OF COUNSEL. (APPEARANCES TENDERED.) THE COURT:
WELCOME, COUNSEL. I WILL ASK TO THE EXTENT IT MAKES SENSE TO
ATTEMPT TO INCORPORATE OTHER ARGUMENTS THAT HAVE PRECEDED YOU IF THAT LOGICALLY
FLOWS DURING THE COURSE OF THE ARGUMENT. MS. MICHAELS, PLEASE.
LAUREN S. MICHAELS: MAY IT PLEASE THE COURT, I WOULD LIKE
TO RESERVE JUST A FEW MINUTES FOR REBUTTAL, IF NECESSARY.
THE COURT: THAT'S FINE. LAUREN S. MICHAELS: THANK YOU.
THIS IS A CASE ABOUT A BANK ROBBERY COMMITTED IN UNDER A MINUTE BY A ROBBER
WEARING A HAT OBSCURING PART OF HIS FACE. THE STATE PROSECUTED
THE DEFENDANT IN THIS CASE, MR. WATSON IN A THREE WITNESS TRIAL WITHOUT ANY
PHYSICAL EVIDENCE CONNECTING HIM TO THE CRIME AND THE ONLY FORENSIC I CAN EVIDENCE
EXCLUDED HIM. THE STATE'S SOLE EYEWITNESS, GAMBARROTTI, GAVE ONLY A VAGUE
DESCRIPTION OF THE SUSPECT, IDENTIFIED ANOTHER PERSON IN AN OUT-OF-COURT
IDENTIFICATION PROCEDURE EVEN THOUGH MR. WATSON'S PHOTO WAS IN THE ARRAY. THERE WAS
A PIXEL LATD SURVEILLANCE VIDEO IN WHICH A SIGNIFICANT PORTION OF THE SUS
SPENT'S FACE WAS COVERED AND THE POSITION OF HIS HANDS AN FINGERS WERE UNCLEAR
AND FROM A SINGLE STILL FROM THAT SURVEILLANCE VIDEO, WHICH 25 PERCENT OF
SUS SPENT'S FACE WAS CONCEALED, MR. WATSON'S EX GIRLFRIEND, GENERAL HILL WHO WAS
NOT A WITNESS TO THE ROBBERY OPINED IT WAS HIM MENT. THIS
CASE PRESENTS THREE SEPARATE ISSUES FOR THE COURT, EACH OF WHICH WARRANTS REVERSAL
OF MR. WATSON'S CONVICTION AN CERTAIN SRTLY COLLECTIVELY. THE
I SEE. FIRST ISSUE IS THE CONFRONTATION CLAUSE VIOLATION, IN
CASE THE JURY HEARD THAT THE SERGEANT CREATED A BULLETIN ABOUT THE ROBBERY HE
SHARED THAT WITH LAW, LAW ENFORCEMENT AGENCIES FOR A MONTH AND THERE WAS NO
NEEDS, UNTIL ANOTHER. THE JURY WAS TOLD THAT AFTER VITELLI TALKED
TO THEM HE WENT FROM APPARENTLY HAVING NO SUSPECTS TO ENOUGH OF INCRIMINATING
EVIDENCE TO CHARGE MR. WATSON IN THIS ROBBERY. NOT ONLY DID THIS IMPLY THAT THE
POLICE AN THE STATE HAD MORE EVIDENCE AGAINST MR. WATSON THAN WAS PRESENTED
AT THE TRIAL BUT IT MS IMPLIED SERGEANT VITELLI'S TESTIMONY WAS WORTH GREATER WEIGHT.
THIS TESTIFIES WHICH WAS OBJECTED TO AT TRIAL WAS PRECISELY
THE IMPERMISSIBLE TESTIMONY THAT IS NOT PERMITTED. THE SECOND
ISSUE PRESENTED TODAY IS SERGEANT VITELLI'S IMPERMISSIBLE LAY OPINION TESTIMONY
ABOUT WHAT THE SURVEILLANCE VIDEO DEPICTED. SERGEANT VITELLI WAS
INTRODUCED TO THE JURY AS A VERY EXPERIENCED CONSIDERS INVESTIGATE CRIME SCENE,
INVESTIGATOR AND OVER REPEATED DEFENSE OBJECTIONSINGS, SUTH VITELLI COMMITTED WHAT
THE SUSPECT WHAT, THAT LOOKED LIKE AND HIS IS YOUR. AN THIS WAS
BASED SOLELY ON HIS VIEW OF THE SURVEILLANCE FOOTAGE. NOT
ONLY DID THIS INADMISSIBLE TESTIMONY IN PROPERLY VOUCH FOR THE TESTIMONY OF WHY
THERE WAS NO PHYSICAL OR FORENSIC I CAN EVIDENCE CONNECTING MR. WATSON TO
THE ROBBERY. IT IMPLIED THAT SERGEANT VITELLI AGREED WITH THE TELLER'S DESCRIPTION.
THIS ERROR WAS MADE EVEN MORE HARMFUL BUS THE JURY WAS NOT
GIVEN APPROPRIATE GUIDANCE ABOUT HOW TO ASSESS THE TESTIMONY NOR WAS THE JURY AD
MONISHED ABOUT FACTUAL DETERMINESES WERE THERES ALONE TO MAKE, YET THE
APPELLATE DIVISION FOUND NO ERROR AT ALL. FINALLY THE THIRD ISSUE IS
THE WRONGFUL ADMISSION OF GAMBARROTTI'S FIRST TIME IN-COURT IDENTIFICATION.
DESPITE THE SERIOUS RISK OF MISIDENTIFICATION, THE PROSECUTOR WAS
PERMITTED TO ELICIT FROM GAMBARROTTI AN IN-COURT IDENTIFICATION OF THE
DEFENDANT WHICH WAS UNDULY SUGGESTIVE UNRELIABLE AN FAR MORE PREJUDICIAL THAN PROB
ATIVE MENT. AGAIN, THIS IS WHEN GAMBARROTTI SELECTED SOMEONE
OTHER THAN THE DEFENDANT IN AN OUT OF COURT PHOTO ARRAY, THAT CONTAINED A PHOTO
OF THE DEFENDANT AN THERE ARE SO. SYSTEM VARIABLES AN ESTIMATOR VARIABLES
PRESENT IN THIS CASE. THIS WAS A SHOWUP. THE EVENT WAS STRESSFUL,
IT WAS SHORT. DURING THAT TIME, MR. GAMBARROTTI, ALSO, WAS FOCUSING ON
COLLECTING MONEY FROM THE BANK. THE SUSPECT WAS WEARING A HAT WHICH THIS COURT
HAS RECOGNIZED AS A DISGUISE. THERE WAS ALMOST TWO YEARS BETWEEN THE EVENT
AN IN IN-COURT IDENTIFICATION OF THIS CASE, THERE WAS ALSO CROSS RACIAL
IDENTIFICATION AND THERE WAS ALSO THE LEVEL OF BLANK IN THIS CASE.
SO, THERE WERE SO MANY SYSTEMS VARIABLES AN ESTIMATOR VARIABLES TRONGLY POINT TO
THE PACKET THAT THIS WAS NOT A RELIABLE IDENTIFICATION. IT
WAS PLAIN ERROR FOR THE TRIAL COURT TO ADMIT THIS IN-COURT IDENTIFICATION AND,
AGAIN, FURTHER COMPOUNDING THE ERROR, THERE WAS A FAILURE TO INSTRUCT THE
JURY ON THE SPECIAL SUGGESTIVENESS OF A FIRST TIME IN-COURT IDENTIFICATION AN THE
POTENTIAL UNRELIABILITY OF IT. THE APPELLATE DIVISION IN ITS
OPINION DID RECOGNIZE THAT THE FIRST TIME IN COURT IDENTIFICATIONS ARE PROBLEM
ATIC AND SUGD THE JURIES NEED FURTHER INSTRUCTION ON HOW TO EVALUATE.
IN THIS WAEK WEAK CASE THERE WAS AN EYEWITNESS WHO IDENTIFIED ANOTHER PERSON
AND ONLY A PICKS SELL LATD VIDEO OF A PARTIALLY OBSCURED FACE TO RELY ON.
THESE ERRORS DEPRIVE MR. WATSON OF HIS CONSTITUTIONAL RIGHTS AN HIS ON VIKS MUST BE
REVERSED; THAT'S THE CONCLUSION OF MY GENERAL OPENING. I AM GOING TO MOVE
TO THE FIRST ISSUE. THE COURT: AS YOU PRESENT ALL THREE ISSUES
I ASK YOU TO HAVE IN MINE, ENCOURAGE YOU TO FOCUS MORE OF YOUR TIME AND ATTENTION
TO THE SECOND APPEND THIRD QUESTIONS JUST IN LOU LIEU OF HOW MUCH TIME WE HAVE
THIS MORNING. LAUREN S. MICHAELS: SO THE LAYPERSON --
THE COURT: IN YOUR MIND, IF YOU COULD CAN. LAUREN S. MICHAELS:
MIKE THANK YOU FOR THE SUGGESTION. I APPRECIATE IT. SO --
JUSTICE WAINER APTER: ON THE CONFRONTATION CLAUSE QUESTION,
COULD I ASK, WHY WOULD THE STATE HAVE HAD TO CROSS PETITION TO CHALLENGE THE PAP
APPELLATE DIVISION'S HOLDING THAT DEFENDANT'S CONFRONTATION CLAUSE
RIGHTS WERE VIOLATED? I THOUGHT THAT A PARTY ONLY HAS TO CROSS
PETITION IF THEY ARE SEEKING TO AFFIRMATIVELY OVERRULE OR MODIFY A JUDGMENT AN HERE
THE JUDGMENT, BECAUSE THE APPELLATE DIVISION FOUND THAT THE ERROR WAS HARMLESS
WAS IN THEIR FAVOR AND SO THEY WEREN'T SEEKING TO AFFIRMATIVELY OVERRULE
OR MODIFY IT, RIGHT? LAUREN S. MICHAELS: SO I THINK THE COURT
CAN STILL CONSIDER THE ISSUE. I DON'T THINK THAT MY ARGUMENT RISES OR FALLS
ON WHETHER OR NOT THERE IS PROSECUTION, THE COURT SHOULD BE AWARE AS THEY'RE
CONSIDERING THE ISSUES IN THIS CASE AS WELL AS WHAT WAS CONSIDERED BELOW AND WHAT
MAY BE WAIVED. JUSTICE WAINER APTER: OKAY.
JUSTICE PATTERSON: YOU'RE NOT ARGUING WAIVER ON THAT ISSUE OR YOU ARE ARGUING
WAIVER? HAD. LAUREN S. MICHAELS: I DON'T THINK THE COURT
SHOULD DISCUSS OR -- I DON'T THINK THAT THE COURT SHOULD FIND THAT THERE WAS A
CONFRONTATION -- I DON'T THINK THAT THE COURT SHOULD -- SHOULD ADDRESS WHETHER THERE
IS A VIOLATION, BUT RATHER THE HARM, BUT THE THERE IS SO CLEARLY A
CONFRONTATION CLAUSE VIOLATION IN THIS CASE THAT EVEN IF THE COURT DOES REACH IT
AN ASSUMING THAT THE COURT IS GOING TO TALK ABOUT -- CONSIDER THE ISSUE,
THERE CLEARLY WAS A VIOLATION HERE ANYWAY. THE COURT: AND WHY SHOULDN'T
WE REACH THAT QUESTION, THE SUBSTANTIVE QUESTION? LAUREN S.
MICHAELS: WELL, THE STATE DIDN'T FILE A CROSS PETITION AT ALL ON THE ISSUE.
CHIEF JUSTICE RABNER: SO CAN YOU ANSWER JUST WAINER APTER'S QUESTION
DIRECTLY? JUSTICE WAINER APTER: MY QUESTION WAS I THOUGHT
THIS THAT A CROSS PETITION WAS ONLY NECESSARY IF THE PARTY WAS SEEKING TO AFFIRM
ATIVELY MODIFY OR OVERRULE THE JUDGMENT AND THAT HERE, THEY WERE NOT SEEKING
TO AFFIRMATIVELY MODIFY OR OVERRULE THE APPELLATE DIVISION'S JUDGMENT BECAUSE THE
JUDGMENT WAS THAT IT HAD BEEN HARMLESS AN SO THERE WAS NOTHING TO -- THAT
THEY WANTED TO AFFIRMATIVELY MODIFY OR OVERRULE SO WHY WOULD A CROSS PETITION HAVE
BEEN NECESSARY? LAUREN S. MICHAELS: IT HAS ALWAYS BEEN MY
UNDERSTANDING IN MY PRACTICE THAT I APPLES FILE A PROTECTIVE CROSS PETITION, WHICH
WASN'T DONE IN THIS CASE. AGAIN, EVEN IF IF THE COURT REACHES
THE ISSUE WHICH IT SOUNDS LIKE THE COURT IS INCLINED TO DO, IT WAS SO CLEARLY
A VIOLATION OF THE CONFRONTATION CLAUSE THAT I DON'T THINK THAT IT IS GOING TO
ACTUALLY BE A DECIDING FACTOR IN THIS CASE. JUSTICE WAINER
APTER: IN TERMS OF THE SUBSTANCE, GIVEN THE APPELLATE COURT'S HOLDING ON THE
CONFRONTATION CLAUSE AN YOUR MOTION, OF COURSE ON THE 404(B) OF EVIDENCE AT TRIAL,
WHAT SHOULD HAD OFFICER VITELLI HAVE SAID TO EXPLAIN HOW HE CAME TO ARREST THE
DEFENDANT TEN MONTHS AFTER THE ROBBERY? LAUREN S. MICHAELS:
WELL, THERE SHOULDN'T HAVE BEEN ANY -- THERE SHOULDN'T HAVE BEEN ANY TESTIMONY
AT ALL ABOUT HAVING CONSULTED WITH ANOTHER POLICE DEPARTMENT. THAT WAS
AN ERROR FOR THE COURT TO ALLOW HIM TO PROVIDE THAT TESTIMONY.
JUSTICE WAINER APTER: SO HOW SHOULD HE HAVE BEEN ABLE TO EXPLAIN WHY IT WAS ONLY
10 MONTHS AFTER THE ROBBERY THAT HE CAME TO ARREST THE DEFENDANT.
LAUREN S. MICHAELS: WELL, I DON'T THINK HE SHOULD HAVE BEEN ABLE TO -- I DON'T THINK
HE SHOULD HAVE BEEN ABLE TO TELL THE JURY THAT IT WAS AFTER CONSULTING WITH
ANOTHER POLICE DEPARTMENT. I THINK THE COURT CAN LOOK TO -- I MEAN, I DON'T THINK
THERE IS ANY SUGGESTION HERE. LET ME TAKE A STEP BACK. THERE WASN'T A
SUGGESTION IN THIS CASE THAT THE POLICE ACTED ARBITRARILY, EVEN THOUGH THAT WAS
SOMETHING THAT THE RAILROAD EXPRESSED SOME CONCERN ABOUT AND THERE WAS SOME
DISCUSSION ABOUT JURY NULLIFICATION, I THINK THAT IF YOU LOOK AT THIS COURT'S PRIOR
CONFRONTATION CLAUSE JURISPRUDENCE IT IS PRETTY CLEAR THAT YOU NEED SOMETHING
MORE THAN JUST A GENERAL FEELING THAT THE JURY MIGHT THINK THAT THE POLICE
ACTED ARBITRARILY. THERE WAS NO SUGGESTION BY DEFENSE COUNSEL HERE
AT ALL, BUT EVEN STILL, EVEN IF THE -- EVEN IF CASES WHERE THERE IS A SUGGESTION
THAT THE POLICE ACTED ARBITRARILY, THE TESTIMONY HERE WENT FAR BEYOND THE
GENERIC LANGUAGE THAT HAS BEEN PERMITTED BY BRANCH. JUDGE SABATINO:
WELL, ISN'T THIS A LITTLE DIFFERENT THAN YOUR CLASSIC BANK STON FORMULATION WHERE
THE POLICE OFFICER GETS ON AN JUST SIMPLY WITH CONSENT AN PRACTICE SAYS,
UPON INFORMATION RECEIVED, ALL RIGHT, THAT'S SORT OF THE MANT TRA WE OFTEN HAVE.
HERE, WE HAVE MS. HILL AND THERE NEEDED TO BE, I THINK YOU
WOULD AGREE THAT SOME EXPLANATION TO HOW SHE CAME TO CONTACT THE POLICE AND SET
THESE THINGS IN MOTION, RIGHT? SO, THE UPON INFORMATION RECEIVED
SOLUTION DOESN'T WORK HERE, DOES IT? LAUREN S. MICHAELS:
WOEL, FIRST OF ALL, THE UPON INFORMATION RECEIVED FORMULATION IS ALSO ONLY
ALLOWED IF IT DOESN'T CREATE THE CON TRONT TAGS CLAUSE PROBLEM THAT WE HAVE HERE. THE
STATE'S DESIRE TO PROVIDE FURTHER EXPLANATION HAS TO BE TRUMPED BY THE
CONSTITUTIONAL RIGHTS OF THE DEFENDANT. AND PERHAPS I CAN GET MORE
DIRECTLY TO THE QUESTION THAT YOUR HONOR IS ASKING. LETTER. THE
STATE IS ARGUING IN THIS CASE THAT SOMEHOW THE JURY WOULD HAVE THOUGHT THAT JENNIFER
HILL WAS THE SOURCE OF THE INFORMATION AND I WANT TO ADDRESS WHY THAT IS
NOT ACTUALLY A LOGICAL INFERENCE AT ALL, IF THAT GETS TO YOUR HONOR'S QUESTION.
THE ONLY LOGICAL INFERENCE THAT THE JURY COULD DRAW IN THIS
CASE IS THAT SOMEONE IN THE OTHER POLICE DEPARTMENT WAS THE SOURCE OF THE INFORMATION.
THE MAIN PROBLEM WITH THIS IDEA THAT THE JURY WOULD HAVE INFERRED
THAT IT WAS JENNIFER HILL IS THAT THERE WAS NO TESTIMONY CREATING A CLEAR LINK
BETWEEN JENNIFER HILL AND THIS ROBBERY IN THIS CASE. THE STATE
IS INFERRING THAT THE ARTICLE. JUSTICE PATTERSON: YOU SHED THERE WAS
NO TESTIMONY CREATING A LING. LAUREN S. MICHAELS: A LINK
BETWEEN JENNIFER HILL'S NEWSPAPER ARTICLE AND THE ROBBERY IN THIS CASE.
ALL THAT THE JURY WAS TOLD ABOUT JENNIFER HILL IS THAT SHE IDENTIFIED QUINTIN
WATSON FROM A NEWSPAPER ARTICLE. SHE WAS NEVER TOLD THE ARTICLE ROELTD
TO THIS ROBBERY. THE ARTICLE WAS 10 MONTHS AFTER THIS ROBBERY AND SHE CALLED A
DIFFERENT POLICE DEPARTMENT IN RESPONSE TO THE ARTICLE SO IT'S REALLY NOT A
REASONABLE INFERENCE THAT THIS WAS ABOUT THIS ROBBERY. ALSO, SERGEANT
VITELLI'S TESTIMONY, OVERALL NEVER MENTIONED JENNIFER HILL AND HE CERTAINLY
DOESN'T MENTION JENNIFER HILL IN THE CONTEXT OF THIS CONFRONTATION CLAUSE.
HE NEVER SAYS HE CALLED HER AND THE JURY IS TOLD THAT JENNIFER HILL DOESN'T BECOME
CONNECTED TO THIS CASE UNTIL SHE MAKES AN IDENTIFICATION FROM THE VIDEO
STILL IN OCTOBER 2018 WHICH IS OVER A YEAR AFTER THE CONSULTATION WITH THE NONTESTIFYING
OFFICERS. JUSTICE WAINER APTER: AGAIN, HOW SHOULD
OFFICER VITELLI HAVE TESTIFIED GIVEN THE 404(B) HOLDING THAT NO EVIDENCE ABOUT OTHER
CRIMES OR OTHER BAD ACTS COULD COME INTO THE CASE AN GIVEN THE HISTORY OF HOW
OFFICER VITELLI FOUND OUT ABOUT DEFENDANT, WHAT SHOULD HE HAVE SAID ABOUT
HOW HE CAME TO ARREST DEFENDANT. LAUREN S. MICHAELS: SO IF THE COURT
BELIEVES THAT THE STATE SHOULD BE ALLOWED TO PRESENT SOMETHING ABOUT WHY
THIS WASN'T ARBITRARY, IF, ANYTHING, HE COULD HAVE TESTIFIED THAT HE HAD DONE THE
TRACK BULLETIN. THERE WAS AN INVESTIGATION, MR. WATSON WAS CHARGED
AND THEN SEPARATELY THEY WOULD HEAR FROM JENNIFER HILL THAT SHE HAD COME AND DID
THE IDENTIFICATION IN 2018. I THINK, ALSO, VERY IMPORTANT TO
KEEP IN MIND HERE IS THAT IF THE REASON WHY THIS KIND OF OEFD IS ALLOWED,
THIS KIND OF TESTIMONY IS ALLOWED TO REBUT A SUGGESTION OF SOME ARBITRARY ACTION
ON THE PART OF THE POLICE, THE JURY NEEDS TO BE INSTRUCTED ABOUT THE LIMITED
PURPOSE OF THAT TESTIMONY. THE JURY SHOULD HAVE BEEN TOLD AND SHOULD BE
TOLD IN THESE KINDS OF CASES WHEN THERE IS A VERY LIMITED AMOUNT OF INFORMATION
BEING PERMITTED TO REBUT THE SUGGESTION OF ARBITRARINESS THAT THEY CAN CONSIDER
THAT INFORMATION ONLY AS IT REBUT THE ALLEGATION OF ARBITRARINESS. THEY
CAN'T INFER THAT THE NONTESTIFYING WITNESS PROVIDED INFORMATION TO THE POLICE THAT
IDENTITY OR OTHERWISE INCULPATED THE DEFENDANT. IT'S IMPORTANT
TO KEEP IN MIND HERE THAT NOT ONLY IN THIS CASE DID THE JURY HEAR THAT DASH CASH
IT WAS NOT ONLY IN THIS CASE THAT THE JURY HEARD THAT IT WAS A POLICE DEPARTMENT
THAT WAS PROVIDING THIS INFORMATION, BUT, ALSO, THE INFORMATION WAS
INCRIMINATING ENOUGH THAT THEY WENT FROM HAVING NO SUSPECT TO BEING ABLE TO IDENTIFY
SOMEONE AND THE JURY WASN'T TOLD THAT THEY COULDN'T CONSIDER THAT AS EITHER
ADDITIONAL EVIDENCE OF GUILT OR TO GIVE MORE WEIGHT TO SERGEANT VITELLI'S
TESTIMONY, WHICH ARE TWO THINGS THAT THIS COURT HAS SAID IN PREVIOUS CASES ARE TWO
PARTICULAR DANGERS OF CONFRONTATION CLAUSE. JUSTICE
FASCIALE: WAS THERE ANY REQUEST FOR THAT LIMITED INSTRUCTION.
LAUREN S. MICHAELS: NO. JUSTICE SOLOMON: ARE YOU SAYING THE OFFICER
COULD HAVE SAID MS. HILL IDENTIFIED HIS PHOTOGRAPH IN THE NEWSPAPER?
LAUREN S. MICHAELS: NO, NO. JUSTICE SOLOMON: ARE YOU
SAYING THAT MS. HILL COULD HAVE SAID I IDENTIFIED HIS PICKET PICTURE IN
A NEWSPAPER. LAUREN S. MICHAELS: RIGHT, WHICH SHE DID.
JUSTICE SOLOMON: AND THAT WOULD NOT HAVE RAISED THE 404(B) ISSUE 10 MONTHS
LATER OR HOW MUCH LONGER. LAUREN S. MICHAELS: WELL, THE FORCE
OF THE ISSUE WASN'T -- I THINK THE ISSUE ITS THAT IS BEFORE.
JUSTICE PIERRE-LOUIS: JUDGE PIERRE-LOUIS WHEN MS. HILL MADE THAT
STATEMENT DURING TESTIMONY IT WASN'T ALSO, I IDENTIFY HIS PICTURE IN RELATION
TO ANOTHER ROBBERY IT WAS I SAW THIS INFORMATION IN THE NEWSPAPER AND THEN CALLED
LAW ENFORCEMENT, RIGHT? LAUREN S. MICHAELS: RIGHT.
JUDGE PIERRE-LOUIS IT WASN'T WITH REGARD TO THE OTHER...
