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58. Is the victim's testimony concerning his previous statement to the passerby admissible?
A defendant is charged with aggravated assault. The physical evidence at trial has shown that the victim was hit with a lead pipe in the back of the head and on the forearms and left in an alley. The medical examiner has testified that the injuries to the victim's forearms appear to have been defensive wounds. The victim has testified that he cannot remember who attacked him with the lead pipe. He would further testify that he remembers only that a passerby found him in the alley, and that he told the passerby that the defendant had hit him with the lead pipe; he then lost consciousness. The defendant objects to this proposed testimony, arguing that it is hearsay and that the victim had no personal knowledge of the identity of the perpetrator.
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The FRE defines hearsay as a statement, other than one made by the declarant while testifying at the current trial or hearing, offered into evidence to prove the truth of the matter asserted. Fed. R. Evid. 801(c).
A witness's prior statement identifying a person as someone he perceived earlier is not hearsay. Fed. R. Evid. 801(d)(1)(C). This is true even if the witness currently lacks memory and cannot testify as to the basis of the prior identification. However, statements of identification are admissible only if the declarant is subject to cross-examination. Fed. R. Evid. 801(d); See United States v. Owens, 484 U.S. 554 (1988) (finding that a declarant-witness who made a prior identification, even if lacking memory of the prior identification, may testify to the prior statement as long as they are subject to cross-examination).
C is correct. Under United States v. Owens, the victim may testify to his prior identification made to the passerby even though he does not remember making it because he is subject to cross-examination. Regarding the victim's personal knowledge to establish his competency, the evidence that he suffered defensive wounds to his forearms is sufficient to support the victim's testimony.
A is incorrect. This is an incorrect statement of the law. Under FRE 602, a witness's personal knowledge is shown when there is evidence that is «sufficient to support a finding» that he is speaking from personal knowledge of the matter (s). To impose a burden of showing it is «more likely than not» that the witness has personal knowledge would be a higher burden than is necessary.
B is incorrect. As established in Owens, even when a witness who made a prior identification has insufficient memory of it, if he is subject to cross-examination, it satisfies the hearsay exemption.
D is incorrect. This answer reaches the correct answer with the wrong reasoning. Although the victim's testimony regarding his identification made to the passerby is admissible, it is not because the victim is testifying to his own out-of-court statements. Hearsay may be inadmissible even when the declarant is testifying to his own out-of-court statement on the stand. There is no hearsay exception to allow testimony about one's own out-of-court statement. However, the testimony is nevertheless admissible because the exemption for prior identifications is satisfied here, as explained above.