STATE OF CONNECTICUT v. ANTRON GORE
(SC 20211)
Supreme Court of Connecticut
Argued September 17, 2020—officially released February 7, 2022
McDonald, D‘Auria, Mullins, Kahn, Ecker and Keller, Js.
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Syllabus
Pursuant to the applicable provision (
Convicted of the crimes of murder and criminal possession of a firearm in connection with the shooting death of the victim, the defendant appealed to this court, claiming, inter alia, that the trial court improperly had admitted the testimony of P, a police officer, that C, a close friend of the defendant, made a statement identifying the defendant in a still photograph taken from a surveillance video of the shooting. At the start of the defendant‘s trial, the defendant filed a motion in limine, seeking to preclude the state from introducing C‘s statement to the police identifying the defendant in the surveillance video and still photograph. The trial court ruled that C‘s identification of the defendant in the surveillance video would constitute lay opinion testimony concerning an ultimate issue and thus was inadmissible under
- The defendant could not prevail on his claim that the trial court improperly admitted P‘s testimony that C had identified the subject in the still photograph as the defendant:
- This court amended
§ 7-3 (a) of the Connecticut Code of Evidence and overruled Finan and its progeny, holding that opinion testimony that relates to the identification of persons depicted in surveillance video or photographs is not inadmissible simply because it embraces an ultimate issue and that such lay opinion testimony is admissible if it meets the general requirements for the admissibility of such testimony set forth in§ 7-1 of the Code of Evidence , that is, it is rationally based on the perception of the witness and is helpful to a clear understanding of the testimony of that witness or the determination of a fact in issue: the application of the ultimate issue rule in§ 7-3 (a) to identifications of criminal defendants in video surveillance footage had spawned a line of cases in which courts struggled to draw an illusory distinction between fact and opinion testimony and to determine when such identifications embrace an ultimate issue, and this court determined that the better approach should focus on the relative helpfulness of the testimony regarding the identification to the trier of fact versus the potential prejudice that such testimony would pose to the defendant; accordingly, this court adopted a totality of the circumstances test under which courts are to consider four factors in determining whether there is some basis for concluding that the witness is more likely than the jury to correctly identify the defendant from surveillance video or photographs, including the witness’ general familiarity with the defendant‘s appearance, the witness’ familiarity with the defendant‘s appearance, including items of clothing worn, at the time that the surveillance video or photographs were taken, any change in the defendant‘s appearance between the time the surveillance video or photographs were taken and the time of trial, or the subject‘s use of a disguise in the surveillance footage, and the quality of the video of photographs, as well as the extent to which the subject is depicted in the surveillance footage; moreover, with respect to the first factor, the witness’ general familiarity with the defendant‘s appearance, this court declined to join the majority of jurisdictions that adhere to a minimum threshold for general familiarity and concluded, instead, that, in order for this factor to weigh in favor of admitting lay opinion testimony relating to the identification of persons depicted in surveillance footage, the proponent of the testimony must demonstrate that the witness possesses more than a minimal degree of familiarity with the defendant, and trial courts, in considering whether a witness’ level of familiarity with the defendant is sufficient to satisfy this factor, should consider the particular, relevant circumstances, including, but not limited to, the frequency, number and duration of any individual prior contacts between the witness and the defendant, the duration of the entire course of contacts and the length of time since the contacts, the relevant viewing conditions, and the nature of the relationship between the witness and the defendant, if any. - In the present case, although the record did not reflect whether the defendant‘s appearance had changed between the time the surveillance video was recorded and the time of trial, C‘s long-standing and intimate association with the defendant, whom C had known for years, easily satisfied the general familiarity factor, C was familiar with the defendant‘s appearance when the surveillance footage was recorded, the defendant was not wearing a disguise in that footage, and the quality of the still photograph weighed in favor of admission of the identification testimony, as the trial court found that the subject in the photograph was close enough to the camera and that the subject‘s face was visible enough to allow for recognition.
- This court amended
- The trial court acted within its discretion in finding that the defendant had failed to prove that he was prejudiced by the conduct of the jurors in bringing into the deliberations two unauthorized magnifying glasses to assist them in their review of the photographic evidence, and, accordingly, the trial court properly denied the defendant‘s motion for a mistrial and a new trial based on alleged juror misconduct; the trial court found that the additional magnifying glasses did not allow the jury to do anything different or additional beyond what the court provided magnifying glass allowed and did not introduce new evidence or alter existing evidence.
