 on the hearsay and Sixth Amendment implications of Foster s subsequent testimony at trial. 61 However, in its opinion below, the Ninth Circuit Court of Appeals more fully addressed the manner in which the out-of-court statement had been made. 62 Although in Owens the Supreme Court reversed the Ninth Circuit s primary holding regarding the adequacy of the direct and cross examination of a declarant-witness with severe memory loss, 63 some of the Ninth Circuit s discussion of rule 801(d)(1)(C) may still prove instructive. 64 It was only the Ninth Circuit s constitutional holding about the adequacy of cross-examination, and not the Ninth Circuit s other findings as to rule 801(d)(1)(C), that was reversed by the Supreme Court. 65 In his initial appeal before the Ninth Circuit, Owens argued that an identification in which a declarant merely provides an individual s name should not be considered an identification within the meaning of rule 801(d)(1)(C). 66 Instead, Owens asserted that to fit within the rule, the identification would have to be based upon a perception of an individual a second time, after the initial crime took place. 67 The Ninth Circuit rejected Owens argument and held that a statement in which a declarant provides the name of an individual, whom he had the opportunity to see during the incident in question, fits within rule 801(d)(1)(C) s prior identification language. 68 Moreover, the Ninth Circuit declined to establish a requirement that the declarant see the individual or his image immediately prior to making a statement of identification. 69 According to the Ninth Circuit, the rationale behind rule 801(d)(1)(C) served to bolster this holding. 70 In further rejecting which a declarant s out-of-court identification needed to be made or a discussion of what is meant by made after perceiving the person in rule 801(d)(1)(C)). 61 Id. at 557 n.1. 62 United States v. Owens, 789 F.2d 750, 755 (9th Cir. 1986), rev d, 484 U.S. 554 (1988). 63 Owens, 484 U.S. at 564. 64 Owens, 789 F.2d at 755 (discussing what is meant by rule 801(d)(1)(C) s requirement that an identification must be made after the declarant perceived a person). 65 See Owens, 484 U.S. at 564 (holding that the cross-examination requirements of the Confrontation Clause and the Federal Rules of Evidence are not violated simply because a witness suffers from memory loss and remanding the case to the court of appeals); see also United States v. Nelson, 337 F. App x 709, 710 (9th Cir. 2009) (rejecting defendant s argument that a statement should not be admissible under rule 801(d)(1)(C) because a statement of identification was made to a police officer at the scene of the crime rather than after a lineup). 66 Owens, 789 F.2d at 755. 67 Id. (noting that Owens argued that the perception is a perception occurring after the crime has taken place ). 68 Id. 69 Id. ( [S]tatement... clearly complied with the literal wording of Rule 801(d)(1)(C): he had perceived appellant many times prior to the identification he gave.... ). 70 Id. ( [T]he purpose of Rule 801(d)(1)(C) is to allow the introduction of identifications made when the witness observations are still fresh in his mind... before his recollection has been dimmed by the passage of time... [or there has been] the opportunity... to influence the witness to change his mind. (citing S. 199, 94th Cong. (1st Sess. 1975))).

