Whether third-party testimony is admissible to confirm a pretrial identification made by an unavailable, here deceased, witness.
No. CPL 60.25 allows as evidence the testimony of a third party non-identifying witness only when combined with the real identifying witness's testimony as to the prior identification. Absent testimony from the identifying witness and satisfaction of the statutory prerequisite, the testimony of a third, non-identifying person at trial is inadmissible.
Three men entered a grocery store on March 2, 1993 and committed a gunpoint robbery of proprietor John Cho. Several weeks later, Cho picked Defendant Patterson out of a police lineup as one of the robbers. Before Defendant was brought to trial, Cho died in another unrelated robbery. At trial, the People offered the testimony of the police officer attending Cho's lineup identification. Because Cho was unavailable to testify as a witness at the trial, the People asserted that CPL 60.25 allowed the police officer to testify as to Cho's lineup identification of Defendant. The trial court permitted the testimony, and the Appellate Division affirmed. The Court of Appeals granted leave to appeal, reversed and remitted for a new trial. The Court of Appeals concluded that the police officer's testimony as to Cho's pretrial lineup identification should not have been admitted. The Court stated that CPL 60.25 provides specific and limited authorization for the admission of previous identification evidence in the absence of identification at the trial. The plain language of the statute does not allow for the interpretation urged by the People that when the identifying witness has died, and is therefore an unavailable witness, a third-party witness may testify at trial as to whether the defendant is the person previously identified. CPL 60.25 allows as evidence the testimony of a third party non-identifying witness only when combined with the real identifying witness's testimony as to the prior identification. Together, the testimony of both witnesses forms a reliable chain of evidence and provides crucial safeguards to the defendant, namely cross-examination and the ability to develop reasonable doubt with respect to the identification. The Court also addressed, but did not rule on, the admission of a surveillance videotape and a 911 phone call.
Prepared by the liibulletin-ny Editorial Board.