Eyewitness indentification

My first GCM involved eyewitness identification and a motion to suppress based on an improperly suggestive show-up when the client was arrested. He was handcuffed in the back of the police car and the armed robbery victim was brought to the police car and asked ”is that him” or words to that effect. Since then I’ve not had a case where there was a serious question of identification. That said, Prof. Miller, one of my favorite evidence bloggers has this piece.

Should Courts Allow for the Admission of Pre-Trial Identifications by Witnesses Who Can’t Remember Making Them?

He first notes that misidentification contributed to 75% of exoneration cases. Then he moves to Mil. R. Evid. 801 and how an out of court identification may not he hearsay.

Now, of course, this rule make sense…broadly speaking. Imagine a classic case in which an eyewitness picks the defendant out of a lineup hours/days/weeks after a crime and then is unable to identify the defendant at trial months/years later. In such a scenario, it would seem to make sense to allow for the prior identification. But what about when the witness doesn’t even remember making the identification?

he discusses a Louisiana case and concludes the rule was correctly applied. But he has qualms.

I have questions about the reliability of the eyewitness in category (1), but that witness made a pre-trial identification and remembers making it. I can see introducing their identification and allowing the jurors to decide whether it is credible. But, as for the witness in category (2),…I’m left with serious questions about their reliability. I think those questions might be enough to exclude their identification altogether. Barring that, pre-trial identifications are still subject to the Rule 403 balancing test, and I think any probative value of a pre-trial identification by an eyewitness who doesn’t even remember making it is substantially outweighed by many dangers.