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Criminal Law Supreme Court Slip Opinions

by Booth, George

 

SC20211 - State v. Gore (Murder; Whether identification of defendant in surveillance video still photograph constituted improper opinion evidence on ultimate issue in case; Whether trial court properly denied defendant's motion for new trial based on alleged juror misconduct; "When the judges of the Superior Court adopted the Connecticut Code of Evidence in 1999, § 7-3 (a) codified the existing common-law evidentiary rule, which prohibited lay opinion testimony that embraced an ultimate issue to be decided by the trier of fact. In accordance with that rule, this court held, in State v. Finan, 275 Conn. 60, 66–67, 881 A.2d 187 (2005), that lay opinion testimony identifying a defendant in video surveillance footage is prohibited when that identification embraces an ultimate issue.

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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. 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 § 7-3 (a) of the Connecticut Code of Evidence to incorporate an exception to the ultimate issue rule for lay opinion testimony that relates to the identification of persons depicted in surveillance video or photographs, and overrule State v. Finan, supra, 275 Conn. 60. As we explain in part I of this opinion, we adopt a totality of the circumstances test for determining whether lay opinion testimony identifying a person in surveillance video or photographs is admissible. As we explain subsequently in this opinion, our amendment of § 7-3 (a) to the Connecticut Code of Evidence to incorporate an exception for testimony relating to the identification of persons depicted in surveillance video or photographs does not affect the result in this appeal. We affirm the judgment of the trial court.")

SC20174 - State v. Bruny (Murder; Evidence; Motion to suppress in-court and out-of-court identifications as unnecessarily suggestive; Whether trial court improperly allowed witnesses to identify defendant on surveillance video of murder; "This is the companion case to State v. Gore, ___ Conn. ___, ___ A.2d ___ (2022), decided today. In Gore, we have amended § 7-3 (a) of the Connecticut Code of Evidence to incorporate an exception to the ultimate issue rule for opinion testimony that relates to the identification of criminal defendants and other persons depicted in surveillance video or photographs. Our decision in Gore addresses how the change to our Code of Evidence affects the admissibility of lay opinion testimony identifying a defendant in surveillance video or photographs. In this appeal, we consider how the rule change affects the admissibility of expert opinion testimony relating to the identification of a defendant in surveillance video or photographs. Put simply, we conclude that such testimony is admissible if it meets the requirements of § 7-2 of the Connecticut Code of Evidence.")