*1 People v Malone PEOPLE v MALONE (Calendar 1). 94390, 1, Argued Docket Nos. December 94391. No. 14, 1994. Decided June by jury Donald Malone convicted a in the Detroit was Recorder’s Court, Jackson, J., first-degree Thomas E. murder and of possession during felony. of a a firearm the commission Murphy, P.J., J., Appeals, Cavanagh, (Connor, Court of J. affirmed, concurring), concluding 801(d)(1)(C)(Docket testimony was admissible under MRE No. 151188.). appeals. 120518. See also Docket No. The defendant Brickley, opinion by joined by Boyle, In an Justice Justices Riley, Griffin, Mallett, Supreme Court held: 801(d)(1)(C), Under MRE statements of identification are not hearsay subject when the identifier is to cross-examination. 801(d)(1)(C),prior 1. Under rule statements regardless hearsay are not of whether the out-of-court declara- tion is denied or affirmed at trial. The statements need not be 801(d)(1)(A), testimony, inconsistent with trial rule as under nor 801(d)(1)(B). testimony, offered to rebut rule other as under As 801(d)(1)(C) long as the statement is one of rule use, permits provided person its substantive who made the subject Further, identification is to cross-examination. the rule makes no distinction whether statement is of- by party fered or is a a third a statement witness on the something previously. stand about the witness said 2. Because identifier in this case testified trial and was cross-examination, subject testimony by third-party a witness properly though about even his statement admitted identifier testified that he did not make the statement.
Affirmed. joined by Cavanagh, Levin, dissenting, Chief Justice Justice that, properly interрreted, stated excludes hearsay only from the definition of the out-of-court identifica- actually person tion statements of who made an earlier Thus, testimony regarding identification. such an out-of-court References 2d, Am Jur of Evidence 210. Federal Rules §§ Hearsay. See ALR Index under Mich a third who witnessed the identification not admissible as falls within the definition of and is substantive evidence. *2 testimony types may provide persons Two of identification actually extrajudicial
during person a trial: who made an party third who the identifier and a observed 801(d)(1)(C)provides that an make the identification. MRE hearsay extrajudicial is not if the declarant testifies concerning subject is at trial and to cross-examination the statement, identification of and the statement concerned a person. person perceiving made the after Although by extrajudicial an cannot be tested identification cross-examination, contemporaneous it offered when is the trial, party opposing at identifier the can cross-examine the identifier, exposing any uncertainty of weaknesses and the reliability providing identification an for and indicia of the accuracy judge factfinder to the of the identification. When a third a the identi- testifies about tested, fier, accuracy making the the identification cannot be unreliable, lacking Thus, probative it not in value. but testimony third-party an that bolsters identifica- evidence; rather, not tion should be admissible substantive 801(d)(1)(C) underlying with consistent the intent and law, prior Michigan testimony such is to the restricted facts surrounding the and circumstances identification. The federal interpretation repugnant of FRE to the intent of Supreme adopting Michigan in and Court rule should rejected. case, In this about the admission identifier’s identification as evidence earlier substantive was Also, identifying error. of additional facts, witnesses suspect coupled heavy best. These with the reli- jurors police clearly place testimony, ance most on a officer’s defendant, prejudiced entitling him to a new trial. (1992) App 366; NW2d affirmed. — n Hearsay — Evidence Statements Identification. hearsay
Statements identification are when the identifier is (MRE subject 801[d][l][CJ). to cross-examination Kelley, Attorney General, Frank J. Thomas L. Casey, General, O’Hair, Solicitor John D. Pros- ecuting Attorney, Timothy Baughman, Chief, A. Appeals, Training, Research, Janice M. v Malone Opinion of the Court Joyce Prosecuting Attorney, Bartee, Assistant people. Moran) Appellate (by
State Defender David A. for the defendant. question presented J. case Boyle, Michigan modify
whether Rules of Evidence hearsay the definition of ment of identification as a define state-
nonhearsay. Specifically, we must decide whether court trial acted properly admitting as substantive evidence the testimony of two witnesses that a who witness having denied previously identified defendant аt trial had photographic
identified him at showup. 801(d)(1)(C), that, hold
We under MRE state- of identification ments are not when the *3 subject identifier is tory to cross-examination.1 The his- goal promoting of rule and the of reliable finding support fact this conclusion. The decision Appeals of the Court of is affirmed.
I FACTS AND PROCEDURAL HISTORY July shooting 1988, This case from 26, arose alley death Orlando Nance that occurred in an defendant, outside market Detroit. The Don- charged first-degree Malone, ald was with murder possession during of a firearm the commission felony. Lasenby, Carey of a Witnesses Robin Jack- son, and Melvin Mann each observed individuals running shooting. to, from, or scene
Carey Jackson later identified the defendant aat photographic showup. Carey trial, however, At third-party testimony The dissent that concedes of a incon Post, impeachment. p sistent statement is admissible for n 19. Opinion op the Court having the defendant. identified
Jackson denied testify. eyewitnesses reluctant were also Other although Lasenby that, he was not testified Robin afraid a statement because safety senby] "[g]ot himself, [him] to make his mother for frightened her
she felt [La- "told Malone of Defendant or whatever.” Lasenby’s busi- the affair was none that previously given Lasenby, a state- who had ness.” unequivocally the defendant identified ment that got person with out of the black Omni who as a dark dant [his] defendant had object2 hand, testified that defen- in his "none of him the incident was later told that well, that, business,” at that time as object.3 possession It a dark his jumped people Q. you out of either one of the Did see anything with in their hands? the car know, say something, you really I can’t I but A. Yes. saw what it at that time. was people something Q. in their hands? other had Which A. Donald. you Q. in the defendant’s was the item that saw What size hand? because, know, you really say I it is A. I can’t what size walking away in the other direction. a distance. I was like Q. you right hand or his left hand? Could tell if it was in his No, A. I can’t recall. object light object? Q. you if it Can tell was a dark object, I A. A dark believe. Now, Malone, you go you sight Q. did after lost of Mr. where jumping right you saw them out of the car? after porch. my my A. I went to house on you Q. that the had? What was the conversation two said, said, something. just you And I I heard know A. He nothing well, know, you people you. tell I don’t have whatever it, type thing, you do with know. Q. Who started the conversation? *4 I’m I can’t recall. A. not for sure. up you? Q. up you to Did walk to him or did he walk No, I his car. A. walked towards refreshing your Q. specifically, please, after recol- And what lection, you did the two of discuss? just you A. I told what we discussed. lap you anything Q. Malone’s at that Did