United States v. Lewis

United States Court of Appeals, Second Circuit
565 F.2d 1248 (1977)

ELI5:

Rule of Law:

Under Federal Rule of Evidence 801(d)(1)(C), a witness's prior out-of-court statement of identification is admissible as substantive, non-hearsay evidence, even if the witness is unable to make an in-court identification, provided the witness is present at trial and subject to cross-examination concerning the prior identification.

Facts:

On January 3, 1977, Frank Tillman Lewis and an accomplice robbed a Barclay's Bank in Brooklyn.
The robbers were driven to and from the bank's vicinity in a chauffeured white Cadillac limousine.
During the robbery, Lewis threw a female customer to the ground and fired two shots from his gun.
An accomplice disarmed a bank guard, and the two men stole approximately $11,800.
Shortly after the robbery, a bank customer, Norma Sharpe, was shown a photographic display by an FBI agent.
From this photographic array, Sharpe identified a picture of Frank Tillman Lewis as one of the robbers.
Twelve days after the robbery, the FBI arrested Lewis at a hotel.
In Lewis's hotel room, agents found both the gun taken from the bank guard and a gun that had fired a bullet in the bank during the robbery.

Procedural Posture:

Frank Tillman Lewis was charged with armed bank robbery and conspiracy in the United States District Court for the Eastern District of New York.
After a jury trial, Lewis was convicted on both counts.
Lewis appealed the judgment of conviction to the United States Court of Appeals for the Second Circuit.

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Issue:

Does Federal Rule of Evidence 801(d)(1)(C) permit the admission of a witness's prior out-of-court photographic identification, as well as a third party's testimony corroborating that identification, when the witness fails to identify the defendant during the trial?

Opinions:

Majority - Feinberg, J.

Yes. A prior, out-of-court statement of identification is admissible as substantive evidence under Federal Rule of Evidence 801(d)(1)(C) regardless of whether the witness makes an accurate in-court identification, so long as the declarant testifies at trial and is subject to cross-examination concerning the statement. The court reasoned that the legislative history of Rule 801(d)(1)(C) explicitly shows Congress's intent to include non-suggestive photographic identifications, not just corporeal ones. The purpose of the rule is to admit identifications made when memory is fresher and less susceptible to influence, as the court views out-of-court identifications as often more reliable than the 'formality' of an in-court identification. The court rejected the argument that a witness's failure to identify the defendant in court renders the prior identification inadmissible, noting that the legislative history anticipates such discrepancies. Therefore, testimony from both the identifying witness (Sharpe) and a third party who observed the identification (Agent Farrell) is admissible, as the core conditions of the rule—the declarant testifying and being available for cross-examination—were met.

Analysis:

This decision solidifies the evidentiary power of out-of-court identifications under the Federal Rules of Evidence. It clarifies that FRE 801(d)(1)(C) treats such identifications as substantive evidence, not merely as a tool for impeachment or bolstering. By allowing this evidence even when a witness fails to identify the defendant in court, the ruling gives prosecutors a crucial tool to combat issues of witness memory degradation over time or witness intimidation. This precedent reinforces the idea that an identification made closer to the time of the event is often more reliable than a later, in-court identification.

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