2013] THAT S THE GUY 1549 Owens argument, the court explained that requiring a declarant to view an individual a second time before making a statement of identification, especially at a police identification procedure, would only serve to call such an identification into question, rather than strengthen the reliability of the identification. 71 The court noted that such a requirement could taint the identification and raise the possibility that it was in fact a product of governmental suggestion. 72 In its initial review of Owens, the Ninth Circuit first established the admissibility of a statement of identification made without viewing a suspect for a second time before it went on to find the particular way in which rule 801(d)(1)(C) was used to have violated the Sixth Amendment. 73 This Sixth Amendment holding, regarding the crossexamination of an impaired declarant, is the element of the Ninth Circuit s decision that was reversed by the Supreme Court. 74 Importantly, on remand, the Ninth Circuit reaffirmed its prior statement that the declarant making the identification must still have personal knowledge about the events providing the basis for the identification. 75 E. The Risk of Misidentification While this Note focuses on the admissibility at trial of certain evidence pertaining to a witness s prior identification of another individual, other examinations of the use of eyewitness identification have noted that an eyewitness is free to testify at trial that she saw a particular individual committing a crime and subsequently identified the individual as a suspect. 76 Nevertheless, other commentators have noted the risk of misidentification and, in the past, such misidentification has resulted in the wrongful conviction of a large percentage of criminal defendants. 77 71 Id. ( A requirement that Foster first view appellant before being asked whether he knew who his assailant was would not further this purpose.... ). 72 Id. 73 Id. at 757 (holding that the declarant was not subject to cross-examination because his memory had been severely compromised). 74 United States v. Owens, 484 U.S. 554, 564 (1988). 75 United States v. Owens, 889 F.2d 913, 915 (9th Cir. 1989) ( [T]he personal knowledge requirement of Rule 602 applies at two levels: first, the witness who testifies must have personal knowledge of the making of the out-of-court statement, and second, the person who made the out-of-court statement must have had personal knowledge of the events on which he based his statement. (citing Owens, 789 F.2d at 754)). 76 David E. Seidelson, Third-Party Testimony About Prior Identifications and Federal Rule of Evidence 801(d)(1)(C): A Petition for Rehearing, 8 REV. LITIG. 259, 260 (1989). 77 See Duffy, supra note 1, at 42; Beth Schuster, Police Lineups: Making Eyewitness Identification More Reliable, 258 NAT L INST. OF JUST. J. 2, 2 (2007).

1550 CARDOZO LAW REVIEW [Vol. 34:1539 The National Institute of Justice has noted that 75 percent of the first 183 DNA exonerations in the United States involved cases in which the defendant had been convicted based upon a misidentification by an eyewitness. 78 Research and field studies have indicated that police officer conduct can have an effect on a lineup s reliability and thus attempts have been made to reduce the risk of a misidentification. 79 However, participants in this research have indicated that it is not clear that certain lineup procedures will be consistently more effective than other procedures. 80 In any event, the reliability of an eyewitness s identification of an individual remains an important aspect of our legal system. Despite the risks of misidentification, eyewitness identifications of a suspect nevertheless continue to be admissible as evidence. 81 The Supreme Court has commented that [a] rule requiring automatic exclusion... would g[o] too far, for it would kee[p] evidence from the jury that is reliable and relevant, and may result, on occasion, in the guilty going free. 82 The Court has further stated that the mere possibility that evidence is unreliable does not mean that its admission must be rendered unfair. 