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“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.
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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.
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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
FED. R. EVID. 801(d)(1)(C).
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).
7
8
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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
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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).
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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
FED. R. EVID. 801(d)(1).
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.
27
28
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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.
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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).
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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
388 U.S. 263 (1967).
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
51
52
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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))).
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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).
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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
See Schuster, supra note 77, at 2.
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,
78
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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).”).
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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.
Id.
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.
94
95
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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”).
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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
Id. at 565.
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.
111
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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
Id. at 735; Kaquatosh, 242 F. Supp. 2d. at 567.
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.
121
122
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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
131
132
133
134
135
136
137
Id. at 427.
Id.
Id. at 428.
Id. at 429.
Id.
Id. (“[I]t was entirely within the province of the jury to pick which version it believed.”).
Id.
See State v. Shaw, 2005 SD 105, 705 N.W.2d 620.
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of identification as substantive evidence. 138 Unlike the previous cases
examined, here it was the defendant who had sought to admit evidence
pursuant to Rule 801(d)(1)(C), and not the government. 139
At his trial for attempted murder, Shaw sought to introduce
statements made by the victim to the police. 140 In these statements the
victim told the police that another individual was responsible for slitting
his throat and submerging his head under water. 141 Shaw’s counsel was
permitted to examine the victim about these statements, but a jury
instruction prevented the jury from considering the statements as
substantive evidence. 142 In affirming the trial court’s holding, the South
Dakota Supreme Court expressly rejected the reasoning of Lopez and
Davis and adopted the reasoning of Kaquatosh and Thomas. 143
According to the Shaw court, rule 801(d)(1)(C) may only be used to
consider statements made “at an identification procedure conducted by
police such as a photographic array, show-up or line-up.” 144 The court
noted the similarity of its own rule to the federal rule and made use of
the federal rule’s legislative history in reaching its conclusion. 145
II. ANALYSIS
Review of attempts by both the federal and state judiciaries to
resolve the questions surrounding rule 801(d)(1)(C) indicates a clear
difference in opinion and legal reasoning. As explained, some courts
cling to a narrow view of the rule and its language, refusing to recognize
any out-of-court identification that occurred without a display
procedure. 146 Other courts construe the rule more broadly, viewing the
question as one of weight rather than admissibility, and will admit
statements of identification without a display procedure. 147
Id. ¶ 31, 705 N.W.2d at 629.
Id. ¶ 25, 705 N.W.2d at 628.
140 Id.
141 Id. ¶ 24, 705 N.W.2d at 627.
142 Id. ¶¶ 22–26, 705 N.W.2d at 626–28.
143 Id. ¶ 31, 705 N.W.2d at 629.
144 Id.
145 See id. ¶ 26, 705 N.W.2d at 628 (“[D]ecisions by Federal courts concerning the
application of the Federal Rules of Evidence provide analytical assistance in the interpretation
of our state rules of evidence.” (citing Miller v. Hernandez, 520 N.W.2d 266, 269) (S.D. 1994)));
see also id. (“The legislative history of FRE 801(d)(1)(C) makes it clear the rule is intended to
apply to out-of-court identification procedures such as line-ups, show-ups and displays of
photographs . . . .”).