Argued September 17, 2020—officially released February 7, 2022*
Procedural History
Information charging the defendant with the crimes of murder and criminal possession of a firearm, brought to the Superior Court in the judicial district of Hartford, where the court, Schuman, J., denied in part the defendant‘s motion to preclude certain evidence; thereafter, the charge of murder was tried to the jury before Schuman, J.; verdict of guilty; subsequently, the charge of criminal possession of a firearm was tried to the court; finding of guilty; thereafter, the court, Schuman, J., rendered judgment in accordance with the jury verdict and the court‘s finding, from which the defendant appealed to this court. Affirmed.
Linda F. Currie-Zeffiro, senior assistant state‘s attorney, with whom, on the brief, were Gail P. Hardy, former state‘s attorney, and Chris A. Pelosi, former senior assistant state‘s attorney, for the appellee (state).
Lisa J. Steele filed a brief for the Connecticut Criminal Defense Lawyers Association as amicus curiae.
Opinion
MULLINS, J. When the judges of the Superior Court adopted the Connecticut Code of Evidence in 1999,
In this appeal, we reconsider the wisdom of the “ultimate issue rule” as applied to lay witness identifications of persons depicted in video surveillance footage.2 In this limited context, we join the majority of federal and state jurisdictions in concluding that the rule is neither tenable nor necessary. Accordingly, we hereby amend
The defendant, Antron Gore, appeals from the judgment of conviction, rendered following a jury trial, of murder in violation of
With respect to the defendant‘s first claim, the parties originally relied on State v. Finan, supra, 275 Conn. 60, in support of their respective positions. The defendant argued that, because the witness’ identification constituted a lay opinion that embraced the ultimate issue to be decided by the trier of fact, the admission of the officer‘s testimony recounting that lay opinion violated
In his supplemental brief, the defendant urges the court to refrain from abandoning the ultimate issue rule and overruling Finan. The defendant contends that the rule change would be drastic, and that he would suffer unfair prejudice if the court applies the rule in the present case. The defendant argues that, if the court adopts
As we explain subsequently in this opinion, our amendment of
The jury could have found the following relevant facts. At approximately 1 p.m. on January 20, 2017, the defendant shot and killed the victim, Jason Reddick, at a Sunoco gas station located at 550 Albany Avenue in Hartford. Video surveillance cameras at the gas station, as well as cameras located at nearby buildings on Albany Avenue and Garden Street, captured the shooting. The video footage showed the victim, wearing a turquoise hooded sweatshirt, walking toward one of the gas pumps at the station. The shooter, subsequently identified as the defendant, wore blue and white Nike sneakers and a Los Angeles Lakers cap. He entered the frame, pulled out a gun and fired once at the victim, hitting him in the torso. The victim retreated on foot northbound on Garden Street. The shooter followed the victim, first in his vehicle, then on foot. The shooter‘s vehicle was an older model, green, four door Volvo, with mismatched front and rear rims, a blue sticker attached to the windshield and a unique license plate holder.
Officers who reported to the scene discovered the victim‘s body in a parking lot at 520 Albany Avenue. They also discovered one spent .25 caliber shell casing near one of the gas pumps in the gas station lot and a trail of blood leading northbound on Garden Street. When the police later searched the defendant‘s vehicle, they found, under the driver‘s seat, an unfired, .25 caliber bullet, with the same casing as the one found at the gas station.
Canty described the defendant as a close friend, whom he had known for “half [his] life.” He had seen the defendant, whom he referred to as his “cousin,” on most days around the time of 2016 and 2017. He, in fact, had seen the defendant at approximately 5:30 p.m. on the day of the shooting. On that day, the defendant arrived at Canty‘s home in the Volvo, wearing what Canty described as a red “Nike outfit.” The defendant, Canty, and the defendant‘s sister‘s boyfriend spent the evening in the south end of Hartford together. The next day, Canty and the defendant spent several hours together at Canty‘s house. The defendant departed before the police arrived, but he left his car in Canty‘s driveway.
At the station, the lead detective in the case, Jeffrey Placzek, showed Canty a photograph of the defendant that had been posted on the defendant‘s Facebook page in December, 2016, less than one month before the shooting. Canty identified the defendant in the photograph, then signed, dated, and wrote the defendant‘s nickname, “Tron,” at the bottom of the photograph. In the photograph, the defendant wore a Lakers cap and blue and white sneakers. Placzek then showed Canty a 2015 booking photograph of the defendant. After identifying the defendant in the photograph, Canty signed, dated, and wrote “my cousin Tron” underneath the photograph.