LAUREN S. MICHAELS: YES, AND I DON'T THINK THERE IS ANY WAY THAT THE JURY COULD HAVE
CREATED THAT LINK THAT IT WAS A PHOTO FROM THIS CASE BECAUSE I MEAN THE
JURY -- THERE WOULDN'T BE THIS REASON TO CREATE THIS LIKE CONSULTATION ISSUE FOR
THE JURY IF THAT WAS WHAT THE INFORMATION WAS. JUSTICE SOLOMON:
THEN MY QUESTION IS: HOW IS THAT ANY DIFFERENT, I SAW AN A
PICTURED IN THE NEWSPAPER AND I CALLED THE POLICE DEPARTMENT? HOW
IS THAT ANY DIFFERENT THAN HIM SAYING A POLICE DEPARTMENT CONTACTED ME?
DOESN'T THAT MAKE PERFECT SENSE THAT THE POLICE DEPARTMENT SHE CONTACTED
THAT'S WHERE HE GOT IT FROM. LAUREN S. MICHAELS: THAT WASN'T
WHAT THE TESTIMONY WAS. AS I STARTED TO GO THROUGH BEFORE, IT'S NOT A LOT
-- THE JURY WOULDN'T HAVE MADE THE INFERENCE THAT IT WAS JENNIFER FER HILL CALLING
HER LOCAL POLICE DEPARTMENT 10 MONTHS AFTER THE ROBBERY FROM AN ARTICLE WHEN
WE DON'T HAVE -- WHEN THE TIME LINE DOESN'T MAKE SENSE AN ANOTHER THING THAT DOESN'T
MAKE SENSE ABOUT THE TIME LINE IS WHY WOULD THE JURY INFER THAT.
JUSTICE SOLOMON: I AM CONFUSED. I THOUGHT YOU SAID IT WOULD HAVE BEEN OKAY IF
SHE SAID I SAW THIS PICTURE IN IF NEWSPAPER AND I CALLED MY LOCAL POLICE
DEPARTMENT BECAUSE THAT WAS SAL WHAT JUSTICE POOER LOU WAS ALLUDING TO.
LAUREN S. MICHAELS: AND THAT'S THE TESTIMONY THE JUDGE PERMITTED IN THIS CASE.
JUSTICE SOLOMON: HOW IS THAT ANY DIFFERENT AND WHY WOULD
A JURY INFER ANYTHING OTHER THAN THAT'S HOW OFFICER VITELLI HEARD ABOUT IT, THAT'S
WHY HE ARRESTED HIM. LAUREN S. MICHAELS: TO BREAK THAT DOWN
INTO TWO ANSWERS, GENERAL HILL, JENNIFER HILL WAS PERMITTED TO TESTIFY AS
YOUR HONOR JUST SAID BUT IT'S NOT A LOGICAL INFERENCE THAT THE JURY COULD DRAW
THAT SHE WAS THE SOURCE OF THE INFORMATION FROM THE POLICE DEPARTMENT; THAT'S
WHAT I AM SAYING. JUSTICE SOLOMON: THAT'S WHAT YOU WOULD HAVE
-- THE COURT: WE HAVE YOUR POSITION THATS EASE NOT LOGICAL,
BEFORE WE MOVE ON TO THE NARRATION ISSUE WHY DON'T YOU BRIEFLY ADDRESS HARMLESS
ERROR. LAUREN S. MICHAELS: SURE. THE COURT:
ESPECIALLY IN LIGHT OF MS. HILL'S IDENTIFICATION. LAUREN
S. MICHAELS: WHAT INFORMATION CONNECTED MR. WATSON TO THIS PARTICULAR CRIME WAS
ESSENTIAL TO THE JURY'S DETERMINATION IN THIS CASE AND THERE WAS VERY LITTLE
THAT CONNECTED HIM. I WENT TO THAT LIST IN MY OPENING. I CAN GO THROUGH THAT
LIST AGAIN. I DID ALSO ADDRESS IN MY BRIEF AND I POINT THE COURT TO MY
BRIEF TO THE IDEA THAT JENNIFER HILL IDENTIFIED A VIDEO STILL FROM A PIXEL LATD
VIDEO WHERE 25 PERCENT OF HIS FACE WAS COVERED FROM A ROBBERY THAT SHE WAS
NOT PRESENT AT, PARTICULARLY GIVEN ALL OF THE INFORMATION THAT CAME IN IN HER BIAS,
THIS CERTAINLY WASN'T A VERY STRONG IDENTIFICATION FROM MS. HILL THAT MR.
WATSON WAS THE SUSPECT IN THIS CASE, PARTICULARLY BECAUSE WE HAVE A LACK OF ANY
PHYSICAL AND FORENSIC I CAN EVIDENCE. JUSTICE PATTERSON:
WHEN YOU SAY PIXEL LATD, YOU CAN SEE HIS FACE IN SOME OF THE VIDEO THAT'S IN OUR
RECORD. YOU CAN SEE SOME OF HIS FACIAL FEATURES. YOU'RE NOT TALKING WITH
A SITUATION WHERE, FOR EXAMPLE, CHILDREN'S FACES ARE PIXEL LATD SO THEY ARE JUST
A BLUR. LAUREN S. MICHAELS: NO, NO. I MEAN, YES, YOU CAN
SEE THERE IS A FACE THERE, OF COURSE. JUSTICE PATTERSON: YOU CAN
SEE MORE THAN THERE IS A FACE. YOU CAN SEE HIS FEATURES OR THOSE THAT ARE
VISIBLE. IT'S NOT LIKE THIS WAS A MRURED FACE. WHEN YOU SAID PIXEL LATD, I WAS
THINKING IN TERMS OF WHAT WE FREQUENTLY SEE IN MEDIA YEAH PHOTOGRAPHS TO
OBSCURE THE IDENTITY OF CHILDREN. LAUREN S. MICHAELS: I MEANT MORE
THAT IT WAS GRAINY, THAT IT WASN'T CLEAR. IN THIS CASE, AGAIN, IT IS A
STILL TAKEN. MISS HILL SPECIFICALLY SAYS 25 PERCENT OF THE FACE IS NOT VISIBLE
BECAUSE OF THE HAT AND, YOU KNOW, IN LOOKING THROUGH THESE TRANSCRIPTS IN
PREPARATION FOR ARGUMENT I WENT BACK AN I NOTICED, TOO, THAT THIS ISN'T ALSO A CASE
WHERE SOMEONE WHO IS GIVING A FAMILIAR IDENTIFICATION WHO TALKS ABOUT THE FEATURES
THAT THEY WERE ABLE TO DISCERN FROM THE PHOTO THAT LED THEM TO BE ABLE THAT
IT WAS THE PERSON, I RECOGNIZED THIS SCAR, THIS IS THE WAY THAT THIS PERSON MOVES.
THERE ISN'T ANY OF THAT HERE. L IT IS JUST HER SAYING I LOOKED AT THE PHOTO
I THINK IT WAS HIM 1 HUNDRED PERCENT. JUSTICE PATTERSON:
SHE WAS CROSS EXAMINED ON HOW SHE CAME TO HER IDENTIFICATION.
LAUREN S. MICHAELS: SHE WAS. I AM NOT SUGGESTING THAT THERE WASN'T
CROSS-EXAMINATION OR THAT THERE WAS NO PART OF ANY FACE VISIBLE AT ALL.
WHAT I AM SAYING IS THAT THIS WAS CERTAINLY NOT A STRONG IDENTIFICATION OF MR.
WATSON IN THIS CASE PARTICULARLY GIVEN EVERYTHING ELSE. PARTICULARLY GIVEN
THE FACT THAT THE TELLER WHO WAS THE ONE WHO ACTUALLY SAW THE SUSPECT FACE TO FACE
IN REAL LIFE WAS NOT ABLE TO IDENTIFY HIM OUT OF COURT AND I KNOW WE'LL ADDRESS
THE IN COURT ISSUE, AS WELL. AGAIN, THIS CASE IS ENTIRELY
ABOUT IDENTIFICATION SO ANY ERROR THAT GOES TO THE QUESTION OF CONNECTING
MR. WATSON TO THIS ROBBERY REALLY IS HARMFUL HERE. I DID ALSO
WANT TO ACCURACY, RELATED TO HARM, THE KIND OF TESTIMONY THAT CAME IN THIS
PARTICULAR CONFRONTATION CLAUSE VIOLATION IS PARTICULARLY HARMFUL FOR TWO
REASONS. FIRST, WE KNOW IT WAS VERY BLANK INFORMATION THAT
THE NONTESTIFYING WITNESS GAVE TO THE POLICE DEPARTMENT BECAUSE AGAIN, THEY WENT
FROM ZERO TO A COMPLAINT. ALSO, THIS COURT HAS SAID IN THIS
CONTEXT THAT WHEN A LAW ENFORCEMENT OFFICER -- WHEN INFORMATION IS COMING
FROM A LAW ENFORCEMENT OFFICER THAT THEY WERE FAMILIAR WITH THE DEFENDANT OR KNOW
SOMETHING ABOUT THE DEFENDANT, IT CREATES AN INFERENCE THAT THERE IS A CRIMINAL
BACKGROUND BECAUSE THEY ARE ON LAW ENFORCEMENT'S RADAR AND THAT WAS FROM BRANCH
SOOITH TILL MAN SO THERE IS THAT ADDITIONAL PROBLEM AS WELL. IT'S
FURTHER COMPOUNDED THERE IS NO INSTRUCTION TELLING THE JURY THE LIMITED USE OF THIS
TESTIMONY AND, OF COURSE, THE PROSECUTOR'S THEME OF THE CASE, WHICH I KNOW I WILL
RETURN LATER ON TO, THAT THIS WAS A VERY EXPERIENCED ROBBER WHO ROBBED THIS
CASE. THE COURT: WE'RE 20 MINUTES INTO THE 30 MINUTES THAT
HAD BEEN RESERVED FOR THIS SO I NEED YOU TO MOVE ON TO THE NARRATION ISSUE.
LAUREN S. MICHAELS: ALL RIGHT. SERGEANT VITELLI'S TESTIMONY
ABOUT WHAT THE SURVEILLANCE VIDEO DEPICTED WAS INADMISSIBLE LAY OPINION.
WE HAD A LAY WITNESS WHO WAS THERE AT THE ROBBERY. HE TESTIFIED THAT THE STATE
OPTED NOT TO PLAY THE SURVEILLANCE VIDEO DURING HIS TESTIMONY.
CHIEF JUSTICE RABNER: ASSUME THERE IS A VIDEOTAPE WITH NO OI EYEWITNESS WHO CAN
SPEAK TO IT, HOW WOULD THE JURY BE APPRISED OF PARTICULAR PARTS OF IT?
HOW COULD THEIR ATTENTION BE DRAWN TO PARTICULAR PARTS OF THE VIDEO
SHORT OF AN EXPERT? LAUREN S. MICHAELS: SO, IN OTHER WORDS, NOT
A QUESTION OF LIKE, WHERE THE VIDEO CAME FROM OR WHAT THE ANGLES OF THE
PHOTOS ARE BUT SPECIFICALLY POINTING TO A SPECIFIC QUADRANT. THE
COURT: A QUADRANT, ITEM OF CLOTHING, A GESTURE, HOW WOULD THAT BE PRESENTED TO
THE JURY? LAUREN S. MICHAELS: YOU COULD HAVE A FACT
WITNESS WHO SAID, YOU KNOW, ONCE WE HAVE THE VIDEO RETRIEVED, THAT SAYS THIS IS
WHAT I DID THE TO THE VIDEO, I DREW A CIRCLE AROUND THIS THING. I ZOOMED OUT.
THAT'S FACT TESTIMONY BECAUSE THAT PERSON WOULD BE TESTIFYING ABOUT WHAT WAS
DONE TO THE VIDEO THAT IS BEING PRESENTED TO THE JURY. CHIEF
JUSTICE RABNER: A DIFFERENT QUESTION. IS THERE A WAY TO DRAW THE JURY'S
ATTENTION TO A PARTICULAR PART OF THE VIDEO SHORT OF AN EXPERT TAKING THE
STAND? LAUREN S. MICHAELS: IN OTHER WORDS, LIKE -- IN OTHER
WORDS, POINTING TO A PARTICULAR CORNER OF VIDEO? WELL, THE
PROSECUTOR CAN DO THAT INFORMATION. CHIEF JUSTICE RABNER:
RIGHT. LAUREN S. MICHAELS: AND THERE IS NOTHING STOPPING
THE PROSECUTOR FROM DOING THAT IF THE STATE BELIEVES THAT THEY NEED TO DRAW THE
ZIR'S ATTENTION TO A PARTICULARLY COMPLICATED VIDEO. THE
COURT: AN THEN THEY BROUGHT AN ARGUMENT THAT THE PROSECUTOR IS TESTIFYING AND OF
COURSE THE PROSECUTOR CAN'T BE CROSS EXAMINED. I AM ASKING,
IS THERE A WAY AS YOU UNDERSTAND RULE 701 FOR A WITNESS TO IDENTIFY FOR THE
JURY, HAVE A LOOK AT THIS PIECE OF CLOTHING HERE AT MINUTE 603 HAVE A LOOK AT THIS
GESTURE AT MINUTE 60426, DO THE RULES PERMIT SUCH EVIDENCE BEING INTRODUCED?
LAUREN S. MICHAELS: NO. JUSTICE WAINER APTER:
SO WHY WOULD THAT BE UNDER THE BLANK 701 WHICH SAYS IF A WITNESS IS NOT
TESTIFYING AS AN EXPERT, THE WITNESS'S TESTIMONY IN THE FORM OF OPINIONS OR INFERENCES
MAY BE ADMITTED IF IT I -- AN THEN THERE IS A AN B. IN THE
CHIEF'S QUESTION, WHEN HE IS ASKING WOULD A LAW ENFORCEMENT OFFICER BE ABLE TO
SAY HAVE A LOOK AT THIS GESTURE AT MINUTE 62026 OR HAVE A LOOK AT THIS PIECE
OF CLOTHING AT MINUTE 720, HOW ARE WE EVEN IN RULE 701 AT ALL. HOW
IS THAT AN EXAMPLE OF A LAW ENFORCEMENT OFFICER TESTIFYING IN THE FORM OF OPINIONS
OR INFERENCES? LAUREN S. MICHAELS: SO I THINK THAT IF YOU
HAD A 104 HEARING LIKE BEFORE TRIAL AND EVERYONE AGREES THAT THAT IS A GESTURE
OR THAT'S AN ARTICLE OF CLOTHING, THEN WE DON'T RUN INTO THIS PROBLEM HERE.
REALLY, ANY TIME A WITNESS IS OPINING ABOUT WHAT SOMETHING DEPICTS THAT
THEY DIDN'T THEMSELVES EXPERIENCE, WE'RE IN 701. JUSTICE WAINER
APTER: YOU AGREE THEN THAT IF THERE IS SOME FORM OF OBJECTIVE VIDEO NARRATION SUCH
AS WHAT THE CHIEF JUSTICE SUGGESTED IN TERMS OF LOOK IN THE TOP LEFT CORNER
OF THE VIDEO AND LOOK AT THAT PERSON AND EVERYONE CAN SEE THAT IT IS A HUMAN IN
THE TOP LEFT CORNER OF THE VIDEO, THEN THAT TYPE OF VIDEO NARRATION BY A
LAW ENFORCEMENT OFFICER WOULD BE FINE BECAUSE IT WOULD NOT IMPLICATE, QUOTE UNQUOTE,
OPINIONS OR INFERENCES? LAUREN S. MICHAELS: I THINK IT WOULD
STILL IMPLICATE AN OPINION OR INFERENCE BECAUSE THE POLICE OFFICER WHO WASN'T
THERE WHEN THE VIDEO WAS TAKEN AND DIDN'T SEE WHAT WAS DEPICTED IS SAYING IT'S
A PERSON. I THINK IN A LOT OF CASES THE WAY YOU GET AROUND
THE CONCERN THAT I THINK YOUR HONOR IS VOICING IS THAT IF IT'S OBVIOUS TO EVERYONE
THAT IT IS A PERSON, THEN THERE ISN'T GOING TO BE A DISPUTE BETWEEN THE
PARTIES ABOUT WHETHER THE PERSON -- WHETHER SOMEONE CAN POINT TO THAT DURING THEIR
TESTIMONY. I THINK THE CONCERN IS -- JUSTICE
WAINER APTER: I THINK IN VERY COMPLICATED VIDEOS WHERE THERE IS A LOT OF PEOPLE
ON THE SCENE, IT MIGHT BE HELPFUL TO HAVE A FACT WITNESS BE ABLE TO SAY,
YOU KNOW, LOOK AT THE PERSON IN THE TOP LEFT CORNER IN THIS SCREEN AND THEN, YOU
KNOW, THE VIDEO ADVANCES AN NOW LOOK AT THE PERSON IN THE TOP RIGHT CORNER
IN THAT SCREEN. I THINK THAT IT IS -- IT'S NOT NECESSARILY TRUE
THAT EVERYONE WOULD CONCEDE -- I GUESS I AM ASKING YOU. WHY
WOULD THAT NOT BE PERMITTED? WHAT PART OF THAT IS AN OPINION OR
INFERENCE? IF THEY ARE NOT SAYING IN MY OPINION THAT
PERSON IS THE DEFENDANT AN INSTEAD THEY ARE SAYING, PLEASE LOOK AT THE PERSON IN
THE TOP-LEFT CORNER OF THE SCREEN AN NOW IN THE NEXT VIDEO PLEASE LOOK AT THE
PERSON IN THE TOP RIGHT CORNER OF THE SCREEN AND THEY ARE TRYING TO TRACK
THE SAME PERSON FROM VIDEO TO VIDEO WHAT PART OF THAT VIDEO IS AN INFERENCE WITHOUT
THEM SAYING MY OPINION IS THE SAME PERSON, THEY'RE JUST KINDS OF TELLING
THE JURY, OKAY, NOW LOOK AT THE TOP RIGHT SCREEN, NOW LOOK AT THE TOP LEFT OF THE
SCREEN. LAUREN S. MICHAELS: SO THAT SOUNDS MORE LIKE WHAT
WE DO PERMIT IS LIKE DEMONSTRATIVE EVIDENCE, FOR EXAMPLE. WHAT
MAKES DEMONSTRATIVE EVIDENCE DIFFERENT, LIKE A VISUAL AID DIFFERENT FROM THIS CASE
IS THAT A WITNESS CAN USE A NONE STRAT ACTIVE AID TO ILLUSTRATE THEIR
TESTIMONY. JUSTICE PATTERSON: A NONE STRAT ACTIVE AID WOULD BE
MORE OF A SLIDE OR SOME -- THIS WOULD BE ACTUAL EVIDENTIAL VIDEO.
LAUREN S. MICHAELS: RIGHT. THE COURT: SO COULD EITHER A DEFENSE
INVESTIGATOR OR A PROSECUTOR TAKE A SCREENSHOT AN CALL A WITNESS TO
TESTIFY ABOUT THE SCREENSHOT? LAUREN S. MICHAELS: WELL, I THINK,
AGAIN, I DO THINK THIS IS CLEARLY PROHIBITED BY 701 AND I WANT TO
ADDRESS THE QUESTION ABOUT -- THE COURT: CAN THEY KNOW?
LAUREN S. MICHAELS: NO, I DON'T THINK ANY PARTY SHOULD BE ABLE TO DO THAT BECAUSE
IT IS NOT PERMISSIBLE TESTIMONY. JUDGE PIERRE-LOUIS TO JUST
TAKE A SCREENSHOT OR TO TALK ABOUT THE SCREENSHOT SO FOR EXAMPLE, IF THERE IS
A VIDEO WITH A LOT OF ACTIVITY OR A CHAOTIC SCENE TAKING PLACE AND INSTEAD OF TAKING
A SCREENSHOT AN BLOWING UP A SECTION OF A PARTICULAR VIDEO AND PUTTING THAT
ON THE SCREEN SO THE JURY LOOKS AT THAT SCREENSHOT WITHOUT A WITNESS SAYING --
AND I THINK WHAT IS HAPPENING HERE IS XYZ, I THINK WE WOULD AGREE THAT'S FINE.
LAUREN S. MICHAELS: YES; THANK YOU. I APPRECIATE
THAT. YES. SO, YOU COULD HAVE SOMEONE TESTIFY I LOOK THE VIDEO.
THIS IS A SCREENSHOT FROM THE VIDEO AND SHOW THE SCREENSHOT.
JUSTICE WAINER APTER: WHAT IF THE PERSON DIDN'T TAKE THE VIDEO, I DON'T THINK JUST
STIS POOER LIEU'S QUESTION IS -- LAUREN S. MICHAELS: NOT
LIKE I AM THE PERSON WHO HAS THE CAMERA SAYING I'M THE POLICE OFFICER THAT
RETRIEVED THE VIDEO FROM THE BANK OR FROM WHEREVER, I TOOK THE VIDEO -- I HAD
THE VIDEO ON MY XRUTER. COMPUTER. I TOOK A SCREENSHOT OF IT, HERE IS A
SCREENSHOT; THAT'S ALL FACT TESTIMONY. THE COURT: COULD THE WITNESS
SAY -- LET'S ASSUME IN THAT SCREENSHOT IS A PERSON WEARING A PARTICULAR
RING. COULD THE WITNESS FOCUS ON JURY'S ATTENTION ON THE RING?
LAUREN S. MICHAELS: BY SAYING LOOK AT THIS RING?
JUSTICE PATTERSON: THAT'S ONE WAY OF PUTTING IT. JUDGE
SABATINO: ASSUMING THEY HAVE NO PERMANENT KNOWLEDGE OF THE RING.
LAUREN S. MICHAELS: IF THEY DON'T HAVE PERMANENT KNOWLEDGE THEY CAN'T THAT HAS
TO WAY FOR CROSSING ARGUMENT. CLOSING ARGUMENT ISN'T EVIDENCE. THIS
TESTIMONY WOULD BE EVIDENCE BECAUSE IT'S COMING FROM THE WITNESS ON THE WITNESS
STAND. JUDGE SABATINO: LET'S SUPPOSE THERE IS A SUBJECTIVE
AS SPENT OR AN OPINION ASPECT TO WHAT THE NARRATE TORE TO THE JURY, JUST ASSUME
THAT'S HAPPENING, THE APPELLATE DIVISION'S SOLUTION WOULD BE THAT THIS KIND
OF LAY OPINION MIGHT BE ADMISSIBLE BUT WE SCRIPTED IT ADVANCE BY THE 104
HEARING. I WANT TO ASK YOU IF THE 104 HEARING IS AN ADEQUATE
PROTECTION OR REMEDY AS CONTRASTED WITH GETTING IN DISCOVERY A REPORT FROM A QUALIFIED
VIDEO FORENSIC I CAN EXPERT, IS THE SOLUTION THAT NO, WE'LL JUST COULD DO
A 104 HEARING, IF IT'S GOING TO BE A LAY NONEXPERT WE WILL HAVE THAT HEARING AHEAD
OF TIME AN EVERYBODY WILL KNOW WHAT THE WITNESS CAN AND CANNOT SAY.
WHY ISN'T THAT SOLUTION BY THE APPELLATE DIVISION, THE 104 HEARING ADEQUATE FWR
THE DEFENSE PERSPECTIVE? LAUREN S. MICHAELS: WELL, I THINK
THE PROCEDURAL SAFEGUARDS THAT THE APPELLATE DIVISION TALKED ABOUT AND I
KNOW THE ATTORNEY FOR THE AK DL WILL DISCUSS THIS AS WELL, THAT THE NOTICE IS A
PARTICULAR IMPORTANT PART OF THAT AND SO IF THE -- SO WHAT THE PROSECUTOR WOULD
HAVE TO DO IS TO TELL THE COURT AND TELL THE DEFENSE COUNSEL, THIS IS THE PERSON
WHO I AM PROPOSING TO HAVE PROVIDE OPINION OR NARRATE ON THE VIDEO, THIS IS WHY
IT'S ADMISSIBLE UNDER OUR EVIDENCE RULES. JUSTICE PATTERSON: YOU
SAY UNDER A 104 HEARING? THE NOTICE YOU WERE JUST DESCRIBING
WAS UNDER A 104 HEARING OR NOTICE UN 702 AN 703 FOR THE EXPERT TESTIMONY.