see in Donald time? v Malone Opinion of the Court A. Yes. Q. you see? What did time, A. I couldn’t make out what it was because at the I standing directly Sergeant up was not Bivens the car on and when me, you yeah; I asked know what was and I said say really can’t what it was. big Q. object object? It was a or small object. A. It could have been medium sized Q. light it dark color color? Was A. Dark color. Q. neighborhood You still live around Puritan and Pilgrim you? don’t A. Uh-huh. Now, Q. you anything something did defendant tell about you supposedly said? A. No. Q. you anything something Did he tell about he heard? just you A. No. I told he had heard back that I had been talking something. about Q. something Did refer to he what the was? A. No. Q. you anything, you anything? Did tell him did talk about A. No. Q. going your right you I am to direct here. yourself, please. Read that to Yeah, you talking A. I see what are about. Q. you What did tell Donald Malone? said, can’t, you my A. I know I none of I it’s business. don’t anything have to do with it whatsoever. Q. you really your Did he tell what he did was none of business? A. Yeah. Q. you something you talking Did tell him about what were going right about was no further than here? Yeah, A. I that. said Q. you object lap? Is that when noticed an in his No, you A. I I but couldn’t see told I because all the time was standing directly up by the car. that, Q. Shortly you subpoenaed after were to Court come preliminary hearing? for a Q. (By Worthy): you Sergeant Ms. Did call Bivens? looking A. I he Yes. heard had been for me and I called him coming and told him I wasn’t to Court. Q. you Why you coming did tell him weren’t to Court? A. I it didn’t feel was no reason for me to come. I didn’t want to come. Q. you Is this after had seen Donald Malone in the street? Yes, A. I it was sometime after that believe. *5 445 Mich 369 Opinion of the Court Lasenby only that was after that conversation "didn’t want to come” to court. objections, attorney James the defendant’s
Over protect attorney appointed Hall, the defen- showup, Carey right that to a fair testified dant’s guy "the defendant Malone as Jackson identified signed gun,” who had the and a statement record- ing Attorney Hall also testified identification. photographic showup was fair. Officer that Department James Bivens of the Detroit Police identifica- also testified and confirmed Jackson’s signed tion and that Attorney statement. The trial court held of both Officer Bivens impeachment
Hall was not limited to trial and was admissible as Jackson’s substantive evidence 801(d)(1)(C).4 under MRE first-degree jury murder convicted the defendant of during possession firearm the commission of a felony. aof Appeals
The Court of
affirmed the defendant’s
App 366;
193 Mich
MRE The testimony of Attorney Hall and Officer Bivens prior about the Carey statement of witness Jackson is not hearsay. point, On this the of Rules Evidence could not be more clear: A statement is not if . . hearsay . declar- [t]he hearing ant testifies at the trial subject and is statement, concerning
to cross-examination the and the is . . one . of identification of a person 801(d)(1)(C).] perceiving after .... made him [MRE 801(d) outgrowth is an attempts of abandon the that prior orthodox rule statements of a witness impeachment were admissible recognized exception or under a hearsay to the The proponents change, among Wig- rule. of them Hand, and Learned more countered the orthodox view that substantive use was be- objectionable the prior cause statement when made was not oath, cross-examination, subject under or in the of presence the trier of fact. observed that They no longer principal safeguard oath was of trustworthiness, that the interests of cross-exami- presence nation were met declarant’s trial, observing and advantage that trier’s demeanor of witness was also satisfied. Hand’s classic statement: Opinion the Court witness, If, they jury all see of from truth, not the says what he now is conclude that before, less they are none the what he said
but they and hear of that deciding from what see States, 6 v United person F2d in court. Carlo [Di (CA 364, 2, 1925).] in the represented reformers’ views are 503, abolishes Evidence Rule which Model Code of state- provides rule and that all the orthodox if is found to are admissible the declarant ments to cross-examination.” "present subject (4th McCormick, ed), 118. How- p Evidence § ever, approach the Model Code would concern led statements produce the manufacture advisory taken position to an intermediate Evidence,5 on the Federal Rules committee exempting certain from classification thought by circumstances to be prior statements exempt state- danger free of the of abuse. The *7 (A) (B) statements, consis- ments are inconsistent admissible to rebut certain tent statements when attacks (C) witness, and upon credibility McCormick, supra, of identification. statements [2 p 120.] and Congress original proposal, The modified the 801(d), ultimately adopted of MRE as the structure 801(d), Court, FRE as modified. parallels by indicates the circumstances clearly The rule hearsay: are defined as not prior statements which made under oath prior where the statement was testimony,6 the witness’ is inconsistent with and proposed by advisory approach was also The committee’s Michigan the Rules of Evidence. Committee on 801(d)(1)(A) Congress inconsistent state modified FRE to define an given subject penalty to the "under oath ment as a statement perjury trial, hearing, proceeding, deposition in a or other or at a Supreme adopted Michigan rule .” Court the federal as . . . modified. People v Malone Opinion of the Court MRE 801(d)(1)(A); where the statement is rebut, consistent and offered to MRE 801(d)(1)(B); and the prior where statement is one identifica- tion, 801(d)(1)(C). (A) (B) Unlike subrules 801(d)(1), (C) of Rule subparagraph does not re- quire a laying foundation other than that present witness is found be available cross-examination.
Thus, statements of identification are not lim ited whether the out-of-court declaration is denied or require affirmed trial. There is no (A), ment "of inconsistency” subparagraph as nor is a previous there condition of impeachment (B). inas subparagraph long As statement is one of Rule permits substantive use of any prior statement of identifi cation aby witness as nonhearsay, provided the witness is available for cross-examination. Wein Berger, Evidence, stein & 801(d)(1)(C)[01], pp 801- ¶ 214 to 801-215.
All is contemplated is an out-of-court state- (which ment of identification is simply particular statement) type and that the out-of-court declarant subject to cross-examination "concern- ing” Thus, the statement. it is clear that the effect 801(d)(1)(A) 801(d)(1)(B) of both MRE and MRE to change Michigan law, is and the committee Further, notes confirm this. Mich 1003. there no is distinction whether out-of- court a third offered the statement of identification of a on the witness stand regarding something witness previously *8 said. Under the orthodox of hеarsay, definition an out-of-court statement in- offered for truth is admissible, through whether offered its maker or a third A party. statement defined 369 445 Mich
378 op Opinion the Court substantively nonhearsay under admissible as proponent.7 regard to its without Rule regarding the sub- testified Mr. Jackson Because subject identity to cross- ject trial, was identification, the testi- his examination mony properly admitted.
