People v. Malone

518 N.W.2d 418, 445 Mich. 369

• Court: Michigan Supreme Court
• Decided: June 14, 1994
• Docket: Docket Nos. 94390, 94391, (Calendar No. 1)
• Status: Published

Opinions

Boyle, J.

The question presented in this case is whether the Michigan Rules of Evidence modify the definition of hearsay to define a prior statement of identification as nonhearsay. Specifically, we must decide whether the trial court acted properly in admitting as substantive evidence the testimony of two witnesses that a witness who denied having identified the defendant at trial had previously identified him at a photographic showup.

We hold that, under MRE 801(d)(1)(C), statements of identification are not hearsay when the identifier is subject to cross-examination.¹ The history of the rule and the goal of promoting reliable fact finding support this conclusion. The decision of the Court of Appeals is affirmed.

I

FACTS AND PROCEDURAL HISTORY

This case arose from the July 26, 1988, shooting death of Orlando Nance that occurred in an alley outside a market in Detroit. The defendant, Donald Malone, was charged with first-degree murder and possession of a firearm during the commission of a felony. Witnesses Robin Lasenby, Carey Jackson, and Melvin Mann each observed individuals running to, or from, the scene of the shooting.

Carey Jackson later identified the defendant at a photographic showup. At trial, however, Carey Jackson denied having identified the defendant. Other eyewitnesses were also reluctant to testify. Robin Lasenby testified that, although he was not afraid for himself, his mother "[g]ot [him] to make a statement because she felt frightened for her safety or whatever.” Defendant Malone "told [Lasenby] that the affair was none of Lasenby’s business.” Lasenby, who had previously given a statement that unequivocally identified the defendant as the person who got out of the black Omni with a dark object² in his hand, testified that the defendant later told him that the incident was "none of [his] business,” and that, at that time as well, the defendant had in his possession a dark object.³ It was only after that conversation that Lasenby "didn’t want to come” to court.

Over the defendant’s objections, attorney James Hall, the attorney appointed to protect the defendant’s right to a fair showup, testified that Carey Jackson identified defendant Malone as "the guy who had the gun,” and signed a statement recording this identification. Attorney Hall also testified that the photographic showup was fair. Officer James Bivens of the Detroit Police Department also testified and confirmed Jackson’s identification and signed statement. The trial court held that the testimony of both Officer Bivens and Attorney Hall was not limited to impeachment of Jackson’s trial testimony and was admissible as substantive evidence under MRE 801(d)(1)(C).⁴ The jury convicted the defendant of first-degree murder and possession of a firearm during the commission of a felony.

The Court of Appeals affirmed the defendant’s convictions. 193 Mich App 366; 483 NW2d 470 (1992). The Court rejected the defendant’s argument that the identification testimony was inadmissible hearsay. Judge Connor concurred only because he felt compelled to apply the rule announced in People v Newcomb, 190 Mich App 424, ; 476 NW2d 749 (1991), as required by Administrative Order No. 1990-6, 436 Mich lxxxiv. See 193 Mich App 372 (Connor, J., concurring). This Court granted the defendant’s application for leave to appeal on March 16, 1993. 442 Mich 867.

II

THE TESTIMONY IS NOT HEARSAY UNDER MRE 801(d)(1)(C)

The testimony of Attorney Hall and Officer Bivens about the prior statement of witness Carey Jackson is not hearsay. On this point, the Rules of Evidence could not be more clear:

A statement is not hearsay if . . . [t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is . . . one of identification of a person made after perceiving him .... [MRE 801(d)(1)(C).]

MRE 801(d) is an outgrowth of attempts to abandon the orthodox rule that prior statements of a witness were admissible only for impeachment or under a recognized exception to the hearsay rule. The proponents of change, among them Wig-more and Learned Hand, countered the orthodox view that substantive use was objectionable because the prior statement when made was not under oath, subject to cross-examination, or in the presence of the trier of fact. They observed that the oath was no longer the principal safeguard of trustworthiness, that the interests of cross-examination were met by the declarant’s presence at trial, and that the trier’s advantage of observing the demeanor of the witness was also satisfied. In Hand’s classic statement:

If, from all that the jury see of the witness, they conclude that what he says now is not the truth, but what he said before, they are none the less deciding from what they see and hear of that person and in court. [Di Carlo v United States, 6 F2d 364, 368 (CA 2, 1925).]

