| If the
victim testifies, but is evasive, or claims not to remember what happened;
or if the
victim testifies, but changes the story, e.g. now claims there was
no assault or that the defendant was not the assailant,
then the prosecution may introduce prior
statements of the victim that are statements of identification (Rule
11-801(D)(1)(c)).
Definition
Rule 11-801(D): Statements which are
not hearsay. A statement is not hearsay if:
(1) Prior statement by witness. The declarant testifies at the trial
or hearing and is subject to cross-examination concerning the statement,
and the statement is ... (c) one of identification of a person made
after perceiving the person.
Foundation
A party wishing to introduce a prior statement of identification
may do so
when:
• the declarant has taken the witness stand;
• the declarant is subject to cross examination; and
• the statement identified a person after the declarant perceived
the person.
Admissibility
A statement of identification is admissible as substantive evidence
on the issue of identification.
Example
The victim takes the stand and claims not to remember who attacked
her. The prosecutor asks her if she previously made an oral statement
to a police officer identifying her boyfriend as the assailant.
If she continues to deny the identification, the prosecutor may
call the officer to testify on the prior statement of identification.
The prior statement is admissible as non-hearsay provided that after
the officer testifies, the victim is still available for cross-examination.
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