Placzek next showed Canty a still photograph of the vehicle in the video surveillance footage. Canty identified the vehicle as the defendant‘s, then signed, dated, and indicated on the back of the photograph that it was the defendant‘s vehicle. Finally, Placzek showed Canty a still photograph taken from the video surveillance footage. Canty identified the person depicted in the photograph as the defendant. He signed, dated, and wrote “Tron” on the back of the photograph.
Subsequently, during the defendant‘s trial, Placzek testified that Canty identified the subject depicted in the still photograph as the defendant. Following his conviction, the defendant appealed directly to this court.
I
We first address the defendant‘s claim that the trial court improperly allowed Placzek to testify that Canty had identified the defendant as the person depicted in the still photograph taken from the video surveillance footage. The parties’ disagreement
As we explain in this opinion, the application of the ultimate issue rule, as set forth in
We emphasize that, even if we applied
We begin with the following additional procedural background. The primary issue at trial was identification. At the start of trial, the defendant filed a motion in limine to preclude the state from introducing Canty‘s statement to the police identifying the defendant in the video and the still photograph. The defendant argued that the admission of Canty‘s statement would violate the prohibition in
The court first determined that, because the video footage shown to Canty preceded the footage showing the actual shooting by only twenty seconds or so, Canty‘s identification of the defendant in the video embraced an ultimate issue in the case—the identification of the shooter. Because
Applying that principle from Felder, the trial court found that, in the video footage, the suspect was too far away to be recognized. Therefore, the court concluded, Canty‘s identification of the defendant in the video would constitute lay opinion testimony as to an ultimate issue to be decided by the trier of fact, in violation of
By contrast, the court found that the photograph allowed for recognition because it showed the defendant‘s face from fairly close up and still. Because Canty indicated in his written statement, however, that he had signed the back of the photograph “to confirm that this was Tron in the video,” the court granted the motion in limine as to both the video and the photograph. The court reasoned that, because the person in the video was not recognizable, any testimony stating that the persons depicted in the photograph and the video were one and the same, which inherently required a comparison between the two, was a matter of opinion.
The court subsequently ruled that Placzek‘s testimony that Canty had told him that the subject in the still photograph was the defendant was admissible pursuant to
In the context of lay witness identifications of a person in surveillance video or photographs, the prohibition against opinion testimony on an ultimate issue in
Laborious calculations of the timing in video footage represent only one of the potential hurdles set by
In its analysis of the defendant‘s claim that the officers’ testimony violated
In the appeal to this court, although we began with the same definition of “ultimate
In applying
In Holley, the defendant was convicted of numerous crimes, including felony murder, in connection with a home invasion. State v. Holley, supra, 160 Conn. App. 582. At trial, the state presented testimony from Nicole Clark, a coworker of the defendant, who identified him on video surveillance footage taken on a bus he rode home with his coconspirator after committing the crimes. Id., 615. The Appellate Court concluded that Clark‘s testimony that she recognized the defendant‘s face in the still photographs from the footage “is not characterized accurately as opinion testimony as to whether the photograph depicted the defendant. Clark recognized the defendant‘s face as it appeared in the still image based on the fact of her past acquaintance with him; she did not merely offer an opinion as to whether the still image depicted the defendant. Thus, her testimony was based on the fact that she recognized the defendant, not on an opinion that the photograph depicted him.” (Emphasis in original.) Id., 617.
In Felder, the defendant was convicted of robbery in the first degree and larceny in the third degree in connection with a bank robbery. State v. Felder, supra, 99 Conn. App. 19-20. At trial, his girlfriend and former roommate, Michelle Mills, testified that she recognized him in photographs taken from the bank surveillance video. Id., 21. Mills testified that her recognition of the defendant was based on his head covering, sneakers, nose and posture. Id. On appeal, the defendant relied on this court‘s decision in Finan to argue that Mills’ testimony should have been excluded as lay opinion testimony that went to the ultimate issue. Id., 25 n.6. The Appellate Court rejected the defendant‘s claim on the ground that Mills’ testimony did not constitute opinion testimony. Id. Although the court did not explain the reasoning that led it to that conclusion, in the facts section, the court specifically detailed Mills’ level of familiarity with the defendant, listed the bases of her recognition, and stated that she testified that she “recognized” the defendant. Id., 21.