The reformers’ views are represented in the Model Code of Evidence Rule 503, which abolishes the orthodox rule and provides that all prior statements are admissible if the declarant is found to be "present and subject to cross-examination.” 2 McCormick, Evidence (4th ed), § 251, p 118. However, concern that the Model Code approach would produce the manufacture of prior statements led to an intermediate position taken by the advisory committee on the Federal Rules of Evidence,⁵

exempting from classification as hearsay certain prior statements thought by circumstances to be free of the danger of abuse. The exempt statements are (A) inconsistent statements, (B) consistent statements when admissible to rebut certain attacks upon the credibility of the witness, and (C) statements of identification. [2 McCormick, supra, p 120.]

The Congress modified the original proposal, and the structure of MRE 801(d), as ultimately adopted by this Court, parallels FRE 801(d), as modified. The rule clearly indicates the circumstances in which prior statements are defined as not hearsay: where the prior statement was made under oath and is inconsistent with the witness’ testimony,⁶ MRE 801(d)(1)(A); where the prior statement is consistent and offered to rebut, MRE 801(d)(1)(B); and where the prior statement is one of identification, MRE 801(d)(1)(C). Unlike subrules (A) and (B) of Rule 801(d)(1), subparagraph (C) does not require laying a foundation other than that the witness is present and found to be available for cross-examination.

Thus, statements of identification are not limited by whether the out-of-court declaration is denied or affirmed at trial. There is no requirement "of inconsistency” as in subparagraph (A), nor is there a condition of previous impeachment as in subparagraph (B). As long as the statement is one of identification, Rule 801(d)(1)(C) permits the substantive use of any prior statement of identification by a witness as nonhearsay, provided the witness is available for cross-examination. 4 Weinstein & Berger, Evidence, ¶ 801(d)(1)(C)[01], pp 801-214 to 801-215.

All that is contemplated is an out-of-court statement of identification (which is simply a particular type of prior statement) and that the out-of-court declarant be subject to cross-examination "concerning” the statement. Thus, it is clear that the effect of both MRE 801(d)(1)(A) and MRE 801(d)(1)(B) is to change Michigan law, and the committee notes confirm this. 399 Mich 1003. Further, there is no distinction regarding whether the out-of-court statement is offered by a third party or is the statement of identification of a witness on the stand regarding something the witness previously said. Under the orthodox definition of hearsay, an out-of-court statement offered for the truth is inadmissible, whether offered through its maker or a third party. A statement of identification defined as nonhearsay is substantively admissible under Rule 801, without regard to its proponent.⁷

Because Mr. Jackson testified regarding the subject of identity at trial, and was subject to cross-examination regarding his identification, the testimony was properly admitted.

III

THE DRAFTING HISTORY OF MRE 801(d)(1)(C)

A full review of the committee commentary on the Michigan Rules of Evidence confirms that the testimony in question is not hearsay. After first stating that MRE 801(d)(1)(A) and (B) were "inconsistent with prior Michigan law” that defined prior inconsistent statements and consistent statements as hearsay, see, e.g., People v Hallaway, 389 Mich 265, 271-279; 205 NW2d 451 (1973) (opinion of Brennan, J.), the committee summarized the effect of Rule 801(d)(1)(C):

MRE 801(d)(1)(C) is consistent with prior Michigan law in admitting testimony by a witness as to his own prior statement of identification of a person made after perceiving him. People v Poe, 388 Mich 611; 202 NW2d 320 (1972); People v Londe, 230 Mich 484; 203 NW 93 (1925). [399 Mich 1004.]

The committee’s statement that MRE 801(d)(1)(C) was consistent with prior law "admitting testimony by a witness as to his own prior statement . . .,” id. (emphasis added), does not mention previous Michigan law excluding a witness’ prior inconsistent statements as hearsay.⁸ That line of authority was overruled in the committee’s version of MRE 801(d)(1)(A).⁹ Since the committee’s proposals would have made all prior inconsistent statements admissible as substantive evidence without limitation, the only category of statements of identification evidence not contemplated by the proposal was a prior statement of identification admitted by the witness. Since People v Poe and People v Londe, supra, admitted as substantive evidence the prior statement of identification of a witness affirming his in-court identification, the commentary to FRE 801(d)(1)(A), (B), and (C) accurately describes the changes proposed in Michigan law.

