Also known as: prior identifications · pretrial identification
Written by attorneys · grounded in primary & secondary sources — see below
A statement identifying a person as someone the declarant perceived earlier. The statement is treated as nonhearsay when the declarant testifies at trial and remains subject to cross-examination about the statement.
Pablo Perez stared at the unmasked robber from three feet away for nearly a minute during a bank holdup. The next day he selected the suspect from a photo array at the station. At trial the detective recounts that selection after Pablo has already testified and remains available for cross-examination about the viewing conditions and his certainty.
Pierre Poulin watched an intruder enter his office and later picked the suspect from a police lineup. At trial an officer testifies to the lineup choice after Pierre has taken the stand and can be questioned about the lighting and his degree of attention during the crime.
Select any source to read its text and confirm it supports the definition.
Philip Powell saw the robber's face clearly under bright lights and picked him from a showup hours later. The arresting officer later describes that showup identification after Philip testifies and faces cross-examination on his opportunity to observe and the accuracy of his earlier description.
Pedro Pacheco observed the assailant shove a coworker down stairs and days later selected the suspect from a photo board. At trial in the civil case an investigator recounts the selection after Pedro testifies and can be cross-examined even though his in-court memory has faded.
Parker Phillips briefly glimpsed the attacker but later identified him from a photo array. At trial the officer testifies to that identification after Parker takes the stand and is cross-examined about the earlier perception even though he can no longer recall the face in court.
Phuong Pham saw the perpetrator under streetlights and immediately identified him to arriving officers without any array. At trial the responding officer describes that identification after Phuong testifies and remains subject to cross-examination on the circumstances of her perception.
Yes. The rule treats a testifying witness's prior identification as nonhearsay whenever the declarant is subject to cross-examination, without regard to whether the proceeding is civil or criminal.
No. Unlike prior inconsistent statements, the prior identification exclusion requires only that the declarant testify and be cross-examined. No oath or formal proceeding is needed.
Yes. The rule focuses on the declarant's testimony and availability for cross-examination about the earlier identification, not on whether the witness can still make an in-court identification.
No. When the conditions are met the identification is nonhearsay and may be considered for its truth as substantive evidence of identity.
…has been the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification. A commentator has observed that "[t]he influence of improper suggestion upon identifying witnesses probably accounts for more miscarriages of justice than any other single factor—perhaps…