III 801(d)(1)(C) MRE OF THE DRAFTING HISTORY commentary on of the committee A full review Michigan that confirms Rules of Evidence the testimony stating hearsay. question After first is not (B) 801(d)(1)(A) "incon- were MRE prior Michigan prior that defined law” with sistent inconsistent statements statements and consistent People Hallaway, e.g., hearsay, Mich 389 see, v as (1973) (opinion of 451 265, 271-279; 205 NW2d J.), the ef- the committee summarized Brennan, 801(d)(1)(C): fect of Rule 801(d)(1)(C) prior Michi- with MRE is consistent a witness as admitting testimony by gan law in per- aof prior of identification his own statement Poe, 388 him. v perceiving son made after Londe, (1972); People 611; Mich NW2d (1925). Mich 484; 203 NW 1004.] [399 The committee’s was "admitting testi- law consistent with mony by to his own witness as added), (emphasis does not .,” . . id. statement mention excluding Michigan previous a wit- law per hearsay. witness’ is not of identification The statement the factfinder. for the benefit of ception Indeed, is tested under oath of the act Cavanagh Ap recognized Court of Judge in the Mark preclude of a peals, read to if the rule were recanting witness it not address would statement of problem situation, because, who in this definition App party. 370. Mich third thе evidence is the can introduce *9 People v Malone 379 Opinion op the Court ness’ prior inconsistent statements as hearsay.8 That of line was overruled authority in com- 801(d)(1)(A).9 mittee’s version of MRE Since the proposals committee’s would have made all prior inconsistent statements admissible as substantive limitation, evidence without the only category of statements of identification evidence not contem- plated proposal by was a statement admitted the witness. Since Peo- v ple Londe, Poe and supra, admitted as substantive evidence the prior statement identi- fication of affirming witness his in-court identifi- cation, 801(d)(1)(A), (B), commentary FRE (C) accurately changes describes the proposed in Michigan law.
The Committee Note
also
describes MRE
801(d)(1)(C) as identical
its
federal counterpart.
iv THIS DOES TESTIMONY NOT PRESENT
THE OF DANGERS HEARSAY As Wigmore Professor observes in explanation 801(d)(1): FRE
The witness who has told story one aforetime today opened and another gates has to all the vistas of truth which the cross-examination practice common law *11 and reexamination in- explore. change vented to The reasons the of face, forgetfulness, carelessness, pity, whether ter- ror, greed, or may explored by question- be the two fact, presence oath, ers the the of of trier under casting light on which is the true story and which escape the false. It is hard to the that view evi- statement, of dence declarant a inconsistent when explain on can, is the stand to it if he degree in high safeguards has the of examined addition, testimony. In allowing it as substantive pays evidence a avoiding further dividend in a inherently prejudicial necessarily that it must be all excluded in added.) (Emphasis cases.” Id. The issue in Sanford and the other cited cases the dissent is admissibility third-party testimony "bolstering” of statements of iden- tification, i.e., where the identifier has identified the defendant at Mead, 228; People (1883), trial. See also v 95 NW and Poe, People supra. v Londe and v Mich 369 op Opinion the Court unlikely to heeded limiting quite instruction McCormick, supra, p jury. § 120.] [2 Supreme Court considered The United States in California dangers asserted L Ed 2d 489 Green, 149; 1930; S Ct 399 US (1970). the trial there was whether question The evidence a as substantive properly court admitted prelimi- at and police stаtement supplied that examination defendant nary witness, became to a where the witness marijuana he could not trial and claimed markedly evasive at events. remember actual the declarant’s Court that admission of held trial not violate the statements at does out-of-court long the declarant Clause as as Confrontation full as a and is subject testifies witness reaching this con- cross-examination. effective clusion, dan- alleged the Court observed are the out-of-court statement gers admitting under oath and present when the witness is and the jury forced to submit to cross-examination is allowed to the witness’ demeanor observe assessing his credibility. is, course,
It state- true that out-of-court may made under circumstances ment subject have been protections. But if the to none of these trial, present testifying is the out- declarant of-court statement re- practical purposes for all protections. gains most of the lost If the witness his, is if there is admits the other danger statement or his, the evidence is to show reproduction negligible and the faulty it it two jury can be confident has before Thus, conflicting by statements same witness. concerned, must prior far as the the witness oath affirm, qualify the truth of the deny, now statement under the *12 penalty of .... perjury [399 US 158-159.] People v Malone op Opinion the Court
Addressing the claim that could jury evaluate the declarant’s demeanor when he first statement, made his out-of-court the Court stated: The witness who now story relates different question about the events in must necessarily position assume a as to the prior truth value of his statement, serve and disavows or giving jury thus a chance to ob- his
evaluate demeanor as he either qualifies his earlier statement. The jury is inconsistency stories, alerted in the sharply and its attention is focused on determining either that simply one of the stories reflects the truth or once, the witness apparently who has lied lacking credibility too in to warrant its believing either story. at [Id. 160.] Finally, to the extent the orthodox rule rested on the value of contemporaneous cross- examination, the Court observed words equally applicable here: danger substituting The main subsequent for timely possi- cross-examination seems lie in the
bility that the apt witness’ "[f]alse harden and truth in unyielding become to the blows of proportion as the has opportunity witness for reconsideration sugges- and influence others, be, tions of may whose interest and often is, to maintain falsehood rather than danger, however, truth.” . .. That disappears changed when the witness has his so that, "hardening” far from his statement has point softened to the repudiates where he now it. [Id. 159.] Owens, United States v US 561; 838; (1988),
S 98 L Ct Ed 2d 951 nearly twenty later, years Supreme upheld Court the admis- sion of a 801(d)(1)(C), identification under FRE Confrontation Clause. Court con- *13 Mich Opinion op the Court opportunity for cross-examination the eluded that his testifies about the witness is not denied when recall, he cannot belief, the basis for which current or when the witness’ he is unable to past is introduced belief past for recollect the reason that (cur- both, for belief belief. foundation effectively past) elicited, but cannot rent impugning are available. the belief other means Writing Court, inter- Justice Scalia Id.13 language preted requiring only here as issue the identical take the stand that declarant questions oath: and answer under reading of It that more natural seems to us concerning "subject the state to cross-examination here. what Ordinar ment” includes was available regarded "subject to cross- ily a witness is stand, placed he on when is examination” oath, willingly to responds under 801(d)(1)(C), specifies which questions. . . . Rule that the need the cross-examination "concer[n] statement,” require face more. does not on its at 561-562.] [Id. We, too, conclude that a statement identifica- 801(d)(1)(C) if a
tion is admissible under present under oath and is witness is court and subject his to about considered cross-examination requirement because The claim that satisfied assump making rest the statement seems to on the declarant denied statement, nothing tion that unless the witness admits the there appreciate, to It fails to how for the cross-examiner cross-examine. ever, making the that the declarant denies when all that cross-examination can the defendant has received produce: the benefit аt the The successful cross-examination time most hardly hope accomplish more made could statement was already accomplished the fact than has been different, telling story, and —in a inconsistent
witness is now this is favorable to the defendant. [California case—one Green, supra at 159.] v Malone Opinion of the Court prior position. can determine the jury credibil- ity disavowal as well as his present position. Likewise, the third party who under oath also is subject cross-examination the circum- stances the identification.14
V AUTHORITATIVE SOURCES INTERPRETING THE
PARALLEL FEDERAL RULE considering precise question Authorities un 801(d)(1)(C) Federal der Rule of Evidence over whelmingly agree that third-party testimony about prior a of statement identification is not hearsay. Judge "if Weinstein states that at the trial the to eyewitness fails remember he denies made the the previous statement of the eyewitness proved by can of a testimony person made, to whom the statement was and the given statement can be substantive effect.” 4 Wein & Berger, Evidence, stein 801(d)(1)(C)[01], 801- p ¶ Judge 222. As Henry Friendly observed year 801(d)(1) before MRE adopted: "The of purpose the rule was permit the introduction of identifi cations made a witness when memory was fresher and there had been less opportunity United v influence to be exerted him.” States upon Marchand, (CA 1977). 983, 2, 564 F2d 996 Elabo on rating prior why identification was properly case, admitted explained he that outside plausible influence "was one explаnation of the 14 prior pointed When a that on testifies a occasion b to the said, me,” accused and "That’s the who man robbed the testi If, however, court, mony clearly hearsay. present is b is subject identity, testifies on the examination, and is available for cross- 801(d)(1)(C)] presented. a case within [FRE Similarly, prior if b has himself testified identification. [2 McCormick, 251, supra, p § 122.] Mich 369 Opinion of the Court witness identifying recollection loss of v United States 996, Id. n 23. See also . at . . (CA 1977), 2, cert 1248, 1251-1252 Lewis, 565 F2d Jarrad, United States (1978). 435 US den (CA 1985), 474 US cert den 1451, 1456 F2d (1985). decisions, these not bound this Court
While lan- and similar parallel purpose because rules, are they and federal of the state guage counterpart, Like its federal persuasive. highly to assess jury permits identifi- prior of a statement worth substantive refuses, fails, witness identifying cation where or reaffirms
trial.