The Committee Note also describes MRE 801(d)(1)(C) as identical to its federal counterpart. 399 Mich 1002-1003. According to the General Comment, when a particular rule is drawn from "the corresponding Federal rule, the Michigan Committee Note usually does not restate the rule’s background or comment on its meaning. Rather the Federal Advisory Committee Notes and Congressional reports are allowed to speak for themselves.” 399 Mich 955.¹⁰ The Report of the Senate Judiciary committee addressed this precise situation in explaining why the rule is desirable:

"The identification occurs before [the witness’] recollection has been dimmed by the passage of time. Equally as important, it also takes place before the defendant or some other party has had the opportunity, through bribe or threat, to influence the witness to change his mind.” [4 Weinstein & Berger, supra, p 801-6, quoting the Report of the Committee on the Judiciary, Senate, 94th Cong, 1st Sess, No 94-199, pp 2-4 (1975).]

We assume that the justices of this Court were familiar with the interpretative materials, leading commentators, the extensive case law preceding adoption of the federal rules that admitted first- or third-party identification without limitation,¹¹ and the federal rule and its effect on common-law practice. Indeed, whatever the views of the individual justices¹² regarding the arguments for and against retention or reform of the common-law rules of limited admissibility, it is beyond dispute that at least four justices were persuaded that previously inadmissible statements should be defined as nonhearsay, MRE 801(d)(2)(D), and that statements previously admitted only for impeachment or support should be admitted as substantive evidence, MRE 801(d)(2)(A) and MRE 801(d)(2)(B). The Court clearly cast its vote against orthodoxy and in favor of "the promotion of growth and development in the law of evidence.” MRE 102.

iv

THIS TESTIMONY DOES NOT PRESENT THE DANGERS OF HEARSAY

As Professor Wigmore observes in explanation of FRE 801(d)(1):

The witness who has told one story aforetime and another today has opened the gates to all the vistas of truth which the common law practice of cross-examination and reexamination was invented to explore. The reasons for the change of face, whether forgetfulness, carelessness, pity, terror, or greed, may be explored by the two questioners in the presence of the trier of fact, under oath, casting light on which is the true story and which the false. It is hard to escape the view that evidence of a prior inconsistent statement, when declarant is on the stand to explain it if he can, has in high degree the safeguards of examined testimony. In addition, allowing it as substantive evidence pays a further dividend in avoiding a limiting instruction quite unlikely to be heeded by a jury. [2 McCormick, supra, § 251, p 120.]

The United States Supreme Court considered the asserted dangers of hearsay in California v Green, 399 US 149; 90 S Ct 1930; 26 L Ed 2d 489 (1970). The question there was whether the trial court properly admitted as substantive evidence a statement to the police and testimony at preliminary examination that the defendant supplied marijuana to a witness, where the witness became markedly evasive at trial and claimed he could not remember the actual events.

The Court held that admission of the declarant’s out-of-court statements at trial does not violate the Confrontation Clause as long as the declarant testifies as a witness and is subject to full and effective cross-examination. In reaching this conclusion, the Court observed that the alleged dangers of admitting the out-of-court statement are not present when the witness is under oath and forced to submit to cross-examination and the jury is allowed to observe the witness’ demeanor in assessing his credibility.

It is, of course, true that the out-of-court statement may have been made under circumstances subject to none of these protections. But if the declarant is present and testifying at trial, the out-of-court statement for all practical purposes regains most of the lost protections. If the witness admits the prior statement is his, or if there is other evidence to show the statement is his, the danger of faulty reproduction is negligible and the jury can be confident that it has before it two conflicting statements by the same witness. Thus, as far as the oath is concerned, the witness must now affirm, deny, or qualify the truth of the prior statement under the penalty of perjury .... [399 US 158-159.]

Addressing the claim that the jury could not evaluate the declarant’s demeanor when he first made his out-of-court statement, the Court stated:

The witness who now relates a different story about the events in question must necessarily assume a position as to the truth value of his prior statement, thus giving the jury a chance to observe and evaluate his demeanor as he either disavows or qualifies his earlier statement. The jury is alerted by the inconsistency in the stories, and its attention is sharply focused on determining either that one of the stories reflects the truth or that the witness who has apparently lied once, is simply too lacking in credibility to warrant its believing either story. [Id. at 160.]