83 This Note suggests that perhaps the benefit of out-of-court identifications can be retained through a broad reading of rule 801(d)(1)(C), while the risks of misidentification are greatly reduced. F. Rule 801(d)(1)(C) and the Federal Judiciary s Inconsistent Attempts to Resolve Disagreements in Interpretation Since the adoption of rule 801(d)(1)(C), federal and state courts have attempted to discern the rule s proper application. These attempts have resulted in a hodgepodge of opposing and inconsistent opinions across both the federal and state judiciaries. 84 78 See Schuster, supra note 77, at 2. 79 Id. at 4 7 (discussing research involving the use of sequential lineup procedures, where a witness views lineup participants one at a time instead of all at once, and the use of doubleblind lineups, where neither the witness nor the police officer supervising the procedure knows which participant is the suspect). 80 Id. at 7. 81 Seidelson, supra note 76, at 260. The question of whether the risk of a misidentification requires that a jury be instructed to afford less substantive weight to identifications is a topic outside the scope of this Note. Also, the use of special precautions when a witness identifies the defendant while on the witness stand will not be considered here and must be explored elsewhere. As with all evidence, a trial judge may use her discretion to prevent the admission of evidence if there is a danger of unfair prejudice. FED. R. EVID. 403. 82 Perry v. New Hampshire, 132 S. Ct. 716, 724 (2012) (citing Manson v. Brathwaite, 432 U.S. 98, 112 (1977)). 83 Id. at 728. 84 See United States v. Kaquatosh, 242 F. Supp. 2d 562, 565 (E.D. Wis. 2003); State v. Shaw,

2013] THAT S THE GUY 1551 As evidenced by inconsistent holdings across the federal judiciary, substantial disagreement still persists among federal courts when they are faced with interpreting Federal Rule of Evidence 801(d)(1)(C). 85 Federal courts have attributed these discrepancies to a misinterpretation of the rule by their sister courts. 86 The disagreement surrounding rule 801(d)(1)(C) can be best characterized by dividing judicial holdings into two categories: 1) those decisions holding that evidence is admissible pursuant to rule 801(d)(1)(C) even when the prior out-of-court statement of identification occurred in the absence of a display procedure; and 2) those decisions holding that evidence may only be admitted pursuant to rule 801(d)(1)(C) when the prior out-of-court statement of identification occurred after a display procedure. 87 1. Admission Without Display Procedures In United States v. Lopez, 88 the Third Circuit upheld the admission of evidence of a prior identification pursuant to rule 801(d)(1)(C), even though the identification came in the form of an individual coming forward to tell the police that he had observed particular persons at the scene of a crime. 89 At the time of trial, the original declarant declined to cooperate with the prosecution and, when forced to testify, denied having ever mentioned the defendants. 90 In response to this turn of events, the government called a police lieutenant and examined him about the prior out-of-court statements of identification made by the declarant. 91 The defense objected to the offering of this testimony on hearsay grounds, but the district court proceeded to admit the testimony pursuant to rule 801(d)(1)(C). 92 705 N.W.2d 620, 629 (S.D. 2005). 85 Compare United States v. Lopez, 271 F.3d 472, 485 (3d Cir. 2001) (explaining that in light of the advisory committee s notes and the court s previous case law there is no reason to conclude that rule 801(d)(1)(C) does not extend to a situation in which a person comes forward to tell the police he saw a particular person previously known to him at the scene of a crime), with Kaquatosh, 242 F. Supp. 2d at 565 (explaining that rule 801(d)(1)(C) is properly invoked when an identification is made after a subsequent observation of an individual and not just after an accusatory statement). 86 Kaquatosh, 242 F. Supp. 2d at 566 (noting that interpretations of rule 801(d)(1)(C) which run contrary to its own interpretation are problematic ). 87 See cases cited supra notes 9, 12. 88 271 F.3d 472. 89 Id. at 485. 90 Id. at 484. At trial, the declarant claimed that he had never identified the defendants and was being forced to testify. Id. at 477. 91 Id. at 484. 92 Id. at 484 ( [A]s long as the testimony was limited to the statement regarding the identification, it fell under Fed. R. Evid. 801(d)(1)(C). ).