Both Holley and Felder envision a continuum. At one end, the testimony of witnesses with an intimate level of familiarity, such as a parent or sibling, concerns factual recognition, and such testimony is not subject to
Our prior case law also offers insight into the particular nature of this type of identification evidence, namely, the process of recognizing a familiar face. In Shields v. State, 45 Conn. 266, 269 (1877), this court explained that “[a] witness well acquainted with another usually identifies him without conscious mental effort in the way of comparison or inference. In the absence of striking peculiarities of form or feature the identification may be, and often is, by the mere expression of countenance, which cannot be described. And the witness may be correct in his opinion, and yet be unable to give a single feature, or the color of the hair, or of the eyes, or any particulars as to the dress. In such cases the distinction between opinion and fact is so very nice that it might perhaps have been as well to consider such identification as a fact, like any other direct perception of the senses.” (Internal quotation marks omitted.)
To be sure, both the federal courts and legal scholars have characterized the distinction between fact and opinion as illusory. The United States District Court for the Eastern District of New York summarized the problem, observing that “Wigmore . . . questioned the possibility of clearly distinguishing the two: ‘As soon as we come to analyze and define these terms . . . the distinction vanishes . . . .’ [7 J. Wigmore, Evidence (Chadbourne Rev. 1978) § 1919]. Moore also acknowledged ‘the illusory quality of such a fact-opinion distinction.’ [11 J. Moore, Moore‘s Federal Practice (2d Ed. 1976) § 701.02]. The critical point bearing on the issue . . . is not simply the philosophical insight that statements usually contain both objective and subjective components . . . but rather the practical experience that opinions often represent a summary of statements of fact. The lay witness uses his opinion as a shorthand rendition of a set of collective facts otherwise difficult to state.” (Citations omitted; internal quotation marks omitted.) In re Franklin National Bank Securities Litigation, 478 F. Supp. 577, 584 (E.D.N.Y. 1979); see also Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 168, 109 S. Ct. 439, 102 L. Ed. 2d 445 (1988) (observing that “[i]t has frequently been remarked that the distinction between statements of fact and opinion is, at best, one of degree: All statements in language are statements of opinion, i.e., statements of mental processes or perceptions. So-called statements of fact are only more specific statements of opinion.” (Internal quotation marks omitted.)); G. Bach, “Moderating the Use of Lay Opinion Identification Testimony Related to Surveillance Video,” 47 Fla. St. U. L. Rev. 445, 451 (2020) (“[i]n its ‘purest form,’ lay opinion testimony is just a ‘shorthand rendition’ of the facts that a witness observed“).
In short—at least in this narrow context—we have arrived at the same conclusion that prompted the advisory committee for the Federal Rules of Evidence to abolish the ultimate issue rule. See
For all these reasons, we now hold that opinion testimony that relates to the identification of persons depicted in
Because
We begin with the observation that identifications of a defendant in surveillance video or photographs differ from eyewitness identifications. Unlike eyewitness identifications, which are grounded on the witness’ recollection of what the witness observed during the incident in question, an identification of a defendant by a nonpercipient witness in surveillance video or photographs is grounded on the witness’ general familiarity with the defendant‘s
An eyewitness, therefore, testifies regarding something that the jury cannot itself observe—that the eyewitness observed the defendant engaged in conduct that is relevant to whether he committed the offense with which he is charged. Jurors can never be on the same footing as an eyewitness because they were not there. In contrast, a witness who identifies the defen- dant in surveillance video or photographs testifies regarding material that the jury also is able to observe. Unlike the past events testified to by an eyewitness, the video or photographs in evidence are physically present in the courtroom. So is the defendant. The jury is therefore able to compare the defendant with the video or photographs. Accordingly, as a general rule, nonpercipient lay opinion testimony identifying a defendant in surveillance video or photographs is admissible only “if there is some basis for concluding that the witness is more likely to correctly identify the defendant from the photograph [or video] than is the jury.” United States v. Farnsworth, 729 F.2d 1158, 1160 (8th Cir. 1984).
