The Erring Eyewitness

 
Charge: armed robbery. At trial, W, an eyewitness, is asked to pick out the robber. She points to a U.S. Marshal seated in the courtroom. After the prosecutor recovers, he elicits testimony from W concerning W's selection of a photograph of the alleged robber from a display of photographs conducted shortly after the robbery. The photograph was of the defendant. Defendant objects. What ruling and why? Does Rule 801(d)(1)(C) apply to photographic as well as corporeal out-of-court identifications? Does Rule 801(d)(1)(A)'s "under oath" limitation apply to prior identifications inconsistent with a later in-court identification? Is this a case of "inconsistency"? Should third-party testimony concerning an out-of-court identification by a witness be admissible if the witness cannot recall the prior identification?


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