1552 CARDOZO LAW REVIEW [Vol. 34:1539 On appeal, the Third Circuit upheld the district court s actions, and citing the Federal Rules of Evidence Advisory Committee s notes and its own prior case law, the Third Circuit extended its interpretation of rule 801(d)(1)(C) and found no reason to exclude the police lieutenant s testimony regarding the declarant s prior statement of identification. 93 The government claimed that the rule was intended to cover the type of situation with which the district court was faced, where a witness refutes the validity of their prior statement. 94 In accepting the government s contention, the Third Circuit rejected the defense s argument that rule 801(d)(1)(C) is only applicable in the context of police lineups and photographic displays. 95 The court noted that the Federal Rules of Evidence Advisory Committee promulgated rule 801(d)(1)(C) to combat what it saw as the generally unsatisfactory and inconclusive nature of courtroom identifications as compared with those made at an earlier time under less suggestive conditions. 96 In addition, the court recognized its prior precedent of allowing third parties to testify about statements that had been given by other individuals who identified a defendant during a lineup or photospread but testified to the contrary at trial. 97 In United States v. Davis, 98 a criminal defendant was convicted and sought a rehearing on the ground that at his trial for drug distribution, the district court impermissibly admitted an undercover police officer s written report describing the sale of drugs. 99 Although the defendant asserted that the report should have been excluded under Federal Rule of Evidence 803(8)(B), 100 a rule unrelated to identification issues, the court of appeals held the evidence admissible under rule 801(d)(1)(C) because the officer, who testified regarding the identification, had identified the defendant in his report after having perceived the 93 Id. at 485. The court stated that: While we have yet to construe Rule 801(d)(1)(C) as covering this type of identification, that is, one that consists of a person coming forward after a crime is committed and saying he saw a particular person at a certain place and time, viewing both the Advisory Committee notes to Rule 801 and our own case law, we see no basis to conclude that Rule 801 does not extend to such situations. Id. 94 Id. 95 Id. at 484 85. 96 Id. (quoting FED. R. EVID. 801 advisory committee s note) (internal quotation marks omitted). 97 Id. (citing United States v. Brink, 39 F.3d 419, 426 (3d Cir. 1994)). 98 United States v. Davis, 181 F.3d 147 (D.C. Cir. 1999). 99 Id. at 149. 100 This rule of evidence is known as the public records exception and is intended to exclude certain public records and reports from FED. R. EVID. 802 s bar on hearsay. Former FED. R. EVID. 803(8)(B) is now rule 803(8)(A)(ii) under the restylized federal rules that took effect in December 2011.

2013] THAT S THE GUY 1553 defendant during a drug sale. 101 In support of its decision, the court cited its prior case law that had admitted police notes and tapes containing witness identifications under similar circumstances. 102 Lopez and Davis provide examples of federal courts liberally interpreting rule 801(d)(1)(C). The Lopez and Davis courts did not feel constrained by a lack of police display procedures, but instead believed the objective behind the rule was achieved by admitting the specific statements of identification those courts were asked to address. 103 2. Admission Only When Display Procedures Have Been Used While the decisions in Lopez and Davis can be read as freely admitting evidence of a prior identification in the absence of a display procedure, federal courts in other jurisdictions have viewed the issue differently. 104 In United States v. Kaquatosh, 105 the Federal District Court for the Eastern District of Wisconsin explicitly rejected the reasoning used by both the courts in Lopez and Davis. 106 In Kaquatosh, which involved a trial for assault with intent to kill, the government moved in limine, pursuant to rule 801(d)(1)(C), to introduce the testimony of police officers regarding statements made to them by witness who allegedly saw the defendant assault the victim. 107 The witnesses had not picked the defendant out of a line-up but, according to the court, had simply advised the officers that they observed the defendant assault the victim. 108 The court held that the testimony of the police officers should be excluded, 109 explaining that the government s request did not comport with the language of the rule because the statements made by the two witnesses were not the type of statements contemplated under rule 801(d)(1)(C). 110 In the words of the court, [t]he Rule was not intended to allow the introduction as substantive evidence of hearsay statements 101 Davis, 181 F.3d at 149 (noting that even if defendant was correct and the report should not have been admitted under 803(8)(B) it was still admissible under 801(d)(1)(C)). 102 Id. (citing United States v. Clarke, 24 F.3d 257, 267 (D.C. Cir. 1994); and United States v. Coleman, 631 F.2d 908, 914 (D.C. Cir. 1980)). 103 United States v. Lopez, 271 F.3d 472, 485 (3d Cir. 2001); Davis, 181 F.3d at 149. 104 See, e.g., United States v. Kaquatosh, 242 F. Supp. 2d 562 (E.D. Wis 2003); United States v. Thomas, 41 M.J. 732 (N-M. Ct. Crim. App. 1994). 105 242 F. Supp. 2d 562. 106 Id. at 565 66 (noting the decisions of the Lopez and Davis courts, but explaining why their interpretation is problematic for two reasons ). 107 Id. at 562. 108 Id. at 563. 109 Id. at 564. 110 Id. at 566 (explaining that under the court s understanding of the rule, identifications occur when a witness views a defendant in a line-up, show-up, or photo array, or at a preliminary hearing ).