Finally, to the extent that the orthodox rule rested on the value of contemporaneous cross-examination, the Court observed in words equally applicable here:

The main danger in substituting subsequent for timely cross-examination seems to lie in the possibility that the witness’ "[f]alse testimony is apt to harden and become unyielding to the blows of truth in proportion as the witness has opportunity for reconsideration and influence by the suggestions of others, whose interest may be, and often is, to maintain falsehood rather than truth.” . . . That danger, however, disappears when the witness has changed his testimony so that, far from "hardening” his prior statement has softened to the point where he now repudiates it. [Id. at 159.]

In United States v Owens, 484 US 554, 561; 108 S Ct 838; 98 L Ed 2d 951 (1988), nearly twenty years later, the Supreme Court upheld the admission of a prior identification under FRE 801(d)(1)(C), and the Confrontation Clause. The Court con-eluded that the opportunity for cross-examination is not denied when the witness testifies about his current belief, the basis for which he cannot recall, or when the witness’ past belief is introduced and he is unable to recollect the reason for that past belief. In both, the foundation for the belief (current or past) cannot effectively be elicited, but other means of impugning the belief are available. Id.13 Writing for the Court, Justice Scalia interpreted the identical language at issue here as requiring only that the declarant take the stand and answer questions under oath:

It seems to us that the more natural reading of "subject to cross-examination concerning the statement” includes what was available here. Ordinarily a witness is regarded as "subject to cross-examination” when he is placed on the stand, under oath, and responds willingly to questions. . . . Rule 801(d)(1)(C), which specifies that the cross-examination need only "concer[n] the statement,” does not on its face require more. [Id. at 561-562.]

We, too, conclude that a statement of identification is admissible under MRE 801(d)(1)(C) if a witness is present in court and under oath and is considered subject to cross-examination about his prior position. The jury can determine the credibility of a disavowal as well as his present position. Likewise, the third party who is under oath also is subject to cross-examination regarding the circumstances of the identification.¹⁴

V

AUTHORITATIVE SOURCES INTERPRETING THE PARALLEL FEDERAL RULE

Authorities considering this precise question under Federal Rule of Evidence 801(d)(1)(C) overwhelmingly agree that third-party testimony about a prior statement of identification is not hearsay. Judge Weinstein states that "if at the trial the eyewitness fails to remember or denies that he made the identification, the previous statement of the eyewitness can be proved by the testimony of a person to whom the statement was made, and the statement can be given substantive effect.” 4 Weinstein & Berger, Evidence, ¶ 801(d)(1)(C)[01], p 801-222. As Judge Henry Friendly observed the year before MRE 801(d)(1) was adopted: "The purpose of the rule was to permit the introduction of identifications made by a witness when memory was fresher and there had been less opportunity for influence to be exerted upon him.” United States v Marchand, 564 F2d 983, 996 (CA 2, 1977). Elaborating on why the prior identification was properly admitted in that case, he explained that outside influence "was one plausible explanation of the loss of recollection of the identifying witness . . . Id. at 996, n 23. See also United States v Lewis, 565 F2d 1248, 1251-1252 (CA 2, 1977), cert den 435 US 973 (1978). United States v Jarrad, 754 F2d 1451, 1456 (CA 9, 1985), cert den 474 US 830 (1985).

While this Court is not bound by these decisions, because of the parallel purpose and similar language of the state and federal rules, they are highly persuasive. Like its federal counterpart, MRE 801(d)(1)(C) permits the jury to assess the substantive worth of a prior statement of identification where the identifying witness fails, refuses, or reaffirms a prior statement of identification at trial.

VI

THE FALLACY OF THIRD-PARTY ANALYSIS

In Michigan, a distinction was drawn at common law between a party’s testimony affirming his own prior identification and the testimony of a third party corroborating the witness’ out-of-court identification. The former was admissible for the truth of the matter. The latter was not. Because this distinction has been the basis for difference of opinion in the Court of Appeals regarding the proper interpretation of MRE 801(d)(1)(C),¹⁵ a brief discussion of the common-law rules is in order. The history of those rules reveals that the distinction arose from early efforts to reform the rigid orthodox rule of hearsay, and should not be read as a limitation on what statements are not hearsay.

It bears repeating here that a statement of identification is merely one species of a prior statement. All prior statements, whether offered through the declarant or a third party,¹⁶ were hearsay under the orthodox definition of hearsay and were inadmissible except under a recognized exception or for impeachment or support.