In making this determination, courts evaluate the totality of the circumstances. See, e.g., United States v. Beck, 418 F.3d 1008, 1015 (9th Cir. 2005). Courts consider the following four factors relevant to determining whether the witness is more likely to correctly identify the defendant than is the jury: (1) the witness’ general level of familiarity with the defendant‘s appearance; see, e.g., United States v. Jackman, 48 F.3d 1, 3-6 (1st Cir. 1995) (defendant‘s former wife and two acquaintances, each of whom had known defendant for years, had sufficient relevant familiarity with defendant to allow testimony identifying defendant in surveillance footage); (2) the witness’ familiarity with the defendant‘s appearance, including items of clothing worn, at the time that the surveillance video or photographs were taken; see, e.g., United States v. Saniti, 604 F.2d 603, 605 (9th Cir.) (roommates allowed to identify defendant in surveillance footage based both on general familiarity with defendant and familiarity with defendant‘s clothing), cert. denied, 444 U.S. 969 (1979); (3) a change in the defendant‘s appearance between the time the surveillance video or photographs were taken and trial, or the subject‘s use of a disguise in the surveillance footage; see, e.g., United States v. Farnsworth, supra, 729 F.2d 1160 (defendant wore scarf over his face at time of robbery and had grown full beard by time of trial); and (4) the quality of the video or photographs, as well as the extent to which the subject is depicted in the surveillance footage. See, e.g., United States v. Allen, 787 F.2d 933, 936 (4th Cir. 1986) (“less than clear” quality of photographs, which provided only “limited glimpses” of individual depicted, rendered testimony of witnesses familiar with defendant more helpful to jury), vacated on other grounds, 479 U.S. 1077 (1987).
A witness’ general familiarity with the defendant is relevant both to whether the testimony is rationally based on the witness’ perception and whether the testimony is helpful to the fact finder. The Fourth Circuit explained: “[T]estimony by those who knew defendants over a period of time and in a variety of circumstances offers to the jury a perspective it could not acquire in its limited exposure to defendants. Human features develop in the mind‘s eye over time. These witnesses had interacted with defendants in a way the jury could not, and in natural settings that gave them a greater appreciation of defendants’
Decisions of state and federal courts have set a low bar for general familiarity, holding that, as long as a witness has a greater degree of familiarity with the defendant than does the jury, the general familiarity requirement favors admissibility.14 For example, courts have held this factor to support admissibility when law enforcement witnesses gained familiarity with the defendant by observing him from a distance. See, e.g., United States v. Houston, 813 F.3d 282, 287, 292 (6th Cir.) (trial court properly allowed video surveillance identification testimony of federal agent who had observed defendant in drive-bys of defendant‘s farm), cert. denied, 137 S. Ct. 567, 196 L. Ed. 2d 448 (2016); id., 292 (“someone who is personally familiar with an individual is presumptively better able to identify the individual in a photograph than a juror“). Courts have concluded that witnesses who have had a handful of encounters of undetermined or brief duration with the defendant have nonetheless acquired sufficient general familiarity. See, e.g., United States v. Arroyo, 600 Fed. Appx. 11, 15 (2d Cir. 2015) (superintendent of apartment building who recognized defendant as boyfriend of one of building‘s tenants, and had seen defendant in building “several times,” was properly allowed to identify defendant in video surveillance); United States v. Kornegay, 410 F.3d 89, 95 (1st Cir. 2005) (holding that detective‘s contact with defendant “on six occasions within a few months is within the zone that courts have found acceptable to show that the witness was sufficiently familiar with the defendant to provide a useful identification“); United States v. Pierce, 136 F.3d 770, 775 (11th Cir.) (identification testimony of probation officer who met defendant ten times over seven months was properly admitted because those contacts provided some basis for concluding that witness was “more likely” than jury to correctly identify defendant from photograph (internal quotation marks omitted)), cert. denied, 525 U.S. 974 (1998); United States v. Wright, 904 F.2d 403, 404-405 (8th Cir. 1990) (court properly admitted identification testimony of police officer who had seen defendant eight to ten times over two to three years); United States v. Allen, supra, 787 F.2d 935 (familiarity requirement was met when parole officer briefly met defendant on six or seven occasions); People v. Mixon, 129 Cal. App. 3d 118, 129, 180 Cal. Rptr. 772 (1982) (police officer possessed sufficient relevant familiarity when he had never spoken with defendant but had seen him from relatively close range on “numerous occasions” over period between one and ten years (internal quotation marks omitted)). Some courts have required even less, holding that a witness who viewed the defendant on a single occasion had sufficient general familiarity with the defendant. See, e.g., United States v. Jackson, 688 F.2d 1121, 1123-25 (7th Cir. 1982) (witness who met defendant only once, at holiday party, had sufficient general familiarity), cert. denied, 460 U.S. 1043 (1983); Robinson v. People, 927 P.2d 381, 382, 384 (Colo. 1996) (detective who had single, prior encounter with defendant had sufficient general familiarity); People v. Thompson, 49 N.E.3d 393, 408 (Ill. 2016) (witness who never met defendant, but saw him once, when he was sleeping on porch of mutual friend‘s house, had sufficient familiarity); see also annot., B. Filbert, “Admissibility of Lay Witness Interpretation of Surveillance Photograph or Videotape,” 74 A.L.R.5th 643, 654-74, § 3 [a] (1999) (citing cases in which courts held that witness’ familiarity with defendant‘s appearance was sufficient to render video or photographic surveillance identification testimony helpful to jury).
