Identification of the defendant as the person who committed the allegedly criminal act is an important part of a Washington criminal case. When there is video of the incident, however, the jury may be able to make the identification without the assistance of opinion testimony from a witness. Identification from a video constitutes opinion testimony. A lay witness may provide opinion testimony only if it is rationally based on the witness’s own perception, helpful in understanding the testimony or determining a fact at issue, and not based on specialized knowledge. ER 701. Washington courts have held that witness identification of a defendant in a surveillance photograph may invade the province of the jury, but the testimony may be admissible in certain circumstances. A lay witness may testify about the identity of a person in a surveillance photo if the witness is more likely to correctly identify them from the photo than the jury is. This may occur when the defendant has had multiple contacts with the witness and the video is unclear or the defendant’s appearance has changed since the video was taken.
A defendant recently successfully challenged a conviction after a police officer provided identification testimony.
According to the appeals court’s opinion, the defendant went into a grocery store with a woman and a child. The woman was caught on security footage putting items in her purse, but the defendant and the child were not visible in the video at the time. A loss prevention employee saw the woman’s actions on video surveillance. The woman paid for some items, but not those she put in her purse. The group left the store together.