1554 CARDOZO LAW REVIEW [Vol. 34:1539 that the defendant did it. 111 The court also reasoned that such evidence was inadmissible because it lacked proper indicia of reliability and is in actuality a mere accusation. 112 In addition, the Kaquatosh court explained that using rule 801(d)(1)(C) in this way would nullify the meaning of Federal Rule of Evidence 801(d)(1)(A), which allows for testimony about a declarant s prior inconsistent statement when that prior statement was given under oath at a prior proceeding. 113 In the view of the Kaquatosh court, reading rule 801(d)(1)(C) as the Lopez court did could create circumstances where hearsay testimony could be used to impeach witnesses through the use of a method contrary to the one provided for under rule 801(d)(1)(A). 114 The court saw the creation of a conflict between the rules as supporting the narrow interpretation it had given rule 801(d)(1)(C). 115 In its view, to allow rule 801(d)(1)(C) to operate in the manner prescribed by the Lopez court would vitiate rule 801(d)(1)(A) s requirement that prior inconsistent statement s be under oath. 116 In United States v. Thomas, 117 the U.S. Navy-Marine Corps Court of Criminal Appeals issued a holding similar to that of the Kaquatosh court when it rejected the government s attempt to use rule 801(d)(1)(C) in the absence of a line-up or similar identification procedure. 118 The court first noted that Military Rule of Evidence 801(d)(1)(C) is identical to Federal Rule of Evidence 801(d)(1)(C) and then explained that the rule s drafters expected that identifications would occur in the presence of law enforcement personnel. 119 Under this interpretation, rule 801(d)(1)(C) may only be used after lineups, show-ups, or photographic identifications. 120 The Kaquatosh and Thomas courts approach diverges greatly from the interpretation of rule 801(d)(1)(C) sanctioned by the Lopez and Davis courts. The narrow interpretation of the rule adopted in Kaquatosh and Thomas leaves no room for the admission of a statement of identification when the declarant, though capable of identifying an individual by name, does not identify the individual immediately after 111 Id. at 565. 112 Id. at 566 67. 113 Id. at 567; see also FED. R. EVID. 801(d)(1)(A). 114 Kaquatosh, 242 F. Supp. 2d. at 567 ( The Lopez rule, essentially, allows out-of-court accusations which are barred by the hearsay Rule to be admitted as substantive evidence, and it does so without any assurance of reliability. ). 115 Id. 116 Id. 117 41 M.J. 732 (N-M. Ct. Crim. App. 1994). 118 Id. at 735 ( [W]e decline to accept the Government s interpretation. ). 119 Id. at 734 35. 120 Id.

