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BEFORE ADMITTING NON-EYEWITNESS TESTIMONY TO IDENTIFY DEFENDANT IN A VIDEO, THE BASIS SHOULD BE DETERMINED OUTSIDE THE PRESENCE OF THE JURY, THE PARTY OFFERING THE WITNESS MUST DEMONSTRATE THE RELIABILITY OF THE WITNESS, AND THE NEED FOR THE TESTIMONY MUST BE DEMONSTRATED; IN ADDITION, A THOROUGH RECORD MUST BE CREATED AND THE JURY SHOULD BE INSTRUCTED THEY ARE FREE TO REJECT THE NON-EYEWITNESS IDENTIFICATION (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Halligan, reversing the Appellate Division, over a concurrence, determined the “non-eyewitness” who purported to identify the defendant in a video was not shown to be sufficiently familiar with the defendant and there was no showing that the jury faced an obstacle to making the identification:

This case concerns an increasingly prevalent issue: when may someone who is not an eyewitness to a crime testify to a jury that the defendant is the person depicted in a photo or video. We hold that such testimony may be admitted where the witness is sufficiently familiar with the defendant that their testimony would be reliable, and there is reason to believe the jury might require such assistance in making its independent assessment. Here, there was no showing that the proffered witness was sufficiently familiar with the defendant to render his testimony helpful, or that the jury faced an obstacle to making the identification that the witness’s testimony would have overcome. * * *

… [B]efore admitting lay non-eyewitness identification testimony, a court should inquire as to the basis of the witness’s familiarity outside the presence of the jury in a separate hearing or voir dire, as the court properly did here. The party offering the witness—in most cases the People—bears the burden of establishing that their testimony would both be helpful and necessary. … [I]t is incumbent on both parties to create a thorough record to aid the court in its determination and to allow for meaningful appellate review. … [I]t would be appropriate for the trial court to provide cautionary jury instructions, both at the time of the testimony and during the final charge, explaining to the jury that lay non-eyewitness identification testimony is mere opinion testimony that they may choose to accept or reject, and reminding the jurors that because they are the finders of fact, it is their opinion as to whether the defendant is depicted in the surveillance footage that matters … . People v Mosley, 2024 NY Slip Op 02125, CtApp 4-23-24

Practice Point: Here the Court of Appeals offers guidance on the use of non-eyewitness testimony to identify the defendant in a video. The reliability of the witness and the need for the testimony must be demonstrated outside the presence of the jury. A full record must be made. And the jury should be instructed they are free to reject the testimony.

 

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