146 See, e.g., United States v. Kaquatosh, 242 F. Supp. 2d 562, 566 (E.D. Wis. 2003).
147 See, e.g., United States v. Lopez, 271 F.3d 472, 485 (3d Cir. 2001).
138
139
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Other Attempts to Resolve the Issue
Several non-judicial sources have also attempted to provide an
interpretation of rule 801(d)(1)(C). Professor Michael H. Graham, an
evidence law scholar, provides a detailed examination of the Federal
Rules of Evidence, including rule 801(d)(1)(C), in his Handbook of
Federal Evidence. 148 He notes that the rationale for the Rule was derived
from the theory that identification in the courtroom will be
“unconvincing” and thus a mechanism for admitting an out-of-court
statement will allow for the use of “‘[more meaningful] identifications
made . . . when memory was fresher . . . .’” 149 In addition, Graham’s
explanation of the Rule states that “Rule 801(d)(1)(C) place[s] no
restrictions upon admissibility other than having the alleged out of
court declarant in court on the witness stand subject to crossexamination concerning the statement.” 150 However, in further
expounding upon Rule 801(d)(1)(C)’s “perception” requirement,
Graham notes that the Rule should be read to mean “perceiving the
individual or a representation of him once again after the event in
question.” 151 Graham suggests that the purpose of the Rule was not to
allow a victim to simply “advise” others as to who was responsible for
committing a crime. 152 Though as previously discussed, 153 this rationale
has been rejected by some courts that have admitted into evidence
statements of identification that may be labeled “advisory.” 154 Although
it appears Professor Graham subscribes to a narrow view of Rule
801(d)(1)(C), he recognizes that courts continue to allow a broader
reading of the Rule. 155
Other commentators have also attempted to provide an
interpretation of the language in Rule 801(d)(1)(C). Discussions of the
148 See generally GRAHAM, supra note 10, § 801:13. The court in United States v. Kaquatosh,
discussed supra, cites an earlier edition of the Handbook of Federal Evidence when explaining
the basis for its holding that an out-out-of-court statement of identification must be conducted
pursuant to a display procedure. Kaquatosh, 242 F. Supp. 2d at 563–65 (citing MICHAEL H.
GRAHAM, HANDBOOK OF FEDERAL EVIDENCE § 801.13, 122 (5th ed. 2001)).
149 GRAHAM, supra note 10, § 801:13 (citing United States v. Marchand, 564 F.2d 983, 986
(2d Cir.1977)).
150 Id.
151 Id. n.2 (citing Marchand, 564 F.2d at 986).
152 Id.
153 See supra note 62.
154 United States v. Nelson, 337 F. App’x. 709, 710 (9th Cir. 2009) (rejecting the defendant’s
argument that the district court erred in admitting testimony describing the victim’s statement
of identification of the defendant to a police officer on the scene of the crime (citing United
States v. Owens, 789 F.2d 750, 755 (9th Cir. 1986), rev’d on other grounds, 484 U.S. 554
(1988))).
155 GRAHAM, supra note 10, § 801:13 (citing People v. Newbill, 873 N.E.2d 408 (Ill. App. Ct.
2007) (allowing the admission of out-of-court statements of identification conducted in the
absence of a display procedure)).
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Rule have noted that according to the Rule’s language it is permissible to
admit statements where an eyewitness simply says “‘the one who did it is
X’” and that so long as no other rule of evidence is breached, this type of
statement is admissible as substantive evidence. 156 These discussions
also recognize that the timing of the statement does not matter and that
the statement might be given immediately after the event or weeks
later. 157 In addition, Professor Graham has noted that even when
evidence meets the requirements of rule 801(d)(1)(C), it might still be
rejected based upon concerns raised pursuant to Federal Rule of
Evidence 403, a safeguard against unfair prejudice. 158
B.
Rule 801(d)(1)(C) and Third Party Testimony
The use of 801(d)(1)(C) strictly for purposes of a third party’s
rehabilitation of a witness has also been suggested. 159 Such a use would
be of significance when a third party seeks to testify about a declarant’s
prior statement of identification. 160 It has been argued that in such a
circumstance, a third party’s testimony should not be permitted for the
purpose of providing substantive evidence because, although the third
party is testifying about the declarant’s identification of another party,
the third party does not have personal knowledge about the
circumstances requiring the identification. 161 However, proponents of
such an argument have also recognized that if such a limitation were
placed on the rule, the use of rule 801(d)(1)(C) might be impermissible
in many circumstances because its use would require the declarant’s
impeachment or a charge that the declarant has fabricated her
testimony. 162 This is because Federal Rule of Evidence 801(d)(1)(B)
specifically addresses the use of a witness’s prior consistent statements
to rehabilitate her testimony, and only allows the use of such statements
after the witness’s testimony has been attacked as a recent fabrication or
the product of an undue influence. 163 The use of rule 801(d)(1)(C) to
WEINSTEIN & BERGER, supra note 28, § 801.23.
Id.