2013] THAT S THE GUY 1555 viewing the individual or a representation of the individual in a formal law enforcement procedure. 121 G. Rule 801(d)(1)(C) and State Court Attempts to Resolve the Issue Although state courts are free to adopt their own rules of evidence, several state courts rules closely mirror the Federal Rules. 122 Accordingly, state courts have found it necessary to consult cases and commentaries analyzing the Federal Rules of Evidence, specifically rule 801(d)(1)(C), in an effort to refine their interpretation of their own evidence rules. 123 Even with the added guidance provided by federal court interpretations of the rule, state courts have delivered opinions that conflict with the holdings of both federal courts as well as other state courts. 124 1. Admissions Without the Use of Display Procedures In State v. Reaves, 125 the Ohio Court of Appeals considered Ohio s evidentiary rules regarding the admission of out-of-court identifications. 126 Ohio s pertinent evidence rule is almost identical to Federal Rule 801(d)(1)(C), with the exception of a provision found in the Ohio rule that requires a reliability determination before evidence of a prior out-of-court identification can be admitted. 127 On appeal from a murder conviction, defendant Reaves argued that the Ohio trial court had erred in admitting into evidence taped statements in which a witness identified Reaves as a participant in the beating that resulted in the death of the victim. 128 The witness provided the taped statement after he was taken to the police station by police officers investigating the victim s death. 129 At Reaves trial, the witness testified that although he had in fact initially told the police that Reaves was involved in the 121 Id. at 735; Kaquatosh, 242 F. Supp. 2d. at 567. 122 See, e.g., State v. Reaves, 721 N.E.2d 424, 429 n.6 (Ohio App. Ct. 1998) (noting that OHIO EVID. R. 801(D)(1)(C) is identical to FED. R. EVID. 801(d)(1)(C), except for a provision excluding a prior identification made under unreliable circumstances); State v. Shaw, 2005 SD 105, 26, 705 N.W.2d 620, 628 (noting that South Dakota s prior identification rule closely patterns FED. R. EVID. 801(d)(1)(C)). 123 See, e.g., Reaves, 721 N.E.2d at 429 n.6 (discussing the legislative history of FED. R. EVID. 801(d)(1)(C)); Shaw, 2005 SD 105, 27, 705 N.W.2d at 628 (explaining that the legislative history of FED. R. EVID. 801(d)(1)(C) and decisions by federal courts are instructive). 124 See generally Shaw, 2005 SD 105, 26 31, 705 N.W.2d at 628 29. 125 721 N.E.2d 424 (Ohio App. Ct. 1998). 126 Id. at 427 28. 127 Id. at 429 n.6. 128 Id. at 427. 129 Id. at 426.

1556 CARDOZO LAW REVIEW [Vol. 34:1539 beating death, he had been mistaken. 130 Subsequently, the witness s taped statement was played for the jury and admitted. 131 The Ohio Court of Appeals rejected Reaves argument and held that the tape-recorded identification was correctly admitted as substantive evidence. 132 The court noted that the statements were definitely statements of identification which identified Reaves as a participant in the beating death of the victim and that the trial court made the reliability determination required by Ohio s version of rule 801(d)(1)(C). 133 In addition, the court recognized that the State had provided evidence at trial that the witness was motivated to recant his previous identification of Reaves because the defendants families had threatened him. 134 Thus, the court found it proper to provide the jury with the evidence and let it reach a determination. 135 The decision in Reaves is consistent with the federal court decisions in Lopez and Davis. A key distinction, though, between the federal decisions and the decision of the Reaves court is the Reaves court s ability to rely on Ohio s addition to its version of rule 801(d)(1)(C), which specifically requires the court, when admitting out-courtstatements of identification, to make a reliability determination before allowing admission. 136 This distinction might provide guidance to other jurisdictions when attempting to draft rules of evidence that more fully address the admission of out-of-court identifications. Although a reliability determination is always needed when making decisions about admissibility, explicitly providing for a reliability determination in these situations can alleviate ambiguity. If legislatures decided to overhaul their rules of evidence, then perhaps the Ohio rule could serve as a model for its sister states and the federal government. 2. Admissions Only After a Display Procedure Has Been Employed Unlike the Reaves court, South Dakota s highest court has interpreted its state s rule regarding prior statements of identification to apply only in a narrow set of circumstances. 137 In State v. Shaw, the South Dakota Supreme Court rejected defendant Shaw s attempt to use the state s equivalent of rule 801(d)(1)(C) to introduce prior statements 130 Id. at 427. 131 Id. 132 Id. at 428. 133 Id. at 429. 134 Id. 135 Id. ( [I]t was entirely within the province of the jury to pick which version it believed. ). 136 Id. 137 See State v. Shaw, 2005 SD 105, 705 N.W.2d 620.