Even in jurisdictions expressing the standard for general familiarity in language that suggests a higher bar, courts routinely find that standard met when the witness possesses marginally greater familiarity with the defendant than does the jury. For example, in United States v. LaPierre, 998 F.2d 1460, 1465 (9th Cir. 1993), the Ninth Circuit identified two means by which a proponent could introduce this type of testimony—by establishing general familiarity with the defendant or by demonstrating changed appearance and familiarity with the defendant‘s appearance at the time of the incident.15 The court stated that the general familiarity requirement is met when “the witness has had substantial and sustained contact with the person in the photograph.” (Emphasis added.) Id.
In LaPierre, the court held that neither of those conditions was met. There was no evidence that the defendant‘s appearance had changed, and the witness, a police officer, “not only did not know [the defendant], he had never even seen him in person.” Id. Despite the high standard for general familiarity described in LaPierre, the Ninth Circuit subsequently has applied the same low bar as that applied in other jurisdictions. See, e.g., United States v. Beck, supra, 418 F.3d 1015 (witness who had seen defendant four times in two month period for total of more than seventy minutes was sufficiently familiar).
Courts have recognized that the concept of “familiarity” with another person is not an either/or dichotomy of “unfamiliar” versus “familiar.” Universally, however, courts have held that the degree of familiarity goes to the weight rather than to the admissibility of the testimony. For instance, in United States v. Jackson, supra, 688 F.2d 1126, the Seventh Circuit concluded that a witness who had met the defendant only once, at a holiday party, was properly permitted to identify the defendant in a surveillance photograph. The court explained that, “[w]hile we recognize that there is a difference between identification testimony which is based [on] a [witness‘] one social encounter with the defendant and identification testimony which is based [on] a [witness‘] close and on-going relationship with the defendant, we do not believe that the difference . . . is determinative of the issue of admissibility of the evidence. The amount of time that the witness had to observe the defendant goes to the weight to be accorded to the testimony by the jury rather than to its admissibility.” Id., 1125; see also United States v. Beck, supra, 418 F.3d 1012, 1015 (probation officer‘s four contacts with defendant, each for thirty minutes or less, was sufficient for admissibility of testimony identifying defendant in surveillance photograph, as degree of familiarity goes to weight rather than to admissibility); Robinson v. People, supra, 927 P.2d 384 (rejecting defendant‘s challenge to testimony of detective, who had seen defendant once, that defen- dant was depicted in surveillance photograph, as degree of familiarity goes to weight rather than to admissibility). But see United States v. Calhoun, 544 F.2d 291, 294-96 (6th Cir. 1976) (it was abuse of discretion to admit parole officer‘s testimony identifying defendant in surveillance photograph because probative value was outweighed by prejudice to defendant on basis that cross-examination to test witness’
In summary, our review of the relevant case law reveals that courts regularly find that this prong of the totality of the circumstances inquiry favors admissibility unless the witness has had virtually zero prior contacts with the defendant. The low bar for general familiarity renders this prong close to meaningless, a mere rubber stamp on the road to admissibility. Rather than inquiring whether a witness has some degree of “familiarity” with the defendant‘s appearance, the general familiarity prong, as applied in federal and state courts, merely asks whether the witness has ever, even once, seen the defendant prior to identifying him in surveillance video or photographs.
The low standard for general familiarity tends to favor the prosecution.16 Although a defendant in some instances may seek to introduce testimony that he is not the person depicted in surveillance video or photographs; see, e.g., United States v. Jackman, supra, 48 F.3d 4 (defendant‘s brother testified that suspect depicted in surveillance photographs was not defendant); in the vast majority of cases, it is the state that seeks to introduce this type of testimony.
We conclude that the low threshold for general familiarity applied in virtually all jurisdictions that have considered the admissibility of lay witness identifications of a defendant in surveillance video or photographs does not afford sufficient protection to criminal defendants against good faith mistaken identifications. We believe that the better rule is to require, in order for the witness’ general familiarity with the defendant‘s appearance to weigh in favor of admissibility, that the proponent of the testimony demonstrate that the witness possesses more than a minimal degree of familiarity with the defendant. We acknowledge that we are eschewing the bright line rule applied by other jurisdictions in favor of one that relies on trial courts to exercise their discretion to determine whether this factor supports admissibility. That determination will rest on the
Our conclusion is guided in part by the measures taken, both by this court and by the legislature, to protect defendants against good faith, mistaken identifications in the related context of eyewitness identification. As we have observed in this opinion, eyewitness identifications are different from identifications of a defendant in surveillance footage. The two contexts, however, overlap in one significant respect: both involve the witness’ claimed recognition of the defendant.