158 See id.; see also GRAHAM, supra note 10, § 801:13. Rule 403 guards against unfair
prejudice by giving the trial judge the power to “exclude relevant evidence if its probative value
is substantially outweighed by a danger of . . . unfair prejudice . . . .” FED. R. EVID. 403.
159 Seidelson, supra note 76, at 275.
160 Id.
161 For example, a third party testifying about a declarant’s identification of a criminal
defendant does not have any personal knowledge about whether the defendant is actually
guilty. Id.
162 Id. (noting the existence of an “anomaly” if evidence not meeting the standard of FED. R.
EVID. 801(d)(1)(B), and thus not admissible, could suddenly become admissible as substantive
evidence under FED. R. EVID. 801(d)(1)(C)).
163 FED. R. EVID. 801(d)(1)(B).
156
157
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rehabilitate a witness-declarant’s testimony, without her testimony first
having been attacked as a fabrication by the opposing party, would thus
result in a conflict with rule 801(d)(1)(B). 164
C.
What Is the Plain Meaning of the Rule?
Scholars have addressed the problematic drafting of rule
801(d)(1)(C) and the effect this has had on attempts at interpretation. 165
It has been noted that although the language of the rule does not
exclusively limit its application to criminal cases, the rule’s drafters and
other scholars have only discussed the rule in the criminal context. 166
Nevertheless, some have argued that the “plain meaning” of the rule
allows for its application in civil cases, not exclusively criminal cases. 167
Such a reading of the rule recognizes that a plain meaning interpretation
excludes any requirement that a perception of an individual occur after
an event takes place but before a trial in which a statement of
identification is offered. 168 This point is explored with the proposal of
hypothetical scenarios in which rule 801(d)(1)(C) is used to admit
evidence in the civil context in cases involving conversion and
malpractice. 169
Applying rule 801(d)(1)(C) according to a plain meaning strikes at
the very heart of the cases that stand for a narrow interpretation of the
rule. Freely allowing the rule to function in civil cases could negate any
requirement that there must be a display procedure before a statement
of identification may be admitted. Professor Randolph Jonakait
illuminated this point by proposing a scenario in which a defendant,
though never prosecuted criminally, is sued civilly for the theft of a car
and the car’s owner, using rule 801(d)(1)(C) testifies that a witness told
her the defendant took the car. 170 In this scenario, the declarant’s
statement is a statement of identification and would be entitled to
admissibility as if it had been made after the declarant saw the defendant
in a police lineup. 171 However, if the rule were utilized in civil cases, but
a requirement that a display procedure still enforced, this would
drastically limit the rule’s application to instances in which the police
were involved.
Seidelson, supra note 76, at 275.
Jonakait, supra note 41, at 778–79.
166 Id. at 779.
167 Id. at 778–79.
168 Id. at 779–80.
169 Id. (explaining how rule 801(d)(1)(C) could be used in the civil context in cases involving
conversion and malpractice).
170 Id. (setting forth the described scenario).
171 Id.
164
165
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When discussing the use of rule 801(d)(1)(C), it is important to
emphasize that, as mentioned by Professor Jonakait, on its face the rule
is not explicitly limited to use in only criminal proceedings. 172 The
absence of such a limitation, along with other factors, lends support to a
broad reading of the rules and counters suggestions that one need only
look to the words of the advisory committee and members of Congress
when trying to discern the one correct interpretation of a particular
Federal Rule of Evidence. Although it has been noted that Congress only
considered use of rule 801(d)(1)(C) in the criminal context, 173 and
indeed both the House Judiciary Committee and the Federal Rules of
Evidence Advisory Committee only referred to criminal cases in their
respective reports on the rule, 174 Congress has also made it abundantly
clear that it is capable of including appropriate language in the Federal
Rules of Evidence themselves when it desires to have the rules apply
differently in different settings. 175 However, the rule’s language as
adopted by Congress does not distinguish between the criminal and civil
contexts. 176 In addition, some members of the Supreme Court have
remarked that although the comments of members of Congress and of
members of the advisory committee are certainly persuasive, these
comments and notes do not possess any special authority or demand
strict adherence. 177
III. PROPOSAL
In an effort to clear the ambiguity and confusion surrounding
Federal Rule of Evidence 801(d)(1)(C), the rule should be interpreted to
allow for the admission of statements of prior identification even when a
display procedure has not been conducted. The broad interpretation of
the rule accepted in Lopez and Davis should be accepted, while the
narrow interpretation of the rule in Kaquatosh and Thomas should be
set aside. The broad interpretation of the rule best achieves the rule’s
general objective of ensuring the admission of statements made while
172 The language of the rule makes no distinction between the criminal and civil contexts.
FED. R. EVID. 801(d)(1)(C).