LAUREN S. MICHAELS: WELL, I THINK THE PROSECUTOR WOULD HAVE
TO PROVIDE THE INFORMATION TO THE COURT AN DEFENSE COUNSEL ABOUT WHO IT IS THAT
PROVIDING THE OPINION AN WHAT THE OPINION WOULD BE WOULD. JUDGE
SABATINO: THERE ARE DEADLINES FOR THE EXCHANGE OF EXPERT REPORTS. I DON'T THINK
THERE IS ANY TIME FRAME THAT IS SUGD IN THE APPELLATE D-OPINION OTHER THAN
A PRETRIAL 104 HEARING. IS THAT TOO LATE FOR THE DEFENSE TO BE ABLE TO RESPOND
WITH POTENTIALLY A VIDEO EXPERT THEY MIGHT WANT TO CALL TO CONTRADICT THAT OR IS
SHOULD WE CONSIDER WHETHER THERE IS SOME TIME FRAMES THAT SHOULD BE -- IF
WE'RE GOING TO ENDORSE THE 104 HEARING ABOUT WHEN THAT OCCURS?
LAUREN S. MICHAELS: I CERTAINLY THING THAT MAKES A LOT OF SENSE.
THE COURT: I WANT TO GO TO A PART OF -- JUDGE SABATINO'S QUESTION ASSUMED THERE WAS
A SUGGESTIVE ELEMENT. LET'S ASSUME IT'S OBJECTIVE IN A CASE OF SOEFL DPEVENS
CAN A DEFENSE INVESTIGATOR TAKE THE STAND AND HIGHLIGHT ABOUT ANSWERING A QUESTION
ABOUT WHETHER THERE WERE GESTURES BY EITHER THE DEFENDANT OR THE VICTIM IN A
SERIES OF SECONDS IN AN OTHERWISE VERY LENGTHY VIDEO? LAUREN S.
MICHAELS: SO, NO. BECAUSE, AGAIN, WHAT MAKES -- AND I TALK ABOUT THIS AT LENGTH
IN MY BRIEF, WHAT MAKES SOMETHING OBJECTIVE OR SUBJECTIVE DEPENDS NOT
ONLY ON THE VIDEO IS BUT WHAT ARE THE ISSUES THAT ARE IN THE CASE AN WHAT IS IN
DISPUTE IN THE CASE. IF THE QUESTION -- SO FOR WHETHER IT'S A
DEFENSE INVESTIGATOR OR A POLICE OFFICER, IT'S IMPROPER UNDER 701 FOR ANYONE WHO
WASN'T -- WHO DOESN'T HAVE FIRSTHAND PERSONAL KNOWLEDGE OF WHAT THEY ARE BASING
THEIR OPINION ON TO HAVE -- TO BE ABLE TO TESTIFY THERE ARE GESTURES, THESE
ARE WHAT THE GESTURES ARE. THE COURT: EVEN IT IS UNDISPUTED THAT
THERE ARE GESTURES THERE AND WE'RE SIMPLY ATTEMPTING TO HELP THE JURY FIND
SOMETHING IT MIGHT OTHERWISE MISS IN A LENGTHY VIDEO. LAUREN
S. MICHAELS: I GUESS MY ANSWER IS I DON'T THINK THAT'S ADMISSIBLE UNDER 701, BUT,
AGAIN, I THINK THIS IS SOMETHING THAT COULD BE ADDRESSED PRIOR TO TRIAL
ABOUT WHETHER OR NOT THERE IS AN ISSUE WITH SOMEONE TESTIFYING ABOUT WHAT THAT.
WHAT I WANTED TO -- THE COURT: I DON'T UNDERSTAND
THAT. IF YOUR POSITION IS PURE, THAT UNDER 701 YOU HAVE TO HAVE ACTUAL
-- THE PERCEPTION PRONG IS ONLY MET BASED ON ACTUAL KNOWLEDGE, THEN YOU'RE SAYING
NO WITNESS CAN COME IN AND PRESENT THAT TESTIMONY? LAUREN S.
MICHAELS: I AM. I THINK I WAS ANSWERING YOUR HONOR'S QUESTION UNDERSTAND THE
ASSUMPTION THAT -- IF THERE IS SOME KIND OF TESTIMONY PERMITTED, NOTWITHSTANDING
MY ARGUMENT THAT IT SHOULDN'T BE ALLOWED AT ALL WHAT WOULD THE LIMITS BE. I THOUGHT
THAT WAS THE QUESTION. THE COURT: WHAT IS WRONG WITH A DEFENSE
INVESTIGATOR BEING CALLED TO THE STAND TO SAY HAVE A LOOK AT THIS, THAT
AND ANOTHER SEGMENT OF THE TAPE, INTERSPERSED WHERE THE SUSPECT TOUCHES A
SURFACE, WHAT'S WRONG WITH THAT? LAUREN S. MICHAELS: SO,
THE DEFENSE ATTORNEY CAN -- OR THE WITNESS CAN -- THE WITNESS -- THE VIDEO
CAN COME IN THROUGH A WITNESS AND CLIPS COULD COME IN THROUGH A WITNESS BUT I DON'T
THINK A DEFENSE ATTORNEY CAN SAY LOOK AT WHERE HE TOUCHES THE SURFACE. IT'S
THE SAME PROBLEM THAT THERE WAS IN THIS CASE. THE COURT: SO THE
ONLY WAY THE JURY GETS TO HEAR THAT IS WITH THE PROSECUTOR MAKING THAT SAME
DEMONSTRATION ON CLOSING ARGUMENT TO BUILD A CASE THAT THE INVESTIGATION, THE ATTEMPT
TO LOOK FOR FINGERPRINTS AND SO ON WAS INADEQUATE. LAUREN S.
MICHAELS: JUSTICE WAINER APTER: THE RULE THAT YOU'RE
SUGGESTING THAT THERE SHOULD BE NO PLAY BY PLAY VIDEO NARRATION EVEN OF OBJECTIVE
FABLTHS OR FACTS OR EVEN OF ASKING THE JURY TO LOOK AT A PARTICULAR PART OF A VIDEO,
IS THERE ANY COURT THAT HAS EVER ADOPTED SUCH A RULE. LAUREN S.
MICHAELS: EXPLICITLY ADOPTED PRECISELY THAT, NO. IT IS IN LINE
WITH OUR COURT'S JURISPRUDENCE ON RULE 701 WHICH HAS ALWAYS REQUIRED FIRSTHAND
PERSONAL PERCEPTION. MAY I ADDRESS THE QUESTION ABOUT THE DEFENSE
INVESTIGATOR BECAUSE THIS WAS A POINT THAT I WANTED TO MAKE, TOO, IS THAT PART
OF THE PROBLEM WITH THE WAY THAT THIS KIND OF EVIDENCE COMES IN AND THIS CASE IS
A GREAT EXAMPLE OF IT IS VERY FREQUENTLY IT COMES IN WHERE THE STATE THE
DOES HAVE THE FACT WITNESS WHO COULD ACTUALLY -- WHO COULD ACTUALLY GIVE OPINION
TESTIMONY BECAUSE THEY WERE THERE AT THE TIME OR THEY COULD USE THAT VIDEO TO
HELP ILLUSTRATE SOMETHING THEY ARE TESTIFYING TO. THE COURT: HOW
FAR DOES THAT EXTEND? CAN A BANK TELLER, LET'S SAY YOU HAVE A 10
MINUTE SURVEILLANCE VIDEO OF WHAT HAPPENS IN THE BANK AN THE BANK TELLER
IS ONLY FAMILIAR WITH 45 SECONDS, IS THE BANK TELLER'S TESTIMONY LIMITED TO ONLY
THAT PORTION, THE 45 SECONDS DEPICTED. LAUREN S. MICHAELS:
YES. CHIEF JUSTICE RABNER: WHAT IF IT'S A BANK ROBBERY AT
NIGHT AND THERE ARE NO WITNESSES AN SPEAK SPEAK ABOUT IT, THE PROSECUTION CAN PLAY
THE TAPE AND THEN WE LEAF IT TO THE LAWYERS TO ARGUE ABOUT WHAT IS ON IT
AN WHAT IS NOT. LAUREN S. MICHAELS: THAT'S EXACTLY RIGHT.
JUSTICE PATTERSON: WOULDN'T YOU HAVE AN OBJECTION THAT THE PROSECUTOR
WAS TRYING TO BACK DOOR EVIDENCE IN THAT WAS NOT PRESENTED BY ANY WITNESS IN THE
COURSE OF THE TRIAL. LAUREN S. MICHAELS: WELL, NO. ASSUMING
THAT THE VIDEO WAS PROVIDED IN EVIDENCE, THE PROSECUTOR CAN MAKE ARGUMENT
BASED ON VIDEO. L IF THERE WAS AN OBJECTION TO IT, THAT OBJECTION WOULD BE
OVERRULED. JUDGE SABATINO: I UNDERSTOOD YOUR ANSWER TO ALWAYS
BE WELL, THEY CAN USE AN EXPERT. WITHOUT RULING OUT ANY KIND OF WITNESS IF SOMEONE
DOESN'T HAVE THE FACTS TO SUPPORT IT. WHAT KIND OF CREDENTIALS
FROM YOUR REVIEW OF THE CASE LAW ON THIS, WHAT KIND OF CREDENTIALS WOULD AN
EXPERT HAVE? FOR EXAMPLE, IN THIS CASE ARE YOU SUGGESTING THEY
WOULD NEED TO BRING IN A FINGERPRINT EXPERT TO SAY THAT THE DEGREE OF FORCE THAT
YOU SEE OF THE HAND ON -- OR THE SIDE OF THE HAND ON THE COUNTER WOULD OR WOULD
NOT BE ENOUGH TO LEAVE A PRINT, IS THAT MAYBE THE KIND OF EXPERT THAT YOU'RE
SUGGESTING THAT COULD BE USED TO NARRATE PORTIONS OF THE VIDEO WITH OPINIONS ATTACHED
TO IT? LAUREN S. MICHAELS: I MEAN, IT COULD BE AN
THAT'S THE THING. WE DON'T VIS, JUST HAVE 701. WE DO ALSO HAVE OUR EVIDENCE RULES
THAT DEAL WITH EXPERT TESTIMONY SO IN THE CASE WHERE YOU DON'T HAVE ANY FACT
WITNESS, YOU COULD ALWAYS PRESENT AN EXPERT. JUSTICE PATTERSON: WHO
WOULD BE THE EXPERT, WHAT FIELD OF EXPERTISE IS RELEVANT TO GESTURES IN A
SELF DEFENSE CAUSE CASE WHERE AN ALTERCATION IS ESCALATING AN THE ISSUE IS WHO IS
THE AGGRESSOR. LAUREN S. MICHAELS: I AM NOT SURE THERE IS ONE.
I WAS MORE TALKING ABOUT THIS QUESTION ABOUT THE PRESSURE. JUSTICE
PATTERSON: I KNOW, BUT JUST AS ANOTHER EXAMPLE OF LIMITING THIS TO EXPERT, IS THAT
THERE MAY BE A -- HUGE AREAS IN WHICH WE'RE TALKING ABOUT IN WHICH THERE IS
NO EXPERT OUT THERE WHO HAS SO-CALLED EXPERTISE UNDER THE EXPERT WITNESS RULES
TO TALK ABOUT WHAT THIS IS. LAUREN S. MICHAELS: BUT THAT
MEANS -- THAT ISN'T A PROBLEM. THAT ISN'T -- THE FACT THAT YOU AREN'T ALWAYS
GOING TO BE ABLE TO FIND EITHER A FACT WITNESS THAT CAN TESTIFY TO WHAT THE VIDEO
IS DEPICTING BECAUSE THEY WERE THERE OR AN EXPERT WITNESS BECAUSE THERE IS
SOMETHING THAT THE PARTY WANTS TO PUT FORTH EXPERT TESTIMONY ABOUT DOESN'T MEAN
THAT, THEREFORE, WE GET TO HAVE AN EXPERT IN THAT CASE. JUSTICE
PATTERSON: I AM NOT SAYING THAT, BUT THE DEFAULT, AS I UNDERSTAND YOUR ARGUMENT
IS THIS SHOULD BE DONE USING AB AN EXCHANGE OF EXPERT OPINIONS.
LAUREN S. MICHAELS: NO, NO. I AM SORRY FOR ANY CONFUSION; THAT I WANTS TO
CLEAR THAT UP. MY DEFAULT ARGUMENT AND I THINK THE ONLY ARGUMENT
THAT IS CONSISTENT WITH OUR COURT'S JURISPRUDENCE ABOUT THE PERSONAL PERCEPTION
REQUIREMENT IS THAT A WITNESS CANNOT TESTIFY ABOUT WHAT A VIDEO DEPICTS
UNLESS THEY ARE -- HAD PERSONAL FIRSTHAND REAL-LIFE EXPERIENCE THAT IS THE SOURCE
THAT THEY ARE RATIONALLY BASING THAT OPINION ON. CHIEF
JUSTICE RABNER: IF THAT WERE THE RULE, THEN THE TESTIMONY THAT WE'VE WITNESSED
FROM AFAR ABOUT THE JANUARY 6TH RIE RIOT TAPES WOULD NOT BE WHAT IS PERMITTED
IN COURT. IT WOULD NOT BE PERMITTED IN A COURTROOM IN NEW JERSEY UNDERSTAND THE
RULE THAT YOU'RE ADVANCING. AM I READING YOUR ARGUMENT CORRECTLY?
LAUREN S. MICHAELS: SO I HAVE TO ADMIT THAT I DON'T KNOW
PRECISELY WHAT THE TESTIMONY IS. THE COURT: YOU COULD NOT HAVE A
WITNESS, AN AGENT WHO REVIEWED THE TAPE AT A SLOW SPEED WITH CARE TIME AN
AGAIN, NOT SCIENTIFIC EVIDENCE, BUT JUST PAINSTAKING ATTENTION TO DETAIL SAY, LOOK
AT THIS, FOLLOW IT FROM FRAME TO FRAME AS SOME OF US HAVE ASKED ABOUT UP
UNTIL NOW, THAT WOULD NOT BE ALLOWED, THE JURY WOULD HAVE TO FIGURE OUT WHO DID
WHAT AND WHEN BY THEMSELVES WITH THE ASSISTANCE OF COUNSEL GOING THROUGH
THAT IN HAD CLOSING ARGUMENT; IS THAT YOUR POSITION? LAUREN S.
MICHAELS: WELL, SO -- FIRST OF ALL, THIS IS NOT THAT CASE AT ALL. THIS IS A VERY
SIMPLE CASE. THE COURT: I AM ASKING THAT THE PRINCIPLE
THAT YOU ARE ARTICULATING WOULD EXTEND THE TO THAT T AS WELL. YOU
MUST HAVE FIRSTHAND KNOWLEDGE, ACTUAL PERCEPTION IN ORDER TO BE ABLE TO OFFER
TESTIMONY. LAUREN S. MICHAELS: IN ORDER TO BE ABLE TO
OFFER TESTIMONY ABOUT WHAT THE VIDEO DEPICTS. IN THE CASE YOUR HONOR
IS TALKING ABOUT,S I THINK THIS ACTUALLY BEARS SOME SIMILARITIES TO THE CASE
CITED, THAT IF YOU HAVE A LARGE LONG COMPLICATED VIDEO, YOU CAN HAVE A WITNESS WHO
TOOK THAT VIDEO AND EXERTED -- NO, EXTRACTED SOMETHING FROM IT OR BLEW IT UP,
THEY CAN TESTIFY ABOUT WHAT THEY DID AND THEY CAN THEN BE CROSS EXAMINED
ABOUT IT. THE COURT: THEY CAN TECH ABOUT HOW THEY SLOWED
THE SPEED OR BLEW IT UP BUT THEY CAN'T TAKE YOU FRAME TO FRAME AN HIGHLIGHT POINTS
FOR THE JURY'S ATTENTION IS THAT A FAIR STATEMENT OF YOUR POSITION?
LAUREN S. MICHAELS: IT IS. THE COURT: SO YOU TRACK THE GUY WITH
THE YELLOW SHIRT AN THE RED CAP THAT IS RATHER SMALL IN THE UPPER RIGHT
QUADRANT AT MINUTE ONE OH 2 AND FOLLOW THAT PERSON FOR THE NEXT SERIES OF FRAMES.
LAUREN S. MICHAELS: YES, I THINK THAT'S RIGHT AND I THINK
THAT IN CASES LIKE THESE JANUARY 6TH CASES, A LOT OF TIMES THERE ARE GOING TO BE
THINGS LIKE FACIAL RECOGNITION EXPERTS OR PEOPLE THAT CAN -- THE
COURT: IF WE DON'T GET TO EXPERT TESTIMONY, YOU CAN'T GET IT IN IS YOUR
POSITION? LAUREN S. MICHAELS: THAT'S CORRECT.
JUSTICE SOLOMON: NOBODY TOOK THIS VIDEO. ARE YOU SAYING NOBODY COULD TESTIFY
ABOUT IT? THIS IS A VIDEO CAMERA LIKE ALMOST ALL OF THE ONES
THAT ARE USED IN EVIDENCE. EVEN A BODY KAM IS NOT TAKEN BY A POLICE OFFICER OR
A DASH THE KAM IS NOT TAKEN BY A POLICE OFFICER. YOU ARE SAYING
THEY WOULD HAVE TO TAKE THE VIDEO, ARE YOU STICKING BY THAT. LAUREN
S. MICHAELS: NO. SERGEANT VITELLI'S TESTIMONY ABOUT THE VIDEO WAS FINE HE
TESTIFIED ABOUT THE CAMERA ANGLE. JUSTICE SOLOMON: LET ME
ASK YOU THIS, VITELLI WAS THE CRIME SCENE INVESTIGATOR. LAUREN S.
MICHAELS: YES. JUSTICE SOLOMON: HE FOUND NO FINGERPRINTS,
RIGHT? LAUREN S. MICHAELS: YES. JUSTICE SOLOMON:
AND YOU'RE SAYING UNDER 701 HE'S NOT ALLOWED TO TALK ABOUT THE VIDEO AND SHOW
WHY HE THINKS THEY RECOVERED NO FINGERPRINTS GIVEN THE DEFENSE AS YOU
HAVE EXPRESSED NOW IS THERE IS VERY LITTLE DIRECT EVIDENCE TYING THE DEFENDANT TO
THE BANK ROBBERY. LAUREN S. MICHAELS: NO.
JUSTICE SOLOMON: YOU SAID NO, HE CAN'T TESTIFY TO THAT? LAUREN
S. MICHAELS: THAT HE CAN'T TESTIFY TO ABOUT WHY -- JUSTICE
SOLOMON: THIS IS WHAT HAPPENED, THIS IS WHY I DID FIND ANY FINGERPRINTS.
LAUREN S. MICHAELS: NO HE CAN'T. JUSTICE SOLOMON: CAN HE
TESTIFY THAT WAY AS AN EXPERT? LAUREN S. MICHAELS: IF HE WAS
QUALIFIED AS AN EXPERT TO EXPLAIN LIKE JUDGE SABATINO WAS TAKING ABOUT --
ASSUMING HE MEETS ALL THE OTHER QUALIFICATIONS OF EXPERT TESTIMONY.
JUSTICE SOLOMON: HE'S A CRIME SCENE INVESTIGATOR HE'S TAKEN FINGERPRINTS, HE HAS
TAKEN A HUNDRED FINGERPRINTS AND HE GETS THEM AN THIS IS WHY WE DIDN'T GET
THEM. WE DIDN'T FIND FINGERPRINTS ON THE GUN BECAUSE WE NEVER FIND FINGERPRINTS
ON THE GUN MIKE MOOK YES, SO MY ANSWER IS ASSUMING ALL OF THE OTHER PARTS OF
702, YES, BECAUSE WE DON'T REQUIRE AN EXPERT TO HAVE THE PERSONAL -- THAT'S WHAT
MAKES THE DIFFERENCE BETWEEN THE TWO. JUSTICE SOLOMON: AND
HE AS THE CRIME SCENE INVESTIGATOR COULDN'T DESCRIBE WHAT HAPPENED ON THE
VIDEO WHETHER WHERE THE PIECE OF PAPER WAS PLACED, HOW HE OPENED THE DOOR WITH AN
ELBOW, HE COULDN'T DESCRIBE THAT AND THEN HAVE AN EXPERT COME IN AND SAY OH, THAT'S
WHY WE DIDN'T FIND ANY FINGERPRINTS. LAUREN S. MICHAELS:
I THINK IT IS IMPORTANT THE WAY THAT THE INFORMATION ABOUT THE FINGERPRINTS AN
THE VIDEO CAME IN THIS IN IN THIS CASE. THIS ALSO ISN'T A CASE WHERE THE
VIDEO IS VIEWED AND THEN BASED ON THE VIEW OF THE VIDEO, THAT THEN GUIDED THE
INVESTIGATOR ABOUT WHAT STEPS TO TAKE. SO, I LOOKED AT THE VIDEO,
WHEN I LOOKED AT THE VIDEO IT LED ME TO BELIEVE I SHOULD ONLY COLLECT
FINGERPRINTS IN THESE AREAS; THAT'S NOT WHAT HAPPENED HERE THE TESTIMONY WAS I CAME
TO THE BANK AN HOUR AFTER. BASED ON THE INFORMATION FROM THE TELLER AND FROM WHAT
I COULD SEE ABOUT THE BANK, I DUSTED THE DOOR HANDLES AND IN FRONT OF THE
TELLER STATION; THAT'S WHAT HE TESTIFIED TO. HE DIDN'T TAKE
ANY INVESTIGATORY STEPS RELATED TO THE FINGERPRINTING BASED ON ANYTHING HE SAW
IN THE VIDEO SO THAT'S SOMETHING THAT I THINK MAKES THIS CASE VERY DISTINCT
FROM HERE. JUSTICE SOLOMON: HE GOT TO THE CRIME SCENE RIGHT
AFTER THE ROBBERY. LAUREN S. MICHAELS: AN HOUR AFTER THE ROBBERY.
JUSTICE SOLOMON: THE VIDEO HAD NOT BEEN EXTRACTED AND VIEWED
YET? LAUREN S. MICHAELS: NO IT HADN'T BEEN BUT HE ALSO DIDN'T
TESTIFY AND THEN I WENT BACK AN LOOKED AT THE VIDEO AND WHEN I SAW WHATEVER ON
THE VIDEO THAT MADE ME TAKE THESE ADDITIONAL INVESTIGATOR STEPS. HE NEVER
CONNECTED THAT. FAB FASH MS. FOOIK, MIKE. LAUREN S. MICHAELS: YES.
JUSTICE FASCIALE: YOU SAID VITELLI, SOME OF WHAT HE SAID
WAS FINE. COULD YOU SUMMARIZE FOR ME, I DON'T THINK YOU FINISHED YOUR ANSWER TO
THAT QUESTION. LAUREN S. MICHAELS: HE COULD TESTIFY TO THE
THIJS THAT HE HAS THE PROPER KNOWLEDGE AND EXPERIENCE TO SUPPORT SO HE COULD
TESTIFY ABOUT THE POSITIONS OF THE CAMERAS, THE ANGLE OF THE CAMERAS, THE ACCURACY
OF THE TIME STAMP BECAUSE HE HAD CHECKED THAT. HE COULD TESTIFY ABOUT ALL
THE STEPS THAT HE TOOK TO RETRIEVE THE VIDEO. IT WAS APPROPRIATE FOR HIM TO TESTIFY
ABOUT THE PROSPECTIVE LOCATIONS OF VARIOUS THINGS IN THE BANK, THE LOCATION
OF THE BANK AS COMPARED TO THE KROUZ SERS BECAUSE HE HAD BEEN THERE AND SO THIS
IS ALL INFORMATION BASED ON HIS OWN EXPERIENCE. JUSTICE
PATTERSON: SO IF HE HAD THEN SAID, AND THEN I WATCHED THE VIDEO. I DID ALL THOSE
THINGS AN THEN I WATCHED THE VIDEO AND I REALIZED WHEN I WATCHED THIS THAT
THERE WERE SOME STEPS BEING TAKEN INADVERTENTLY OR OTHERWISE TO MINIMIZE
FINGERPRINTING RISK HERE AND LET ME SHOW YOU JURY WHAT I AM TALKING ABOUT
ON THE VIDEO, HERE HE IS DOING THIS, HE IS HOLDING THE NOTE AND ALL THE THINGS
HE SAID, AS LONG AS HE THEN SAID, AS A RESULT RT OF ALL THAT I WENT BACK AND DID
SOME ADDITIONAL INVESTIGATORY STEPS IN ORDER TO FURTHER TESTIFY, TEST WLFS
WHETHER THERE WAS FINGERPRINTING EXPERT OR NOT IS THAT THE TIE IN THAT GETS THE
EVIDENCE IN. LAUREN S. MICHAELS: FOR STARTERS THAT'S NOT
THE TESTIMONY THAT HAPPENED IN THIS CASE. JUSTICE PATTERSON:
IN GENERAL, ASSUME WHAT HE SAID ABOUT THE NOTE AN SO FORTH. LAUREN
S. MICHAELS: THAT WOULD BE SPECULATION ABOUT WHY HE THOUGHT SOMEONE WAS TAKING
CERTAIN STEPS. JUSTICE PATTERSON: SO LET'S SAY HE SAYS I
WATCHED THE VIDEO AND I NOTE AT THIS POINT HERE YOU SEE THE WAY HE IS HOLD
ING THE NOTE WITH TWO FINGERS ALL THE THINGS HE SAID I AM NOT TRYING TO
CHARACTERIZE IT IN ANY WAY, ASSUME HE SAID ALL THOSE THINGS AND UNDER YOUR THEORY
WHICH YOU'RE ASKING THE COURT TO ADOPT FOR ALL CASES, THEN, IF HE SAID, AS A RESULT
OF LEARNING THIS, WHICH I PERCEIVE TO BE, FRAPS AN EFFORT TO NOT LEAVE
FINGERPRINTS, I WENT BACK AND DID SOME ADDITIONAL INVESTIGATORY STEPS.