Third-party identification testimony, like other prior statements, was admissible on the issue of credibility. Thus, if a prior statement, including a prior statement of identification, was inconsistent with trial testimony, it could be admitted to impeach. If adopted as true by the witness, it was admitted as substantive evidence. Ruhala v Roby, 379 Mich 102, 120; 150 NW2d 146 (1967) (opinion of Brennan, J.). Likewise, if the tenor of cross-examination suggested that a witness’ testimony was a recent fabrication, a prior consistent statement, including one of identification, was admissible in support of credibility.

Properly understood, then, under the orthodox definition of hearsay: (1) all prior out-of-court statements of identification were hearsay, but prior statements offered to prove that the statement was made, irrespective of its truth, were admitted where relevant to credibility; (2) extrinsic evidence of prior inconsistent statements of identification was admissible for impeachment; (3) prior consistent statements of identification were admissible to rehabilitate; and (4) where the prior statement of a witness agreed with his testimony, prior consistent statements were simply irrelevant bolstering because prior statements were hearsay and not admissible for the truth of the matter, but only for credibility. People v Hallaway, supra, 389 Mich 276-277 (Brennan, J., separate opinion).¹⁷

More than one hundred years ago, however, Michigan created a common-law exception to the orthodox definition of hearsay and admitted first-party statements of identification for the truth of the matter. In People v Mead, 50 Mich 228; 15 NW 95 (1883), Justice Cooley approved admission of a prior statement of identification for the truth of the matter, where the witness made an in-court identification. Otherwise, Michigan common law generally followed the orthodox rule that prior statements were admitted only on a proper showing that they were relevant to credibility. See People v Jolly, 193 Mich App 192, 195; 483 NW2d 679 (1992). The Michigan rule of first-party identification thus appears to be a hundred-year-old precursor of a break with orthodoxy.¹⁸

A limiting construction of MRE 801(d)(1)(C) cannot be inferred from the fact that the Michigan rule allowed the substantive use of first-party testimony regarding a prior statement of identification. The exception is historically significant, but otherwise irrelevant. Indeed, to the extent that an historical approach sheds light on the present inquiry, history shows that the justices of this Court were not hide bound to the orthodox approach. In fact, to read the common-law exception to hearsay recognized in Mead as limiting prior statements of identification now defined as non-hearsay illogically converts the historical exception to hearsay into the contemporary definition of what is not hearsay.

Finally, a distinction between first- and third-party testimony under MRE 801(d)(1)(C) cannot rest on the premise that the third party cannot credibly provide the trier of fact with facts the third party knows to be true. It would follow from this premise that a third party cannot testify to any extrajudicial statement of a witness because, by definition, the third party does not know it to be true. Because a third party can not vouch for the accuracy of an inconsistent statement under MRE 801(d)(1)(A) or of a consistent statement under MRE 801(d)(1)(B), any more than a third party can vouch for the accuracy of a statement of prior identification, the premise would simply emasculate the redefinition of hearsay adopted in Rule 801.

The common-law distinction between first- and third-party testimony of an out-of-court statement of identification was made to escape the orthodox definition of hearsay, which precluded prior statements unless relevant to credibility. There is no basis in logic or policy to employ the escape route from orthodoxy as a vehicle for its reestablishment. The current rule simply makes much of what was previously admissible in Michigan only to impeach or rebut, admissible for the truth of the matter. Statements of identification are no longer defined as hearsay. Subject to the trial court’s authority under MRE 403,¹⁹ the distinction between first- and third-party statements of prior identification does not limit substantive admissibility.

For the foregoing reasons, the decision of the Court of Appeals is affirmed.

Brickley, Riley, Griffin, and Mallett, JJ., concurred with Boyle, J.

1 The dissent concedes that third-party testimony of a prior inconsistent statement is admissible for impeachment. Post, p 408, n 19.

2 Q. Did you see either one of the people that jumped out of the car with anything in their hands?

A. Yes. I saw something, but you know, I really can’t say what it was at that time.

Q. Which other people had something in their hands?

A. Donald.

Q. What size was the item that you saw in the defendant’s hand?

A. I can’t really say what size it is because, you know, I was at a distance. I was like walking away in the other direction.