173 Jonakait, supra note 41, at 778–79 (“The drafters contemplated that this Rule would be
used only in criminal cases.”).
174 FED. R. EVID. 801(d)(1) advisory committee’s note (citing only criminal cases); H.R. REP.
NO. 94-355, at 2–3 (1975), reprinted in 1975 U.S.C.C.A.N. 1092, 1975 WL 12424 (citing only
criminal cases).
175 See, e.g., FED. R. EVID. 412(b)(1)–(2) (providing for a different operation of rule 412
depending upon whether it is being used in a criminal or civil case).
176 FED. R. EVID. 801(d)(1)(C).
177 See Tome v. United States, 513 U.S. 150, 167 (1995) (Scalia, J., concurring).
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the circumstances of the incident in question remain still fresh in the
mind of the witness. 178
The advocates of the narrow approach to interpreting the rule
claim that its legislative history and plain language prohibit an
interpretation permitting admission of an identification without a
display procedure. 179 This interpretation, however, values adherence to a
stringent misperception of the rule rather than attempting to advance
the rationale behind the rule, the admission of “generally more reliable”
out-of-court identifications. 180 In addition, a narrow interpretation
overlooks the fact that rule 801(d)(1)(C) “is not addressed to the
question of the sufficiency of evidence to send a case to the jury, but
merely to its admissibility.” 181
A.
A Broad Interpretation of the Rule Does Not Present
Traditional Hearsay Problems
A consideration of the fundamental reasons why hearsay is
generally not admissible reveals why the admission of out-of-court
statements of identification, made in the proposed context, is proper
under rule 801(d)(1)(C). Generally, the admission of hearsay testimony
is objectionable because it presents a problem “of forging a reliable
chain of inferences” based upon the actions or words of a person, the
declarant, who, while possessing knowledge about the events in
question, is not available to be cross-examined about the basis for that
knowledge. 182 This basic fear—the inability to cross-examine the
declarant—is nonexistent under the circumstances in which rule
801(d)(1)(C) is to be employed. 183 In fact, the rule is explicit in its
requirement that “[t]he declarant testif[y] and [be] subject to crossexamination.” 184 The Lopez court’s opinion, in defending its admission
of evidence under a broad reading of rule 801(d)(1)(C), did recognize
that cross-examination is available to address “concerns regarding
178 H.R. REP. NO. 94-355, at 3 (finding that out-of-court identifications are “generally more
reliable” and allow for identification while the events in question are “still reasonably fresh in
the witness’ mind”).
179 See United States v. Kaquatosh, 242 F. Supp. 2d 562, 566 (E.D. Wis. 2003) (finding that a
broad interpretation of the rule is “contrary to the plain language of the Rule”); State v. Shaw,
2005 SD 105, ¶ 27, 705 N.W.2d 620, 628 (“The legislative history of FRE 801(d)(1)(C) makes it
clear the rule is intended to apply to out-of-court identification procedures such as line-ups,
show-ups and displays of photographs . . . .”).
180 H.R. REP. NO. 94-355, at 3.
181 Id. at 4.
182 Laurence H. Tribe, Triangulating Hearsay, 87 HARV. L. REV. 957, 958 (1974).
183 See FED. R. EVID. 801(d)(1)(C).
184 Id.
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conditions or circumstances that might bear on reliability.” 185 However,
the Lopez court did not provide a forceful explanation describing why
traditional hearsay concerns are inapplicable when a court is asked to
admit an out-of-court statement of identification made without a
display procedure. 186 The court’s deficient explanation left its opinion
vulnerable to attack—as subsequently occurred in the Kaquatosh and
Shaw courts. 187 Thus, rather than closing the issue, the court allowed it
to fester.
