Lay Opinion and Photo Identifications (Part 2)

The New Jersey Supreme Court continued in relevant part: A grand jury indicted defendant for felony murder and armed robbery, among other offenses. Defendant filed a pretrial motion to exclude Annese’s testimony. The trial court ruled that her testimony was inadmissible as lay opinion testimony under N.J.R.E. 701. It found that Annese’s testimony did not satisfy the rule’s requirement that testimony be based on the perception of the witness because Annese did not witness the homicide or robbery, see defendant in the Buick, or have “firsthand” knowledge that defendant was in the Buick as it left the crime scene. The trial court also found that the evidence did not satisfy the requirement that the testimony assist the jury under N.J.R.E. 701. And the trial court held that the testimony should be excluded under N.J.R.E. 403. The Appellate Division reversed the trial court’s determination and remanded the matter. The Court granted defendant’s motion for leave to appeal. 241 N.J. 383 (2020).

Annese’s lay opinion testimony is rationally based on the witness’s perception and therefore satisfies the first prong of N.J.R.E. 701. Based on Annese’s extensive contacts with defendant, the absence of any other identification testimony, and the quality of the surveillance photograph, the testimony meets the second requirement of N.J.R.E. 701 because it will assist the jury in determining a fact at issue in defendant’s trial. Sanitized to avoid disclosure of defendant’s status as a parolee at the time of his alleged offense, Annese’s lay opinion testimony will not be so prejudicial that its probative value is substantially outweighed by the risk of undue prejudice, and that testimony should not be excluded under N.J.R.E. 403. The Court concurs with the Appellate Division that the trial court abused its discretion when it barred Annese’s lay opinion testimony.

So far, the majority’s opinion seems logical. However, only a portion of the alleged facts have been recounted. The dissent will almost certainly cast the issue in a different light with their recitation of additional alleged facts.