LAUREN S. MICHAELS: FOR STARTERS THAT LAST PIECE WHICH I PERCEIVE TO BE AN EFFORT
TO AVOID FINGERPRINTS THAT'S NOT TESTIMONY THAT CAN COME IN. L I THINK
THAT DEPENDING ON THE CASE IT STILL WOULD ALSO FAIL THE SECOND PART OF 701 WHICH IS
WHETHER IT ASSISTS THE JURY AND WHETHER IT IS INVADING THE PROVINCE OF THE JURY
AND THIS CASE HAS SAID IN LAG GO AND ACTUALLY RECENTLY SAYS IN SYNCH IN DISCUSSING
LAZ SO THAT WE'RE VERY CONCERNED ABOUT 701 AND 701 B ABOUT THE STATE CAN'T VOUCH
FOR THE STATE'S THEORY OF THE CASE; THAT'S SOMETHING THAT INVADES THE PROVINCE
OF THE JURY AND YOU CAN HAVE OPINION TESTIMONY THAT INVADES THE PROVINCE OF
THE JURY THAT DOESN'T NECESSARILY TELL THE JURY THE DEFENDANT IS GUILTY OR DOESN'T
FLAESLY SATISFY EACH AN EVERY ELEMENT OF THE OFFENSE. JUSTICE
PATTERSON: I AM NOT SUGGESTING HE WOULD SAY ANYTHING LIKE THAT. I
AM SUGGESTING SINCE YOU SAID ONE PROBLEM WITH PART OF WHAT HE SAID IS HE DIDN'T
TIE HIS OBSERVATIONS OF THE VIDEO TO FURTHER INVESTIGATORY STEPS, WHAT I
WAS ASKING IS, IF HE DID TIE HIS OBSERVATIONS TO THE VIDEO TO FURTHER
INVESTIGATORY STEPS, DOES THAT COME IN. LAUREN S. MICHAELS:
IF HE SAID BASED ON MY VIEW OF THE VIDEO I DECIDED TO -- JUSTICE
PATTERSON: AND BY THE WAY, HERE IS WHERE I NOTICED THIS, I NOTICED THAT AND THEN
AS A RESULT OF THOSE -- OF WHAT I PERCEIVED, I WENT BACK AND DID SOME
FUT WORK ON WHATEVER IT MAY BE ON FUNGING. LAUREN S. MICHAELS: I
THINK IT WOULD HAVE TO BE VERY CAREFULLY SCRIPTED IS MY ANSWER AN THE JURY
CONSIDER WOULD HAVE TO BE TOLD WHAT THEY COULD CONSIDER IT FOR AN NOT CONSIDER IT
FOR. AGAIN, THAT WAS A PROBLEM THAT WAS REALLY A PROBLEM
HERE, TOO, THAT THE JURY WASN'T TOLD ANYTHING ABOUT HOW THEY SHOULD VIEW THIS TESTIMONY
AT ALL. THE JURY ISN'T TOLD THAT THEY ARE FREE TO REJECT THE
TESTIMONY AND, OF COURSE, IT IS EVIDENCE UNLIKE ARGUMENT. THEY'RE NOT TOLD THAT
IT IS FOR THEM TO DETERMINE FACTUAL DISPUTES. IT IS NOT TOLD TO THEM --
THEY'RE NOT TOLD THAT IT IS FOR THEM TO DETERMINE THE SIGNIFICANCE OR THE IMPORT
OF WHATEVER IS SHOWN. THEY ARE NOT TOLD THEY ARE NOT BOUND BY HIS EXPERIENCE AND
THAT THEY CAN REJECT HIS TESTIMONY ALTOGETHER AND THEY ARE NOT TOLD TO
DETERMINE THE ULTIMATE ISSUES. INSTEAD, THEY ARE TOLD AS PART OF THE
GENERAL MODEL CHARGE THAT HIS OPINION AS TESTIMONY AT TRIAL WAS EVIDENCE
THAT THEY COULD CONSIDER. L. ALSO, IF YOU LOOK AT THE GENERAL CREDIBILITY
CHARGES, THE JURY WAS TOLD THAT IN ASSESSING THE CREDIBILITY OF WITNESSES
THEY SHOULD CONSIDER THE EXTENT TO WHICH THEY CORROBORATE OR SUPPORT EACH OTHER
AND SOME OF THIS TESTIMONY THAT WAS INADMISSIBLE REALLY WAS BOLSTERING,
GAMBARROTTI'S TESTIMONY. SO THEY WERE TOLD THAT THEY COULD CONSIDER
THAT AND IT ALSO SUGGESTED BASED ON ONE OF THE FACTORS THAT THE JURY IS
GIVEN AS PART OF THE CREDIBILITY INSTRUCTION THAT THEY SHOULD EVALUATE THE
WITNESS' MEANS OF OBTAINING KNOWLEDGE AN FACTS, THEIR ABILITY TO OBSERVE
AN RECOLLECT EVIDENCE. THE WAY THAT THIS TESTIMONY COMES IN IS THAT
SERGEANT VITELLI IS INTRODUCED TO THE JURY WITH ALL OF HIS EXPERIENCE AS
A POLICE OFFICER, WITH HIS EXPERIENCE AS A CRIME SCENE INVESTIGATOR, WITH HIS EXPERIENCE
AND HIS STATUS, NOT JUST AS A POLICE OFFICER, NOT JUST AS A SERGEANT, BUT,
ALSO, THE INVESTIGATOR IN THIS CASE, THE LIKELIHOOD THAT THE JURY IS GOING TO DEFER
TO HIS OPINION ABOUT WHAT THE VIDEO DEPICTS AND THE SCENARIO OF WHAT THE
VIDEO DEPICTS IS ENORMOUS. THE COURT: ARE THERE OTHER QUESTIONS
ON THIS ISSUE ANYONE? WHY DON'T WE MOVE ON TO THE NEXT QUESTION.
LAUREN S. MICHAELS: I OBJECT DO KNOW, I DO KNOW THAT WE HAVE
SEVERAL ATTORNEYS WHO ARE GOING TO BE ARGUING ABOUT THE IN-COURT IDENTIFICATION
ISSUE. I VERY BRIEFLY ADDRESS THE ADMISSIBILITY BUT FOCUS ON THE HARM
SINCE I KNOW OTHERS WILL BE TALKING ABOUT THE ADMISSIBILITY, AS WELL.
THE IDENTIFICATION IN THIS CASE SHOULD HAVE BEEN EXCLUDED BECAUSE, LIKE ANY FIRST
TIME IN-COURT IDENTIFICATION, IT WAS INHERENTLY UNRELIABLE AN PRESENTED
A VERY SUBSTANTIALLY LIKELIHOOD OF IRREPARABLE MISIDENTIFICATION.
THERE WAS MINIMAL PROBATIVE VALUE, WHICH WAS GREATLY OUTWEIGHED BY THE UNDUE PREJUDICE
IN THIS CASE. THIS COURT HAS LONG RECOGNIZED THAT IN COURT IDs
ARE EXTREMELY SUGGESTIVE EVEN MORE SO THAN SHOE YUPS. THIS COURT SAID THAT IN
MADISON, IN HER RARE RA. TODD HINDS FOR THE STATE COURT NOTED THAT SHOW UPS ARE
INHERENTLY SUGGESTIVE BUT SAID THE COURT HAS PERMITTED THEM, YOUFR, HOWEVER,
ON THE SCENE BECAUSE THEY TAKE PLACE BEFORE SOMEONE'S MEMORY HAS FADED. THE COURT
INNER RARE RA SAID THAT WE'RE SAID SATISFIED THAT JUST A LITTLE MORE IS
REQUIRED. AGAIN, IN HENDERSON, THIS COURT SAID THAT THE
MAIN PROBLEM WITH SHOW UPS IS THAT THEY FAIL TO SAFEGUARD AGAINST WITNESS' POOR
MEMORY AND THAT THE POOR MEMORY OF THOSE INCLINED TO GUESS. IN ESSENCE, IT MAKES
IT EASIER TO MAKE MISTAKES. AND THAT'S WHY THIS COURT SAID THAT WHAT WE
REALLY NEED TO BE DOING ARE FRAIS BECAUSE A PHOTO ARRAY OF, IS WHAT MAKING SOMEONE
A MEMORY TEST SO ALL OF THAT IS JUST FOR SHOWUP. OBVIOUSLY
IN IN-COURT IDENTIFICATION, MEMORY DECAY IS HUGE. WE KNOW THAT AFTER TWO HOURS,
THERE ARE SERIOUS RELIABILITY ISSUES WITH A SHOWUP. THIS WAS ALMOST TWO
YEARS AFTER THE EVENT THAT TOOK PLACE IN THIS CASE. THERE IS
ALSO, OF COURSE, OTHER, VERY HIGHLY SUGGESTIVE FEATURES WITH IN COURT
IDENTIFICATION. THERE IS MUCH MORE ADDITIONAL FEEDBACK THAT THIS IS THE RIGHT
PERSON. YOU KNOW, AT A SHOWUP THE JURY OR THE WITNESS
COULD CONCEIVABLY ACCEPT THAT IN THE HASTE OF AN INVESTIGATION, THE POLICE MIGHT HAVE
PULLED SOMEONE THAT WAS THE WRONG GUY. HERE THE PRETENSE IS GONE BY THE TIME
WE GET TO TRIAL BECAUSE WE NOW HAVE THE PERSON BEFORE THEM WHO IS CHARGED, WHO IS
FACING TRIAL. THE WITNESS KNOWS THAT THE POLICE AN THE PROSECUTOR THINKS THAT
THIS IS THE PERSON AND IT IS CONFORMITY AN THE PRESSURE TO CONFORM AT ITS PEAK
IN COURT. OF COURSE, THE WITNESS MAY GIVE SPECIAL OR THE JURY
MAY GIVE SPECIAL WEIGHT TO THIS BECAUSE OF THE THEATRICAL MOMENT, THE PERSON IS
POINTED OUT AN THEN THE COURT SAYS THE RECORD WILL REFLECT THAT THIS IS WHO WAS
POINTED OUT. OF COURSE, ANOTHER BIG DIFFERENCE IS THERE
WILL THERE IS NO JUSTIFICATION FOR A FIRST TIME IN-COURT IDENTIFICATION.
JUDGE SABATINO: YOU CRITICIZED, YOUR BRIEF CRITICIZE ES THE STATE FOR
ADVISING THE TELLER WHERE THE DEFENDANT WILL BE SEATED IN THE COURTROOM.
NOW, UNDER THE A BA STANDARDS, I DON'T THINK ANYBODY BRIEFED THIS BUT IT
MAY SOUND FAMILIAR TO YOU AS A PRINCIPLE, UNDER THE A BA STANDARDS FOR PROSECUTORS
I'M TALKING ABOUT 3-3.4 AND I WILL REPRESENT TO YOU THAT ONE OF THE
STANDARDS IS THAT PROSECUTORS NOT ONLY MAY, BUT THEY SHALL TAKE ACTION TO -- SHOULD,
EXCUSE ME, SHOULD ENSURE THAT WITNESSES WHO MAY NEED PROTECTIONS AGAINST
INTIMIDATION OR RETALIATION ARE ADVISED OF AND AFFORDED PROTECTIONS WHERE FEASIBLE.
ISN'T IT A NATURAL EXTENSION OF THAT, THIS OBLIGATION TO ADVISE
WITNESSES AHEAD OF TIME, CONCERNED ABOUT POTENTIAL RETALIATION AS PART OF THE STANDARD
WITNESS PREP TO TELL THE WITNESS WHERE, IN THIS CASE, WHERE SOMEONE IS FACING
A VERY SERIOUS CHARGE, WHERE THAT CHARGED INDIVIDUAL IS GOING TO BE SEATED, WHAT
SIDE OF THE ROOM THEY WILL BE ON, HOW THEY COULD RECOGNIZE THEM IF THEY WERE
IN THE HALLWAY OR IN THE PARKING LOT, WHAT IS WRONG WITH THE PROSECUTOR DISCLOSING
IN WITNESS PREP TO THAT INDIVIDUAL WHERE THE DEFENDANT IS GOING TO BE IN
THE COURTROOM SO THAT THEY ARE ADEQUATELY ALERTED TO WHAT THEIR SURROUNDINGS WILL BE?
LAUREN S. MICHAELS: SO MY MAIN ANSWER TO THAT IS THAT IF
THEY ARE GOING TO HAVE TO THE WITNESS DO AN IN COURT IDENTIFICATION, EVEN IF THERE
ISN'T ANYTHING IMPROPER OF TELLING THE WITNESS WHERE THE DEFENDANT IS GOING
TO BE SEATED OR EVEN SHOWING THEM A PIKT -- JUDGE SABATINO: LET'S
NOT DEAL WITH THE A BA YET, THE ANSWER IS, IS THERE ANYTHING WRONG WITH THAT KIND
OF GENERIC CONVERSATION BY ITSELF? LAUREN S. MICHAELS: WITHOUT
HAVING GIVEN ANY MORE THOUGHT OR READING OR BRIEFING TO THIS ISSUE, I SUPPOSE
NOT, BUT THE ISSUE FOR THE COURT HERE IS NOT WHETHER THE PROSECUTOR DID SOMETHING
THAT WAS TOTALLY OUT OF LINE. THE QUESTION IS WHETHER THE PROSECUTOR IN
DOING THAT IN THIS CASE, WHERE THEY THEN ELICITED AN IN-COURT IDENTIFICATION OF THE
PERSON THAT IS SOMETHING THAT IS PROBLEMATIC BECAUSE IT IS YET ANOTHER -- IT
IS YET ANOTHER ACTION THAT IS MAKING THIS IDENTIFICATION THAT MUCH MORE
SUGGESTIVE AND THAT MUCH MORE UNRELIABLE. JUDGE SABATINO: IS THE
SOLUTION TO REQUIRE THOSE SESSIONS AN I KNOW THERE IS WORK PRODUCT AN OTHER
CONSIDERATIONS ON BOTH SIDES, COULD WE GUARD AGAINST ANY UNDUE SUGGESTIVENESS BY
ADOPTING A PRINCIPLE THAT SUCH INTERACTIONS EITHER WITH THE PROSECUTOR TEAM
OR WITH THE DEFENSE TEAM WITH THE EYEWITNESS SHOULD BE RECORDED?
WOULD YOU HAVE ANY OBJECTION TO A GENERIC REQUIREMENT THAT THOSE INTERACTIONS
BE RECORDED SO THAT IF THERE IS A CONCERN LATER THAT THERE WAS AN UNDULY
SUGGESTIVE CONVERSATION THAT TOOK PLACE, THAT WE HAVE AT LEAST A RECORD OF IT?
LAUREN S. MICHAELS: I GUESS -- I'M NOT SURE WHY WE NEED TO
GET THERE BECAUSE REALLY THE PROBLEM HERE IS THAT NO MATTER WHAT -- THAT IS THESE
ARE -- THAT FIRST TIME IN COURT IDENTIFICATIONS ARE SO SUGGESTIVE AND
UNRELIABLE ON THEIR OWN THAT WE DON'T EVEN NEED THIS ADDITIONAL SUGGESTIVENESS.
ESPECIALLY IN THIS CASE WHERE THE WITNESS IDENTIFIED SOMEONE ELSE OUTSIDE OF
TRIAL. L THIS IS THE ABSOLUTE MOST SUGGESTIVE KIND OF IDENTIFICATION
THERE COULD BE AND I AM COGNIZANT OF THAT OTHER ATTORNEYS ARE GOING TO BE ARGING
ABOUT THIS ISSUE AN I DON'T WANT TO RUN OUT OF TIME BEFORE TALKING ABOUT THE
HARM IN THIS CASE. SO, IT'S REALLY IMPORTANT, TOO, TO KEEP IN MINE
THAT THE IN ADDITION TO THE QUESTION OF ADMISSIBILITY, THERE IS ALSO A FAILURE
TO ADEQUATELY INSTRUCT THE JURY ABOUT THESE INSTRUCTIONS. YOU
KNOW, IN ADDITION TO WHAT I INCLUDED IN MY BRIEF AND WHAT THE APPELLATE DIVISION
NOTED IN BORROWING FROM THE SHOWUP INSTRUCTION, THE JURY HERE SHOULD HAVE
BEEN WARNED SO THAT THEY COULD HAVE ASSESSED THIS IN COURT ID IF THEY ARE PERMITTED
AT ALL THAT THEY ARE PARTICULARLY SUGGESTIVE AND THEY'RE SPECIALLY
UNRELIABLE WITH A HEIGHTENED RISK OF MISIDENTIFICATION AFTER TWO HOURS AN
THE JURY SHOULD BE TOLD THAT TO DETERMINE WHETHER THIS IS A RELIABLE IDENTIFICATION
OR THE RESULT OF THE UNDULY SUGGESTIVE PROCEDURE THEY SHOULD CONSIDER THE
TIME THAT HAS ELAPSED BETWEEN THE ET AN THE IN-COURT IDENTIFICATION, WHETHER
APPROPRIATE INSTRUCTIONS WERE GIVEN TO THE WITNESS, WHICH THEY CERTAINLY
WEREN'T HERE AND ANY OTHER CIRCUMSTANCES SURROUNDING THE IDENTIFICATION PROCEDURE.
SO, HERE, IN ADDITION TO NOT BEING TOLD ANY OF THAT, THE JURY
WAS ALSO NOT CHARGED ON ANY SYSTEMS VARIABLES FOR THE IN COURT IDs. THE JURY WAS
ONLY CHARGED ABOUT SYSTEMS VARIABLES AS THEY RELATED TO THE OUT OF COURT ID.
JUSTICE WAINER APTER: WAS THAT CHARGE REQUESTED? HAD.
LAUREN S. MICHAELS: NO. JUSTICE WAINER APTER: THERE WAS
NO OBJECTION TO THE IN COURT ID. LAUREN S. MICHAELS: NO AND
THAT'S WHY IT BECOMES TO THE COURT AS PLAIN ERROR. I THINK
THEY ALSO AND THIS IS REALLY IMPORTANT, THE JURY WAS ACTUALLY INCORRECTLY TOLD
THAT GAMBARROTTI TESTIFIED THAT HIS IN-COURT IDENTIFICATION WAS BASED ON
HIS PERCEPTION, OBSERVATIONS AT THE TIME OF THE OFFENSE. HE NEVER TESTIFIED TO
THAT SO THE JURY WAS INSTRUCTED AS PART OF THEIR JURY CHARGE THAT THIS WITNESS
SAID THAT THIS CAME FROM HIS OWN INDEPENDENT RECOLLECTION AND THERE IS NO TESTIMONY
ABOUT THAT. JUSTICE PATTERSON: DOES A LAY WITNESS REALLY
HAVE TO SAY I WAS THE TELLER, THIS HAPPENED, THE PERSON IN THE COURTROOM IS X PERSON
AND I AM BASING THIS ON MY PERSONAL PERCEPTIONS AT THE TIME OF THE ROBBERY?
LAUREN S. MICHAELS: IN ORDER FOR IT TO BE ADMISSIBLE THEY SHOULD.
JUSTICE PATTERSON: ISN'T THAT IMPLICIT IN SAYING I WAS THERE,
I WAS THE PERSON INDEPENDENT THE DESK, THAT WAS ME, THE GENTLEMAN IS RIGHT IN FRONT
OF ME. ISN'T IT IMPLICIT SAYING I REMEMBER HIM FROM
THAT DAY? LAUREN S. MICHAELS: NO, I DON'T THINK IT'S
IMPLICIT, ESPECIALLY WHEN YOU HAVE A PRIOR OUT-OF-COURT IDENTIFICATION OF SOMEONE
ELSE IN THIS CASE. AND, AGAIN, IN THIS CASE, IN PARTICULAR
BECAUSE THE JURY WAS INCORRECTLY TOLD THAT HE HAD PROVIDED THAT TESTIMONY AND BECAUSE
THAT'S WHAT WE'RE CONCERNED ABOUT WITH THIS FIRST TIME IN-COURT
IDENTIFICATION IS THAT IT IS NOT HIS INDEPENDENT MEMORY BUT IT'S REALLY THE RESULT
OF THIS EXTREMELY SUGGESTIVE PROCEDURE AND THE JURY WASN'T GIVEN THE TOOLS TO ASSESS
THAT. THEY WERE ACTUALLY GIVEN INCORRECT INFORMATION ABOUT THE IDENTIFICATION
IN THIS CASE. THE LAST THING I WANTED TO MENTION BEFORE I SAVE
WHATEVER ELSE I HAVE FOR REBUTTAL IS THAT ANY MODERATING EFFECT THAT THERE MAY HAVE BEEN
ON THE LACK OF ABSOLUTE CERTAINTY ON THE PART OF GAMBARROTTI IN THIS IN
-COURT IDENTIFICATION WAS NEGATED IN THIS CASE NOT JUST BY THE INSTRUCTIONS THAT
I SKRUS US L JUST SPOKE ABOUT, BUT ALSO THE PROSECUTOR'S SUMMATION WHERE HE
REASSURED THE JURY REPEATEDLY THAT THE IN-COURT IDENTIFICATION WAS ACTUALLY MORE
RELIABLE THAN THE OUT-OF-COURT IDENTIFICATION. HE TOLD THE JURY THAT ANY
POSSIBILITY OF MISIDENTIFICATION IDENTIFICATION HAD BEEN ELIMINATED
COMPLETELY. HE REASSURED THE JURY AND HE TRIED TO DO A DEMONSTRATION WHICH WAS
OBJECTED TO, WITH A HAT AN TELLING THEM THAT A HAT ISN'T GOING TO IMPEDE THE
WITNESS'S ABILITY TO IDENTIFY WHICH IS DIRECTLY CONTRARY TO THE SPECIAL MAST STR'S
REPORT IN HENDERSON. AND, OF COURSE, THE JURY GETS INSTRUCTIONS THAT DON'T
ALLOW THEM TO ADEQUATELY ASSESS IT. FINALLY THE IDENTIFICATION WAS
THE CONTESTED ISSUE AT TRIAL. THE IMPROPER ADMISSION OF THIS UNRELIABLE
AND WILDLY PREJUDICIAL IN-COURT IDENTIFICATION UNDER THESE CIRCUMSTANCES
BEFORE A JURY THAT WAS NOT ADEQUATELY INSTRUCTED ON HOW TO EVALUATE IT WAS
CLEARLY CAPABLE OF PRODUCING AN UNJUST RESULT THUS REVERSAL IS RETIRED FOR THIS
REASON AN ALSO FOR THE REASONS OF THE OTHER TWO ERRORS THAT I HAVE ALREADY
DISCUSSED THIS WITH THIS CASE THEY REALLY WERE INTERFINED AND CUMULATIVELY DENIED
HIS CONSTITUTIONAL RIGHT TO A TRIAL. THE COURT: THANK YOU,
MS. MICHAELS. MR. SHALOM. ALEXANDER SHALOM:
MAY IT PLEASE THE COURT. I WILL LARGELY LEAVE THE EYEWITNESS ID ISSUE TO MS.
MICHAELS KALS TO MR. MARX AND TO THE SUBSEQUENT ARGUMENT IN BURNEY AND I
DEFINITELY DO WANT TO FOCUS ON THE HARM ON THE CONFRONTATION CLAUSE PIECE BUT LOET
ME JUST JUMP IN ON THE NARRATION QUESTION WITH A COUPLE ANSWERS I HOPE.