Professor Laurence H. Tribe has indicated that hearsay testimony
prevents the construction of a “valid chain of inferences” because such
testimony presents issues of ambiguity, insincerity, erroneous memory,
and faulty perception. 188 Professor Tribe notes that these four concerns
are obstacles on the path between the content of a declarant’s statement
and the conclusion that the offering party would like the jury to draw
from that statement. 189 In a situation in which the declarant does not
testify, all of these concerns will come to fruition because the jury will
not have an opportunity to evaluate the declarant. However, rule
801(d)(1)(C)’s requirement that the declarant testify at trial and be
subject to cross-examination 190 prevents these traditional hearsay
concerns from creating an impediment and affords the jury the
opportunity to reach its own determination about a declarant’s
credibility and the circumstances in which the statement in issue was
made. Thus, the admission of out-of-court statements of identification
in this context differs from the admission of out-of-court statements in
general. Furthermore, this line of reasoning is consistent with the House
Judiciary Committee’s findings, specifically that “[t]he Rule . . . is not
addressed to the question of the sufficiency of evidence to send a case to
the jury, but merely to its admissibility.” 191
United States v. Lopez, 271 F.3d 472, 485 (3d Cir. 2001).
See id. at 484–86.
187 United States v. Kaquatosh, 242 F. Supp. 2d 562, 566–67 (E.D. Wis. 2003) (providing an
explanation for why the decision rendered by the Lopez Court was problematic); State v. Shaw,
2005 SD 105, ¶ 30, 705 N.W.2d 620, 629 (rejecting the decisions of both the Lopez and Davis
Courts because they did not provide sufficient explanation to support their conclusions).
188 Tribe, supra note 182, at 958–60.
189 Id. at 959.
190 See FED. R. EVID. 801(d)(1)(C); see also Duffy, supra note 1, at 45 (“The crossexamination of the identification witness is another tool that is meant to protect against
inaccurate or unreliable identifications.”).
191 H.R. REP. NO. 94-355, at 4 (1975), reprinted in 1975 U.S.C.C.A.N. 1092, 1975 WL 12424
(quoting S. REP. NO. 93-1277, at 16 n.20 (1974), reprinted in 1974 U.S.C.A.A.N. 7051, 7063
n.21).
185
186
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Furthering the Adversarial System Through a Broad Interpretation
of Rule 801(d)(1)(C)
A broad interpretation of rule 801(d)(1)(C) is also consistent with
the adversarial nature of the American trial system. Under the American
adversarial system, the lawyers for the opposing parties have the
opportunity, and the duty, to present favorable evidence while
countering negative and unfavorable inferences. 192 In keeping with this
system, judges remain “relatively passive” throughout proceedings,
relying on lawyers to present witnesses and relevant evidence. 193 The
adversarial system functions correctly when the parties are allowed to
offer relevant facts for examination “until no relevant, disputed fact
remains.” 194 As others have noted, counsel’s ability to explain certain
evidence and ask the jury to make certain inferences during closing
arguments also serves as a safeguard. 195 In addition, although the parties
are given great latitude to present evidence, the judge, pursuant to
Federal Rule of Evidence 403, has the ability to prevent the admission of
otherwise relevant evidence if she believes that “its probative value is
substantially outweighed by a danger of . . . unfair prejudice . . . .” 196
Thus, fears that a broad interpretation of rule 801(d)(1)(C) will lead to
the admission of substantive evidence “with no particular indicia of
reliability” 197 are misplaced.
