Can I See Some ID?: EDNY Opinion Reveals Differences Between Federal & NY Prior ID Rules

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

A statement is not hearsay if…[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is…one of identification of a person made after perceiving the person….

As the recent opinion of the United States District Court for the Eastern District of New York in Linton v. Bradt, 2011 WL 1252752 (E.D.N.Y. 2011), reveals, New York also allows for 

In Bradt, WIlliam Bradt was convicted of second-degree murder in New York state court. ABout five minutes after Bradt allegedly shot the victim, a detective interrogated two eyewitnesses, who indicated that Bradt shot the victim. These statements were admitted at Bradt’s trial as excited utterances. After Bradt unsuccessfully appealed in the New York state court system, he filed a habeas petition with the United States District Court for the Eastern District of New York.

The court found that there was no error, and certainly no constitutional error, in admitting these statements as excited utterances. Moreover, it noted that these statements also could have been admitted under Federal Rule of Evidence 801(d)(1)(C) as prior statements of identification. The court then noted that while New York courts have apply a more defendant-protective evidentiary rule,

the New York Court of Appeals has held that prior identifications can be introduced, notwithstanding objections based on bolstering or hearsay, when the identification is the key issue in the case and the prior identification is only offered to show “the opportunity to observe at the time of the crime, and the reliability of her memory at the time of the corporeal identification…” In that situation, a limiting instruction is appropriate.

In other words, under federal law, prior identifications are always admissible and admissible to prove the truth of the matter asserted (because they are non-hearsay), while, under New York law, prior identifications are only sometimes admissible and only for some purposes.

-CM