VI OF THIRD-PARTY ANALYSIS THE FALLACY at common was drawn Michigan, a distinction his own affirming a party’s law between of a third iden out-of-court corroborating the witness’ *15 truth for the former was admissible tification. The not. Because this The latter was the matter. of of for difference basis distinction has been Appeals of in the Court opinion 801(d)(1)(C),15a MRE brief of interpretation proper in order. rules is the common-law discussion of distinc those rules reveals history The of rigid efforts to reform early from tion arose 15 McConnell, 679-680; App People recently, 124 Mich v Most 1, 4-5; Jones, App (1983), People 373 NW2d v 144 Mich 226 335 NW2d 236, 239-241; (1985), Michael, App People 448 181 Mich v 226 and (1989), do not fall statements have held that idеntification 786 NW2d within testifying. have Panels when a third however, People McCurdy, correctly, 185 Mich v applied the rule Newcomb, (1990), People 503, 505-506; App App NW2d (1991), 424, 429-430; this case. 476 NW2d v Malone op Opinion the Court hearsay, orthodox rule of and should not be read as a limitation on what statements are hear- say. repeating
It bears here of that a statement merely species prior identification statement. All through hearsay one of a prior statements, whether offered party,16 or the declarant a third were hearsay under orthodox definition of except recognized and were inadmissible under a exception impeachment support. for or
Third-party
testimony,
identification
like other
prior statements, was
of
admissible on the issue
credibility.
prior
including
Thus,
statement,
if a
a
prior
identification,
statement of
was inconsistent
testimony,
with trial
it could be admitted to im-
peach.
adopted
If
witness,
as true
it was
Roby,
admitted
379 Mich
of
substantive
evidence. Ruhala v
(1967) (opinion
102, 120;
388 Opinion op the Court simply bol- irrelevant were statements consistent stering hearsay prior were statements because matter, but the truth of for not admissible only supra, Hallaway, People credibility. v for separate opinion).17 J., 276-277 Mich (Brennan, ago, years however, one hundred More than exception Michigan to the a common-law created hearsay first- and admitted orthodox definition party the truth of identification statements People Mead, 228; 15 NW 50 Mich v the matter. (1883), approved of a admission 95 prior Justice Cooley truth of for the
statement of made an in-court matter, the witness where Michigan Otherwise, common law identification. generally prior rule that the orthodox followed proper a show- on were admitted statements ing credibility. they See were relevant that App Jolly, 192, 195; 483 NW2d 193 Mich v (1992). first-party Michigan identi- rule of The hundred-year-old appears to be a thus fication orthodoxy.18 precursor of a break with limiting can- A construction Michigan from the fact not be inferred first-party testi- use оf rule allowed the substantive mony statement of identification. a significant, exception historically but other- an Indeed, the extent irrelevant. wise 47, 172, justified by McCormick, supra, p n 1. Exclusion was 17 1 § avoiding saving of the witness before a defense of time and appeared. one need for Cooley having originated the notion credited with Justice is also outrage "common sense” it would were situations which that there to limit solely See to rebut fabrication. consistent statements 1979) (CA J., 2, (Friendly, Rubin, 51, 609 F2d 66-67 United States v [1871]). People, concurring) (citing 74-76 And as v Stewart aware, early Michigan Supreme Court also on is well this Court adopted exception complaint rule on the basis to the first jury of a fresh if a did not learn notion that the common-sense complaint case, credibility suspect rape it would in a (1886). 271; People Gage, Mich 28 NW victim. See *17 v Malone op Opinion the Court approach light present historical inquiry, history sheds on the justices
shows that of this ap- Court were not hide bound to the orthodox proach. exception fact, to read the common-law hearsay recognized limiting prior to in Mead as statements of identification now defined as non- hearsay illogically excep- converts the historical contemporary tion to into the definition of hearsay. what is not
Finally, a distinction between first- and third- party testimony under MRE cannot premise party rest on the the third cannot credibly provide the trier of fact with faсts the party third knows to be true. It would follow from premise party testify a third cannot to any extrajudicial statement because, of witness party definition, the third does not know it to party be true. Because a third can not vouch for accuracy of an inconsistent statement under 801(d)(1)(A) or of a consistent statement un- 801(d)(1)(B),any der MRE more than a third accuracy can vouch for the of a statement of premise simply would emascu- in Rule hearsay adopted late the redefinition of 801.
The common-law distinction between first- and
third-party testimony of an out-of-court statement
escape
of identification was made to
the orthodox
hearsay,
precluded prior
definition of
which
state-
credibility.
ments unless relevant
to
There is no
logic
policy
employ
escape
basis in
or
route
orthodoxy
from
as a vehicle for its reestablish-
simply
ment. The current
rule
makes much of
previously
Michigan only
what was
admissible
impeach
rebut,
admissible for the truth of
the matter. Statements of identification are no
longer
hearsay. Subject
defined as
to the trial
court’s between first- and statements limit identification does not substantive admissibil- ity. reasons, foregoing
For the decision Court of is affirmed. Appeals JJ.,
Brickley, Riley, Griffin, Mallett, J. Boyle, concurred with (dissenting). C.J. Because the major- Cavanagh, *18 opinion the federal inter- ity compliantly embraces Evidence, of the pretation Federal Rules of disre- garding Michigan precedent respеct- and I policy, 801(d)(1)(C) dissent. MRE fully Properly interpreted, excludes from the definition of hearsay the out-of-court identification statements of the person actually who made the earlier identifica- Thus, tion. testimony out-of-court statement aby party third who witnessed the identification falls within the definition of and hearsay admissible as substantive evidence. MRE 802.
