You are here: / / BEFORE ADMITTING NON-EYEWITNESS TESTIMONY TO IDENTIFY DEFENDANT IN A VIDEO,...
,

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.

 

You might also like
Police Vehicles Are Excluded from the Meaning of “Motor Vehicle” in the Insurance Law—Passenger-Police-Officer Injured In a Police Vehicle by an Uninsured/Underinsured Driver Is Not Covered Under the Uninsured/Underinsured Motorist Provision of the Police-Officer-Driver’s Personal Policy
BENCH TRIAL JUDGE’S RESCINDING OF THE RULING DEFENSE COUNSEL COULD GIVE A SUMMATION IN THIS MISDEMEANOR CASE VIOLATED DEFENDANT’S SIXTH AMENDMENT RIGHT TO COUNSEL, RULING IS APPEALABLE BECAUSE DEFENSE COUNSEL DID NOT HAVE THE MEANINGFUL ABILITY TO OBJECT (CT APP).
Because the Landlord Engaged in Fraud, the Four-Year Rent-Overcharge Statute of Limitations Runs Back Four Years from When the Rent Overcharge Action Was Brought/Criteria for Collateral Estoppel Explained (Not Met Here)/Question of Fact Re: Piercing Corporate Veil
BREACH OF PHYSICIAN-PATIENT CONFIDENTIALITY CAUSE OF ACTION ALLOWED TO PROCEED AGAINST HOSPITAL AND TREATING PHYSICIAN, PLAINTIFFS’ DECEDENT’S TREATMENT AND DEATH IN THE EMERGENCY ROOM WERE FILMED WITHOUT CONSENT; ALLEGATIONS OF OUTRAGEOUS CONDUCT NOT SUFFICIENT TO SUPPORT INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CAUSE OF ACTION.
LABORATORY WHICH TESTS URINE FOR THE PRESENCE OF DRUGS DID NOT OWE A DUTY TO A TESTEE TO FOLLOW REGULATIONS NOT RELATED TO THE SCIENTIFIC TESTING PROCEDURE; FRAUD CAUSE OF ACTION CANNOT BE BASED ON THE RELIANCE OF A THIRD-PARY, AS OPPOSED TO THE PLAINTIFF, UPON A MISREPRESENTATION.
ENTERPRISE CORRUPTION CONVICTION NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE OF DEFENDANT’S KNOWLEDGE OF THE EXISTENCE OF THE ENTERPRISE AND HIS INTENT TO PARTICIPATE IN AFFAIRS OF THE ENTERPRISE (CT APP).
THE SORA RISK-LEVEL ASSESSMENT PROCEEDINGS MUST BE CONDUCTED 30 DAYS BEFORE DEFENDANT’S RELEASE FROM CONFINEMENT, REGARDLESS WHETHER THE STATE IS CONSIDERING OR IS IN THE PROCESS OF INSTITUTING CIVIL COMMITMENT PROCEEDINGS (CT APP).
Conclusory Allegations of Bad Faith in Negotiations Pursuant to a Settlement Agreement Did Not State a Cause of Action

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

HERE THE FACILITY REVIEW OFFICER VIEWED THE VIDEO EVIDENCE AND EXPRESSED THE... FOR-PROFIT NURSING HOMES’ CHALLENGE TO ADJUSTED MEDICAID REIMBURSEMENT...