Sometimes the crime is caught on video. When this happens, can an officer identify the perpetrator as the defendant? This issue came up in State v. Weldon, a recent court of appeals case. Let’s go through the rules.
This is an issue of admissibility of a lay opinion, under Evidence Rule 701. Our courts allow lay opinion testimony identifying a person in a videotape when it is based on the witness’s perceptions and knowledge and is helpful to the jury. See, e.g., State v. Belk, 201 N.C. App. 412, 415 (2009). Such opinion testimony is inadmissible when it invades the province of the jury as the fact-finder. Id. Factors relevant to the analysis include:
- the witness’s general level of familiarity with the defendant’s appearance;
- the witness’s familiarity with the defendant’s appearance at the time of the video;
- whether the defendant had disguised his or her appearance at the time of the offense; and
- whether the defendant had changed his or her appearance prior to trial.
Id. Also relevant is the quality of the video and the completeness of the image. Id. at 416. Thus, lay opinion identification testimony is more likely to be admissible when the video is of poor quality, or where it shows only a partial view of the person. Id.
Let’s look at two illustrative cases. First is Belk, 201 N.C. App. at 417–18, ordering a new trial where an officer was allowed to identify a person depicted in a videotape as the defendant on the basis of his “distinctive” profile. The Belk court noted that no evidence suggested that the person in the video had disguised his appearance; no evidence suggested that the defendant had altered his appearance between the time of the incident and the trial; no evidence suggested that the individual’s face or other features were obscured in the video; the officer had only minimal contact with the defendant; and the quality of the video was good. The court concluded: although the officer’s brief contacts with the defendant may have made her familiar with the defendant’s “distinctive” profile, “there was no basis for the trial court to conclude that the officer was more likely than the jury correctly to identify [the] Defendant as the individual in the surveillance footage.” Put another way: the lay testimony invaded the province of the jury.
Next up is Weldon, a felon in possession of a firearm case. The Weldon court held that the trial court did not abuse its discretion by allowing an officer, who never had any direct contact with the defendant, to identify the defendant as the person shown in a store surveillance video. The court found that the officer acquired the requisite familiarity with the defendant’s appearance. Although acknolwedging that he never “had a one-on-one discussion” with the defendant, the court noted that the officer “had seen him in the area and . . . knew who he was;” testified that the defendant had been pointed out to him on numerous occasions; had observed the defendant “very frequently” “at least a good two months” before the crime; and shortly before the crime occurred, the officer saw the defendant exiting a house that the officer was surveilling and recognized the defendant because of his face and because he had a brace on his leg and was limping badly. Slip op. at 9. Also relevant, the Weldon court noted, was the fact that the defendant had altered his appearance. At the time of the crime, the defendant had a “distinctive” hair style, matching that of the person in the video. But the defendant appeared at trial with a shaved head. Thus, the court concluded, “the jury was unable to perceive the distinguishing nature of defendant’s hair at the time of the [offense].” Slip op. at 10. And because of this it added, not only was the officer qualified to identify the defendant in the video, but also he was better qualified than the jury to do so. Thus the Weldon court rejected the defendant’s argument that the officer was in no better position than the jury to identify the defendant in the video and found no abuse of discretion in admitting this testimony. Id.
There are only a handful of published NC appellate cases on point in the last ten years or so, and I’ve catalogued them in my Criminal Case Compendium. But I’ll save you the click—here are the others:
State v. Hill, ___ N.C. App. ___, 785 S.E.2d 178 (2016). No error to allow testimony of officers identifying the defendant in a surveillance video. The officers were familiar with the defendant and recognized distinct features of his face, posture, and gait that would not have been evident to the jurors. Also, the defendant’s appearance changed between the time of the crimes and the date of trial.
State v. Collins, 216 N.C. App. 249 (2011). No plain error by admitting an officer’s testimony identifying the defendant as the person depicted in a videotape. The defendant argued that the officer was in no better position than the jury to identify the defendant in the videotape. However, the officer had contact with the defendant prior to the incident in question; because he was familiar with the defendant, the officer was in a better position than the jury to identify him in the videotape.
State v. Howard, 215 N.C. App. 318 (2011). No plain error in allowing a detective to identify the defendant as the person shown in a still photograph from a store’s surveillance tapes. The detective observed the defendant in custody on the day the photo was taken, affording him the opportunity to see the defendant when his appearance most closely matched that in the video. The detective also located the defendant’s clothes. As such, the detective had more familiarity than the jury with the defendant’s appearance at the time the photo was taken.