Other jurisdictions have considered the admissibility of prior identifications generally and have concluded that they are admissible as substantive evidence over a hearsay objection in a wide variety of circumstances. See United States v. Lewis, 565 F.2d 1248 (2d Cir. 1977), cert. den. 435 U.S. 973, 98 S.Ct. 1618, 56 L.Ed.2d 66; State v. Kevil, 111 Ariz. 240, 527 P.2d 285 (1974); People v. Gould, 54 Cal.2d 621, 7 Cal.Rptr. 273, 354 P.2d 865 (1960); People v. Trujillo, 189 Colo. 206, 539 P.2d 1234 (1975); State v. Whelan, 200 Conn. 743, 513 A.2d 86 (1986); State v. Freber, 366 So.2d 426 (Fla. 1978); Barriner v.State, 161 Ga. App. 59, 289 S.E.2d 289 (1982); State v. Naeole, 62 Haw. 563, 617 P.2d 820 (1980); People v. Miller, 27 Ill. App.3d 667, 327 N.E.2d 8 (1975); Johnson v. State, 237 Md. 283, 206 A.2d 138 (1965); Commonwealth v. Daye, 393 Mass. 55, 469 N.E.2d 483 (1984); State v. Harris, 477 S.W.2d 42 (Mo. 1972); State v. Adail, 555 S.W.2d 672 (Mo.App. 1977); Statev. Draughn, 121 N.J.Super. 64, 296 A.2d 79 (1972) aff'd 61 N.J. 515, 296 A.2d 68; People v. Nival, 33 N.Y.2d 391, 353 N.Y.S.2d 409, 308 N.E.2d 883 (1974); State v. Blackwell, 16 Ohio App.3d 100, 474 N.E.2d 671 (1984); Washington v. State, 568 P.2d 301 (Okla.Cr. 1977); State v. Fennell, 7 Or.
While it is true that at the trial Tarver identified Robert Williams rather than Samuels as the man who held a gun to him, we do not believe that this destroyed the credibility of Tarver's lineup identification. In-court identifications inherently lack credibility, see United States v. Lewis, 565 F.2d 1248, 1251 (2d Cir. 1977), cert. denied, 435 U.S. 973, 98 S.Ct. 1618, 56 L.Ed.2d 66 (1978). Contemporaneous identifications, on the other hand, generally are given much more credence; indeed, such identifications are considered reliable enough to justify their exclusion from the hearsay rule, see Fed.R.Evid. 801(d)(1)(C), even when the witness is unable to repeat the identification in the courtroom, see Lewis, 565 F.2d at 1252.
Therefore, corroboration with the earlier identification should be allowed. See Michael H. Graham, Handbook of Federal Evidence § 801.13 at 122 (2001) (citing United States v. Lewis, 565 F.2d 1248, 1251 (2d Cir. 1977)); see also United States v. Owens, 484 U.S. 554, 562 (1988) ("The premise for Rule 801(d)(1)(C) was that, given adequate safeguards against suggestiveness, out-of-court identifications were generally preferable to courtroom identifications."); United States v. Marchand, 564 F.2d 983, 996 (2d Cir. 1977) ("The purpose of the rule was to permit the introduction of identifications made by a witness when memory was fresher and there had been less opportunity for influence to be exerted upon him.").
Id. at 996, n 23. See also United States v Lewis, 565 F.2d 1248, 1251-1252 (CA 2, 1977), cert den 435 U.S. 973 (1978). United States v Jarrad, 754 F.2d 1451, 1456 (CA 9, 1985), cert den 474 U.S. 830 (1985).
789 F.2d 750 (1986). We granted certiorari, 479 U.S. 1084 (1987), to resolve the conflict with other Circuits on the significance of a hearsay declarant's memory loss both with respect to the Confrontation Clause, see, e. g., United States ex rel. Thomas v. Cuyler, 548 F.2d 460, 462-463 (CA3 1977), and with respect to Rule 802, see, e. g., United States v. Lewis, 565 F.2d 1248, 1252 (CA2 1977), cert. denied, 435 U.S. 973 (1978). This case has been argued, both here and below, as though Federal Rule of Evidence 801(d)(1)(C) were the basis of the challenge.
This paradigm makes good sense: it is designed to facilitate the introduction of eyewitness identifications made "when memory was fresher and there had been less opportunity for influence to be exerted upon [the witness]." United States v. Lewis, 565 F.2d 1248, 1251 (2d Cir. 1977) (quoting United States v. Marchand, 564 F.2d 983, 996 (2d Cir. 1977)). The petitioner offers a closely related argument.
Where "[t]here was little, if any, evidence from which a jury could infer that the statement was involuntary," § 3501(a) "does not require that the jury be specifically charged on voluntariness." United States v. Lewis, 565 F.2d 1248, 1253 (2d Cir. 1977), cert. denied, 435 U.S. 973, 98 S.Ct. 1618, 56 L.Ed.2d 66 (1978). Here, there is no suggestion that the court excluded any relevant evidence as to voluntariness, but little such evidence was presented.
A prior identification is admissible under Fed. R. Evid. 801(d)(1)(C), regardless of whether the witness confirms the identification in-court. See United States v. Simmons, 923 F.2d 934, 950 (2d Cir. 1991); United States v. Lewis, 565 F.2d 1248, 1251-52 (2d Cir. 1977). A prior identification will be excluded only if the procedure that produced the identification is "so unnecessarily suggestive and conducive to irreparable mistaken identification that [the defendant] was denied due process of law."
A prior identification is generally admissible under Fed.R.Evid. 801(d)(1)(C) regardless of whether there has been an accurate in-court identification. See United States v. Owens, 484 U.S. 554, 562-63, 108 S.Ct. 838, 844-45, 98 L.Ed.2d 951 (1988); United States v. Lewis, 565 F.2d 1248, 1252 (2d Cir. 1977), cert. denied, 435 U.S. 973, 98 S.Ct. 1618, 56 L.Ed.2d 66 (1978). Such an identification will be excluded on constitutional grounds only when it is "'so unnecessarily suggestive and conducive to irreparable mistaken identification that [the defendant] was denied due process of law.'"
Credibility was the real issue and it was satisfactorily submitted to the jury. As in the case of United States v. Lewis, 565 F.2d 1248, 1253 (2d Cir. 1977)cert. denied, 435 U.S. 973, 98 S.Ct. 1618, 56 L.Ed.2d 66 (1978): This was the same court that had earlier decided United States v. Berry, 518 F.2d 342 (2d Cir. 1975), a case relied upon by the majority.