Police Officers Can Testify on Victim’s Description of Attacker, High Court Rules


On Tuesday, New York’s highest court ruled that police officers can testify about a victim’s description of a perpetrator.

The Court of Appeals decision addressed not just the purpose, but the potential unintended effects of allowing such evidence.

On one side, the police account helps demonstrate the reliability of the victim’s identification of the assailant immediately after the crime. On the other side, the mere act of officers repeating a witness statement may prejudice jurors into giving the identification more weight than it may deserve. The six-justice majority concluded that the testimony is admissible, with the subjective caveat that “it does not tend to mislead the jury.”

“Evidence as to how a witness described the offender when the witness’s memory was fresh is much more likely to advance than to hinder accurate fact-finding,” Judge Robert Smith wrote for the majority.

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The ruling stemmed from a robbery case. Two men robbed Hector Velez. Velez described the assailants to the responding officers, noting that one of the men wore a white shirt.

Velez later identified that man as Torrel Smith, who was eventually convicted for the crime.

In security footage of the robbery, however, “the man alleged to be the defendant is wearing a blueish-gray shirt,” Smith wrote. “Velez testified that, before he saw the video, he realized that his description of the shirt was in error, and corrected it.”

At trial, two officer gave brief testimonies recalling Velez’s original description of the robbers. In Smith’s appeal, his attorney argued that these accounts “improperly bolstered” Velez’s testimony.

Judge Jenny Rivera, the sole dissenter, agreed with this position, writing that the officers’ statements “give the appearance of an exaggerated amount of evidence in support of the victim’s identification.”

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The majority acknowledged this danger.

“We have warned,” Smith wrote, “that the admission of prior consistent statements may, by simple force of repetition, give to a jury an exaggerated idea of the probative force of a party’s case.”

But the risk does not apply in this case, they ruled, for the same reason the officer testimony does not constitute as hearsay.

“It is admitted not for the truth or accuracy of the prior description, but as ‘evidence that assists the jury in evaluating the witness’s opportunity to observe at the time of the crime, and the reliability of her memory at the time of the corporeal identification,'” Smith wrote, citing the language of a 1990 precedent establishing “that a crime victim could testify to her own description of her attacker, given to the police shortly after the crime.”

This ruling clarified the scope of that precedent.

“The issue here is whether the rule … is limited to a witness’s account of his or her own previous statement,” said Smith. “We see nothing to justify such a limitation.”

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“The brief recitation by two officers of Velez’s description of a man who robbed him was not likely to give the jury the false impression that there was an impressive amount of testimony corroborating Velez’s account,” Smith continued.

The majority, however, asserted that their ruling was based on the specifics of this particular case and not meant as an umbrella that necessarily justifies all such testimony.

“Our holding today should not be interpreted as giving carte blanche to the presentation of redundant police testimony that accomplishes no useful purpose,” the decision stated. “A court retains discretion to exclude evidence of prior consistent statements when it reasonably finds that evidence to be more prejudicial than probative.”

Torrel Smith Decision, Court of Appeals by asamahavv