People v. Colon, 46 N.Y.2d 722 (1978)
Negative identification testimony (i.e., testimony that a witness failed to identify the defendant in a prior lineup or viewing) is generally inadmissible as evidence-in-chief because it lacks probative value and constitutes bolstering, unless offered to rebut a specific defense claim.
Summary
In a rape and robbery case, the New York Court of Appeals addressed the admissibility of testimony that the victim failed to identify the defendant in a prior lineup where the defendant was not present. The Court held that such evidence was inadmissible because it was not probative and served only to bolster the victim’s in-court identification. The dissent argued that the defense’s objection was sufficient to preserve the issue for appeal and that the evidence was prejudicial. The Court of Appeals affirmed the lower court’s decision to admit the testimony, because the issue was not properly preserved for appeal.
Facts
The victim testified that she knew her attackers from previous encounters at her apartment, where they discussed potential employment opportunities. During the investigation, the police took the victim to the moving company where the alleged attackers worked. On two occasions, the victim viewed employees but did not identify the defendant or his co-defendant. Evidence was also presented that the victim failed to identify anyone in a “blank lineup” that did not include the defendant.
Procedural History
The defendant was convicted of rape and robbery. The defendant objected to the admission of the negative identification testimony, arguing it was irrelevant. The trial court overruled the objection. The New York Court of Appeals affirmed the conviction, holding that the issue of admissibility was not properly preserved for appellate review because the defense did not specifically object on hearsay grounds.
Issue(s)
Whether the trial court erred in admitting testimony that the victim failed to identify the defendant or others in prior lineups when the defendant was not present, and whether the defendant’s objection was sufficient to preserve the issue for appeal.
Holding
No, because the defendant’s objection at trial was not specific enough to preserve the issue of inadmissibility for appeal. The Court found that the objection needed to be based on hearsay grounds to alert the trial court to the specific nature of the error alleged.
Court’s Reasoning
The Court of Appeals majority held that the defendant’s general objection to the evidence as “irrelevant” was insufficient to preserve the issue for appellate review. The dissent argued that the basis of the objection (bolstering) was clear to the trial judge and that the evidence was both nonprobative and hearsay. The dissent stated, “Fairness to the defendant requires that, rather than turn aside his contention on the basis of the hairsplitting distinction which the majority makes, we hold it sufficiently preserved and, since it was both improper and prejudicial bolstering, that we reverse and remand for a new trial.” The dissent cited to People v Jung Hing, 212 NY 393, 402: “Testimony of nonidentification is admissible, if at all, only on rebuttal and even then is not admitted to prove or disprove any fact involved in the issues on trial, but solely to support the credibility of the witness”. The dissent argued the evidence was not relevant because it did not make any fact in issue more or less probable.