Lay Opinion and Photo Identifications (Part 5)

Justice Patterson continued in relevant part: Because this case has yet to be tried, it is unclear whether a change in defendant’s appearance between the date of the surveillance photograph and the date of trial is a relevant consideration. Accordingly, this second factor does not support or undermine a finding that N.J.R.E. 701’s second prong is satisfied in this case.

Third, Annese’s testimony that defendant was the front-seat passenger in the surveillance photograph would provide the State’s only identification testimony regarding defendant. That factor favors a holding that her lay opinion testimony would assist the jury. Finally, the quality of the photograph favors the admission of Annese’s testimony. The photo is neither so blurry that the subject’s features are indistinguishable, nor so clear that jurors unacquainted with defendant could determine as accurately as Annese whether the Buick’s front-seat passenger was defendant. The Court concludes that Annese’s lay opinion identification would “assist in understanding the witness’ testimony or determining a fact in issue.” N.J.R.E. 701(b).

N.J.R.E. 403(a) bars otherwise admissible evidence if its “probative value is substantially outweighed by the risk of . . . undue prejudice.” It would be highly prejudicial to defendant if the jury learned that defendant was on parole after serving a term of incarceration for aggravated manslaughter. The probative value of any such testimony would be substantially outweighed by its prejudicial effect, and N.J.R.E. 403 would thus bar the evidence. Such prejudice, however, can be addressed by sanitizing the testimony, as the Eighth and Ninth Circuits have found.

The majority opinion has a very pro-prosecution ring to it. It signals to the defendant that if his appearance changes before trial, it will increase the likelihood that damning testimony from his parole officer will be admitted. It also takes factors that would otherwise create reasonable doubt, like a lack of witnesses to identify the defendant, and uses these factors to justify the admission of unduly prejudicial evidence that will help the prosecution. The majority also fails to address photographic enhancement as a neutral means to assist the jury.