Lay Opinion and Photo Identifications (Part 6)

by | Nov 13, 2021 | Blog, Criminal Law, Monmouth County, New Jersey, Ocean County

The New Jersey Supreme Court majority concluded with the following in relevant part: Here, the trial court should direct that Annese refrain from revealing that she is a parole officer or identifying herself as a law enforcement officer in her testimony on direct examination. Annese should explain her familiarity with defendant by stating that she and defendant had a professional relationship that required them to meet at least twice a month for fifteen months prior to the date on which she identified him in the surveillance photograph and providing other neutral relevant facts regarding the meetings.

As in other settings in which testimony is sanitized to limit its prejudicial effect, defendant may be required to make a strategic decision about the scope of cross-examination, but the potential necessity of such a tactical decision does not render Annese’s testimony inadmissible, and it does not implicate defendant’s confrontation rights. The Court provides guidance regarding the presentation of Annese’s testimony and notes that, if Annese testifies for the State, defendant may offer lay opinion testimony to counter her identification. When sanitized as described, Annese’s lay opinion testimony identifying defendant as the individual in the surveillance photograph is admissible, and the trial court therefore abused its discretion when it excluded that testimony. The lower court is affirmed and the case is remanded to the trial court.

The exact wording of the prosecution’s and defense questioning at trial will be key considerations if this case goes back up on appeal after a trial occurs. The same can be said for the answers given by the parole officer.

 Justice LaVecchia filed a dissenting opinion in which she was joined by Justice Albin. The dissent wrote in relevant part: It is necessary in circumstances such as these that N.J.R.E. 701’s perception and helpfulness requirements relate to each other — the lay opinion identification must be helpful to the jury because of the perception of the witness. Usually, that connection takes the form of the witness possessing sufficiently relevant familiarity with the defendant that the jury cannot also possess, such as knowledge of a change in the defendant’s appearance. That determination of whether such a change has occurred should be left to the trial court as the trial approaches. The dissent expresses concern with the suggestion that the unavailability of witnesses other than law enforcement officers weighs in favor of admitting testimony under N.J.R.E. 701, noting that inadmissible lay opinion testimony should not be rendered admissible because one side or the other cannot present identification testimony. Finally, the dissent is of the view that focus on the quality of the photograph undercuts the familiarity requirement and may create a challenge for trial judges seeking guideposts from case law.