Illinois Court Finds Prior Identification Hearsay Exclusion Applies to Witnesses Who Were Neither Victims Nor Eyewitnesses

Federal Rule of Evidence 801(d)(1)(C) provides an exclusion to the rule against hearsay for a statement that “identifies a person as someone the declarant perceived earlier.”

Similarly, Illinois Rule of Evidence 801(d)(1)(B) provides an exclusion to the rule against hearsay for a statement that is “one of identification of a person made after perceiving the person.”

Typically, these rules would be used for statements by eyewitnesses and victims. For instance, assume that Victoria was assaulted at the corner of State and 5th Streets at 9:00pm, Edward saw the assault, and Elisa saw a man walking at the corner of State and 4th Streets (toward 5th Street) at about 8:55pm. If Victoria, Edward, or Elisa picked Doug out of a lineup or photo array, their prior statement of identification would be admissible at trial (assuming they testified). In its recent opinion in People v. Neal, 2020 WL 7779029 (Ill.App.2d 2020), the Appellate Court of Illinois, Second District, dealt with a question of first impression: Does Rule 801(d)(1)(B) apply to witnesses who witnesses who are neither eyewitnesses nor victims?

In Neal, Detective Davie Ketelson of the St. Charles police spoke with Johnny Pickle, the defendant’s stepfather, after thefts at a a Meijer store. Specifically,

On February 9, 2016, Ketelson took…Meijer BOLO photos (State exhibits 17 and 18) and went to the defendant’s last known address, where he spoke with Pickle. He showed Pickle the BOLO photos and asked if Pickle knew who the person in the pictures was. Pickle made a “positive identification.”

Thereafter, at trial,

Pickle…testified. At first, he said he did not know whether Ketelson had shown him pictures. When he was shown State exhibits 17 and 18, Pickle testified that he could not really see them because of vision problems and that they were “just blurry.” He then said that he thought that Ketelson did show him some pictures. Asked if he had identified the person in the pictures as the defendant, Pickle said, “I might have. I don’t know. I don’t remember.” Pickle testified that he and the defendant’s mother, Sharon Pickle (Sharon), bought the defendant a coat for his birthday a few weeks before Ketelson’s visit. He did not recall telling Ketelson that the coat worn by the suspect in the pictures was the same as the one they had bought. He also did not recall telling Ketelson that the defendant often wore hats like the one worn by the suspect.

Next, pursuant to Illinois Rule of Evidence 801(d)(1)(B), Ketelson testified about Pickle’s prior identification.

After the defendant was convicted an appealed, the appellate court noted that it could find one prior case on point…from Florida. In that case — Ibar v. State, 938 So. 2d 451 (Fla. 2006) — held 

that “‘the phrase “identification of a person made after perceiving him” refers to the witness seeing a person after the criminal episode and identifying that person as the offender.'”…The court offered two explanations for its conclusion. First, it believed that “[t]o extend the rule that far [to noneyewitnesses] would permit countless repetitions by a witness to others, regardless of time and place, of the witnesses’ [sic] belief as to the guilty party, a result we do not believe intended by the drafters of the rule.”…Second, it found that limiting the scope of the rule to eyewitnesses and victims would “better serve the ends of justice” because “expand[ing] the rule to allow as substantive evidence an out-of-court identification made by anyone who sees or is shown a picture of the defendant could result in the defendant being convicted through the testimony of persons who have no relationship or connection to the criminal offense.”

The Appellate Court of Illinois, Second District, disagreed, concluding, inter alia, that

While we can sympathize with the reluctance of the Ibar majority to interpret the prior-identification rule broadly to encompass prior identifications by noneyewitnesses, ultimately we do not find either of the rationales for its decision persuasive. The first concern over possible “endless repetitions” of prior identifications is a valid one: if, upon seeing a picture of someone sought in connection with a crime, X told a room full of people, “that’s the defendant,” it could be unnecessarily cumulative and unduly prejudicial for a court to allow the prosecution to parade everyone in that room onto the witness stand to testify to X’s prior identification. Nevertheless, this concern can be avoided through the application of ordinary evidentiary principles permitting the trial court to limit such testimony, regardless of whether it qualifies as relevant and admissible substantive evidence….Fears of overly repetitious testimony do not require the complete barring of such testimony, regardless of whether the person who made the prior identification was an eyewitness or not.

The second rationale relied upon by the Ibar majority was its concern that a defendant could be convicted solely on the basis of a prior identification by someone who had no relationship to the crime. Ibar, 938 So. 2d at 462. However, as pointed out by the partial dissent in Ibar, rules of evidence already permit this result. Id. at 479 (Wells, J., concurring in part and dissenting in part) (“Florida case law already allows the conviction of defendants through the testimony of persons who can identify the defendant but who have no relationship to the crime”).

-CM