Lay Opinion and Harmless Error (Part 1)

by | Nov 18, 2023 | Blog, Criminal Law, Monmouth County, New Jersey, Ocean County

On August 2, 2023, the New Jersey Supreme Court decided the Monmouth County case of State v. Dante C. Allen. The principal issue before the Court concerned whether the defendant was denied a fair trial because the trial court permitted a detective to present lay opinion testimony in which he narrated a video recording.

Justice Patterson wrote for the 4-3 majority in relevant part: On November 4, 2015, defendant was speaking with a friend on the sidewalk. According to defendant’s trial testimony, he was carrying a handgun that he had recently acquired after a confrontation with a gang member made him fear for his safety. Officer Terrence McGhee of the Asbury Park Police Department, who suspected defendant had a weapon based on his behavior when McGhee passed in a patrol car, approached defendant and asked to speak. According to McGhee, defendant ran into a vacant lot, turned around, raised his gun, and fired at McGhee, who was not hit. McGhee testified that he then fired at and wounded defendant.

Defendant testified that he ran toward the back of an abandoned building “to throw the gun on the roof.” According to defendant, he “tried to throw the gun on the . . . roof, but as I turned to the side, I could see McGhee out of my peripheral. So next thing on my mind is to bring the gun back in, but it’s too late, I wasn’t able to, the gun goes off.” He stated that he never pointed the gun at McGhee. Defendant was arrested and taken to a hospital. Shortly thereafter, Detective Michael Campanella, the lead forensic detective in the case, arrived at the scene. He inspected the gun and reviewed two surveillance videos from nearby buildings.

It is relatively rare for defendants to testify in cases like this. Under the circumstances, they usually have prior records of convictions that can be used to impeach their credibility in front of the jury.