I
types
persons
provide
Two
identification
may
(1)
during trial:
person
the
who actually
(the
extrajudicial
made the
identification
"identi-
(2)
fier”),
and
a third
who
the
observed
identifier make the out-of-court
identification. Gen-
objections
erally,
asserted
the admis-
(1)
extrajudicial
sion
concern
(2)
nature of the
hearsay
testimony,
improperly
bolstering
effect of
in-
identifier’s
parties
Because the
failed
cite MRE
this Court need not
may properly
bolstering
reach the issue whether
courts
exclude
People
618;
Prophet,
App
under MRE 403. See
101 Mich
v
(1980).
(d) hearsay. Statements which are not A state- ment is not if—
(1) Prior statement of witness. The declarant hearing testifies at the trial or subject and is statement, concerning cross-examination (C) the statement person . . . one of identification of a perceiving made after him ....
II
determining
proper application
When
of a
Michigan
statutory
evidence,
rule of
the rules of
statutory
construction are instructivе. When a
provision
unambiguous,
is clear and
the court will
apply
provision
Gilroy
as written.1
v General
(After Remand),
Corp
330, 341;
Motors
my
language
1 I take issue with
sister’s declaration that the
of MRE
801(d)(1)(C)
ante, p
language
"could not be more clear.” See
375. The
type
of MRE
mony
fails to resolve which
of identification testi
*19
hearsay.
ambiguity
is excluded from the definition of
The rule’s
Appeals split
proper
is further evidenced
application.
mony
the Court of
on its
panels
While some
admit
the identification testi
witness,
identifying
limiting third-party testimony
of the
to the
prior identification,
Michael,
People
facts and
circumstances
v
236,
(1989),
Turner,
App
241;
People
181 Mich
475 NW2d
the event
Court
required
provision,
to construe a
the Court must
discover and effectuate the intent
the formulat-
ing body. Storey Meijer, Inc,
368, 376;
v
Mich
(1988).
A adopted Michigan This Court Rules of Evi- preview proposed in 1978. A dence rules drafting included the committee’s comments re- garding prior Michigan the rules’ effect on law. way While thе in committee’s comments are no binding upon they Court, are nevertheless respect instructive with this Court’s intent adopting the rules. recognized similarity
While committee be language 801(d)(1)(C), proposed tween the MRE 801(d)(1)(C), counterpart, and its federal did not indicate that the FRE it application of the Michi gan application rule would mirror the of the fed contrary, committee, eral rule. To the in its 801(d)(1)(C)’s MRE effect on prior Michigan expressly acknowledged law, prior Michigan the rule was consistent with law.2 MRE is consistent with Michi- gan admitting testimony hy law a witness as to per- his own son made after statement of identification of a Poe, perceiving him. important expressly It is to note that the committee indicated the changed prior Michigan example, rules that modified or law. For an 801(d)(1)(A) concerning (B), see the comments MRE (1977). Furthermore, explicitly acknowledged the committee consistent,” proposed "generally permitting when a rule was some prior Michigan position. example, room for deviation from the see the comments For an 801(d)(2)(A) concerning 803(3), and MRE id. at 1004, 1010. *20 393 v Malone Cavanagh, C.J. (1972);People Londe, 611; 320 v 202 NW2d
Mich (1925). [399 1004 484; 93 Mich 203 NW (1977).Emphasis added.] testimony of an earlier An identifier’s courtroom hearsay by extrajudicial constituted identification nevertheless, use definition,3 this Court allowed its adoption of before the substantive evidence 801(d)(1)(C).However, the Court limited MRE admissibility third-party testi- excluding generally mony, it from use as substan- tive evidence. today
Admittedly,
this Court had not
before
third-party identification testi-
announced whether
mony
as substantive evidence when
is admissible
making
either denied
or failed
the identifier has
however,
has,
The Court
recall the identification.
pre-MRE position
expressed
the use
its
bolster
People Mead,
v
identification.
the identifier’s
(1883), the victim of a bur-
228;
for much in the case Emphasis [Id. tion. at 230. added.] Remaining premise, faithful to this the Court admissibility restated the standard extrajudicial identification in Londe. may testify regarding While an identifier an extra- judicial identification, a third who witnessed extrajudicial may only testify identification regarding the [under "circumstances which] identification was made.” Id. at 487. fifty years later,
Almost this Court reaffirmed holding excluding third-party the Londe evidence extrajudicial People supra Poe, identifications. robbery super- at 618-619. Poe arose from a of a market. Four witnesses of the crime attended pretrial lineups. police concerning The *22 third-party identification tes- defined inadmissible concerning timony testimony "the nature or as quality of the identification.” Poe at 618. Michigan of the rule remained set- status despite plurality opinion in San-
tled this Court’s the ford. While the entire Court concluded third-party identification testi- admission of the mony require extrajudicial identification did not conviction, the of the defendant’s
reversal
split regarding why
did not
Court
the admission
compel relief.6_
4
memory
the
"The use of these documents
refresh
witnesses’
See,
Gillespie,
reliability
proper.
generally, 2
Michi
to test their
gan
was
(2d ed), 598, p
775.” Poe at 617.
Criminal Law & Procedure
§
evidence,
memory,
hearsay
permitted
Refreshing a
with
as
witness’
See, generally,
recognized exception
hearsay
to the
rule.
Jaxon v
a
803(5).
Detroit,
(1967),
405;
379 Mich
judicial Poe at 618-619. identification. 6 Michigan adopted after the Rules of Evidence This Court written, signed. opinion it The common- but before was Sanford thus, Sanford; any governed disposition discussion rules law regarding characterized Michigan newly can enacted Rules of Evidence McNally Wayne nonbinding v Co Bd dicta. See (1947). Canvassers, 551, 557-558;25 613 NW2d 445 Mich by Cavanagh, C. J. Michigan
The clear rule in majority that a agree ground the Court must on a for decision in binding precedent order to make that for future merely particular cases. If there is result, majority for a parties then the to the case are bound judgment the the but the not authority beyond case is parties. Anderson, [People immediate 155, 170; (1973).] Mich NW2d The Mead/Londe/Poe trilogy firmly established Michigan’s pre-MRE position regarding the admis- sibility An testimony. identifier’s testimony identification, of an extrajudicial albeit definition, is admissible as substantive evidence. Third-party
offered to identification, bolster the identifier’s however, is limited to the circumstances surround- ing identification, prohibiting about the content of the identification as substantive evidence. Boyle’s
Justice
interpretation
of the rule contra-
drafting
dicts
committee’s
comments
"MRE
is consistent
with
Michi-
added.)