STARTING WITH JANUARY 6TH, THAT IS IMPORTANT TO BE ABLE TO
SAY, HEY, FIRST WE SAW THE PERSON WITH THE YELLOW SHIRT IN THE MALL AND THEN LATER
WE SAW THEM AT THE CAP PIT TOLL AND IT'S 17 DIFFERENT VIDEOS AND WE HAD TO
SUPPLIES THEM TO FOLLOW IT AN THAT IS THE PERFECT ROLE FOR AN EXPERT.
OUR EXPERT RULES DON'T SAY YOU HAVE TO HAVE GOTTEN A PH.D. IN VIDEO SPLICING.
YOU HAVE TO HAVE SPECIAL EXPERTISE TRAINING OR EXPERIENCE.
SO, IF YOU HAVE SOMEONE WHO HAS BEEN TASKED TO THE JANUARY 6TH TASK FORCE AND TOLD
YOU HAVE TO FOLLOW VIDEO A THROUGH Z TO FIGURE OUT WHO WENT FROM THE MALL
TO THE CAP TOLL, THAT'S AN EXPERT REPORT, BUT IT'S NOT JUST KIND OF A --
CHIEF JUSTICE RABNER: WHAT PART OF THE TESTIMONY IS IT, IS EXPERT TESTIMONY
AND IS IT NOT. ALEXANDER SHALOM: IT'S REALLY WHAT IS OPINION
TESTIMONY AND WHAT IS FACT TESTIMONY. ANYONE COULD TESTIFY TO THE
KIND OF AUTHENTICATION QUESTIONS, I GOT THE VIDEO, IN THIS CASE, FROM THE
BANK. I GOT THE VIDEO FROM THE MALL, I GOT IT FROM HERE. THIS VIDEO STILL IS
AT THE 104 MARK OF STATE'S EXHIBIT 13. THAT IS FACT EVIDENCE. ANYONE CAN
TESTIFY TO THAT. JUSTICE PATTERSON: BUT YOUR COMMENT, I WANT
TO LET YOU FINISH YOUR ANSWER BUT YOUR COMMENT ABOUT IT IS REALLY OPINION VERSUS
NOT DOESN'T GO TO THE HEART OF THE ISSUE BECAUSE BOTH 701 AND 702 ARE OPINION
TESTIMONY. ONE IS LAY OPINION AN THE OTHER IS EX SPESHTH R TESTIMONY.
ALEXANDER SHALOM: CORRECT, BUT I WANT TO FIRST EXCLUDE FROM EITHER OF
THOSE THINGS THE AUTHENTICATION QUESTIONS; THAT INCLUDES I TOOK A SCREENSHOT
HERE, I STOPPED THE VIDEO HERE. THOSE ARE ALL -- ANYONE CAN DO THAT AT ANY TIME
ASSUMING THEY CAN SATISFY THE BASIC PRINCIPLES OF AUTD THEN PARTICULAR
INDICATION WHICH ARE NOT PARTICULARLY ONEROUS. TO THEN SAY THIS PERSON
IS WEARING A YELLOW SHIRT IN VIDEO A AND IN VIDEO B AND IN VIDEO C, THAT IS
OPINION TESTIMONY. THE COURT: NOT THIS PERSON, WHAT IF IT WERE LOOK
AT THIS FRAME AND YOU WILL SEE AN INDIVIDUAL WEARING A YELLOW SHIRT AND A RED HAT
WITH A DISTINCT ACTIVE LOGO ON IT. ALEXANDER SHALOM: I THINK
THAT'S REALLY OBFUSCATING THE ULTIMATE OPINION. IT'S SAYING DON'T SAY IT
EXPLICITLY JUST WHISPER IT. THE COURT: WHAT CAN THE EX SPEAKER EXPERT
SAY, I PREPARED THIS, I SLICED AND DIESED AND CAME UP WITH THIS EXHIBIT,
BEYOND THAT WHAT CAN THE EXPERT SAY. ALEXANDER SHALOM: THE EXPERT
CAN SAY IT'S THE SAME PERSON IN A -- I BELIEVE BASED ON THE DISTINCTIVE
LOGO OF THE OF THE HAT IT'S THE SAME PERSON IN VIDEOS A B C AN D, THE LAY WITNESS
CANNOT. THE COURT: HOW IS THAT BASED ON EXPERT SCIENTIFIC
KNOWLEDGE. ALEXANDER SHALOM: IT'S NOT BUT I DON'T THINK THAT'S
WHAT THE EXPERT RULE REQUIRES, IT CAN BE BASED ON HIS SUPERIOR TRAINING IN THIS.
JUSTICE WAINER APTER: WHAT IS HIS SUPERIOR TRAINING IN, JUST
FOLLOWING A PERSON WITH A YELLOW SHIRT AN A RED HAT? ALEXANDER
SHALOM: I THINK THAT IS PROBABLY TOO SPECIFIC. JUSTICE
PATTERSON: PRETTY SPECIALIZED EXPERTISE. ALEXANDER SHALOM:
YES, I DON'T THINK IT HAS TO BE THAT SPECIALIZE. FOR THE
JANUARY 6TH INVESTIGATION, I ASSURE YOU, THERE WILL BE AGENTS WHO HAVE SPECIAL EX
PERTISE IN REVIEWING SECURITY FOOTAGE. JUSTICE PATTERSON:
SO FOLLOWING UP ON JUST WAINER APTER'S QUESTION, THE COURT WILL SAY WHEN THE
COURT QUALIFIES AN EXPERT I QUALIFY THIS EXPERT IN THE FIELD OF BRACKETS.
ALEXANDER SHALOM: IT'S A FAIR QUESTION AND I THINK THAT'S A PLACE WHERE THIS
COURT COULD GIVE SOME GUIDANCE. I DON'T THINK A GREAT ANSWER
FOR WHAT THAT LOOKS LIKE. IT IS HIGHLY TECHNICAL. IN VIDEO ANALYSIS, MAYBE.
LET ME ZUS SAY WHAT THE ADVANTAGE IS, IT IS NOT JUST SOME
SEMANTIC DISTINCTION BETWEEN ARE THEY LAY OR ARE THEY EXPERT IT'S WHAT JUDGE SABATINO
WAS TALKING ABOUT WHICH IS IF 'THEY ARE AN EXPERT THEY CAN'T MAKE STUFF
UP AS THEY GO ALONG, IF THEY THINK IT'S THE SAME PERSON IN VIDEO A AN VIDEO B THEY HAVE
TO GIVE THE DEFENDANT A REPORT THAT EXPLAINS WHY THEY THINK THAT'S THE
SAME AND THEY ARE SUBJECT TO CROSS-EXAMINATION. THE COURT: SO CAN
THAT BE DONE WITHOUT PRESENTING THIS INDIVIDUAL AS AN EXPERT?
YOU WANT TO HAVE AN OFFICER WHO IS INVESTIGATING THE CRIME AN REVIEWING THE
EVIDENCE TESTIFY ABOUT THAT YELLOW SHIRT AN RED HAT AN FOLLOWING IT THROUGH,
CAN YOU ADDRESS THE CONCERNS THAT YOU'RE LEGITIMATELY ADVANCING WITH A 104 HEARING
AND A REPORT? ALEXANDER SHALOM: SO A 104 HEARING AND A REPORT
AS OPPOSED TO JUST THE 104 HEARING WHICH THE APPELLATE DIVISION'S REPORT CALLS
FOR WOULD GO A LONG WAY. I STILL THINK THE BETTER PRINCIPLE IS TO CALL FOR
FIRSTHAND KNOWLEDGE. LET ME POINT OUT IN THIS CASE AN IN AL LEN THE LAST TWO CASES
WHERE YOU BROUGHT THIS UP WHAT YOU RAISED MR. CHIEF JUSTICE IS THERE WILL BE CASES
THERE WILL BE SURVEILLANCE VIDEO AND NO FACT WITNESS BUT THAT HAS ND BEEN
WHAT HAPPENED. WHAT HAPPENED IS THE STATE DBT WANT TO
SUBJECT THEIR FACT WITNESSES TO CROSS-EXAMINATION ABOUT THE VIDEO SO THEY CALLED
ESSENTIALLY A THIRD PARTY WITNESS TO GIVE LAYPERSON TESTIMONY. IN BOTH OF THOSE
CASES, THERE WAS SOMEONE THERE. JUSTICE WAINER APTER: NO,
BUT IN THIS CASE, THE CHIEF JUSTICE ASKED BEFORE WOULD THE BANK TELLER HAVE BEEN
ABLE TO TESTIFY AS TO WHAT HE OBSERVED IN THE VIDEO OR ONLY DURING THE FEW SECONDS
WHEN THE SUSPECT WAS RIGHT IN FRONT OF HIM AN THE ANSWER I THOUGHT FROM MS.
MICHAELS WAS THAT IT WAS ONLY IN THE FEW SECONDS THAT THE PERSON WAS IN FRONT OF
HIM HE COULD NOT OTHERWISE TESTIFY TO ANYTHING ELSE IN THE VEHICLE.
ALEXANDER SHALOM: I THINK MS. MICHAELS ANSWERED THE CHIEF'S HYPOTHETICAL ABOUT
A 10 MINUTE 'BANK ROBBERY WHERE 45 SECONDS WERE BEFORE THE TELLER AND I
AGREE WITH HER ANSWER. IN THIS CASE THERE WERE SIX VIDEOS, A
THROUGH F AND IN FOUR OF THEM I THINK IT SHOWS THE TELLER'S E INTERACTION WITH THE
SUSPECT. ONE IS ENTRANCE AN ONE IS EGRESS AN SO, I AGREE, THEY COULDN'T TESTIFY
TO THAT, ALTHOUGH TO THE EXTENT THAT IT SHOWS THEM WALKING OUT THEY PROBABLY DID
SEE THAT. THE COURT: BURT WHAT ABOUT WALKING IN. IF
THE BANK TELLER WAS GOING ABOUT WHATEVER BUSINESS HE WAS DOING THAT DAY AN NOT
STARING AT THE DOOR WATCHING HOW IT WAS OPENED WHAT PARTS OF THE BANK WERE
TOUCHED NONE OF THAT WOULD COME IN UNDER THE THEORY THAT IS BEING ADVANCED THROUGH
THE BANK TELLER. ALEXANDER SHALOM: CORRECT. I AGREE.
TO BE CLEAR, THE VIDEOS -- THE COURT: MEANING, THERE WOULD BE NO
WITNESS AS TO THAT SHORT OF AN EXPERT. ALEXANDER SHALOM:
UNDERSTOOD. STHOES WOULD HAVE TO COME IN THROUGH EXPERT.
JUSTICE PATTERSON: THERE IS NO EXPERT WHO COULD POSSIBLY TESTIFY ABOUT SOMEONE
WALKING THROUGH A DOOR, IS THERE. ALEXANDER SHALOM: I AM
NOT SURE. I THINK THERE MAY WELL BE THAT SAME SORT OF UNIDENTIFIED BY ME OR
UNNAMED TYPE OF EXPERT COULD: I DON'T THINK THAT'S A VERY COMPLICATED.
JUSTICE PATTERSON: I HOPE THEY DON'T CHARGE TOO MUCH PER HOUR ABOUT
SOMEBODY WALKING THROUGH A DOOR. JUDGE PIERRE-LOUIS THIS IS NOT A
COMPLICATED VIDEO. IT SHOWS SOMEONE WALKING NO OO BANK, SHOWS SOMEONE
GOING IN FRONT OF A TELLER. THERE IS NOT THAT MUCH THAT IS COMPLICATED HERE AND
THE PORTION THAT THE VIDEO THAT THE OFFICER TESTIFIES TO WITH REGARD TO
WHETHER THE FINGERPRINTINGS ARE ON THE NOTE OR THE ONE FINGERPRINTER IS NOT ON THE
NOTE, THE TELLER WAS RIGHT IN FRONT OF HIM AT THAT POINT SO IT'S A LITTLE OOD THAT
THE STATE INSTEAD OF CHOOSING TO PLAY THAT PORTION OF THE VIDEO AND ASK
THE TELLER WHO WAS STANDING MERE INCHES AWAY FROM THAT SUSPECT AT THE TIME WHEN
HIS HAND WAS ON THE NOTE A THIRD PERSON IS BROUGHT IN TO GIVE THEIR OPINION
ON WHETHER ALL FINGERS WERE ON THE NOTE OR TWO FINGERS WERE ON THE NOTE OR NOT.
I AM NOT SURE IF AN EXPERT CAN LOOK AT A VIDEO EVEN IF YOU LOOK AT IT 20 TIMES
YOU CAN TELL WHETHER ONE FINGER WAS ON OR NOT. ALEXANDER SHALOM:
THAT'S EXACTLY -- JUDGE PIERRE-LOUIS THIS IS NOT AN EXTREMELY
COMPLICATED VIDEO SO I AM NOT SURE IF AN EXPERT NEEDS TO BE IN THE CONVERSATION
AT ALL. ALEXANDER SHALOM: I THINK IN THIS CASE THERE WOULD BE
NO EXPERT BUT THIS IS A CASE WHERE -- I'VE BEEN A LITTLE IMPRECISE WITH MY LANGUAGE
SO LET ME MAKE SURE I AM CLEAR HERE. THE VIDEO STILL COMES
IN. THE VIDEO COMES IN THROUGH THE SAME WITNESS BECAUSE HE CAN AUTHENTICATE
THIS IS AS RA CAMERA FROM THE NORTHWEST CAMERA OF THE BANK POINTING AT THE TELLER
THIS IS THE CAMERA POINTING AT THE DOOR. HE CAN SAY THIS IS THE ONE POINTING AT THE
DOOR AND THEN THIS IS -- SO THIS IS THE EXIT ONE. 'PROSECUTOR
CAN GET UP IN SUMMATION AND SAY 70 TIMES LOOK, YOU WILL SEE THAT HE DOESN'T TOUCH
THE DOOR OR HE DOES TOUCH THE DOOR HE USES A GLOEF OR WHATEVER AND HE CAN PAUSE
IT DURING SUMMATION AN HE CAN GIVE THE JURY THE TIME STAMP AND SAY WHEN YOU GO
INTO THE JURY ROOM, I IMPLORE YOU TO LOOK AT 1:15 THAT'S THE CRITICAL MOMENT.
I'VE DONE THAT IN TRIALS BEFORE IT CAN BE DONE. WHAT WE CAN'T
SAY IS THIS WITNESS WHO THEY DRESS UP WITH ALL THIS FANCY STUFF AND WE KNOW JURIES
TRUST MORE EASE EASE A CRIME SCENE EXPERT. WE ARGUE ABOUT IT TO FIGHT THAT
BIAS AND THEN WE SAY FORGET IT WE'RE NOW GOING TO LET YOU GIVE HIM THIS EXTRA
CREDIBILITY BY NARRATING IT. OF COURSE, THE PROSECUTOR CAN ARGUE
WHAT IS IN EVIDENCE. THERE IS NOT A VALID DEFENSE OBJECTION TO SAY THEY'RE
ARGUING FACTS THAT AREN'T IN EVIDENCE BY SAYING PLEASE FOCUS ON THIS PARTICULAR
TIME. I BELIEVE WHAT YOU WILL SEE WILL BE X Y AN Z. THAT IS PERFECTLY
APPROPRIATE SUMMATION ARGUMENT. JUDGE SABATINO: MR. SHALOM, PICKING
UP ON SOME OF THE CHIEF'S HYPOTHETICALS, DO YOU AGREE THAT YOUR PRINCIPLE
APPLIES RECIPROCAL LAE TO DEFENSE WITNESSES AS WELL THAT THEY WOULD NEED AN
EXPERT, FOR EXAMPLE, HERE, YOU SEE HIM GRABBING THE DOOR ON THE WAY IN,
THAT'S CERTAINLY ENOUGH FORCE TO LEAVE A FINGERPRINT. IF THE WITNESS FOR THE DEFENSE
WERE TO SAY THAT THAT THEY WOULD HAVE TO BE AN EXPERT. ALEXANDER
SHALOM: WITHOUT A DOUBT. JUDGE SABATINO: THE RULE APPLIES
UNIVERSALLY. YOU'RE NOT GOING TO ARGUE THAT THERE IS SOME
CONSTITUTIONAL EXTRA LATITUDE THAT THE DEFENSE GETS FOR THIS SORT OF THING.
ALEXANDER SHALOM: I DO THINK THE HARM IS GREATER FOR THE LAW ENFORCEMENT
WITNESSES BUT I DON'T THINK THAT LEADS TO A DIFFERENT RULE. THE
COURT: I WANT TO ASK HALF THE QUESTION THAT MY COLLEAGUE JUST ASKED, YOUR VIEW
WOULD BE THAT IT BE WOULD ALSO BE IMPERMISSIBLE FOR AN EXPERT TO SAY AND
LOOK HE OPENED THE DOOR WITH A BEAR HAND. ALEXANDER SHALOM: A DEFENSE
LAY WITNESS COULD NOT SAY THAT, I AGREE. IT MIGHT BE THAT'S NOT A CON TROVE
VERTD ISSUE. JUSTICE SOLOMON: BUT A DEFENSE FINGERPRINT
EXPERT COULD. ALEXANDER SHALOM: NO SAL SAL HE GRABBED THE
DOOR WITH A BEAR HAND, THAT WAS ENOUGH TO LEAVE A FINGERPRINT.
ALEXANDER SHALOM: IF HE GRABBED THE DOOR WITH A BEAR, BARE HANDS THAT WOULD LEAVE
A FINGER WOULD BE PERMISSIBLE SAL SAL LIKEWISE AN EXPERT COULD SAY HE
GRABBED THE HAND WITH A GLOVED HAND BUT HE TOUCHED THE HAND.
ALEXANDER SHALOM: I MAYBE MISHEARD YOU JUSTICE SOL I APOLOGIZE. I DON'T THINK
A FINGERPRINT EXPERT CAN TESTIFY ABOUT WHETHER THE PERSON HAD A GLOVED OR
AN UNGLOVED HAND. THE FINGERPRINT EXPERT CAN TESTIFY ABOUT WHAT THE CONSEQUENCE
WOULD BE ABOUT EITHER HAVING A GLOVED HANDS OR NOT. JUSTICE
SOLOMON: OKAY. L. ALEXANDER SHALOM: THEY CAN'T OPINE WHETHER IT
IS ACTUALLY GLOVED OR UN GLOVED THAT'S FOR THE JURY TO LOOK AT ON THE VIDEO.
JUSTICE SOLOMON: AND ALSO HOLDING A NOTE. ALEXANDER SHALOM:
A FINGERPRINT EXPERT COULD CERTAINLY TESTIFY AS TO THAT.
JUDGE PIERRE-LOUIS BUT IT WOULDN'T BE, AND LOOK, I THINK THAT HIS FINGERPRINT IS
ON THE COUNTER OR HIS FINGER IS NOT ON THE COUNTER BECAUSE THAT IS A FACT THAT
THE JURY WOULD HAVE TO PROPOSE. JUSTICE WAINER APTER: HOW DO WE
GET THERE UNDERSTAND RULE 701. ? ? IF YOU HAVE A VERY CLEAR
VIDEO THAT SHOWS SOMEONE IS TOUCHING THE DOOR WITH THEIR BEAR HAND AS CHIEF
JUSTICE SUGGESTED, WHERE IN RULE 701 DOES THAT BECOME AN OPINION OR INFERENCE?
ALEXANDER SHALOM: I THINK YOU'RE GIVING TOO MUCH WEIGHT
JUST WAINER APTER TO THE IDEA OF A VERY CLEAR VIDEO. IMAGINE
IN HAD A CASE WITHOUT VIDEO IF SOMEONE TESTIFIED HE HAD NO GLOEFS ON, THAT DOESN'T
BECOME AN UN CON TROVE VERT TABL FACT. IT IS STILL THEIR PERCEPTION AN
SOMEONE ELSE'S PERCEPTION TO THE CONTRARY IS THEIR PERCEPTION; THAT IS TEASE AN
OPINION. IT'S A PERCEPTION AND IF SOMEONE ELSE HAS SOMETHING
ELSE TO SAY ABOUT IT, IT'S JUST AN OPINION. JUSTICE WAINER APTER:
SO, SORRY. YOU'RE SAYING THAT EVERYTHING IN A VIDEO IS ALWAYS AN OPINION.
THE ONLY THING THAT IS NOT AN OPINION IS WHERE THE CAMERA WAS POSTED AND
WHAT ANGLE IT WAS FACING TOWARDS? ALEXANDER SHALOM: NO.
IT'S PROBABLY CLOSER TO THAT THAN TO A YES. SO I THINK IT'S
A LITTLE MORE THAN WHERE THE CAMERA IS POSTED. A WITNESS WHO HAD BEEN TO THE BANK,
EVEN SKWENTD TO THE ROBBERY OR PRIOR TO THE ROBBERY COULD DESCRIBE THE
PHYSICAL FEATURES OF THE BANK, YOU KNOW, THIS IS WHERE THE CUSTOMER KWOOU UP, THERE IS
WHERE YOU GO FOR DEPOSITS, WITHDRAWS. JUSTICE WAINER APTER:
THAT HAS NOTHING TO DO WITH THE JURY THAT IS MORE JUST POINTING OUT WHAT THE
JURY IS LOOKING AT IN THE VIDEO BASED ON THEIR EXPERIENCE OUTSIDE OF THE VIDEO.
I AM ASKING SPECIFICALLY WHEN IT COMES TO RULE 7 # 01, IT'S
VERY SPECIFIC TO USE THE WITNESS'S TESTIMONY IN THE FORM OF OPINIONS OR
INFERENCES MAY BE ADMITTED IF IT... SO WHERE DO WE UNDERSTAND
IF OEFRG THAT APPEARS IN A VIDEO IS ALWAYS AN OPINION OR INFERENCE IN ORDER
TO FIGURE OUT WHAT IN A VIDEO IS ALWAYS AN OPINION OR AN INFERENCE.
ALEXANDER SHALOM: WHEN THE WITNESS'S BASIS OF KNOWLEDGE IS ONLY WATCHING
THAT VIDEO, ESSENTIAL WHAT THEY ARE DOING IS SAYING SOMEONE ELSE TOLD ME THIS.
THAT THEN BECOMES THEIR OPINION OF WHAT THE OBJECTIVE REACT.
REALITY IS. IT'S NOT DIFFERENT FUNDAMENTALLY FROM HEARSAY
SOMEONE TOLD ME AN THEREFORE I AM DOING IT. HERE I WATCHED THIS AND PERCEIVED
IT TO BE TRUE. MY OPINION IS IT IS ACCURATE. JUSTICE
WAINER APTER: I DON'T THINK THAT'S TRUE, THE ISSUE WITH HEARSAY IS THE JURY HAS
TO TAKE THE WITNESS'S WORD FOR IT THAT SOMEONE OUT OF COURT DID TELL THEM
WHAT IT IS BECAUSE THAT OUT OF COURT PERSON NEVER COMES IN AND THAT'S WHY IF IT'S
OFFERED FOR THE TRUTH OF THE MATTER ASERD THAT'S WHY YOU ENDS UP WITH As HEARSAY
OBJECTION. HERE EE WE'RE TALKING ABOUT A VIDEO THAT THE
JURY CAN WATCH SO IF THEY DISAGREE AND DON'T THINK THAT THERE IS A PERSON WITHOUT
A DMROV LET'S SAY THAT IS THE DISPUTE, DOES THE HAND HAVE A GLOVE OR DOES IT NOT
AND I WOULD SAY THAT THE VIDEO IS VERY CLEAR THAT THERE IS NO GLOVE IN THE
CHIEF JUS'S HYPOTHESIS SO WHY WOULD SOMEONE NOT BE ABLE TO SAY HERE IS A PERSON
WITHOUT A GLOVE, THE JURY IS GOING TO WATCH THE VIDEO SO THEY CAN DECIDE BUT
WHY COULD SOMEONE NOT POINT OUT HERE IS THE EXACT PERSON DOES THE PERSON HAVE A
GLOVE ON OR NOT. ALEXANDER SHALOM: SOMEONE CAN POINT OUT THE
TIME AN TELL THEM TO LOOK AT IT BUT I DON'T ACCEPT YOUR ASSESSMENT OF WHY WE PRO
HIBIT HEARSAY BECAUSE IF MS. MICHAELS KALS IS GOING TO BE A TESTIFYING WITNESS AN
SHE SAYS X I AM NOT AS A TESTIFYING WITNESS ALLOWED TO SAY MS. MICHAELS
KAL'S TESTIMONY TO X JUST BECAUSE SHE IS TESTIFYING. I AM NOT ALLOWED TO JUST
REPEAT IT. JUSTICE PATTERSON: IT IS AN OUT-OF-COURT
STATEMENT OFFERED FOR THE TRUTH AN IT'S NOT SUBJECT TO CROSS-EXAMINATION AND THE
THEORY OF THAT IS THE JURY WASN'T THERE TO HEAR THE ORIGINAL STATEMENT AN CAN'T
FULLY UNDERSTAND IT SO THE JURY HERE IS LOOKING AT THE SAME VIDEO THAT THE
WITNESS IS BASING THE TESTIMONY ON. ALEXANDER SHALOM: THE WITNESS
IS BASING THE TESTIMONY ON THE VIDEO, NOT ON WHAT HAPPENED AT THE TIME.
