United States v. Lewis
United States Court of Appeals for the Second Circuit
565 F.2d 1248 (2d Cir. 1977)
Frank Tillman Lewis (defendant) was charged with armed bank robbery after a witness, Norma Sharpe, identified him from a photo array before trial. At trial, Sharpe could not identify Lewis in the courtroom, but the prosecution, over objection, showed her the same photographs, and she testified she had previously identified Lewis and again picked his photo from the array. Lewis was convicted and appealed, arguing Federal Rule of Evidence 801(d)(1)(C) covers only in-person, not photographic, out-of-court identifications.
Whether a photographic identification falls within the rule that an out-of-court identification is not hearsay when made after seeing the person and the declarant is subject to cross-examination about the statement.