We have recognized that recent scientific developments “abundantly [demonstrate] the many vagaries of memory encoding, storage and retrieval; the malleability of memory; the contaminating effects of extrinsic information; the influence of police interview techniques and identification procedures; and the many other factors that bear on the reliability of eyewitness identifications.” (Internal quotation marks omitted.) State v. Guilbert, 306 Conn. 218, 237, 49 A.2d 705 (2012). In light of the growing body of scientific research and studies revealing the fallibility of eyewitness identifications, this court has increased the procedural safeguards that apply in the context of eyewitness identifications. See, e.g., State v. Harris, 330 Conn. 91, 115, 191 A.3d 119 (2018) (state constitution required modification of factors set forth in Neil v. Biggers, 409 U.S. 188, 199-200, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972), in light of “recent developments in social science and the law“); State v. Guilbert, supra, 234-35 (relying on “near perfect scientific consensus” in reversing long-standing bar on admission of expert testimony on fallibility of eyewitness identification); State v. Ledbetter, 275 Conn. 534, 578-79, 881 A.2d 290 (2005) (relying on growing body of scientific research in invoking supervisory authority to require trial courts to instruct jury of risk of misidentification in cases in which law enforcement failed to instruct witness that perpetrator may or may not be present in identification procedure, unless no significant risk of misidentification exists) (over- ruled in part on other grounds by State v. Harris, supra, 330 Conn. 91, 191 A.3d 119 (2018)), cert. denied, 547 U.S. 1082 (2006).
The General Assembly has also enacted legislation adding significant procedural
In comparison to the vast amount of scientific research on stranger identifications, there have been only a small number of studies focused on the accuracy of familiar identifications. See J. Vallano et al., “Familiar Eyewitness Identifications: The Current State of Affairs,” 25 Psychol. Pub. Policy & L. 128, 128-29 (2019) (observing that bulk of scientific studies of accuracy of eyewitness identifications have focused on stranger identifications, whereas “familiar identifications” have received only “sporadic and haphazard attention among social scientists and legal practitioners“). The relevant field studies in the area, however, are “remarkably consistent” and demonstrate that, as a general rule, familiarity renders an identification significantly more reliable than stranger identifications. Id., 131; see also State v. Guilbert, supra, 306 Conn. 259-60 (recognizing, in context of eyewitness identifications, that, “although there are exceptions, identification of a person who is [well-known] to the eyewitness generally does not give rise to the same risk of misidentification as does the identification of a person who is not [well-known] to the eyewitness“). The more problematic question is how much familiarity is required to render an identification of a defendant in surveillance video or photographs sufficiently reliable to allay concerns regarding a lack of available procedural protections against a mistaken identification.
As we have already stated, the concept of familiarity encompasses a broad range of possibilities. Unlimited, the term may include both a person‘s spouse of fifty years and a stranger‘s onetime brief encounter. Few would doubt the ability of a spouse to accurately iden- tify his or her partner—even from the relatively poor quality that is common among surveillance video and photographs—but we do not have the same confidence in an identification by a person who has a minimal degree of familiarity with a defendant.18
In accordance with these principles, we decline to join the majority of jurisdictions that adhere to a minimum threshold for general familiarity and hold that the degree of a witness’ familiarity with a defendant goes to the admissibility of the witness’ identification of the defendant in surveillance video or photographs. In order for the witness’ general familiarity with the defendant‘s appearance to weigh in favor of admitting such testimony, the proponent of the testimony must demonstrate that the witness possesses more than a minimal degree of familiarity with the defendant. Some illustrative examples of persons who may satisfy this standard are friends, longtime acquaintances, neighbors, coworkers, family members, and former classmates.
We believe that this standard comports with the requirement of
The remaining three factors—the witness’ familiarity with the defendant‘s appearance at the time of the surveillance footage, any change in the defendant‘s appearance since the surveillance or any disguise worn by the subject at the time of the surveillance, and the quality of the
Applying these principles to the present case, we conclude that Canty‘s long-standing and intimate association with the defendant easily meets the general familiarity prong, which favors admitting Placzek‘s testimony that Canty had identified the suspect in the photograph as the defendant. Canty and the defendant had known each other for years. As Canty himself stated, he had known the defendant for half his life. They were so close that Canty described the defendant as his cousin.