JUSTICE PATTERSON: I UNDERSTAND YOUR CONCERNS ABOUT IT, BUT
I JUST RESPECTFULLY DON'T THINK THAT HEARSAY IS THE RIGHT ANALOGY HERE HAL.
ALEXANDER SHALOM: SHAL APDZ I AM WILLING TO BACK OFF OF HEARSAY AS
THE ANALOGY. I KNOW I'M SHORT ON TIME AND I WANT TO SAY QUICKLY SOMETHING ON HARM
-- THE COURT: MAY I ASK A QUESTION JUST TO BE CLEAR.
ALEXANDER SHALOM: PLEASE. THE COURT: YOUR POSITION IS THE
INVESTIGATOR FOR EITHER SIDE COULD NOT BE ASKED HAVE A LOOK AT SCREEN MINUTE
1:24 SECONDS, IS THE PERSON DEPICTED THERE WEARING A GLOVE.
ALEXANDER SHALOM: CORRECT BECAUSE IMPLICIT IN THAT QUESTION IS HAVE A LOOK AT 1:22
AND GIVE ME YOUR OPINION ON WHETHER OR NOT THEY ARE WEARING A GLOVE.
THE COURT: AND THAT'S THE UNDERLYING -- YOUR ASSUMPTION IS THAT'S OPINION.
IS THAT SOMETHING THAT COULD BE WORKED OUT TLOO THE EXCHANGE OF REPORTS
AND A 104 HEARING? ALEXANDER SHALOM: I THINK WE GET CLOSER
BECAUSE THEN I THINK WHAT WE'RE LOOKING AT IS MORE AKIN TO EXPERT TESTIMONY EVEN
IT IS NOT EXPERT FOR THE REASONS JUST PATH RAISED, IT AT LEAST HAS SOME OF THE
PROTECTIONS WE PROVIDE TO EXPERTS. NOT ALL OF THEM BECAUSE WE DON'T WANT
ANY LOCAL YOKE KEL GETTING UP AN PRETENDING TO BE AN EXPERT BUT IT WOULD GET
US CLOSER. I STILL DON'T THINK IT IS SUFFICIENT, BUT I DO THINK THE
EXCHANGE OF REPORTS IS AN IMPORTANT SAFEGUARD TO PREVENT THIS SORT OF MAKING IT
UP AS WE GO ALONG WHICH IS VERY HARD TO REBUT. JUDGE SABATINO:
DOES THE REPORT HAVE TO COME FROM AN EXPERT OR COULD THERE BE LAY PERSONS WHERE
THE PROSECUTOR TURNED OVER HERE IS A REPORT FROM OUR STAFF MEMBER WHO
LOOKED AT THE VIDEO A HUNDRED TIMES AN WHO WILL TESTIMONY TESTIFY, BUT NOT AN EXPERT
IS THAT REPORT AN ADEQUATE MEMORY. ALEXANDER SHALOM: NO,
I THINK IT MUST BE AN EXPERT BUT ASSUMING I LOSE THAT MY FALL BACK POSITION IS
I WOULD STILL LIKE TO SEE THE REPORTS RATHER THAN SIMPLY A 104 HEARING.
JUSTICE PATTERSON: LET ME ASK YOU ABOUT REPORTS.
BECAUSE THE LAW HAS EVOLVED OVER THE YEARS IN TERMS OF WHAT CONSTITUTES AN EXPERT'S
REPORT. IF THERE WERE A REQUIREMENT OF A LAY WITNESS REPORT,
COULD THAT REPORT BE PROVIDED BY THE COUNSEL BY THE PROSECUTOR OR DEFENSE ATTORNEY
SUMMARIZING WHAT THE TESTIMONY WILL BE AS OH OPPOSED TO A REPORT WHICH WE
TYPICALLY SEE IN EXPERT SETTINGS THAT MAY GO ON FOR MANY PAGES AN IT'S SIGNED AND
IT TALKS ABOUT THE EXPERT'S QUALIFICATIONS AN BACKGROUND AN GOES THROUGH A SORT
OF SCIENTIFIC ANALYSIS. ALEXANDER SHALOM: I AM GOING TO STOP
FIGHTING THE HYPOTHETICAL RIGHT NOW. ASSUME WE'RE ALLOWING AN EXPERT AN
A LAY WITNESS REPORT I DO THINK YOU COULD EXCISE ALL THE BASIS OF KNOWLEDGE.
JUSTICE PATTERSON: DOES THE WITNESS HAVE TO AUTHOR THE REPORT OR CAN
IT BE AN OPTION THAT OVER THE YEARS HAS BEEN AVAILABLE FOR SOME LAWYERS SUMMARIES
OF EXPERT TESTIMONY IN DIFFERENT SETTINGING THE LAW LAWYER SAYING MR.
SHALOM WILL TESTIFY BASE ON THIS AN THIS AS FOLLOWS AN SUMMARIZING WHAT THE LAY
OPINION WILL BE. ALEXANDER SHALOM: IT'S THE FIRST TIME I'VE
THOUGHT THROUGH THAT QUESTION, JUSTICE PATTERSON. MY INSTINCT IS IF YOU DO GO THROUGH
THAT ROUTE THERE NEAR TO BE CLEAR COINCIDENCES FOR DEVIATION FROM THE PROPOSED
SUMMARY. JUSTICE PATTERSON: I UNDERSTAND THAT.
ALEXANDER SHALOM: IF I CAN JUST SAY THAT IN AL LEN, FOR EXAMPLE, WE KNOW
THAT SOME OF THE REALLY SMALL LINGUISTIC QUESTIONS ABOUT TURNING TOWARDS AN NOT
TURNING TOWARDS, IN MY OPINION, AT LEAST, CARRY THE DAY. THEY CHANGE
FUNDAMENTALLY WHAT WAS AND SO I THINK TO THE EXTENT THAT IT IS AUTHORED BY COUNSEL
RATHER THAN BY THE WITNESS THE WITNESS NEEDS TO BE INSTRUCTED THAT THEY WILL
BE EXPECTED TO HOOU TIGHTLY TO IT. JUSTICE FASCIALE: I AM STILL
ON THE EXPERT QUESTION. ASSUMING THAT THEY INTRODUCED THIS
WITNESS AS AN EXPERT WHAT WOULD THE PROFFER BE, JUST, JUDGE, I OFFER
SERGEANT VITELLI AS AN EXPERT IN THE FIELD OF.... ALEXANDER SHALOM:
THE SAME QUESTION I WAS UNABLE TO ANSWER FOR JUSTICE PATERSON. BEFORE I TELL
YOU AN EXPERT IN THE FIELD OF LET ME TELL YOU WHAT THE PROFFER WOULD LOOK
LIKE. I THINK IT WOULD SAY SOMETHING LIKE JUDGE, DETECTIVE VITELLI HAS LOOKED
AT THIS VIDEO 175 TIMES. HE WAS ABLE TO DO IT WITHOUT THE TIME CRUNCH.
L HE SLOWED IT DOWN HE SPED IT UP AND HAD A LOT OF TIME TO BE DELIBERATIVE ABOUT
THAT AND IN SO DOING HE GAINED EXPERTISE IN THAT ONE MINUTE CLIP OF VIDEO, THAT
TWO MINUTE CLIP OF VIDEO AND THEREFORE I PROFFER HIM AS AN EXPERT IN THE
FIELD OF VIDEO ANALYSIS OR THIS VIDEO ANALYSIS. HE MIGHT NOT EVEN BE BROADLY,
BUT I THINK HE HAS BECOME EXPERT HERE. L. AGAIN, I THINK
TO JUSTICE POOER LOSE POINT, IN THIS CASE HE'S PROBABLY NOT GOING TO BE QUALIFIED
AND PROBABLY DOESN'T NEED TO BE BUT IN JANUARY 6TH THAT'S A LOT WHAT IT
LOOKS LIKE. VERY QUICKLY ON HARM, IT'S FUNNY TO TAKE 160 PAGE
APPELLATE DIVISION OPINION AN FOCUS ON FOOTNOTE 22 BUT I WOULD LIKE TO FOCUS ON
FOOTNOTE 22 WHERE IN THE APPELLATE DIVISION SUGGESTED THAT THE UNDERMINING OF
MS. HILL'S TESTIMONY BECAUSE OF BIAS BECAUSE SHE HAD AN AX TO GRIND WAS
WAIVED SOMEHOW BY MR. WATSON BECAUSE IT WAS NOT BRIEFED ON APPEAL, THAT'S NOT HOW
HARMLESS ERROR WORKS. THAT MAKES NO SENSE. IT WAS RAISED PROPERLY. THEY,
AT TRIAL, SAID THEY THINK SHE HAD THIS REASON TO IMPLICATE HIM THAT WAS ABOUT BIAS.
THEY PUT IT FORTH FOR THE JURY AND THE JURY DIDN'T ACCEPT IT, IN PART BECAUSE
TO OUR MIND, THEY ALSO GOT THIS CONFRONTATION CLAUSE TESTIMONY, THEY GOT THE FIRST
TIME IN-COURT IDENTIFICATION AND THERE WAS THIS NARRATION, BUT THEY CONVICTED
HIM. MR. WATSON DOESN'T BELIEVE THAT SHE SHOULDN'T HAVE BEEN
ALLOWED TO TESTIFY SO THERE WAS NOTHING TO BRIEF. HE WASN'T SAYING SHE SHOULD HAVE BEEN
EX CONCLUDED FROM TESTIFYING. HE WAS SIMPLY SAYING UNLIKE THE APPELLATE
TWIGS WOULD SAY WELL, LOOK HE WAS CAUGHT IN THE ACT. SOMEONE WAS CAUGHT IN THE
ACT, SOMEONE WHO HAD A HAT OVER A THIRD OF HIS FACE. I WILL
SAY, IT'S PARTICULARLY TROUBLING THAT THE APPELLATE DIVISION FOUND THAT THIS WAS
ALL HARMLESS BECAUSE MR. WATSON WAS CAUGHT IN THE ACT WHEN THEY DIDN'T SEE
THE VIDEOS. THE VIDEOS CAME TO THIS COURT AS PART OF THE V A MOTION TO EXPAND
THE REPORT. I AGREE, JUSTICE PATTERSON, I HAVE SEEN MORE PIXEL
LATD VIDEOS IN MY LIFE, THERE ARE CERTAINLY ONES THAT ARE FAR WORSE THAN THIS.
JUSTICE PATTERSON: IS THIS PIXEL LATD AT ALL?
I AM NOT AN EXPERT ON WHAT PIXEL LAGS IS IS. ALEXANDER SHALOM:
I HAVE SEEN VIDEOS OF WORSE QUALITY. JUSTICE PATTERSON:
I THINK IT WOULD BE VERY IMPORTANT IF THIS WERE A PIXEL LATD VIDEO.
ALEXANDER SHALOM: I THINK WHAT MS. MICHAELS MEANT BY PIXEL LATD WAS NOT OF GREAT
QUALITY AND I THINK THAT'S PROBABLY TRUE ALTHOUGH I PROBABLY COULDN'T TESTIFY
TO IT. IT IS ALSO UNDOUBTEDLY CLEAR THAT HIS EYES ARE NEVER
SEEN NOBODY COULD EVER SEE HIS EYES AN THAT'S A PRETTY IMPORTANT PART OF A HUMAN
MAP'S FACE. JUDGE SABATINO: APART FROM WAIVER AND I UNDERSTAND
YOU HAVE A PRINCIPLE THAT YOU HAVE TO CATALOG ALL THE PRINCIPLES YOU THINK YOU
SEE, I, AS PARTED OF THE APPELLATE PROCESS WHAT FREQUENTLY HAPPENS IS THEY MAKE
CERTAIN POINTS AN THEY SAY AND ALSO WE GET A NEW TRIAL BECAUSE OF ERROR AND THE
NEXT THING THAT COMES IN IS FROM THE PROSECUTOR OR A G CATALOGING WHY THEIR
PROOFS WERE SO STRONG IN VERY SPECIFIC WAYS. IF IN THAT SCENARIO THE
DEFENSE WHICH HAS THE OMG V OPTION TO DO IT FILES A SUPPLY BRIEF AND IGNORES
MANY OF THE THINGS THE PROSECUTOR LESTED AS REASONS WHY THEIR CASE WAS COMPELLING,
THIS SORT CAN CERTAINLY TAKE NOTE OF THE FACT THAT THE DEFENSE HASN'T RESPONDED
ON THAT WITHOUT CALLING IT A WAIVER, THE FAILURE TO RESPOND THOUGH IS MEANINGFUL,
ISN'T IT. ALEXANDER SHALOM: I CAN'T DISAGREE WITH YOUR
CHARACTERIZATION. JUDGE SABATINO: YOUR PROBLEM IS JUST
CALLING IT A FLAT OUT WAIVER OOU EE LOST YOUR CHANCE TO TRY TO PERSUADE US
OTHERWISE. ALEXANDER SHALOM: EXACTLY WHEN THERE WAS NO NEED
TO OR OPPORTUNITY TO BECAUSE I THINK THE BIAS AN MR. HAYDEN DEN IS THE MOST SEASONED
TRIAL ATTORNEY IN THIS ROOM BY A LOT HE CAN TELL YOU HOW IMPORTANT THAT BIAS
TESTIMONY IS. JUSTICE FASCIALE: I HATE TO GO BACK TO
NARRATION AGAIN, BUT DOES WATCHING THE VIDEO A NUMBER OF TIMES REPEATEDLY MAKE AN
INDIVIDUAL AN EXPERT? ALEXANDER SHALOM: I THINK IT MRAUSZ SIB
BLEE CAN AND I DON'T HAVE THE RULE IN FRONT OF ME BUT IT'S SUPERIOR TRAINING,
SUPERIOR EXPERIENCE. IN THAT CASE, THERE MAYOR MAY NOT BE TRAINING, I DON'T KNOW.
JUDGE PIERRE-LOUIS IF THERE IS A PORTION OF THE VIDEO THAT
EVEN IF YOU WATCH IT A HUNDRED TIMES, IT IS NOT CLEAR, WHAT IS HAPPENING, IS THAT
SOMETHING THAT AN EXPERT SHOULD STILL BE PERMITTED TO SAY, WELL, IN MY OPINION,
THIS FINGER NEVER TOUCHED THE COUNTER EVEN THOUGH IT'S NOT VERY CLEAR, NO MATTER
HOW MANY TIMES YOU WATCH IT. ALEXANDER SHALOM: NO, OF COURSE
NOT IN THE SAME WAY WE JUST DON'T LET EXPERTS MAKE STUFF UP AND I NL THE
JUDGE AS GATEKEEPER WOULD KEEP THAT OUT BECAUSE THE JUDGE FINDS THAT THEIR SUGGESTION
THAT THEIR THOUSAND SANT VIEWING WAS RECEIVE LAT TORE RE. THE
COURT: TAKE THE SLIP SIDE, SOMETHING THAT IS RELATIVELY CLEAR BUT COULD OTHERWISE
GET LOST IN A VIDEO THAT HAS A LOT OF ACTION, DOES VIEWING IT TIME AN TIME
AGAIN CREATE EXPERTISE IN WHETHER A PERSON TOOK A GLOVE OFF?
ALEXANDER SHALOM: I'M NOT SURE WHETHER IT CREATES THAT EXPERTISE. I THINK I AM
GOING TO BE CLEAR ABOUT SOMETHING, WHEN I WAS SUGGESTING THAT EXPERTS ARE KIND
OF THE ALTERNATE ROUTE HERE, IT'S NOT -- THAT'S NOT AT ALL MY POSITION. MY POSITION
IS IN MOST OF THESE CASE SESSION WE SHOULD RELY ON ARGUMENT. WE SHOULD STOP IT
FOR THE JURY, TAKE A SCREEN STHOT, DO IT SLOWLY AND THEN THE PROSECUTOR OR THE
DEFENSE ATTORNEY ALERTS THEM TO WHAT THEY SHOULD BE LOOKING AT. THAT'S GOING TO BE
TRUE IN THE LION'S SHARE OF CASES. IN THE RARE CASE THAT INVOLVES
SUCH COMPLICATED THINGS THAT CAN BE SOLVED THROUGH SLOWING DOWN, LOOK AT
IT A BUNCH OF TIMES THAT'S WHERE EXPERTS STEP IN TO FILL THE VOID BUT I THINK THAT
WILL BE A SIGNIFICANT MINORITY OF CASES. CHIEF JUSTICE RABNER:
SO HELP ME WITH THIS. IS THAT AN IDEAL WAY TO PROCEED, THE
PROSECUTION GETS THE LAST WORD IN FRONT OF A JURY AND SUPPOSE THAT'S THE FIRST TIME
THE JURY HEARSAY THAT SUSPECT PLANTED HIS FINGERS ON X Y OR Z AT THESE DIFFERENT
SPOTS AN THE JURY NEVER HEARSAY FROM THE OTHER SIDE, WELL, NOT SAL, IF YOU LOOK
AT IT CLOSELY YOU CAN SEE SOME DAYLIGHT THERE IS THAT AN IDEAL SITUATION FOR
US IN CONDUCTING TRIALS. ALEXANDER SHALOM: I TAKE YOUR POINT AN I
THINK IT DOES PRESENT PERIL FOR DEFENSE ATTORNEYS WHO NEED TO BE -- ONCE
X-5 GETS ADMITTED, THE VIDEOTAPE, THEY NEED TO BE INTIMATELY FAMILIAR WITH S-5
AN UNDERSTAND THE STRENGTHS AN VUL IN HER RABLTS OF IT. I AM SAYING UNDER
THE EXIST RULES AN EXISTING JURISPRUDENCE WE HAVE AROUND 701 AND 702 I THINK BY
AN LARGE IF YOU DON'T HAVE FIRSTHAND KNOWLEDGE -- NOT BY AND LARGE, IF YOU
DON'T HAVE FIRSTHAND KNOWLEDGE YOU CAN'T GIVE LAY OPINION TESTIMONY AND IF YOU WANT
TO GIVE OPINION TESTIMONY ABOUT SOMETHING FOR WHICH YOU LACK FIRSTHAND KNOWLEDGE
YOU MUST BE QUALIFIED AS AN EXPERT. THE COURT: THANK YOU, MR. SHALOM.
ALEXANDER SHALOM: THANK YOU. THE COURT: MR.
HAYDEN. JOSEPH A. HAYDEN, JR.: CHIEF JUSTICE RABNER: I DON'T
THINK MR. SHALOM WAS TRYING TO DATE YOU EARLIER. JOSEPH A. HAYDEN, JR.:
ALTHOUGH I DISAGREE WITH A NUMBER OF THINGS MY BROTHER SAID THAT ARE REALLY TRIAL
LAW EVIDENTIARY ISSUES. PLEASE THE COURT I AM GOING TO PRINCIPALLY
SPEAK TO THE VIDEO NARRATION ISSUE AN I WOULD LIKE TO REFOCUS US ON THIS
DECISION AND GO FROM THE SPECIFIC TO THE GENERAL BECAUSE A LOT OF QUESTIONS ASKED
ARE VERY GENERAL, BUT THE CONVICTION HERE IS BASED UPON THE USE OR WHAT
WE BELIEVE IS THE MISUSE OF THE LAY OPINION RULE WHICH PERMITS AN OFFICER WHO WAS
NOT PRESENT DURING THE CRIME TO TESTIFY TO THE JURY ABOUT WHAT HAPPENED IN THE
CRIME AND WE BELIEVE IT TO BE AN EXTENSION OF RULE 701 AND IF IT STANDS,
IT'S GOING TO OPEN THE FLOOD GATE AS TO SIMILAR TYPE TESTIMONY.
ONE OF THE THINGS THIS COURT HAS POIPTD OUT IS THAT JURIES CAN BE IMPACTED ON LAW
ENFORCEMENT TESTIMONY. IT CAN HAVE AN UNDUE IMPACT ON JURY DELIBERATIONS
AND THIS WAS DONE BY THE POLICE OFFICER HERE. ONE OF THE THINGS
WHICH IS IN CLEAR VIOLATION OF 701. IN 702, WHAT COULD HAPPEN IF THERE IS AN
EXPERT, INTERESTING QUESTIONS, COULD THERE BE A WAY AROUND IT INTERESTING QUESTIONS,
WHAT YOU COULD DO AT A 104 HEARING, I HAVE MY OWN THEORY ON THAT, BUT JUST
GETTING TO THE FACTS OF THE CASE, THE DANGER IN THIS DECISION IS ON PAGE 85 THE
APPELLATE DIVISION SAYS WE DECLINE TO ADOPTED THE RULE SUGGESTED BY DEFENDANT THAT
WOULD PRECLUDE A POLICE WITNESS FROM POINTING OUT AN EVENT OR CIRCUMSTANCE
DEPICTED IN THE VIDEO OR FROM OTHERWISE OFFERING A DESCRIPTION OF OR COMMENT ON
ANY SUCH EVENT OR CIRCUMSTANCE,S RATHER, WE BELIEVE THE DECISION TO ALLOW
A WITNESS TO DESCRIBE AN HIGHLIGHT SOMETHING ON THE SCREEN THAT THE JURY COULD
SEE FOR ITSELF MUST BE MADE ON A CASE BY CASE, IF NOT COMMENT BY COMMENT
BASIS. THAT'S AN INVITATION TO EVIDENTIARY CASE YOS. TA TYPE
OF SENSE ABOUT ALL WE'RE GOING TO SAY IS IT IS A MATTER OF JUDICIAL DISCRETION
AN THAT'S WHY RULE 611 DOES NOT OVERRULE RULE 701 AND 702 AN THAT'S WHY THIS
CASE -- I KNOW HOW SERIOUS THE COURT IS TAKING IT, THERE HAVE BEEN THREE ARGUMENTS,
WILL HAVE TO LAY DOWN GUIDELINES, WILL HAVE TO LAY DOWN PROCEDURES BECAUSE
THIS CAN'T BE DONE ON A CASE-BY-CASE BASIS AND I THINK IT HAS TO START POIKING ON
THIS CASE AND GOING OUT. WHAT IS OUR PROPOSED APPROACH CLOP FOCUSING
CLOP. IS THAT A LAY WITNESS POLICE OFFICER WHO TESTIFIED AS TO
FOUNDATION, AS TO THE LAYOUT OF THE BANK, AS TO ANY COMPOSITE VIDEO MADE, AS TO
TIMING, LIGHT, DIRECTION AN SITUATION LIKE THAT, THAT THE LAY WITNESS POLICE
OFFICER CANNOT TESTIFY AS TO WHO DID WHAT, WHAT IS HAPPENING ON THE VIDEO BECAUSE
THAT'S A JURY QUESTION. IN THIS CASE, AS HAS BEEN POINTED OUT
IN QUESTIONS, IT'S E Z. THIS IS A 60-SECOND BANK ROBBERY. IN 60 SECONDS
IT TOOK PLACE. PUT ASIDE THE PERCEPTION ASPECT OF IT. THE JURY DOESN'T NEED ANYBODY
TO TELL THEM WHAT IS HAPPENING IN THE 60 SECONDS AND WHATEVER THE PIXEL
LAGS WAS, IT'S CERTAINLY NOT HARD NUF TO UNDERSTAND WHAT IS HAPPENING JUST BY,
WELL, WE'VE ALL LOOKED AT THE VIDEO. SO ONE OF MY CONCERNS
IS, STARTING WITH THIS CASE BECAUSE I'M AFRAID OF THE PRECEDENT AN THE A C D L
IS AFRAID -- WHAT THE APPELLATE DIVISION CALLED IT IN ITS OPINION IS THE
OFFICER GAVE RUNNING COMMENTARY. AND THE APPELLATE DIVISION JUDGE WAS VERY CANDID
AS TO WHAT WAS HAPPENING. ARE WE GOING TO PERMIT UNDER 701
A LAY WITNESS TO GIVE RUNNING COMMENTARY, RUNNING COMMENTARY AS TO THREE
OR FOUR QUESTIONS ABOUT WHERE THE HANDS WERE, WHAT HAPPENED, ALL PERTAINING TO
TRY TO UNDERMINE THE LACK OF FINGERPRINTS AND LACK OF DNA AND THEN TRYING TO
GIVE COMMENTARY ABOUT THE SIZE OR WHAT THE DESCRIPTION OF THE DEFENDANT WAS AND
THEN HOW HIS SIZE, THE OFFICER IS A LITTLE BIT SMALLER THAN THAT PERSON, TRYING
TO CORROBORATE THE OVERALL DESCRIPTION. CHIEF JUSTICE RABNER: OF
COURSE THE APPELLATE DIVISION JUDGE SAID NO RUNNING COMMENTARY WOULD BE
PERMITTED IN THE APPELLATE D-ADDITION. HE SAID THAT'S NOT GOING TO BE HAPPENING
IN THE FUTURE. THERE IS A DECLARATION ON THE POINT YOU'RE MAKING. JOSEPH A.