.
gan law . . .”
suggestive procedure, identification eyewitness the intrinsic infirmities in identifica- forgets tion remain. When an identifier denies or extrajudicial jury an identification, cannot equipped assess whether make an the identifier was to Furthermore, acсurate identification. party provide relating third cannot information to the identifier’s initial observation of the defendant ability accurately and the identifier’s to transfer images extrajudicial these to the identification. forgets When the identifier denies or an extra- judicial jury presented is not necessary with the tools to determine whether the alleged extrajudicial identification was accurate. third-party testimony When the identification merely jury bolster, offered to will have had hearing the benefit of how the identifier made accuracy identification. The of the identification logic suggest can be It tested. defies to that earlier panels of this Court would have embraced third- accuracy whose credibly could not be tested when it excluded whose accu- racy could be tested.
B policies prompting the universal exclusion 7 I will concede opportunity that some witnesses have sufficient defendant, coupled ability observe adequately with the transfer image extrajudicial submit, the observed to the identification. I would however, exception Anderson, this is the to the rule. See accompanying appendix. v Malone Dissenting Opinion Cavanagh, C.J. hearsay testimony, justification as well as the *25 exceptions, light for established shed further on regarding proper this Court’s intent bounda- 801(d)(1)(C). ries of MRE Hearsay statement, is "a other than the one by testifying made the declarant while at the trial hearing, prоve offered in evidence to the truth 801(c). Generally, of the matter asserted.” MRE hearsay qualifies evidence is inadmissible unless it exception hearsay as an Hearsay to the rule. MRE 802. repugnant truth-seeking to the function litigation because the statement is made in the safeguards implemented absence of testimonial to reliability. testify foster At trial a witness must exposed affirmation, under oath or to the threat of perjury. The trier of fact can observe a witness’ physical response demeanor and mony.8 to offered testi- exposed Furthermore, a witness is to con- temporaneous cross-examination his (2d Hearsay Binder, offered assertions. ed), Handbook p "beyond any § 3.01, 59. Cross-examination is greatest legal engine doubt the ever invented for (Chadbourn discovery Wigmore the rev), of truth.” 5 p safeguards § 1367, 32. The are believed to exposure possible ambiguity, insincerity, aid the faulty perception, memory. and erroneous The safeguards absence of the three testimonial render hearsay untrustworthy. statements
Similarly, recognition extrajudi that certain possess cial statements sufficient indicia of reliabil ity, coupled evidence, with a need for the has prompted recognize exceptions Court to the hearsay rule. solemnity public possibility of the occasion and dis grace witness, scarcely impress can fail to and falsehood no person against doubt becomes more difficult if thе whom [it is] McCormick, (4th present. ed), 245, p directed is Evidence [2 § 94.] 445 Mich Cavanagh, C.J.
Exceptions hearsay justified to the rule are are both hearsay the belief that statements necessary Meeboer inherently trustworthy. [People (After Remand), 310, 322; (1992). Emphasis NW2d added.] policies prompting theOn basis of the the hear- say exceptions, rule its it cannot be denied generally the Court intends exclude from untrustworthy trial evidence that and unrelia- premise types ble. It is from this that the different of identification must be examined in order to determine whether such statements are pursuant excluded from the definition of 801(d)(1)(C). to MRE
III extensively reliability This Court examined the eyewitness People Anderson, identification in supra. theOn basis of documentation of instances eyewitness of erroneous identification and scientif- principles, ic the Court "that concluded there are problems concerning accuracy eye- serious prospects witness identification and that real very process error inhere in the of identification completely independent completeness subjective accuracy, good faith of witnesses.” Id. at 180. vagaries The eyewitness identification are
well-known; the annals of criminal law are rife with instances of mistaken identification. Mr. Jus- tice Frankfurter once said: "What is the worth of testimony even when uncontra- strangers dicted? The proverbi- identification of is ally untrustworthy. hazards of such by are established a fоrmidable of in- number stances in English the records of and American trials. These instances are recent —not due to the v Malone Dissenting Opinion by Cavanagh, C.J. brutalities of procedure.” ancient criminal [United Wade, States v 218, 228; 1926; US 87 S Ct 18 L (1967).] Ed 2d 1149 eyewitness result, As
burdened the same characteristic found offen- untrustworthy.9 sive in it evidence: Considering evidence, that no other than an confession, outright probably carries as much weight, with lay jurors but many with well, law enforcement officials as such criticisms are no means academic. J Crim L & Crimi- [66 nology 245.] 1. IDENTIFICATION TESTIMONY BY THE IDENTIFIER reliability eyewitness While the of an identifica- questionable, tion is it has nevertheless been rec- ognized that an identification made soon after an generally probative event is more than an identifi- during cation made trial. earlier greater probative identification has [T]he
value than an identification made in the court suggestions room after the of others and the cir cumstances of may the trial have intervened to create a recognition fancied in the witness’ mind. Berger, Evidence, Weinstein & 801(d)(1)(C)[01], [4 ¶ p 801-217. Citation omitted.] *27 We should not blind ourselves to what the law by has learned bitter experience —identification court frequently an almost formality. worthless By ... positions the time of trial have often become so fixed and memory so attenuated and by subsequent distorted events that witnesses sel- 9For a reliability eyewitness considered examination of the testimony, 172-180, accompanying appendix see Anderson at 192-220. 445 Mich by Cаvanagh, C. J. raw
dom make identifications on the basis of their original States v recollection of the event. [United 1968). (ED NY, Barbati, Supp 284 F Citations omitted.] pos-
The identifier’s eyewitness identifica- sesses attributes that elevate tion satisfies this Court’s intent of that is position from status to a that its unreliable admitting evidence trustworthy.10 attempt necessary an provide probative evidence to the trier to the most fact, of an of extrajudicial this Court has admitted by identification offered the identifier years.11 reliability for over one hundred While the eyewitness dubious, identifications is the identi- to of the fication is often essential Admittedly, resolution case. extrajudicial an identification cannot contemporaneous by tested cross-examination. be extrajudicial However, when an identification is opposing party identifier, offered can prompting scrutinize the circumstances fier’s selection. Cross-examination will reveal how the identifier came to make the the identi- exposing potentially any weaknesses and uncer- tainty ability of the identification. This to process test the identification and the attendant provides, essence, the identification an indicia of reliability, necessarily identification is correct, adequately equipped in the but sense factfinder judge accuracy often vital identification.12_ that, Trustworthy suspect, evidence includes evidence while can adequately type tested and scrutinized trier fact. This truth-seeking evidence furthers the function of trial. Mead, supra See discussion of at 393-394. 12Generally, possess is deemed to an indicia of reliability specific when made under circumstances that make it more probable than not that the substance of the statement is true. This recognition justifies admitting hearsay, exception general an to its example, exceptions dying recognize For declaration exclusion. *28 People v Malone Dissenting Opinion by Cavanagh, C.J. testimony by
Identification offered the identifier is the most reliable evidence of identification be- cause it was made before the influences found at position trial, before the identifier’s has become fixed. The of the can trustworthiness assertion through tested cross-examination before the trier fact, while the identifier is under oath. Further- personal knowledge why more, the has identifier providing made, the identification was a basis not only meaningful cross-examination, for but cross-examination. type only accord,
This evidence is with pre-MRE position concerning this Court’s identifi- testimony, purpose cation but also its with policies underlying hearsay adherence to the rule recognition exceptions. and the of various Accord- ingly, MRE from excludes the defini- tion of the out-of-court statements iden- by tification communicated at trial the identifi- er.