The second prong, the witness’ familiarity with the defendant‘s appearance at the time that the surveillance footage was recorded, also weighs in favor of admissibility. Canty was familiar with the defendant‘s appearance when the surveillance video was recorded. Indeed, he spent several hours with the defendant both on the day of the shooting and the following day. In addition, at the time of the shooting, Canty saw the defendant regularly—he spent time with the defendant on most days. He was familiar with the type of clothing the defendant wore, describing him as favoring Nike outfits.
As for the remaining two prongs, the record does not reflect whether the defendant‘s appearance changed between the time the surveillance video was recorded and the time of trial, and, although he wore a baseball cap in the surveillance footage, he was not wearing a disguise.19 The quality of the photograph, however, also weighs in favor of admission. The trial court found that, although it was not unmistakably clear, the subject was close enough to the camera, and his face was visible enough to allow for recognition. The trial court, therefore, properly admitted Placzek‘s testimony that Canty had identified the subject in the photograph as the defendant.
II
We next address the defendant‘s claim that the trial court improperly denied his motion for a mistrial and a new trial based on alleged juror misconduct. Specifically, the defendant claims that the trial court abused its discretion in denying the defendant‘s motion for a new trial, in which he argued that he suffered prejudice when jurors brought in and used two unauthorized magnifying glasses to assist them in reviewing the photographic evidence during their deliberations. The state responds that the trial court acted within its discretion in concluding that the defendant had failed to prove that he suffered prejudice due to the alleged misconduct. We agree with the state.
The record reveals the following additional facts relevant to the resolution
After the verdict was announced, the trial judge met with the jurors “to talk to [them] informally about the trial process.” During that discussion, after the jurors had returned the magnifying glass that the court had provided to them, the judge observed one of the jurors remove a different magnifying glass from her backpack, then replace it. The court subsequently held a hearing, pursuant to State v. Brown, 235 Conn. 502, 668 A.2d 1288 (1995), during which the court questioned both the foreman and the female juror who had displayed the magnifying glass. The female juror confirmed that she had brought in a magnifying glass, a toy belonging to her preschool aged son. She told the court that, although she did not use that magnifying glass, she believed that at least two other jurors did.
She informed the court that the foreman had also brought in a magnifying glass. She saw the foreman use the magnifying glass that he had brought but did not see anyone else use it. When the court pressed for more information regarding how the jurors had used the extra magnifying glasses, she explained that the jurors wished to use the magnifying glasses to assist them in evaluating the photographs that were not very clear, particularly the still photograph of the suspect taken from the video surveillance footage.
When the court questioned the foreman, he confirmed that he had brought a magnifying glass into court during deliberations. He told the court that the glass is called a “loupe,” and it is used in photography for viewing negatives. The glass was old and foggy, no better than reading glasses. He used the magnifying glass to view the still photograph of the suspect. He believed that one or two jurors seated near him also viewed the photograph through the magnifying glass.
Over the course of an additional two days, the court questioned the remaining jurors. Two of the jurors were questioned by telephone set to speaker mode in the courtroom. Most recalled seeing at least one of the additional magnifying glasses; many recalled both. Most of them remembered seeing at least some jurors using one of the additional magnifying glasses. The consensus was that people were using the magnifying glasses to view the photographs, particularly the still photographs from the video surveillance footage.
In its memorandum of decision denying the defendant‘s motion for a mistrial and a new trial, the trial court found that neither of the additional magnifying glasses, both of which had been marked as exhibits for the purpose of the hearing, had high powers of magnification. As to the loupe, the court found that it was quite foggy. The court also found that the additional two magnifying glasses did not allow the jury to do anything different or additional beyond what the court provided magnifier allowed.
We review a trial court‘s determination as to whether juror misconduct has prejudiced a party for abuse of discretion. See, e.g., State v. Roman, 262 Conn. 718, 727, 817 A.2d 100 (2003). “We recognize that the trial judge has a superior opportunity to assess the proceedings over which he or she personally has presided and thus is in a superior position to evaluate the credibility of allegations of jury misconduct, whatever their source.” (Citations omitted.) State v. Brown, supra, 235 Conn. 527-28. For both forms of relief requested by the defendant, a mistrial and a new trial, he bore the burden of establishing that the alleged misconduct prejudiced him. See
The judgment is affirmed.
In this opinion the other justices concurred.
MULLINS, J.