Lay Witnesses May Testify as to the Identity of Individuals Captured on Photographs/Videotapes

This afternoon, the Court of Appeals released its opinion in State v. Barnes (J. Gratton, joined by J. Lansing and J. Gutierrez). On appeal, Mr. Barnes raised three principal issues: (1) the trial court erred in allowing lay witnesses to testify as to the identity of an individual captured on a videotape, (2) the trial court erred by allowing a witness to testify about out-of-court statements the witness made to police, and (3) the prosecutor committed misconduct by eliciting testimony as to Barnes' guilt and character.

Much of the opinion is consumed with the Court's convoluted analysis of the admissibility of the respective testimony of the lay witnesses' concerning identification of the individual captured on the surveillance videotape. It noted appellate courts have generally held that "in order for lay opinion identification testimony to be admissible, it must be helpful to the jury, which requires that 'there be some basis for concluding that the witness is more likely to correctly identify the defendant from the photograph than is the jury."

In its analysis, the Court broadly cited various factors, the existence of which indicates that there is "some basis for concluding that the witness is more likely to correctly identify the defendant from the photograph than is the jury." Briefly, the factors include: the witness' prior familiarity with the defendant's appearance; whether there were changes in the appearance of the defendant at the time of trial; the quality of the photographs. In sum, the Court concluded the opinion of the lay witnesses was rationally based on the perception of the witness, and the testimony was helpful to the jury in the determination of a fact in issue.

Secondly, the Court evaluated the trial court's admission of various out-of-court statements elicited by the State made by the witness to police. Although trial counsel timely objected to the State's first attempt to elicit hearsay from the witness, the Court noted the Defendant failed to request a continuing objection to the line of questioning. Therefore, the Court concluded the issue was not preserved for appeal.

Thirdly, Barnes argued the State committed prosecutorial misconduct by eliciting testimony from the father of the defendant's girlfriend stating he believed Barnes was guilty and that he thought Barnes was a clown. As there was no objection to either question, the Court evaluated both instances for fundamental error. While the Court concluded the questioning constituted prosecutorial misconduct, it avoided the fundamental error analysis, simply concluding the error was harmless.

The full opinion can be found here: http://www.isc.idaho.gov/opinions/barnes%20opinion.pdf