Moderating the Use of Lay Opinion Identification Testimony Related to Surveillance Video
34 Pages Posted: 24 Jun 2019 Last revised: 5 Oct 2020
Date Written: June 24, 2019
Traditionally, under the “silent witness” theory, when video-surveillance recordings are authenticated and admitted at trial, the video “speaks for itself.” However, with increasing frequency, courts have permitted witnesses to provide lay opinion identification testimony about individuals in the surveillance video. The testimony is offered as lay opinion testimony that assists the jury, particularly in cases where the video is of poor quality, the subject’s face is difficult to see, or the subject’s appearance has changed by the time of trial. Recent state court opinions (including several state supreme courts as a matter of first impression) have upheld the admission of lay opinion identification testimony in an overly lenient manner that should be addressed.
The primary problem with this kind of lay opinion testimony is that it poses challenges to effective cross-examination, particularly in criminal cases in which the witness is a law enforcement officer. Cross-examination that attempts to test the officer’s testimony may be ineffective or, worse, harmful, to the extent that it attempts to explore the officer’s familiarity with a criminal defendant. Courts have developed some procedural safeguards to protect against abuse of this form of testimony, but they are insufficient and fail to ensure effective cross-examination in all circumstances.
This Article proposes additional safeguards that courts can use to moderate the use of lay opinion identification testimony related to surveillance video, while permitting such testimony when it is helpful to the jury in determining an issue of fact.
Keywords: lay opinion, identification testimony, surveillance video
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