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66. Is the officer's testimony admissible?
At trial, the eyewitness surprises the prosecutor by testifying that she is unable to identify the defendant as the robber. The prosecutor calls the officer to testify that the eyewitness identified the defendant from the photograph in the police station. The eyewitness remains present in the courthouse and can be recalled.
A defendant is on trial in federal court for bank robbery. Before the police had any suspects, a police officer interviewed an eyewitness at the police station and showed her a «mug book» containing dozens of photographs. The eyewitness identified the defendant's photograph as that of the robber.
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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. Photo identifications are within the scope of this rule. Note that the prior identification need not have been made at a formal proceeding or under oath, and its admissibility is not limited to rehabilitation of a witness.
FRE 607, concerning impeaching one's own witness, states: «Any party, including the party that called the witness, may attack the witness's credibility.» This FRE abolished the «Voucher Rule,» which only allowed for the impeachment of one's own witness under certain circumstances (including, among other requirements, that the hostile witness's testimony damage the case of the party who called him). See Chambers v. Mississippi, 410 U.S. 284 (1973).
C is correct. The applicable rule is FRE 801(d)(1)(C) regarding prior statements made for identification. These statements are not considered hearsay and are admissible substantively. This Rule applies whether or not the witness is able to make an in-court identification. As long as the witness who made the prior identification is subject to cross-examination at trial, the testimony of another witness who was present at the time of the identification is admissible. In this case, the witness's identification at the police station is admissible substantively. The witness was subject to cross-examination at trial. Therefore, the police officer who was present may testify about the identification.
A is incorrect. Prior statements made for identification are admissible substantively, even if the witness who made the identification can no longer remember it. As long as the witness who made the identification is subject to cross-examination at trial, the testimony of another witness who was present at the time of the identification is admissible. Therefore, the officer who was present during the identification may testify.
B is incorrect. The Voucher Rule used to preclude a party from impeaching its own witness until affirmative damage was done to the party's case by the witness's testimony. FRE 607, concerning impeachment of a party's own witness, has abolished the Voucher Rule. Therefore, this standard is no longer applicable.
D is incorrect. This answer reaches the correct answer with the wrong reasoning. Moreover, this is an incorrect statement of the law as it relates to hearsay. As a general rule, statements will not be allowed in past the hearsay rule just because the declarant testifies and is available for cross-examination. The statement must fall within either an exemption or exception to the hearsay rules.