2. THIRD-PARTY IDENTIFICATION TESTIMONY testimony Unlike identifier, identification third-party testimony possesses identifiсation none of the attributes that would elevate it from its unreliable status. When a third testifies by about accuracy identifier, a identification (which generally of the identification is being crime), used to a convict defendant of a people they impend- that most will not lie when believe that death is 804(b)(2). 803(2) ing. Similarly, permits See MRE the introduc- utterances, hearsay by tion of excited which are definition. Admission justified spontaneous because from results startling response. event is to be a considered sincere identical, While not admission of the identifier’s of an possesses extrajudicial safeguards: analogous prox- imity probative of an earlier more than the formalis- accuracy tic in-court trier of fact. and its can be evaluated Cavanagh, C.J. result, iden- As a cannot be tested. unreliable, it but is not tification credibly provide probative It cannot value. lacks *29 party third knows the of fact information the trier the not authorize does to be true. testimony third-party identification admission of as substantive irrespective of the identifi- evidence extrajudicial testimony identifi- the er’s cation. OF EXTRAJUDICIAL TESTIFIES a. IDENTIFIER IDENTIFICATION testimony, Regardless identical of the identifier’s third-party testimony identification of another’s third-party testi- identification unreliable. The accuracy mony identifi- of the cannot vouch for potentially effect is cation, and its cumulative dangerous. when, example, bolstering Third-party occurs lineup in present at testifiеs police
a officer said, presence "This' the witness his court is the man.” testimony police Obviously the If the witness is of no value whatsoever. officer made a identification, police "wrong” officer made a bolstering that mistake. If the witness police officer is bolster- "right” about, nothing since he ing he knows evidence ask, perpetrators. juries Yet never saw the himself [Sobel, Eye- they both be mistaken?” "How can (2d 4.3(b), ed), p 4-18. Em- Identification witness § original.] phasis in testimony fails to accurately trans the identifier reveal whether during images the com made the mental ferred mission of the crime extrajudicial to the later testify party about The third cannot identification. People v Malone Cavanagh, C.J. the identifier’s to remember "ability and articulate crime, the details of the the appearance of the Prior identifications Mauet, criminal offender.” Hearsay issues, cases: and confrontation 24 Ariz (1982). L R The third party testify cannot about the factors scrutinized by the trier of fact when determining accuracy the identifier’s Such testimony identification. is not irrele vant, misleading but it appears because corrobo rate the identifier’s while it is not true Id. While at all.13 corroboration third can corroborate fact that the iden tifier identify person did at a certain time and place, the third no party has basis on which to corroborate the accuracy statement. light unreliability of such testimony,
coupled рre-MRE position with this Court’s regard ing third-party testimony, third- *30 party identification that testimony bolsters the identifier’s identification is as inadmissible sub stantive evidence. Third-party identification testi " is restricted to took mony place’ 'what and under 'what circumstances the identification . . . .” Poe at 618. The third cannot made’ the testify about identifier’s actual type because this of statement is MRE hearsay, 801(c), is and it not excluded from the definition of hearsay under 801(d)(1)(C).14 testimony testimony by Mauet characterizes true corroboration sources, knowledge, different based on firsthand that reveals the same conclusion. Id. at 49. however, party may testify, The third about the identifier’s suggested has identification if it identification been that the identifier’s in-court fabrication, product improper is of recent influence or motive. hearsay. A Statements which are not statement not hear-
say if—
(1)
Prior statement
witness.
declarant
testifies at the
hearing
subject
concerning
trial or
and is
to cross-examination
(B)
statement,
and the
is . . .
with
consistent
EXTRAJUDICIAL IDENTIFICATION
identifi-
testimony of an identifier’s
Third-party
making
cation that
the identifier has either denied
or failed to recall
is devoid of
attributes
any
would make it reliable.15 The
identifica-
eyewitness
Furthermore,
under
tion itself
is unreliable.
to the
testify
situation there is no one available
alleged
of the identification.16 While the
accuracy
cross-examined,17
identifier can be
the cross-exami-
is,
nation
an
in
reality,
futility.
exercise
"[SJupposе
that at the trial the witness not
defendant,
identify
fails to
he ever identified him on a
but also denies that
May
occasion.
testimony
express
implied
his
and is offered to rebut an
or
charge against
or
improper
him of recent
or
influence
fabrication
801(d)(1)(B).]
....
motive
[MRE
15Third-party testimony of
or
an identification
identifier denies
forgets making
statement made under
probable
reliability:
offers neither the traditional
indicia of
specific
circumstances that make it more
true,
not
nor an
than
substance
the statement
analogous safeguard:
availability
provides
of information that
ability
accuracy
trier of fact with the
to access the
of the statement.
16Admitting third-party
potential
creates a
problem
Specifically,
the intro
of constitutional dimension.
whether
guar
duction of such
antee of confrontation. Admission
violates a defendant’s constitutional
appears especially suspect
in in
making
forgets
extrajudi
the identifier
stances which
cial statement. While the federal courts have examined this issue and
denies
Owens,
violation,
found no
constitutional
United States v
federal
(1988),
554;
838;
yet
98 L Ed
US
determine the issue under the
108 S Ct
2d 951
this Court has
1963,
Michigan
Constitution. Const
art
disposed
20. I do not address this issue
this case can be
because
§
"
grounds.
questions
on
passed upon
nonconstitutional
'Constitutional
will
questions
when other decisive
are raised
the record
*31
”
State,
32,
dispose
Secretary
which
of the case.’ Lisee v
(1972) (citations оmitted).
however,
40;
majority,
because of the
an
worth of
the
identification made
closer
time to
events
Where,
question.
however, the extrajudicial
identi-
by
fication is
identifying
established not
wit-
person
ness but
a
who observed the identifica-
tion, we
prоbative
believe that
worth is out-
weighed by "the
falsity
hazard of error or
in the
reporting.”
dispute
a
Where there is
toas
accuracy
pretrial
aof
but
also
made,
to whether
the identification was in fact
"the
value
evidential
Thus,
completely
almost
dissipated.”
police
positive
officer’s attribution to a witness of a
iden-
tification denied
trial
witness at
is not
prove
admissible to
the identification.
Its effect is
impeachment.
limited to
Daye,
[Commonwealth
(1984).
