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Hearsay and Identification

When a witness is used to identify the defendant, they will oftentimes identify them both in-court during the trial and they will have given an out-of-court identification prior to trial. The in-court identification is not hearsay because it is made during trial. The out-of-court identification (e.g., a photo lineup where the declarant picks out the defendant) is nonhearsay under SCRE 801(d)(1)(c). There are three requirements for this: the declarant has to testify at trial, they have to be subject to cross-examination, and the statement has to be of identification after perceiving the person. The Montana Commission on the Rules of Evidence has explained the purpose behind this rule:

There is substantial authority for the admissibility of these statements, “often without recognition of the presence of a hearsay problem”. McCormick, Handbook on the Law of Evidence 603 (2d ed. 1972). The reasons for admitting these types of statements are first, “the generally unsatisfactory and inconclusive nature of courtroom identification ... ”; second, the higher reliability of prior identifications “made at an earlier time under less suggestive conditions” (Advisory Committee's Note, supra 56 F.R.D. at 296); and third, questions as to the reliability of identifications are really concerned with constitutional issues and not a hearsay problem. Id.[1]

An issue that can arise with this requirement is whether or not the identification was an actual identification. However, as the Montana Commission pointed out, this is usually more of a constitutional issue. Thus, any out-of-court identification will likely have to first pass constitutional muster (i.e., Neil v. Biggers hearing) and then will likely pass the hearsay requirement.

· State v. Heyward, 432 S.C. 296 (Ct. App. 2020) Under SCRE 801, prior identification by a witness is not hearsay under certain conditions. The declarant must testify at trial and be subject to cross-examination. The prior identification must actually be an identification too (i.e., reliable). How does a court determine if the witness actually identified the person? “Based on the foregoing, we find the trial court did not err in admitting evidence regarding Granddaughter's out-of-court identification. Even though there was arguably some uncertainty in her initial selection, the jury was able to observe Granddaughter and attach credibility to her testimony.”

[1] Mont. R. Evid. 801. See also Cynthia Ford, In-Court Identifications Not Hearsay, Are Admissible , 38 Mont. Law. 23 (2013), Available at:


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