AD4: Officer bolstering is not bolstering if eyewitness is excited

People v Roseboro, 2006 NY Slip Op 06976 [available here]

It is well-settled that, as a general rule, a police officer is not allowed to bolster the identification testimony of an eyewitness. Thus, if an eyewitness testifies at trial to a positive identification of a defendant during a showup, the People are not allowed to call the police officer who conducted the showup to confirm that the eyewitness identified the suspect. It is bolstering, plain and simple.

In Roseboro, the police officer was allowed at trial to "confirm[...] the victim's identification of defendant at the hospital." (Roseboro, 2006 NY Slip Op 06976.) This is a classic bolstering issue. However, the Fourth Department affirmed defendant's conviction, finding the officer's testimony was admissible because the "identification by the victim was admissible under the excited utterance exception to the hearsay rule, i.e. it was 'made under the stress of excitement caused by an external event, and not the product of studied reflection and possible fabrication.'" (Id.) Fine, the eyewitnesses statement would come in over a hearsay objection. But that doesn't speak to the bolstering question--why is the cop allowed to confirm the eyewitness identification testimony, and how does the fact that the witness may have been excited when she made the identification figure in? The Fourth Department's decision is a non sequitor--the Court engages in a hearsay analysis to resolve a bolstering issue. I am at a loss to explain this one.