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181 Mich. App. 236

448 N.W.2d 786

People v. Michael

Michigan Court of Appeals

Decided November 20, 1989

Michigan Court of Appeals · decided 1989-11-20

Decided 1989-11-20

Gribbs, P.J.

¶1(concurring). I concur in the result but write separately to indicate my agreement with the line of cases which have held that MRE 801(d)(1) allows a third party to testify concerning an identification of a defendant at a lineup. See People v Beam, 125 Mich App 289; 335 NW2d 684 (1983), lv den 418 Mich 858 (1983), reh den 418 Mich 858 (1984); People v McConnell, 124 Mich App 672, 679-680; 335 NW2d 226 (1983); People v Turner, 116 Mich App 421; 323 NW2d 425 (1982); People v Adams, 92 Mich App 619; 285 NW2d 392 (1979), lv den 408 Mich 890 (1980).

¶2I am persuaded by Justice Ryan’s concurring opinion in People v Sanford, 402 Mich 460, 493-498; 265 NW2d 1 (1978), in which he considers the history of MRE 801(d)(1):

Nonetheless, as indicated by the adoption of MRE 801(d)(1), this Court is now persuaded that testimony of the kind found inadmissible in [People v] Poe [388 Mich 611; 202 NW2d 320 (1972)], and the kind described in footnote 1, should be admitted under certain limited circumstances.
Recognizing that identification testimony has peculiar strengths and weaknesses, including those discussed by my Brother Williams in Poe, supra,the Court has subscribed to the view of most commentators on the law of evidence, as well as the Congress and the United States Supreme Court, that a special rule should be carved out for the admissibility of extrajudicial statements of identification. In adopting MRE 801(d)(1), the *245Court implicitly acknowledges, in addition, 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. Our new rule, like its Federal counterpart, FRE 801(d)(1)(C), allows the introduction of such testimony so long as the identifier testifies at trial and is subject to cross-examination concerning the statement of identification. It is thought that the possible prejudicial impact of the cumulative effect of such testimony should be mitigated by the opportunity for cross-examination of the declarant which is made a condition for the admission of the testimony. [Sanford, 402 Mich 497-498.]

¶3In this case, both the identifier and the officer testified at trial and were subject to cross-examination. I would find that the trial court did not abuse its discretion in determining the officer’s testimony admissible under MRE 801(d)(1).

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