Also known as:prior statement of identification · prior identifications · prior ID statements
Written by attorneys · grounded in primary & secondary sources — see below
A prior out-of-court statement in which a witness identifies a person perceived earlier. The statement is treated as nonhearsay when the witness testifies at trial and remains subject to cross-examination about the identification.
Sources & Authorities
How it applies
Common Examples
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Witness Forgets Basis for Photo Pick
Piper Patel saw an officer strike a protester during a rally and later selected the officer from department photographs at internal affairs. At trial Piper testifies but states she no longer recalls the officer's face or why she chose that photograph. The investigator who observed the array is permitted to recount Piper's earlier selection as substantive evidence of identity because Piper is on the stand and available for cross-examination about the prior identification.
Lineup Selection After Brief Glimpse
Pedro Pacheco glimpsed an assailant fleeing a parking garage and hours later picked the suspect from a police photo array. At trial Pedro testifies that his memory of the face has faded yet he remains subject to cross-examination about the array procedure. The detective who conducted the array may describe Pedro's earlier selection as substantive proof of identity.
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Cases
Casebooks
Study Supplements
Common questions
Frequently Asked
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Does the witness need to make a confident in-court identification for the prior identification to be admissible?+
No. The rule requires only that the declarant testify and be subject to cross-examination about the prior identification. Current uncertainty or inability to identify the person in court affects weight, not admissibility.
Supporting sources
Must the prior identification have been made under oath or in a formal proceeding?+
No. The rule imposes no oath or formality requirement. A station-house photo array or lineup qualifies so long as the declarant testifies and can be cross-examined about the identification.
Supporting sources
Does the rule apply only in criminal cases?+
No. The exclusion from hearsay applies in both civil and criminal proceedings whenever the declarant testifies and is subject to cross-examination about the prior identification.
Supporting sources
What if the identification may have been influenced by later information rather than the original perception?+
The rule still treats the statement as nonhearsay. Any questions about suggestiveness or the strength of the original perception go to weight rather than admissibility.
Supporting sources
388 U.S. 218 (1967)Evidence
…line-up with five other persons, all of whom were forty or over."[^maj-17] Similarly state reports, in the course of describing prior identifications admitted as evidence of guilt, reveal numerous instances of suggestive procedures, for example, that all in the lineup but the suspect were known to the identifying witness,[^maj-18] that…
EvidenceHearsay and circumstances of its admissibility · Definition of hearsayUBEIntermediate