Rule 403 will serve as a counter to hypothetical scenarios where a
declarant truly had no basis for making an identification. The Supreme
Court has recognized the value of rule 403 as a safeguard against highly
prejudicial evidence that is otherwise relevant. 198 However, proponents
of a narrow interpretation of rule 801(d)(1)(C) seek to bind the hands of
the trial judge by limiting her discretion. Rather than allow judges the
opportunity to make a rule 403 determination about whether evidence
of an out-of-court identification should be admitted, supporters of a
narrow view of rule 801(d)(1)(C) demand the acceptance of a bright line
rule. 199 This narrow, bright line rule approach to rule 801(d)(1)(C) robs
the trial judge of discretion in the matter. In addition, such a procedure
192 See Gerald Walpin, America’s Adversarial and Jury Systems: More Likely to Do Justice, 26
HARV. J.L. & PUB. POL’Y 175, 176–77 (2003).
193 Id. at 176.
194 Id. at 179.
195 See Duffy, supra note 1, at 45 (discussing the use of closing arguments to explain certain
issues to the jury).
196 FED. R. EVID. 403.
197 United States v. Kaquatosh, 242 F. Supp. 2d 562, 566 (E.D. Wis. 2003).
198 See Perry v. New Hampshire, 132 S. Ct. 716, 729 (2012).
199 See, e.g., Kaquatosh, 242 F. Supp. 2d at 565; United States v. Thomas, 41 M.J. 732, 734–36
(N-M. Ct. Crim. App. 1994); State v. Shaw, 2005 SD 105, ¶¶ 26–27, 705 N.W.2d 620, 628 (S.D.
2005).
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runs counter to the American adversarial system’s requirement that
opposing lawyers be allowed to engage in a “procedure of presenting
evidence, and . . . have an opportunity to question each other’s
evidence.” 200 A broader reading of the rule would also be in line with the
warnings of some jurists and scholars that too restrictive an
interpretation of the hearsay rule leads to the exclusion of otherwise
reliable evidence from the jury’s consideration. 201 Indeed, the Supreme
Court has stated that the American constitutional system “protects a
defendant against a conviction based on evidence of questionable
reliability, not by prohibiting introduction of the evidence, but by
affording the defendant means to persuade the jury that the evidence” is
untrustworthy. 202 These means include the right to be represented by
competent counsel whose objective is to discredit and repudiate
evidence presented by a litigant’s opponent. 203
C.
The Use of Jury Instructions to Alleviate Additional Concerns
A jury instruction might also be an efficient method of defusing
any lingering concerns about the introduction of out-of-court
statements of identification made in the absence of a display procedure.
While this Note does not advocate that such an instruction will always
be necessary, it recognizes that it is within the judge’s discretion to
instruct a jury when it is necessary. 204 In the context of rule
801(d)(1)(C), a judge who has admitted testimony about an out-ofcourt statement of identification might, either on her own or in
response to a request by counsel, instruct the jury that simply because
certain evidence has been admitted does not mean that it should be
afforded any more weight than the rest of the admitted evidence. Such
an instruction might be especially prudent when the evidence is
presented through a particular source, such as a police officer’s
testimony. In addition, if an instruction is given directly after certain
testimony is given, rather than at the end of a trial, this will afford jurors
Walpin, supra note 192, at 183.
See, e.g., California v. Green, 399 U.S. 149, 184 n.18 (1970) (Harlan, J., concurring)
(discussing the desirability of excluding otherwise reliable evidence); People v. Arnold, 309
N.E.2d 875, 875 (N.Y. 1974) (“[I]t is observed that this court in recent years emphasized that
the hearsay doctrine has been too restrictively applied to exclude otherwise reliable evidence
from the jury.”).
202 Perry, 132 S. Ct. 723.
203 Id. (citing Gideon v. Wainwright, 372 U.S. 335, 343–45 (1963)). In Perry v. New
Hampshire, the Court cited examples of how the defendant’s attorney utilized her adversarial
position to question much of the State’s evidence, including cautioning the jury during her
opening statement and posing questions about the ultimate reliability of the identification. Id.
at 729.
204 Neil P. Cohen, The Timing of Jury Instructions, 67 TENN. L. REV. 681, 684 (2000).
200
201
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a better opportunity to perform their duties in a more efficient and
effective manner. 205 It has been noted that during a trial the judge
should regularly instruct the jury about evidence considerations. 206
There is an important need for judges to instruct jurors about issues of
credibility and about the weight to be given to certain pieces of
evidence. 207 The Supreme Court has commented on the importance of
jury instructions in identification cases and recognized that instructions
can be used to “warn the jury to take care in appraising identification
evidence.” 208 Providing a useful jury instruction in this context will
enable jurors to reach a more informed verdict. 209
D.