HAYDEN, JR.: THE DANGER IS IF WE DON'T HAVE THE CLEAR FIED LINES WE CAN
FALL INTO A RUNNING COMMENTARY BY POLICE OFFICERS WHERE ALL YOU GET IS AN
INVESTIGATORS REPORT WHERE PRESUMABLY THERE WILL BE SOME BEAR R BARE BONES
INFORMATION IN THE INVESTIGATORS REPORT. THE COURT: MR. HAYDEN IS
THERE AN IN BETWEEN, AN IN BETWEEN RUNNING COMMENTARY AND NO TESTIMONY ABOUT
WHAT THE VIDEO DEPICTS? HAID HAD JOSEPH A. HAYDEN, JR.: WELL, A LOT OF IT BY
THE WAY WILL DEPEND UPON THE SKILL OF THE QUESTIONER BECAUSE I THINK IF
THE PROSECUTOR IS ASKING THE RIGHT QUESTIONS IN TERMS OF I SHOW YOU THIS, YOU CAN
FWLOE, BLOW UP, IF THERE IS A QUESTIONABLE SITUATION IN TERMS OF THE VIDEO, I DON'T
THINK ANYBODY IS GOING TO SAY YOU CAN'T TAKE THE VIDEO AND BLOW IT UP AN
CIRCULATE THAT TO THE JURY, TO SHOW THAT TO THE JURY DURING THE TESTIMONY, BUT
WHAT YOU CAN'T HAVE THE INTERPRETATION BECAUSE THE INTERPRETATION FROM A
POLICE OFFICER HAS THE POTENTIAL TO BE DID HE HAVE STATING, PARTICULARLY IN DEVASTATING
PARTICULARLY IN A SHORT CASE, PARTICULARLY IN THIS CASE WHERE YOU WENT FROM
THAT INTERPRETATION WHERE IN EFFECT THE POLICE WERE SAYING THIS IS WHY THERE IS
NO FINGERPRINTS. YOU STARTED OUT IN THIS CASE WITH A COMPLOET LACK
OF FORENSIC EVIDENCE WHICH WAS A HUGE PROBLEM FOR THE PROSECUTION. YOU THEN HAD
NOT ONLY A SHAKY IDENTIFICATION BY THE TELLER, A MISIDENTIFICATION BY THE
TELLER OF SOMEBODY ELSE. AND THEN THE TELLER -- AND I WILL GIVE THE TELLER CREDIT
THE BEST HE COULD DO IS 80 PERCENT AFTER HE IS BROUGHT OUT FOR A FIRST-TIME
IN-COURT IDENTIFICATION AN HE IS TOLD BY THE PROSECUTORS THE DEFENDANT IS THERE
AND I THINK A JURY CERTAINLY -- AN WE SHOULD CERTAINLY CONSIDER WHEN WE HAVE A
SHAKY IDENTIFICATION THE OVERALL CIRCUMSTANCES. THEN YOU
HAVE MS. HILL'S TESTIMONY. MENT AND MS. HILL'S TESTIMONY ON DIRECT READS PRETTY
CLEAR CUT. SHE LOOKS LIKE THE MOST UNBIASED WITNESS YOU COULD HAVE AND
ON CROSS-EXAMINATION SHE IS DEVASTATED ABOUT THE WAY THE RELATIONSHIP BROKE OUT.
THIS MAN LEFT HER FOR ANOTHER WOMAN, MARRIED, HAD CHILDREN. YOU NEVER
WOULD HAVE THOUGHT THAT. SO THAT ANYBODY THERE HAS TO WONDER ABOUT AN AX TO GRIND
AND IT'S MISS HILL WHO SEVEN MONTHS LATER WHEN SHE SEES THE DEFENDANT'S PICTURE
IN THE PAPER ON SOMETHING ELSE IMMEDIATELY CALLS LAW ENFORCEMENT.
AND, BY THE WAY, THEY WERE TALKING ABOUT PREJUDICE, IT'S NOT ONLY THE PREJUDICE
OF THE NARRATION, WHICH TOOK PLACE HERE, BUT, ALSO, OF THE FACT THAT THE
INVESTIGATION STARTED BY CONSULTING. AND THE APPELLATE TWIGS PASSED OUT THE
COMMUNICATION AND CONSULTING AND THE IMPLICATION IS CONSULTING MEANS INFORMATION
HAD TO BE PROVIDED WITH ANOTHER LAW ENFORCEMENT AGENCY AND THE OTHER LAW
ENFORCEMENT AGENCY GETS INVOLVED BECAUSE OF WHAT? BECAUSE OF MS. HILL SEES THE
DEFENDANT'S PICTURE SEVEN MONTHS LATER IN THE NEWSPAPER ABOUT AN ARTICLE.
CHIEF JUSTICE RABNER: MR. HAYDEN, CAN WE FOCUS ON YOUR VIEW OF WHAT IS AND
IS NOT APPROPRIATE WITH RESPECT TO NARRATION TOEFT HERE AND THERE IS A
PASSAGE, THERE IS A PART OF JUDGE SUSSWEIN'S OPINION IN WHICH HE TRIES TO DRAW
DISTINCTION BETWEEN DISPUTED AN UNDISPUTED FACTS WHAT IS YOUR VIEW OF THAT JOSEPH
A. HAYDEN, JR.: HAD HAD HAD WELL, THE QUESTION IS WHAT A JUDGE THINKS IS
UNDISPUTED. THE DEFENSE MAY NOT KNOW UNTIL THE EVEN OF THE CASE WHAT IT WANTS
TO DISPUTE, THE NARRATION WITNESS CAN DO ALL THE FOUNDATION, THE MATERIAL
CAN BE POINTED OUT. IF THEY NEED EXPERT TESTIMONY YOU QUALIFY SOMEBODY AS A 702
EXPERT I THINK IT'S THE CASE CITED AN EARLIER CASE WHERE THEY SAID THE
TESTIMONY DIDN'T QUALIFY UNDER 701, BUT IT DID QUALIFY UNDER 702, STREET SLANG AN
MATERIAL LIKE THAT. ONCE YOU'RE UNDERSTAND 701, WHICH WE ARE
TODAY AND THE PROBLEM IS, IF THE RULING COMES OUT GIVING TOO MUCH POWER TO A POLICE
OFFICER UNDER 701, AROUND THE STATE THEY'RE GOING TO RUN WILD WITH IT.
THE COURT: COULD A 104 HEARING ADDRESS SOME OF THOSE CONCERNS JOSEPH A. HAYDEN, JR.:
I BELIEVE THAT A 104 HEARING IS ONE OF THE BEST EVIDENTIAL STRAIN IN HERS
WE HAVE IN THE LAW. I AM A GREAT BELIEVER IN 104 HEARINGS. WHERE I DISAGREE WITH
JUDGE SUSSWEIN IS THAT IN HIS OPINION HE SUGGESTS THAT IT SHOULD BE KIND OF A
NARRATIVE OFFER OF PROOF AND I I BELIEVE IT MUST BE Q AN A WHERE YOU GET
THE QUESTION AND YOU GET THE ANSWER AND THE JUDGE HAS THE OPPORTUNITY TO THINK
ABOUT IT AND EVERYBODY HAS THE OPPORTUNITY TO THINK ABOUT IT BECAUSE EVEN
IN GOOD FAITH THE PROSECUTOR CAN SAY AND TEND TO GO INTO THIS AND THAT, WE NEVER
KNOW WHAT THE ANSWER IS GOING TO BE UNTIL THE WITNESS TESTIFIES CHT WE NEVER
KNOW WHAT THE FOLLOW UP IS GOING TO BE. L I BELIEVE IF ANYTHING CLOSE TO NARRATION
IS TO BE DONE, THERE MUST BE A 104 HEARING WITH AN OFFER OF PROOF QUESTION AND
ANSWER. JUSTICE PATTERSON: CORRECT ME IF I'M WRONG,
IN THE CRIMINAL CONTEXT, IF YOU ARE PROFFERING AN EXPERT UNDER 702 AND THERE IS
A CHALLENGE TO THAT EXPERT AND THERE IS A HEARING WHICH IN THIS CASE WOULD BE BASICALLY
A HEARING ON WHETHER THE EXPERT'S TESTIMONY IS ADMISSIBLE, AL BETTER,
FRYE, THE PROPONENT OF THAT EXPERT IS NOT REQUIRED TO GO THROUGH EVERY SINGLE
QUESTION AN ANSWER THAT IS GOING TO BE PROVIDED JOSEPH A. HAYDEN, JR.: I'VE HAD
SITUATIONS WITH AN EXPERT WHERE THERE IS A QUESTION AS TO THE SCOPE OF THE
TESTIMONY AND THE JUDGE JUST STOPPED U.S. THERE WAS ORAL ARGUMENT HE SAID I WANT
TO HEAR FROM THE EXPERT AS TO THIS AREA TO SEE EXACTLY HOW FAR THE EXPERT IS GOING
TO GO, WHERE IT IS GOING. JUSTICE PATTERSON: UNDERSTOOD.
TELL ME IF I AM WRONG ABOUT THIS. A PRETRIAL HEARING BEFORE
THE COURT IN THE ABSENCE OF THE JURY DOES NOT HAVE TO GO THROUGH THE SAME SET OF
Q AN A THAT ULTIMATELY WOULD BE PRESENTED TO THE JURY. IN OTHER
WORDS, IF A QUESTION OR LINE OF QUESTIONING IS NOT DONE IN THE 104 HEARING AND IS
DONE AT TRIAL, YOU WOULD NOT HAVE -- JOSEPH A. HAYDEN, JR.: I'M SORRY.
I SHOULD HAVE BEEN MORE FULSOME. OF COURSE THE EXPERT WOULDN'T HAVE TO GIVE BACKGROUND,
OF COURSE THE WITNESS WOULDN'T HAVE TO DO SETUP AND OF COURSE IF THERE WAS
NO ISSUE AS TO AUTHENTICITY YOU WOULDN'T HAVE TO GO INTO AUTHENTICITY, BUT WHEN
YOU WITH GET TO THE NARRATION OR SUPPOSED NARRATION AREA THAT'S WHERE YOU WOULD
HAVE TO HAVE THE Q AN A. IT'S NOT GOING TO BE MUCH. L BUT EVERYBODY SHOULD KNOW
IN ADVANCE WHAT IS COMING. I THINK THE JUDGE TRIED TO ROLL WITH THE PUNCHES
HERE. A LOT WAS COMING AT THE JUDGE, A LOT WAS COMING AT THE LAWYERS. THEY NEEDED
TIME TO EVALUATE A KIND OF NOVEL AREA OUT ON THE CUSP AND I THINK ONLY Q AN A
IS GOING TO GIVE EVERYBODY THE AREA EVEN IF THE 104 HEARING IS RIGHT BEFORE THE
WITNESS IS CALLED TO PUT THE VIDEO IN. IF YOU KNOW IT'S COMING
AND IN THE CASE I WAS TELLING YOU ABOUT WHERE WE HAD THE 104 ABOUT THE EXPERT
AS TO THE ONE AREA, IT WAS RIGHT BEFORE THE EXPERT GOT ON, BUT WE ALL KNEW WHAT
THE RULING WAS BEFORE IT HAPPENED. JUDGE SABATINO: WHAT ABOUT
THE DEFENSE CROSS THOUGH, YOU HAD THE 104 HEARING TO SCRIPT OUT ABOUT WHAT
THE PROSECUTOR IS GOING TO PRESENT, BUT, WHAT IF, IN THE TRIAL THE DEFENSE ATTORNEY
ASKS A QUESTION THAT WASN'T A SPECIFIC ONE COVERED IN THE 104 HEARING AND
THE EXPERT OR THE LAY WITNESS BLURTS OUT SOMETHING IN RESPONSE, ISN'T THAT THE
FAULT OF THE DEFENSE FOR NOT LETTING THE JUDGE KNOW AHEAD OF TIME I AM GOING TO
GET INTO THIS ON CROSS, JOSEPH A. HAYDEN, JR.: WE ALL AS TRIALS KNOW WHAT
IT IS TO OPEN THE DOOR. WE ALL LIVE WITH OPENING THE DOOR. THERE IS A LOT OF
AREAS HERE, HOW YOU WOULD CROSS-EXAMINE MS. HILL,ING HOW YOU MIGHT
CROSS-EXAMINE THE OFFER ABOUT HOW HE HEARD FROM ANOTHER LAW ENFORCEMENT AGENCY,
IF THE DEFENSE OPPOSITE THE DOOR, THEY OPEN THE DOOR. YOU HAVE TO THINK THROUGH
THE QUESTIONS YOU'RE GOING TO ASK BUT WE CAN'T MAKE A RULE BECAUSE THE DEFENSE
MIGHT DO SOMETHING LIKE THAT IF THE DEFENSE DOES IT IT ON THE THEM.
JUSTICE FASCIALE: MR. HAYDEN, YOU USED THIS CASE AS AN EXAMPLE FOR THE
HYPOTHETICAL Q AN A, YOU'RE AT A 104 A HEARING, YOU HAVE ALREADY AGREED THAT THE
WITNESS CAN TALK ABOUT FOUNDATION, LAYOUT OF THE BANK, TIMING RG LIGHTING,
DIRECTION, ETC., YOUR GENERAL APPROACH, BUT NOW YOU GET TO THE POINT THE CHIEF
RAISED ABOUT DISPUTED AN UNDISPUTED YOU'RE AT THE 104 A HEARING, WHAT IS
THE Q AN A DISCUSSION JOSEPH A. HAYDEN, JR.: THAT WOULD BE THE PROSECUTOR WOULD
HAVE TO PROPOUND ANY QUESTIONS THAT WOULD BORDER OR BE CLOSE TO NARRATION,
THE DEFENSE WOULD HAVE TO SAY WHETHER THEY ARE GOING TO OBJECT OR NOT AND THE JUDGE
WOULD HAVE THE OPPORTUNITY TO RULE. JUSTICE FASCIALE: COULD YOU
BE VERY SPECIFIC, THOUGH, AS TO THE FACTS IN THIS CASE AS TO HOW YOU COULD
ENVISION THOSE Qs AN As JOSEPH A. HAYDEN, JR.: CERTAINLY. OFFICER,
DO YOU SEE WHAT THE SUSPECT DID WITH HIS HANDS IN CONNECTION WITH THE GLOVES?
DO YOU SEE WHAT THE SUSPECT DID ABOUT HOLDING THE PAPER?
WHEN THE SUSPECT LEFT, WHAT DID HE DO ABOUT HIS ELBOW?
YOU KNOW, ALL THOSE QUESTIONS I BELIEVE THEY SHOULD BE
OBJECTIONABLE. EVERYBODY KNOWS IT'S COMING. YOU SAW A COUPLE OF TIMES WHERE THE
OFFICER HERE WAS OFFERING HIS OPINION. THE JUDGE ULTIMATELY SUSTAINED THE
OBJECTION BUT NOTHING WAS STRICKEN. IT WAS ALWAYS HAPPENING FAST.
AT TIMES, IT APPEARED TO ME FROM READING THE TRANSCRIPT THAT THE EXPERT -- THE
WITNESS SLOWED IT DOWN AND THE WITNESS WAS USING THE POINTER AT TIMES. I EXPECT
IT WAS ONE OF THOSE RED LIGHT POINTERS AN TO ME, THAT'S THE DANGER OF THIS CASE
BECAUSE IF IT GETS IN UNDER 701 AND THEY CAN START DOING THAT, WE'RE GOING TO
HAVE EVIDENTIARY CHAOS. THE COURT: MR. HAYDEN, THE LAST EXAMPLE
YOU GAVE THE OPENING OF THE DOOR WITH THE ELBOW, IS THERE A PROBLEM WITH
THE PROSECUTOR ASKING HOW DID HE OPEN THE DOOR? IN JOSEPH A. HAYDEN, JR.: YES
BECAUSE THE JURY CAN SEE FOR ITSELF HOW THE DOOR OPENED. THE JURY DOESN'T
NEED ASSISTANCE FROM THIS WITNESS UNDERSTAND 701 AS TO HOW THE DOOR OPENED.
JUSTICE WAINER APTER: HOW DO WE GET INTO 701? IS
IT THE SAME ANSWER THAT MR. SHALOM GAVE ABOUT HOW THE SUSPECT IS OPENING THE DOOR
IS ITSELF AN OPINION OR INFERENCE EVEN IF YOU CAN SEE CLEARLY THAT IT IS
WITH HIS ELBOW INSTEAD OF WITH HIS HAND BECAUSE THOSE ARE FAR APART ON ONE'S BODY
JOSEPH A. HAYDEN, JR.: JUSTICE BECAUSE, BEFORE YOU CAN SEE CLEARLY THE JURY
DOESN'T NEED TO HEAR IT FROM THE LAY WITNESS. I BELIEVE THE ONLY ABILITY TO TESTIFY
IS THE INDIVIDUAL PERCEPTION THAT THE WITNESS HAD WHILE THE EFT WAS GOING ON, NOT
JUST BY LOOKING AT THE VIDEO. JUSTICE WAINER APTER: BUT UNDER
701 YOU ONLY GET TO A WHICH IS TALKING ABOUT THE WITNESS'S PERCEPTION OR
B, WHICH IS TALKING ABOUT WHAT WILL ASSIST THE JURY IF YOU GET PAST THE PREVIOUS
FAR RAT TORE RESENTENCE WHICH IS IF A WITNESS IS NOT TESTIFYING AS AN EXPERT
THE WITNESS'S TESTIMONY IN THE FORM OF OPINIONS OR INFERENCES MAY BE AT ADMITTED
IF IT, COLON. ARE YOU JUST SAYING, AS MR. SHALOM SAID THAT
EVERYTHING IS AN OPINION OR AN INFERENCE ALWAYS? JOSEPH A. HAYDEN, JR.: WELL,
IT'S AN OPINION. IT IS THE WITNESS'S OPINION AS TO WHAT HAPPENED WHEN THAT
DECISION HAS TO BE MADE BY THE JURY AS TO WHAT HAPPENED. YOU
NEED A LAY WITNESS. AN EXPERT IS DIFFERENT; THAT'S WHY WE HAVE 701 AND 7012.
IF THEY WANT TO HAVE EXPERT TESTIMONY. THEY HAVE GOT TO GIVE AN EXPERT
REPORT. IT HAS GOT TO BE A FULL WITNESS REPORT, THERE WILL BE TIME FOR A DAU BETTER
HEARING. THERE WILL BE TIME FOR A FRYE HEARING. THERE WILL BE TIME FOR A
JUDGE TO MAKE A REASONABLE DECISION ABOUT SOME OF THESE TOUGH CALLS.
JUSTICE FASCIALE: AS TO HIS TESTIMONY ABOUT WHETHER THE DEFENDANT TOUCHED THE
DOOR WITH HIS BEAR HANDS IS THAT AN OPINION OF HIS OR IS THAT -- ARE WE TO
TAKE THAT TO BE A FACT, JOSEPH A. HAYDEN, JR.: THAT IS HIS OPINION AS TO WHAT THE
FACT IS AND YOU DON'T NEED A LAY WITNESS TO GET -- YOU KNOW, LAY WITNESS TESTIMONY
HAS BEEN PRETTY LIMITED, SPEED OF A CAR, WHETHER OR NOT SOMEBODY IS
INTOXICATED. UNDER OUR CASE LAW, THE LAY-WITNESS OPINION HAS BEEN
FAIRLY LIMITED. IF YOU'RE GOING TO USE EXPERT OPINION AS TO WHAT THE SITUATION
IS, IT'S DIFFERENT, BUT WE DON'T WANT TO OPEN THE DOOR HERE BECAUSE -- AND,
ALSO, THEY'RE GOING TO BE CALLING POLICE OFFICERS. THE POLICE OFFICER'S TESTIMONY
IS UNDULY RECEIVED. IT JUST LOOKS LIKE WELL, IF THE POLICE THINK THAT THIS PERSON
IS GUILTY THEN THAT PERSON IS GUILTY. THE PROSECUTION TRIED
THIS CASE AS A VIDEO CASE BECAUSE THEIR OPENING STATEMENT IN CONNECTION WITH
THE CASES, THIS IS A CASE ABOUT A BANK ROBBERY THAT WAS CAUGHT ON TAPE. THE OPENING
STATEMENT IN THE SUMMATION, THE SAME LINE SO THEY'RE BRINGING EVERYBODY TO THE
VIDEO, THEY WANT TO MAKE THE VIDEO STRONG. IT COULD VERY WELL BE THAT IF
THIS OFFICER REALLY THINKS WHAT HAPPENED THEN THAT MUST HAVE BEEN WHAT HAPPENED
AND THAT'S THE UNDUE INFLUENCE AN THAT'S WHY I THINK WE'LL ALL CONCEDE THAT
THE LIVE WITNESS THERE, THE BANK TELLER COULD HAVE TESTIFIED MORE, BUT TO BRING
IN A POLICE OFFICER TO TELL THE PEOPLE WHAT IS HAPPENING, I DON'T THINK
THAT IS CONSISTENT WITH OUR EVIDENTIARY THEORY AND I DON'T THINK NECESSARILY IT'S
GOING TO BRING FAIR TRIALS AN I THINK IN THIS CASE, THIS MAN DID NOT GET A FAIR
TRIAL BECAUSE OF THE NARRATION TESTIMONY, BECAUSE OF THE HEARSAY, BECAUSE OF HILL
SAYING THAT SHE SAW HIS PICTURE IN THE NEWSPAPER ABOUT SOMETHING SEVEN MONTHS
AGO. I DON'T THINK IT WAS GETTING THE MAN OF THE YEAR AWARD. AND ALSO,
THERE WAS ABOUT THE IN-COURT IDENTIFICATION AN I WOULD ASK FOR REVERSAL
BUT MOST OF ALL ON BEHALF OF THE DEFENSE BAR, I WOULD ASK FOR GUIDANCE AS
TO THIS THORNY EVIDENTIAL ISSUE SFLFRMTHS THANK YOU. MR. MARX.
IAN S. MARX: GOOD MORNING AND MAY IT PLEASE THE COURT.
MY NAME IS OOEN MAX AND I AM A SHAREHOLDER WITH THE LAW FIRM GREEN
BERG TRAUR RIG. MY FIRM HAS THE PRIVILEGE TO REPRESENT THE INNOCENCE PROJECT AS
FRIEND OF THE COURT IN THIS CASE TO TALK ABOUT THE SUBJECT OF FIRST TIME
IN-COURT IDENTIFICATIONS. THE INNOCENCE PROJECT AMONG OTHER ACTIVITIES
ADVOCATES FOR REFORM DESIGNED TO NANS THE TRUTH SEEKING FUNCTIONS OF THE
CRIMINAL JUSTICE SYSTEM AN PREVENT FUTURE WRONG CONVICTIONS. THROUGH ITS EXPERIENCE,
EXONERATING INNOCENT INDIVIDUALS AN EXAMINING THE CAUSES OF WRONG
CONVICTIONS THE INNOCENCE PROJECT HAS DEVELOPED UNIQUE INSIGHT INTO THE ROLE MISTAKEN
IDENTIFICATION PLACE AS A CONTRIBUTING FACTOR. THE IMPORTANCE
OF ENSURING RELIABILITY IN EYEWITNESS IDENTIFICATIONS CANNOT BE OVERSTATED. AS
OF LAST MONTH THE NATIONAL REGISTRY OF EXXON IN HER RAGSZ LISTS 3,373 EXXON
IN HER RAGSZ NATIONWIDE WITH 8883 CASES INVOLVING AT LEAST ONE WITNESS WHO MISTAKEN
LY IDENTIFIED THE EXXON IN HER REAS A PERSON THE WITNESS SAW COMMIT THE
CRIME. UP TO 570 INDIVIDUALS EXONERATED BY DNA TESTING, 320
WERE ORIGINALLY CONVICTED, BASED, IN PART, ON ONE WITNESS MISTAKENLY IDENTIFYING
THE EXXON IN HER REAS A PERSON THE WITNESS SAW COMMIT THE CRIME.
