Testimony by Other than the Identifying Witness
Opinion testimony by lay witnesses
• If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:
(a) rationally based on the witness's perception; and
(b) helpful to a clear understanding of the witness's testimony or to a determination of a fact in issue.
• For more information about Evid. R. 701, please review Miscellaneous.
• In other cases we have looked to the Seventh Circuit for guidance when the text of the state rule of evidence is identical to its federal counterpart. The Seventh Circuit has interpreted Fed. R. Evid. 701 to permit a witness to offer an opinion on the identity of an individual in a surveillance video or a photograph, as long as there is a basis for finding that the witness has superior ability to identify the defendant than the jury.
Vinson v. State, 735 N.E.2d 828, 835 (Ind. Ct. App. 2000), trans. denied, disapproved of on another issue by Long v. State, 743 N.E.2d 253, 256 n. 6 (Ind. 2001), reh'g denied(quoting Gibson v. State, 709 N.E.2d 11, 15 (Ind. Ct. App. 1999), trans. denied)
• [In Gibson,] this court . . . held that the lay opinion of a police officer familiar with the defendant was admissible under Indiana Evidence Rule 701 as being helpful to the jury in reaching a decision about the identification of the person depicted in a videotape admitted as a silent witness.
• For more information about the silent witness theory, please review Photographs and Videos.
• Officers Brown and O'Dell testified that they had known [the defendant] for the past two or three years, and their lay opinion that the person shown in the videotape and photographs was [the defendant] was helpful to the jury in determining the identity of the person depicted therein. Therefore, the trial court did not abuse its discretion by allowing these witnesses to testify that they recognized [the defendant] in the videotape and photographs.
See Keller v. State, 25 N.E.3d 807, 814 (Ind. Ct. App. 2015)(“We . . . find that Goodson controls. . . . [E]ach of the deputies had known Keller for twenty years or more, and each gave his lay opinion that the person pictured in State's Exhibit 17 was Keller. Under the reasoning of Goodson, the trial court did not abuse its discretion when it allowed the deputies to testify at trial.”)
Relationship to the rule against hearsay
• Statements of identification are not hearsay if they are made shortly after perceiving the person, and the declarant is available for cross-examination concerning the statement at trial.
• For more information about when statements of identification are not hearsay, please reivew Prior Statements.