A Role for Congress
Any discussion of interpreting a Federal Rule of Evidence must
also recognize a potential role for Congress. Congress is ultimately
responsible for approving new Federal Rules of Evidence or altering
existing rules. 210 In an effort to clear up the ambiguity surrounding rule
801(d)(1)(C), the rule could be altered to more accurately reflect the
specific criteria that must be met before evidence will be admitted
pursuant to it. Such an alteration of the rule might resemble elements of
California’s version of rule 801(d)(1)(C). 211 California’s rule provides
that a statement is not hearsay if “[t]he statement is an identification of
a party or another as a person who participated in a crime or other
occurrence . . . [and] [t]he statement was made at a time when the crime
or other occurrence was fresh in the witness’ memory . . . .” 212 This rule’s
language is much broader than rule 801(d)(1)(C) and it specifically
considers the admission of evidence of an out-of-court identification
that was made after an event other than a crime.
While changes to the language of rule 801(d)(1)(C) might serve to
remove doubt about its proper use, it is the position of this Note that
such alterations are not necessary. The rule’s current language, when
considered in light of the adversarial nature of the American trial system
Id. at 691.
Id. at 693 (“As the trial progresses, the judge should provide regular instructions on
evidence matters.”).
207 Id.
208 Perry, 132 S. Ct. at 728–29.
209 Cohen, supra note 204, at 698.
210 See 28 U.S.C. §§ 2072–2074 (2006) (describing the method by which new Federal Rules of
Evidence are enacted).
211 CAL. EVID. CODE § 1238 (West 1965) (setting forth California’s rule of evidence regarding
the admission of out-of-court statements of identification).
212 Id.
205
206
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and the broad discretion of trial judges, permits the introduction of outof-court identifications made in the absence of display procedures.
E.
A Broad Reading Is Akin to Confirmatory Identifications
and May Help Reduce the Risk of Misidentification
The broader use of rule 801(d)(1)(C), as proposed by this Note,
may be supported by analogy to the use of confirmatory identifications
in the context of Wade hearings. 213 A confirmatory identification is one
in which the identifying individual is “very familiar” with the individual
being identified. 214 In situations where an identification is deemed
merely confirmatory there is no risk of suggestiveness in any
identification procedure precisely because the individuals are so familiar
with each other. 215 Thus, the risk of misidentification by a witness to a
crime or other activity is eliminated by virtue of the identification’s
confirmatory nature. 216 The New York Court of Appeals case People v.
Rodriguez discusses the confirmatory identification exception to New
York’s general rule that a Wade hearing be held to uncover any
suggestiveness in identification procedures. 217 Rodriguez provides
specific factors to be considered when determining if an identification is
confirmatory. 218 Those factors include: 1) the number of times a witness
encountered a defendant; 2) the length and nature of the encounters;
3) the setting in which the encounters occurred; 4) the distance in time
between the last encounter and the crime or activity in question in the
present case; and 5) whether the two individuals had conversations. 219
Rodriguez discusses how, in cases of confirmatory identification,
suggestiveness is not a concern and there is little fear that such
suggestiveness would lead a witness to identify the wrong person. 220
As in cases of confirmatory identification, a witness’s familiarity
with a defendant should be of high priority to a judge making a decision
213 A Wade hearing is “[a] pretrial hearing in which the defendant contests the validity of his
or her out-of-court identification. If the court finds that the identification was tainted by
unconstitutional methods, the prosecution cannot use the identification and must link the
defendant to the crime by other means.” BLACK’S LAW DICTIONARY 1716 (9th ed. 2006) (citing
United States v. Wade, 388 U.S. 218 (1967)).
214 People v. Rodriguez, 593 N.E.2d 268, 270 (N.Y. 1992).
215 Id. at 272 (“A court’s invocation of the ‘confirmatory identification’ exception is thus
tantamount to a conclusion that, as a matter of law, the witness is so familiar with the
defendant that there is ‘little or no risk’ that police suggestion could lead to a
misidentification.”).
