Lay Opinion and Photo Identifications (Part 4)

The majority continued in relevant part: In State v. Lazo, the Court noted considerations identified by federal appellate courts deciding whether lay opinion testimony will assist the jury, as required by Fed. R. Evid. 701. 209 N.J. 9, 22-24 (2012). The Court again distills from federal cases factors that inform a trial court’s determination whether lay opinion testimony will assist the jury.

First, the nature, duration, and timing of the witness’s contacts with the defendant are important considerations. Second, if there has been a change in the defendant’s appearance since the offense at issue, law enforcement lay opinion identifying the defendant may be deemed helpful to the jury. Third, law enforcement lay opinion identifying a defendant in a photograph or video recording should be used only if no other adequate identification testimony is available to the prosecution. Fourth, the quality of the photograph or video recording at issue may be a relevant consideration.

If the photograph or video recording is so clear that the jury is as capable as any witness of determining whether the defendant appears in it, that factor may weigh against a finding that lay opinion evidence will assist the jury. And if the image is of such low quality that no witness could identify the individual who appears in it, lay opinion testimony will not assist the jury, and may be highly prejudicial. Those four factors are not exclusive; other considerations may be relevant to whether lay opinion testimony will assist the jury in a given case. Moreover, no single factor is dispositive.

Here, Annese’s contacts with defendant were more than sufficient to enable her to identify him in the surveillance photo more accurately than a jury could. Accordingly, the witness’s contacts with the defendant favor a determination that her testimony would assist the jury.

The Lazo case cited by the majority was handled by my friend and colleague, attorney Ernest Anemone. Ernie has since changed careers and has worked as an actor and ethnobotanist.