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.
The loss prevention employee and his partner confronted them in the parking lot. He testified the defendant and woman denied having items they did not purchase and tried to walk away. The security cameras began capturing the incident as the defendant and his companions walked toward their truck.
The woman and child got into the vehicle. When the employee reached for the purse through the window, the defendant pepper-sprayed him. The defendant jumped into the truck bed and they drove away.
The defendant was charged with robbery in the second degree. A police officer identified the defendant as the person in the video based on his previous interactions with the defendant and the woman. The trial court denied the defendant’s motion to prevent the officer from identifying him. The defendant also moved to exclude testimony of the “law enforcement nature” of his contact with the officer. The trial court ruled that the officer could testify about prior contact, but not about the nature of that contact. The officer did not discuss the nature of his contact with the defendant.
While deliberating, the jury asked the court what crime the defendant had been involved in based on the officer’s testimony. The trial court denied the defendant’s request for a limiting instruction, but informed the jury it must base its decision on the evidence admitted.
The jury found the defendant guilty, and he appealed. He argued the officer’s testimony was unfairly prejudicial because the witness was a police officer. He also argued that the testimony was an opinion that invaded the jury’s province.
The appeals court found the testimony was not helpful to the jury because the trial court had found the video was not of poor quality and showed the defendant well. The jury did not need the officer’s opinion to help it determine if the defendant in the courtroom was the same person in the video. Furthermore, the loss prevention employee identified the defendant in his testimony as was the person in the video and the person with whom he interacted.
The appeals court found the officer’s identification testimony was “unnecessary and cumulative.” Furthermore, it led to the testimony the defendant had previous police contacts. The appeals court found this testimony created unfair prejudice because it could lead the jury to conclude the defendant had engaged in prior bad acts based on his prior contacts with the police. The appeals court pointed out that the jury’s question indicated at least some of them had made that conclusion. It also suggested the jury was considering those prior criminal acts to determine if the defendant committed the current charges.
The appeals court found the trial court further erred by not giving a limiting instruction to correct the jury’s misunderstanding and that the error was not harmless. The defendant argued he was unaware his companion had stolen anything from the store. He was not shown in the surveillance footage when she put the items in her purse and there was no testimony that she told him she was taking anything. The appeals court found that the evidence that the defendant was involved in stealing the items was not overwhelming enough to support a finding any errors were harmless. The appeals court found there was a reasonable probability the jury relied on the assumed prior bad acts to determine the defendant knew his companion stole items from the store. The appeals court further found that there was a reasonable probability the jury would have found the defendant not guilty if it had not heard the officer’s testimony or if it had received the limiting instruction. The appeals court therefore reversed the conviction.
If you have been accused of a crime, the experienced Washington criminal defense attorneys at Blair & Kim, PLLC, can fight to protect your rights. Call us at (206) 622-6562.