Q. Could you tell if it was in his right hand or his left hand?

A. No, I can’t recall.

Q. Can you tell if it was a dark object or light object?

A. A dark object, I believe.

Q. Now, after you lost sight of Mr. Malone, where did you go right after you saw them jumping out of the car?

A. I went to my house on my porch.

³

Q. What was the conversation that the two of you had?

A. He just said, I heard you know something. And I said, well, you know, whatever people tell you. I don’t have nothing to do with it, that type of thing, you know.

Q. Who started the conversation?

A. I’m not for sure. I can’t recall.

Q. Did you walk up to him or did he walk up to you?

A. No, I walked towards his car.

Q. And what specifically, please, after refreshing your recollection, did the two of you discuss?

A. I just told you what we discussed.

Q. Did you see anything in Donald Malone’s lap at that time?

A. Yes.

Q. What did you see?

A. I couldn’t make out what it was because at the time, I was not standing directly up on the car and when Sergeant Bivens asked me, you know what this was and I said yeah; I can’t really say what it was.

Q. It was a big object or small object?

A. It could have been medium sized object.

Q. Was it a dark color or light color?

A. Dark color.

Q. You still live in the neighborhood around Puritan and Pilgrim don’t you?

A. Uh-huh.

Q. Now, did the defendant tell you anything about something you supposedly said?

A. No.

Q. Did he tell you anything about something he heard?

A. No. I just told you he had heard back that I had been talking about something.

Q. Did he refer to what the something was?

A. No.

Q. Did you tell him anything, did you talk about anything?

A. No.

Q. I am going to direct you to your statement right here. Read that to yourself, please.

A. Yeah, I see what you are talking about.

Q. What did you tell Donald Malone?

A. I said, you know I can’t, it’s none of my business. I don’t have anything to do with it whatsoever.

Q. Did he tell you what he did was really none of your business?

A. Yeah.

Q. Did you tell him something about what you were talking about was going no further than right here?

A. Yeah, I said that.

Q. Is that when you noticed an object in his lap?

A. No, but I couldn’t see because I told you all the time I was standing directly up by the car.

Q. Shortly after that, were you subpoenaed to come to Court for a preliminary hearing?

Q. (By Ms. Worthy): Did you call Sergeant Bivens?

A. Yes. I heard he had been looking for me and I called him and told him I wasn’t coming to Court.

Q. Why did you tell him you weren’t coming to Court?

A. I didn’t feel it was no reason for me to come. I didn’t want to come.

Q. Is this after you had seen Donald Malone in the street?

A. Yes, it was sometime after that I believe.

Q. Is that why you were brought into this Court because you didn’t show up for the first Court hearing?

A. Which time are you talking about?

Q. You told Sergeant Bivens you weren’t going to show up for a Court hearing?

A. Yeah. I felt I didn’t have to show up because I wasn’t subpoenaed. If I was subpoenaed, it would have been different then. Just like he subpoenaed me here, I showed back up.

Q. In any event, you didn’t show up for that hearing, did you?

A. Ño.

4 The trial court noted that if the identification procedure was unfair or caused bias, the court could exclude it. The defendant does not contest the fairness of the identification procedures.

5 The advisory committee’s approach was also proposed by the Michigan Committee on the Rules of Evidence.

6 Congress modified FRE 801(d)(1)(A) to define an inconsistent statement as a statement given "under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition . . . .” The Michigan Supreme Court adopted the federal rule as modified.

7 The statement of identification is not hearsay. The witness’ perception of the act is tested under oath for the benefit of the factfinder. Indeed, as Judge Mark Cavanagh recognized in the Court of Appeals, if the rule were read to preclude third-party testimony of a statement of identification, it would not address the recanting witness problem because, by definition in this situation, the only party who can introduce the evidence is the third party. 193 Mich App 370.

8 The committee’s statements regarding "Impact on Prior Michigan Law” merely indicate the committee’s perceptions of the correspondence, or lack of it, between the rules and prior Michigan law. Prepared as an aid to Bench and Bar in the transition from prior Michigan law to these rules, these statements are descriptive only, and not prescriptive. They are not to be carried forward as a gloss on the new rules. [399 Mich 955.]

9 This rule provided that

[a] statement is not hearsay if . . . [t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with his testimony ....

As noted, however, this Court did not adopt this rule as written, but instead modified it to match its federal counterpart. Cf. n 5.

