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700 So. 2d 171

Liscinsky v. State

District Court of Appeal of Florida

Decided October 15, 1997

District Court of Appeal of Florida · decided 1997-10-15

Cited by 3 later decisions — most recently November 2011

3 state decisions

Key passage — most relied on by later courts

“Both the testimony of the person having made the identification and of witnesses who were present when the identification was made are admissible. The official comments to section 90.801 note that such statements bear the mark of reliability because they are usually made in close temporal proximity to the actual event while the witnesses’ visual memory of the event is fresh. We believe that the typical situation contemplated by the code and the case law is one where the victim sees the assailant shortly after the criminal episode and says, “that’s the man.” Hence, the phrase “identification of a person made after perceiving him” refers to the witness seeing a person after the criminal episode and identifying that person as the offender.”

quoted by 1 later decision, including Robinson v. State

Relies on 605 So. 2d 856 - Power v. State · 565 So. 2d 328 - Erickson v. State · 576 So. 2d 737 - Stanford v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1997-10-15

View the full empirical analysis of this case →

STONE, Chief Judge.

¶1Appellant’s conviction for burglary is affirmed. The trial court did not err by allowing an officer to testify that a witness to the crime identified Appellant, by name, as the perpetrator at the initial investigation immediately following the incident. Such testimony is not hearsay when the identifying witness is before the court and testifies to that effect at trial. See § 90.801(2), Fla. Stat. (1995). See also Power v. State, 605 So.2d 856, 862 (Fla.1992); Harrell v. State, 647 So.2d 1016 (Fla. 4th DCA 1994).

¶2We have considered our language in Stanford v. State, 576 So.2d 737, 739-40 (Fla. 4th DCA 1991), in which we stated that:

We believe that the typical situation contemplated by the code and the case law is one where the victim sees the assailant shortly after the criminal episode and says, “that’s the man.” Hence, the phrase “identification of a person made after perceiving him” refers to the witness seeing a person after the criminal episode and identifying that person as the offender. We do not believe this code provision was intended to allow other out-of-court statements by a witness to others naming the person that the witness believes committed the crime. To extend the rule that far would permit countless repetitions by a witness to others, regardless of time and place, of the witnesses’ belief as to the guilty party, a result we do not believe intended by the drafters of the rule.

¶3That comment does not preclude admitting such identification testimony under these circumstances because the witness’ comments in the instant case were made immediately after the incident. In any event, if such were error, we deem it harmless because the officer’s testimony was merely cumulative of several other witnesses’ testimony at trial. See Erickson v. State, 565 So.2d 328, 334 (Fla. 4th DCA 1990).

POLEN and STEVENSON, JJ., concur.
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