216 Id.
217 Id. at 271–72.
218 Id. at 272.
219 Id.
220 Id. at 271–72.
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under rule 801(d)(C). If a declarant is so familiar with the individual
being identified then, using the same logic discussed in Rodriguez, an
identification should be admitted absent a display procedure. In cases
where an identification is merely confirmatory a broad reading of rule
801(d)(1)(C) will be most applicable. In situations where an
identification is confirmatory, logic tells us that there is no need for a
display procedure in the first place. Such an interpretation of the rule
may actual reduce the need for police display procedures, thus
minimizing the risk of misidentification. 221
Indeed, one could argue that subjecting an individual to
participation in a lineup might, in some circumstances, further
strengthen a mistaken identification. 222 Such a situation could be
derived from the problem of confirmation bias, a “‘cognitive bias that
limits people’s ability to dispassionately find and interpret evidence. 223
The effects of confirmation bias have been documented and indicate
that people do indeed seek to take advantage of opportunities to
confirm their previous beliefs. 224 Thus, a witness given the opportunity
to identify a suspect might reaffirm their mistaken identification. As a
result, a truly innocent defendant would then not only be forced to
combat the accusatory statement of the declarant but also the declarant’s
successful identification of her in a display procedure, witnessed by
others. Such a situation might be all the more likely if the narrowly
reading of rule 801(d)(1)(C) was adopted and display procedures were
thus mandatory.
CONCLUSION
In a system where two competing interpretations of Federal Rule of
Evidence 801(d)(1)(C) exist, whether a display procedure was
conducted can be determinative of an out-of-court statement’s
admissibility. One grouping of courts and commentators refuses to
admit out-of-court identifications made in the absence of a display
procedure. Another group does not require this step. This distinction
serves to hamper the justice system and may ultimately result in the loss
of valuable evidence. The inconsistent application of rule 801(d)(1)(C)
must be addressed to alleviate the ambiguity with which police officers,
221 Id. at 271 (discussing how although display procedures help insure the correct person has
been apprehended, improper suggestion may lead to misidentification). It follows that reducing
the need for display procedures will reduce the risk of misidentification.
222 See generally Schuster, supra note 77.
223 Christopher R. Leslie, Rationality Analysis in Antitrust, 158 U. PA. L. REV. 261, 314
(2010).
224 See id. (discussing confirmation bias and its effect on a witness’s ability to neutrally
process information).
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defendants, prosecutors, and other litigants will have to contend with in
the future. A clear resolution will help ensure that all parties,
throughout the federal judiciary, have an equal opportunity to present
evidence and prove their respective cases. A unified interpretation will
fulfill the dual goals of providing clarity and promoting justice.
Rule 801(d)(1)(C) should be interpreted broadly to allow for the
admission of an out-of-court statement identifying an individual even in
the absence of a display procedure. The rule’s plain meaning supports
such an interpretation and leaves open the door for a useful application
of the rule in the civil realm. A broad reading of the rule would ensure
that its objective—the admission of out-of-court identifications before
memory is allowed to fade—is achieved. The normal fears that
accompany hearsay testimony are not present in a context where a
witness or crime victim is so familiar with the defendant that they are
capable of identifying them by name. Many of the challenges that plague
the current system of securing identifications, including the risk of law
enforcement suggestion, 225 might be nonexistent in a context where an
individual comes forward to say they saw an individual commit a crime.
Admitting an out-of-court statement of identification, and allowing a
jury to decide the correct measure of weight to afford it, is in keeping
with the American adversarial tradition. That tradition generally
demands that a jury be provided with the evidence and be permitted to
reach a final judgment.
Certainly the Rules of Evidence must be tailored to protect against
the flow of unfairly prejudicial and unreliable evidence into the
courtroom. However, requiring a strict and narrow interpretation of
rule 801(d)(1)(C) is too burdensome and positions the judge as an
immobile barrier, rather than an agile gatekeeper.
225
See Perry v. New Hampshire, 132 S. Ct. 716, 722 (2012).