10 Consistent with this intention, this Court has continued to look to the commentary on the Federal Rules of Evidence, see, e.g., People v VanderVliet, 444 Mich 52, 60, n 7; 508 NW2d 114 (1993), and decisions interpreting these rules, see, e.g., Solomon v Shuell, 435 Mich 104, 108-139, 140-153; 457 NW2d 669 (1990) (opinions of Archer and Boyce, JJ.).

11 See, e.g., cases collected in anno: Admissibility of evidence as to extrajudicial or pretrial identification of accused, 71 ALR2d 449.

12 People v Sanford, 402 Mich 460; 265 NW2d 1 (1978), was pending at the time this Court adopted the Michigan Rules of Evidence. None of the five justices who voted in Sanford that it was not error to admit the police officer’s testimony suggested the limitation that the dissent would read into the rule.

Justice Ryan wrote separately to point out that, although in his view prior law would have excluded the identification for substantive purposes, MRE 801(d)(1)(C), like its federal counterpart, allows the introduction as long as the identifier testifies at trial and is subject to cross-examination. Id. at 497. Significantly, and contrary to the defendant’s position, Justice Ryan stated that, in adopting the rule, "the Court implicitly acknowledges . . . that the hearsay character and cumulative effect of the testimony of a third person to an out-of-court identification, as well as that given by the identifier himself, is not so inherently prejudicial that it must necessarily be excluded in all cases.” Id. (Emphasis added.)

The issue in Sanford and the other cases cited by the dissent is the admissibility of third-party testimony "bolstering” statements of identification, i.e., where the identifier has identified the defendant at trial. See also People v Mead, 50 Mich 228; 15 NW 95 (1883), and People v Londe and People v Poe, supra.

13 The claim that this requirement was not satisfied because the declarant denied making the statement seems to rest on the assumption that unless the witness admits the statement, there is nothing for the cross-examiner to cross-examine. It fails to appreciate, however, that when the declarant denies making the prior identification, the defendant has received all the benefit that cross-examination can produce:

The most successful cross-examination at the time the prior statement was made could hardly hope to accomplish more than has already been accomplished by the fact that the witness is now telling a different, inconsistent story, and — in this case — one that is favorable to the defendant. [California v Green, supra at 159.]

14 When a testifies that on a prior occasion b pointed to the accused and said, "That’s the man who robbed me,” the testimony is clearly hearsay. If, however, b is present in court, testifies on the subject of identity, and is available for cross-examination, a case within [FRE 801(d)(1)(C)] is presented. Similarly, if b has himself testified to the prior identification. [2 McCormick, supra, § 251, p 122.]

15 Most recently, People v McConnell, 124 Mich App 672, 679-680; 335 NW2d 226 (1983), People v Jones, 144 Mich App 1, 4-5; 373 NW2d 226 (1985), and People v Michael, 181 Mich App 236, 239-241; 448 NW2d 786 (1989), have held that identification statements do not fall within MRE 801(d)(1)(C) when a third party is testifying. Panels have applied the rule correctly, however, in People v McCurdy, 185 Mich App 503, 505-506; 462 NW2d 775 (1990), People v Newcomb, 190 Mich App 424, 429-430; 476 NW2d 749 (1991), and this case.

16 The third-party statement of identification testimony was not excluded at common law because identification testimony was unreliable. In this connection, the dissent has mixed two dissimilar lines of analysis, the definition of hearsay and the supposed unreliability of identification testimony.

17 1 McCormick, supra, § 47, p 172, n 1. Exclusion was justified by the saving of time and avoiding a defense of the witness before the need for one appeared.

18 Justice Cooley is also credited with having originated the notion that there were situations in which it would outrage "common sense” to limit prior consistent statements solely to rebut fabrication. See United States v Rubin, 609 F2d 51, 66-67 (CA 2, 1979) (Friendly, J., concurring) (citing Stewart v People, 23 Mich 63, 74-76 [1871]). And as this Court is well aware, the Michigan Supreme Court also early on adopted a first complaint exception to the hearsay rule on the basis of the common-sense notion that if a jury did not learn of a fresh complaint in a rape case, it would suspect the credibility of the victim. See People v Gage, 62 Mich 271; 28 NW 835 (1886).

19 Because the parties failed to cite MRE 403, this Court need not reach the issue whether courts may properly exclude bolstering testimony under MRE 403. See People v Prophet, 101 Mich App 618; 300 NW2d 652 (1980).