55, 61;
393 Mass
While insists that defense counsel *32 369 445 Mich by Cavanagh, C.J. identifi- extrajudicial the to attack ability has the cross-examination, seriously it cannot via cation expose can cross-examination contend that of the reliability or the trustworthiness accuracy, relia- a scintilla of The absence of identification.18 with this coupled testimony, this of bility type the admissibil- pre-MRE position Court’s compels testimony, identification third-party ity 801(d)(1)(C) does not ex- the conclusion third-party hearsay, the definition of from clude extrajudi- an identifier’s testimony of identification denies or the identifier when cial identification identification.19 making extrajudicial forgets truth-seeking repugnant to testimony This is trial, poli- the intent and contrary to function of 801(d)(1)(C). of MRE surrounding adoption cies THE FEDERAL 3. INTERPRETATION interpretation federal I am aware of the While Jarrad, States v see United 801(d)(1)(C), FRE Lewis, (CA 9, 1985); United States v 754 F2d (CA 2, 1977), its espouse I cannot 565 F2d 1248 ap the federal Admittedly, or rationale result. Court, authority; provides persuasive proach however, аpplication. not bound the federal more the MREs past interpreted in the We have depends credibility testimony upon The factors which perception, memory, Did of the witness. and narration are perceive accurately? he retained an accurate Has the witness impression convey perceived? language as to he Is his such of what McCormick, 245, p correctly? supra, impression § [2 581.] recanting regards credibility The critical issue third-party is admis forgetful identifier. The purposes impeachment statement. as a inconsistent sible for as substantive jury does not need credibility. with Once confronted to evaluate the identifier’s evidence the his trial evidence, weight jury give impeaching to the witness can testimony. v Malone Dissenting Opinion Cavanagh, C.J. stringently counterparts. than their federal See (After Remand) J., Meeboer n 1 (Brickley, dissenting). approach repug When the federal adopting MREs, nant this Court’s intent duty reject applica it is this Court’s the federal *33 Furthermore, tion. the not all commentators embrace the
direction federal rule taken. See has Third-party testimony Seidelson, about ident 801(d)(1)(C): ifications and federal rule of evidence petition rehearing, Litigation A Rev of (1989). suggests Professor Seidelson that fed application eral courts have erred in their of FRE 801(d)(1)(C)because of their erroneous on reliance during extraneous statements made the floor de "It bate. law . . . established that the state opinions legislators ments and of uttered in the cоmpetent debates are not ascertaining aids to the court meaning of Id. at n statutes.” (citations omitted). Professor Seidelson asserts ap properly that federal courts would have plied FRE it had the intent effectuated of the conference committee: The codification existing "only federal law which allowed the sub admissibility identifying stantive of an witness’s testimony as his to Id. at 267. identification.” disregard precedent policies I would not and of of simply Court to mimic the Federal Rules jurisdictions. Evidence and other
iv Third-party testimony is to limited surrounding facts and circumstances the iden- prohibiting testimony tification, of the content of the ingly, as substantive evidence. Accord- attorney
the admission of Officer Bivens testimony Carey Hall’s earlier Jackson’s identi- fication as substantive evidence was erroneous. 802. 445 Mich Cavanagh, C.J. agree the Court
Furthermore, with I cannot Appeals in this case "admission conclusion very prejudicial credible wit- two because positively prosecution identified nesses for the App 371. defendant.” suspect Lasenby testimony Mann is Lasenby, regard trial his at best. gave he initial statement
contradicted police. Additionally, acknowledged he testi- he only arrest. Such because he feared fied particularly positive credible. nor is neither state wit- was the "credible witness” The other testimony can ness, Mann. Mann’s Melvin in- failed to "incredible.” Mann characterized presence police the crime scene of his form the murder. In the victim’s arrested for until he was concealment, Mann went active addition to this following pertinent way evidence of his to hide out partner. shooting and business of his friend shooting, following *34 Immediately left the Mann the Jeep in which Nance of the crime the scene getting help.20 pretense While his under the shot ground, dying drove to the Mann friend was on Jeep acquaintance’s house, in a hid the another disposed garage, seatcover of the bullet-riddled Upon keys return to the vehicle. his to hid report anything to the scene, to he failed crime give "persuaded” police. a state- to he was While ultimate from his ment,21 differed this statement testimony. trial credibility of both to dubious their versions addition
identifying witnesses, of the event Lasenby the de- asserted inconsistent. were jeans at the time of shoot- fendant wore blue public phone at the time of at a Recall that Mann was assistance, 911, shooting. is free. to A call give until his arrest for Nance’s a statement Mann failed to death. v Malone Dissenting Opinion by Cavanagh, C.J. ing, while Mann stated defendant wore beige shorts. coupled heavy facts,
These with the reliance juror’s place police testimony,22 most aon officer’s clearly prejudiced Accordingly, the defendant. defendant is entitled a new trial.
Levin, J., with Cavanagh, concurred C.J. Riley, during Appeals, recog Justice tenure her at the Court of potential danger аllowing police repeat nized the officers an extrajudicial Third-party identification. relating surrounding "should be confined to the circumstances identification,” Prophet, supra especially n 1 true "[t]his where, here, a central issue at trial is identification and where the officer, police given may third is a whose undue weight by jury.” notes lineups eyewitnesses indicated that two of the four positively identified defendant Poe robber; as the eyewitness one stated that Poe looked like the robber, but he could not assert in court; eyewitness the fourth identified someone other Despite lineup than the defendant. results, v Malone by Cavanagh, C.J. Poe was the at trial each witness testified robber. approved of the admission While the Court lineup police notes to the reflect officer’s by and the one witness the hesitation prohibited other,4 it their misidentification use as substantive evidence tent maining eyewitnesses. to reveal the consis- pretrial re- made the two relying Court, on Londe, testi- restricted " place’ mony took and under 'what cir- to 'what ”5 . . . .’ the identification was made cumstances however, Londe, Court 618. Unlike the Poe Poe at
Notes
notes footnote trial may courts exclude the bolstering testi- Ante, mony via MRE 403. p n 19. This a far is from cry mandated previously exclusion v Malone Dissenting Opinion Cavanagh, C.J. keystrokes, my such evidence. With a few sister century-old has eradicated a rule in- that was tended to remain сonsistent. imagination Furthermore, a vivid or eccentric required to reach the if conclusion that this consistently third-party Court excluded identifica- merely tion identification, tunity, assuredly bolsters the identifier’s given oppor- have, then it would reliable, excluded the less inher- suspect, ently third-party more identification testi- mony forgotten of a recanted or identification. In justification Cooley’s context, this Justice for ex- equally compelling: clusion is [the "it testimony] likely identification ingly to be exceed- depended mischievous, for much in the case upon recognition.” supra Mead, at 230. Third- inherently unreli- accuracy able because the of the identification adequately cannot be assessed the trier of fact. recognized problems This Court inherent eyewitness People Anderson, identification. See supra, accompanying appendix at 192-220. infirmity suggestiveness While one concerns the procedure employed, the identification this is many eyewitness one infirmities that render suspect. implicit situation, original Some are in the in cluding, example, insignificance the—at events, time and to length the observer —of the observation, of time of and the less than ideal (dis observation generally apply conditions which crowds). tance, movement, poor lighting, fast major The witness himself is a source of unrelia bility, observing due to the effect of under stress (especially applicable in the case observers who well), are the victims as physical or often to defects sickness, age, condition such as or fat