Lay Opinion and Photo Identifications (Part 1)

by | Nov 8, 2021 | Blog, Criminal Law, Monmouth County, New Jersey, Ocean County

On July 22, 2021, the New Jersey Supreme Court decided the Camden County case of State v. Damian Sanchez. Justice Patterson wrote for a 5-2 majority of the Court. The principal issue involved the application of evidence rules 701 and 403 to the identification of a parole officer’s identification of a photograph allegedly depicting the defendant.

The majority held in relevant part: The Court considers the admissibility of the lay opinion testimony of defendant Damian Sanchez’s parole officer, Cheryl Annese, that defendant was the individual depicted in a photograph derived from surveillance video. In the course of a homicide investigation, the Camden County Prosecutor’s Office circulated a flyer entitled “Attempt to Locate,” which stated that a “red/burgundy” Buick Century was “possibly used” in a homicide. The flyer included a still photo derived from surveillance video. In the photograph, the driver is not seen, but the faces of a male passenger in the right front seat and a male passenger in the right back seat are visible.

In response to the flyer, Annese contacted the detective leading the investigation. She identified the front-seat passenger depicted in the photograph as defendant, a parolee whom she supervised. Annese stated that she had met with defendant at least twice a month in the fifteen months since he was released after serving a term of incarceration for aggravated manslaughter. She also told the detective that approximately a week after the homicide and robbery identified in the flyer, defendant had informed her that he had “probably dropped” his phone and had changed his telephone number. A search of a suspect’s cellphone revealed text messages exchanged with defendant.

Cases like this routinely involve video and photo enhancement. It is a costly process that magnifies the importance of having sufficient resources to build a case. The extreme advantage that the State enjoys with their tax-funded resources highlights the need for the heavy beyond a reasonable doubt burden in criminal cases. With the prosecution almost always having an extreme resource advantage, they can build a strong case with even the flimsiest evidence.