JUSTICE PATTERSON: MR. MARX IS THAT IN COURT OR OUT OF COURT OR BOTH.
IAN S. MARX: IT'S NOT SPECIFIC TO IN COURT OR OUT OF COURT.
JUSTICE PATTERSON: SO YOU'RE INCLUDING ALL KINDS OF IDENTIFICATIONS THAT WERE ON
THE SCENE, SHOWUPS, POLICE ARRAYS AN SO FORTH MARK MARK YES, YOUR HONOR.
MISIDENTIFICATION RESULTS IN MORE WRONGFUL CONVICTIONS IN ALL
OTHERS COMBINED. THIS CASE, THE WATSON CASE INVOLVES A GROSSLY SUGGESTIVE FIRST
TIME IN-COURT IDENTIFICATION IN WHICH THE EYEWITNESS AFTER FAILING TO IDENTIFY
APPELLANT QUINTIN WATSON PRIOR TO TRIAL FIRST POSITIVELY IDENTIFIED HIM FROM THE
WITNESS STAND DURING TRIAL WHILE MR. WATSON WAS SEATED AT DEFENSE TABLE.
BEFORE TRIAL THIS WITNESS FAILED TO IDENTIFY MR. WATSON IN
A PHOTO ARRAY AND IN FACT IDENTIFIED ANOTHER PERSON AFTER FIRST NOT CHOOSING
ANYONE BECAUSE THEY ALL LOOKED ALIKE. MR. WATSON WAS CONVICTED
BASED ON EXACTLY THE KIND OF UNRELIABLE EYEWITNESS IDENTIFICATION TESTIMONY
THAT HAS LED TO THE WRONGFUL CONVICTION AN UNJUST CONVICTION OF HUNDREDS OF PEOPLE
ACROSS THE NATION. IN THE LANDMARK CASE OF STATE V. HENDERSON,
THIS COURT PUREED OVER THE SCIENCE OF MEMORY AND THE FACTORS THAT INFLUENCED
EYEWITNESS IDENTIFICATIONS AND SET FORTH RIGOROUS GATE KEEPING STANDARDS AND
PROCEDURES FOR THE ADMISSION OF OUT OF COURT EYEWITNESS IDENTIFICATIONS.
HENDERSON REQUIRES THAT AN OUT OF COURT WITNESS IDENTIFICATION
MUST BE CONDUCTED WITH CERTAIN SAFEGUARDS THAT ELIMINATE WHAT THE COURT CALLS SYSTEM
VARIABLES THAT RENDER IDENTIFICATIONS UNRELIABLE. SO THOSE
SAFEGUARDS ARE THAT EYEWITNESS -- THE IDENTIFICATION MUST BE ADMINISTERED IN A
BLIND OR DOUBLE BLIND MANNER, PRECEDED BY APPROPRIATE INSTRUCTIONS, INCLUSIVE
OF AN APPROPRIATE ARRAY OF POTENTIAL CULL PRITS AND BE UNINFLUENCED BY SOCIAL
FEEDBACK. HENDERSON DID NOT DIRECTLY ADDRESS THE EQUALLY
SIGNIFICANT ISSUE OF THE RELIABILITY OF FIRST-TIME IN COURT IDENTIFICATIONS, WHICH
ARE UNIQUELY SUGGESTIVE AND ARE VULNERABLE TO THE SAME SCIENCE OF MEMORY
AND FACTORS THAT INFLUENCE OUT OF COURT IDENTIFICATIONS AND CAN RESULT IN MISTAKEN
IDENTIFICATIONS AN WRONGFUL CONVICTIONS. THERE ARE TWO POINTS
THAT THE INNOCENCE PROJECT WOULD LIKE THE COURT TO CONSIDER AND IMPLEMENT HERE.
FIRST, BASED ON THE SOCIAL SCIENCE MASH LED IN OUR BRIEF, THERE
ARE NO CIRCUMSTANCES IN WHICH A FIRST TIME IN-COURT IDENTIFICATION CAN BE DEEMED
SUFFICIENTLY RELIABLE TO SATISFY DUE PROCESS. JUDGE SABATINO:
CAN I STOP YOU RIGHT THERE? DOES THAT MEAN YOU DISAGREE WITH THE
CONNECTICUT AND MASSACHUSETTS APPROACH THAT LEAVE SOME ROOM FOR THE
FIRST-TIME ID. IAN S. MARX: THAT IS OUR FIRST ARGUMENT IS THAT WE
ADMIRE THOSE DECISIONS AND WE EMBRACE MANY ASPECTS OF THEM, BUT WE WOULD ADVOCATE
FOR MORE OF A PER SE DISQUALIFICATION. JUSTICE WAINER APTER:
SO THE MASSACHUSETTS COURT SPECIFICALLY HELD THAT IF IT WAS ONLY A
CONFIRMATORY ID WHICH I THINK THEY CHARACTERIZED THEY GAVE ONE EXAMPLE IN A DOMESTIC
VIOLENCE CASE, THEN IN COURT ID WOULD BE FINE YOU'RE SAY EVEN IN A DOMESTIC
VIOLENCE CASE SOMEONE IS IDENTIFYING THEIR SPOUSE OF MANY YEARS THAT CANNOT HAPPEN
IN COURT? THIS. IAN S. MARX: WHAT WE'RE SAYING JUSTICE
WAINER APTER IS THAT WHAT WE WOULD ASK FOR IS THAT -- LET ME STEP BACK.
WE ADVOCATE FOR RELIABILITY. WE ADVOCATE FOR RELIABILITY BASED ON SCIENCE. SO
SO THE SCIENCE SAYS THAT IDENTIFICATIONS ARE MOST ACCURATE WHEN THEY ARE
MADE CONTEMPORANEOUS TO THE ET IN QUESTION. THE COURT: I DON'T THINK
ANYTHING IN THE HENDERSON RECORD SUGGESTS THAT SPOUSES COULD NOT IDENTIFY
ONE ANOTHER. IAN S. MARX: NO, IN FACT IT'S PROBABLY JUST COMMON
SENSE. I DON'T THINK WE COULD ADVOCATE TO BAR A WITNESS FROM TESTIFYING IN COURT
EVEN IF SHE OR HE HAD NOT PREVIOUSLY DONE SO THAT THAT IS MY SPOUSE.
JUSTICE PATTERSON: WHAT IS YOUR FALL BACK POSITION IF THERE IS NOT AN ABSOLUTE
BAR ON IN COURT IDENTIFICATIONS. IAN S. MARX: WE THINK THERE
SHOULD BE. JUSTICE PATTERSON: UNDERSTOOD. MAX.
JUSTICE PATTERSON: YOU'RE IN THE COURTROOM, WHAT IS YOUR FALL BACK.
IAN S. MARX: THE FALL BACK IS ONE THAT THEY BE PRESUMPTIVELY INVALID, TWO
THAT THE STATE BE REQUIRED TO PROVIDE ADVANCE NOTICE TO THE DEFENDANT THAT THEY
INTEND TO CALL A WITNESS WHO HAS NOT PREVIOUSLY MADE AN OUT-OF-COURT
IDENTIFICATION OF THE SUSPECT AND THIRD THAT THE WITNESS ONLY BE ALLOWED TO TESTIFY
WHERE THERE IS A PRIOR RELATIONSHIP WITH THE SUSPECT SUCH THAT THE
IDENTIFICATION IS RELIABLE, FOR EXAMPLE, WHERE IT'S THE SPOUSE.
JUSTICE PATTERSON: SO, IN OTHER WORDS A BANK TELLER WHO HAD AN ENCOUNTER WITH THE
INDIVIDUAL COULD UNDER NO CIRCUMSTANCES PROVIDE AN IN-COURT IDENTIFICATION?
IAN S. MARX: JUSTICE PATTERSON: THAT'S A PRIOR
-- IT'S NOT A RELATIONSHIP, AT LEAST NOT A HAPPY ONE, BUT IT'S A PRIOR CONTACT
WITH THAT PERSON, ITS EE IT'S NOT SOMEONE COMING IN OFF THE STREET BASED ON A VIDEO
SO WHAT WOULD HAPPEN IN THAT SITUATION. IAN S. MARX: WELL,
THE DEFENDANT WOULD RECEIVE NOTICE THAT THE STATE INTENDS TO CALL THIS TELLER
AS A WITNESS. JUSTICE PATTERSON: I UNDERSTAND.
IAN S. MARX: THERE HAS BEEN NO PRIOR IDENTIFICATION OUT OF COURT.
JUSTICE PATTERSON: BUT YOU SAID A WITNESS MAY ONLY BE ALLOWED TO PROVIDE THE
IDENTIFICATION IF THERE IS A PRIOR RELATIONSHIP. WHAT ABOUT
A PERSON WHO IS A VICTIM OF A CRIME? ARE THEY ALLOWED TO
DO IT. IAN S. MARX: NO. IF THAT'S THE ONLY ENCOUNTER.
IF, FOR EXAMPLE, THOUGH, THE TELLER HAD A RELATIONSHIP WITH THE SUSPECT
BECAUSE THERE WAS AN ONGOING BANKING RELATIONSHIP WHERE THERE HAD BEEN SOME
FAMILIARITY WITH WHAT THE SUSPECT LOOKED LIKE, THEN PERHAPS, BUT THAT COULD BE
EXPLORED AFTER THE STATE PROVIDES NOTICE TO THE DEFENDANT AND THE DEFENDANT IS
ENTITLED TO PROBE THE EXTENT TO WHICH THERE IS A PRIOR RELATIONSHIP.
JUDGE PIERRE-LOUIS SO THE PRIOR RELATIONSHIP WOULD NOT BE SOLELY THE
CRIME IN QUESTION, BASICALLY. IAN S. MARX: CORRECT.
THE COURT: IT COULD BE IF THEY WENT TO HIGH SCHOOL AND THE CRIME TOOK PLACE TWO
YEARS AFTER AND THEY KNEW ONE ANOTHER FROM THEIR DAYS TOGETHER IN HIGH SCHOOL?
NO? IAN S. MARX: I AM LESS COMFORTABLE WITH
THAT BECAUSE I DON'T KNOW THE NATURE OF THE RELATIONSHIP IN HIGH SCHOOL,
WHETHER THERE WAS A GREAT DEAL OF FAMILIARITY, WHETHER THERE WAS AN OPPORTUNITY
TO GET A SIGNIFICANT INSIGHT INTO HOW FAMILIAR WITH PERSON'S CHARACTERISTICS
WERE, BUT IF THAT WERE EXPLORED APPROPRIATELY PRETRIAL TO ENSURE RELIABILITY,
I WOULD THINK THAT WOULD BE ACCEPTABLE. THE COURT: THAT'S
THE FIRST PRONG OF CRATE TON, JUST WAINER APTER TALKED ABOUT THE SECOND GOOD
REASON THEY GAVE AND THAT'S THE FIRST REASON WHERE THE WITNESS WAS KNOWN, THE WITNESS
AND THE DEFENDANT KNEW ONE ANOTHER IN SOME FASHION BEFORE. JUDGE
SABATINO: I WANT TO COME FOR A MOMENT TO YOUR POINT ABOUT DISCLOSURE OR NOTICE.
I AM WONDERING WHAT FORM THAT NOTICE SHOULD TAKE. IN BOTH OF
THE CASES TODAY THAT WE'RE HEARING, BURNEY AND WATSON THERE WAS SOME INTERACTION
THAT TOOK PLACE BETWEEN THE STATE, EITHER THE PROSECUTOR AND/OR DETECTIVES
AND THE EYEWITNESS WHO UP TO THAT POINT HAD NOT BEEN ABLE TO MAKE A POSITIVE ID
OF THE DEFENDANT. IN THE BURNEY CASE, WE HAVE DISPLAY OF A
PHOTOGRAPH ON A PHONE THAT SHOWED THE WATCH. IN THIS CASE, WE HAVE
APPARENTLY A LOW -- THERE IS NOT MUCH DETAIL IN OUR RECORD ABOUT IT BUT THERE WAS
A PREP SESSION WITH THE WITNESS AHEAD OF TIME WHERE THE PROSECUTOR'S
REPRESENTATIVE SAID, THIS IS WHERE -- JUST SO YOU KNOW THIS IS WHERE THE DEFENDANT
WILL BE SITTING. IN NEITHER OF BOTH INSTANCES DO WE HAVE A RECORDING OF
THE INTERACTION. IT SEEMS LIKE IN BOTH CASES THE PROSECUTOR HAD A REASONABLE EXPECTATION
THAT IN THE COURTROOM THAT ID WOULD BE MADE, BUT NEVER FORMALIZED IT WITH
A PHOTO ARRAY. WHAT I AM GETTING AT IS WHAT I ASKED MS.
MICHAELS BEFORE. WOULD IT BE BETTER PRACTICE IN THAT KIND OF
SITUATION TO HAVE A RECORDED, YOU KNOW, VERSION OF THAT INTERACTION JUST AS YOU
RECORD AN ARRAY EARLIER ON IN THE PROCESS SO BOTH SIDES KNOW WHAT WAS SAID TO THAT
EYEWITNESS BEFORE HE OR SHE WAS POSSIBLY TAINTED BY THE DISCUSSION?
IAN S. MARX: THANK YOU, JUDGE, SAAB JUDGE SABATINO. I DON'T SEE ANY
HARM IN HAVING THAT RECORDED ALTHOUGH I DON'T THINK IT WOULD NECESSARILY CONSTITUTE
THE KIND OF NOTICE THAT WE'RE CONTEMPLATING HERE.
JUSTICE PATTERSON: IF THE DEFENDANT WAS GOING TO PUT ON A WITNESS TO SAY IT WAS
SOMEBODY ELSE DOES THAT CONSTITUTE -- IAN S. MARX: I HAVEN'T
THOUGHT ABOUT THAT. JUSTICE PATTERSON: I HAVEN'T EITHER. IT
SEEMS TO ME THAT THERE IS SOME PERIL TO PROMOTING RECORDING OF PREP SESSIONS ON
ONE SIDE BECAUSE -- FROM THE DEFENSE PERSPECTIVE BECAUSE IT COULD APPLY TO PREP
SESSIONS ON THE OTHER SIDE. IAN S. MARX: AND TO BE MORE SPECIFIC,
I THINK YOUR HONOR'S QUESTION IS REALLY DIFFERENT THAN THE -- SO RECORDING
THE PREP SESSION IS DIFFERENT THAN PROVIDING NOTICE OF AN INTENT TO MAKE A FIRST
TIME IN COURT -- JUSTICE PATTERSON: I AGREE. I AM NOT
SAYING IT'S A PART OF YOUR ARGUMENT BUT TO THE EXTENT THAT YOU'VE BEEN ASKED ABOUT
RECORDING PREP SESSIONS IT'S A PERIL LOSS SORT OF ISSUE. IAN S.
MARX: I AGREE WITH THAT. TURN TO JUDGE SABATINO YOUR HONOR'S EARLIER
QUESTION ABOUT THE SUGGESTIVENESS OF THE PREP SESSION AND THE TENSION WITH
THE A BA MODEL, THE A BA STANDARDS OF CONDUCT FOR PROSECUTORS, YOU KNOW, THAT'S
INTENTION WITH ONE OF THE HEPD SAFEGUARDS WHICH IS THAT IN A SHOWUP LIKE
SCENARIO WHICH THIS WOULD BE, IT'S NECESSARY TO PROVIDE APPROPRIATE DISCLOSURES
BEFOREHAND TO THE WITNESS THAT THE SUSPECT MAY NOT BE PRESENT AND YOU ARE NOT
REQUIRED TO MAKE AN IDENTIFICATION AND SO THAT IS INTENTIONED WITH THE A BA PRO
TOCOLS WHICH OBJECT DEBATE THE PROSECUTOR TO PROCEED OBLIGATE THE PROSECUTOR TO
PROTECT THE WITNESS. THERE, I WOULD SUGGEST THAT THE WITNESS
COULD BE ASSURED THAT THE WITNESS WOULD BE PROTECTED AND THAT -- BUT SHOULD
ALSO, IF ANYTHING IS GOING TO BE TOLD THE TO THE WITNESS, THAT THE SUSPECT MAY NOT
BE PRESENT IN THE COURTROOM AND YOU'RE NOT REQUIRED TO MAKE AN IDENTIFICATION
IN ORDER FOR -- JUDGE SABATINO: IS IT IMPROPER IN THIS VERY
CASE, I KNOW YOU'RE NOT A PARTY IN THIS CASE, YOU ARE' A FRIEND OF THE COURT, WAS
IT IMPROPER FOR THE PROSECUTOR TO ADVISE THE TELLER WHERE THE DEFENDANT WOULD BE
SEATED? IAN S. MARX: WHETHER IT WAS PROPER OR IMPROPER,
IT WAS CERTAINLY SUGGESTIVE AND IT RENDERS THE IDENTIFICATION UNRELIABLE.
JUDGE SABATINO: ISN'T IT THOUGH, UNREALISTIC TO EXPECT A PROSECUTOR WOULD
HAVE TO REFRAIN FROM SAYING THAT BEFORE THEY WALK INTO A COURTROOM FOR THE
FIRST TIME TO TELL THE A WITNESS THAT? DOESN'T THAT SOUND ENTIRELY
LEGITIMATE AND UNDERSTANDABLE? ? MARK MARK I DON'T THINK SO.
IAN S. MARX: I DON'T THINK SO YOUR HONOR. AND THE REASON I SAY THAT IS BECAUSE
HERE, THIS IS AN IDENTIFICATION CASE. THE WITNESS HAS PREVIOUSLY MISIDENTIFIED
-- THE WITNESS HAD PREVIOUSLY IDENTIFIED A FILLER AS THE CULPRIT SO THIS WITNESS'S
TESTIMONY WAS GOING TO BE SHAKY TO BEGIN WITH. JUDGE SABATINO:
THIS MIGHT BE A WITNESS YOU MIGHT ENCOUNTER IN AN ELEVATOR OR IN THE PARKING
LOT OR WHOSE FRIENDS MIGHT BE SITTING OUT THERE, THE WITNESS CAN'T BE ADVISED
AHEAD OF TIME WHO TO BE LOOKING FOR? THAT'S SOMETHING WE SHOULD
SHIELD THE WITNESS FROM? IAN S. MARX: YES. IN ORDER TO
NOT BE UNDULY SUGGESTIVE THE WITNESS SHOULD BE ADVISED -- SHOULD DEFINITELY
NOT BE ADVISED THAT THE PERSON WHOM WE WISH YOU TO IDENTIFY IN ORDER FOR US TO
PREVAIL IN THE CASE WILL BE SITTING IN THE ORANGE JUMP SUIT AT THE DEFENSE
TABLE NEXT TO THE DEFENSE LAWYER; THAT'S TELEGRAPHING THE OUTCOME. IT'S CREATE
BEING AN EXPECTANCY BIAS THAT IS LIKELY TO SUCCESS. JUSTICE
FASCIALE: MR. MARX I UNDERSTAND YOUR THREE PRONGS, PRESUMPTIVELY INVALID, NOTICE
AN A PRIOR RELATIONSHIP. IS THERE A CHARGE THAT YOU'RE ADD
VOE INDICATING THAT GOES ALONG WITH THAT? IAN S. MARX: THANK YOU
FOR THE QUESTION, JUSTICE FASH YA 'ALL. IT BRINGS UP THE POINT OF WHETHER JURY
CHARGES CAN SOLVE THE PROBLEM OF UNRELIABLE WITNESS IDENTIFICATION TESTIMONY. WE
APPRECIATE THE FACT THAT POST HENDERSON THE COURT IMPLEMENTED SIGNIFICANT CHANGES
TO THE MODEL JURY CHARGES. WE QUESTION WHETHER IN THE YEARS SINCE THEN
THEY HAVE HAD A COMPLETELY AM MEAL I DON'T REMEMBER RAT ACTIVE IMPACT. FOR ONE
THING, THE SCIENCE SAYS THAT THE JURY CHARGES COME AT THE END OF THE TRIAL
AND THE HARM IS DONE WHEN AN UNRELIABLE IDENTIFICATION IS MADE DURING TRIAL WHEN
THE JURORS FORM THEIR OPINIONS. JUSTICE PATTERSON: BUT THE
CHARGES FROM HENDERSON ARE NOT BEFORE THE COURT IN THIS CASE. IAN
S. MARX: CORRECT. I RAISE IT FOR THE ILLUSTRATIVE POINT THAT CHARGES CAN'T SOLVE
EVERYTHING. OUR FIRST POINT WOULD BE, AS YOU KNOW, WE WISH
FOR THE BROOITH LINE EXCLUSION. ABSENT THAT, IN OUR BACKUP POSITION,
YES, JURY CHARGES WOULD BE ADVANTAGEOUS. JUSTICE FASCIALE:
AND SOMETIMES WHEN EITHER SIDE PROFFERS A WITNESS FOR EXPERT TESTIMONY A CHARGE
IS GIVEN RIGHT THEN AND THERE. ARE YOU SUGGESTING THAT SOMETHING
LIKE THAT SHOULD HAPPEN FOR IN-COURT IDENTIFICATION UN YOUR THREE PRONGS?
IAN S. MARX: IT'S AN EXCELLENT QUESTION. I DON'T KNOW THE
ANSWER BASED ON SCIENCE. OUR CONCERN IS MOSTLY BASED ON WHAT DOES THE SOOENS SAY
IN TERMS OF THE RELIABILITY OF EVIDENCE AND THE RELIABILITY -- AN THE THINGS
THAT THE COURT CAN DO TO HELP FACILITATE THAT. THE QUESTION OF WHETHER
THE AT THE MOMENT JURY CHARGE WOULD DRAW MORE ATTENTION TO THE TESTIMONY AND
COULD BE PROBLEMATIC, I DON'T KNOW WHAT THE SCIENCE SAYS. I AM NOT SURE THE
SCIENCE IS COMPLETELY DEVELOPED AND IF IT IS, I AM NOT SURE IT HAS BEEN COMPLETELY
ADDRESSED IN THE SUBMISSIONS. JUSTICE FASCIALE: OKAY SFLFRNLTS
IS THERE ANYTHING ELSE YOU WOULD LIKE TO ADD. PLEASE GO AHEAD,
MARK MAX THANK YOU SO MUCH. IAN S. MARX: THANK YOU SO MUCH.
OUR FIRST ARGUMENT IN TERMS OF ADVOCATING FOR THE PERCENT SAY EXCLUSION IS
THAT IN HENDERSON THE COURT WENT THROUGH AN EXHAUSTIVE PROCESS IN WHICH THE
INNOCENCE PROJECT, AMONG OTHERS WERE SIGNIFICANTLY INVOLVED, THAT INVOLVED HUNDREDS
OF SCHOLAR RELY ARTICLES, I THINK EXPERT WITNESSES, TEN DAYS OF TESTIMONY.
AND BASED ON THAT, THE COURT BASED ON SCIENCE CAME UP WITH A SET OF GUIDELINES,
A SET OF PROTOCOLS THAT SHOULD BE IMPLEMENTED TO PREVENT SYSTEM
VARIABLES, THE IN COURTROOM SYSTEMS, THE THINGS THAT THE STATE CAN CONTROL TO PREVENT
THOSE VARIABLES FROM RENDERING IDENTIFICATIONS INVALID.
THERE ARE FOUR SIGNIFICANT SAFEGUARDS FROM HENDERSON THAT CAN NEVER BE SATISFIED
WITH A FIRST TIME IN COURT WITNESS IDENTIFICATIONS. JUSTICE
PATTERSON: HENDZ DEALT WITH A HUGE HENDERSON DEALT WITH A HUGE RANGE OF POSSIBLE
PROBLEMS IN THE OUT OF COURT SETTING. THERE WERE A WHOLE RANGE OF PROBLEMS
HERE. WE'RE DEALING, I THINK, WITH A MUCH MORE SPECIFIC TYPE OF IDENTIFICATION
THAT SEEMS TO PLAY OUT IN VERY MUCH THE SAME WAY WHEN IT HAPPENS.
WHY WOULD THERE HAVE TO BE A PROCESS OF THE COMPLEXITY OF WHAT TOOK PLACE IN HENDERSON
INSTEAD OF SAFEGUARDS WITH THAT LEVEL OF COMPLEXITY TO DEAL WITH, DO YOU
SEE HIM IN THE COURTROOM, DO YOU SEE THAT PERSON IN THE COURTROOM, YES OR NO.
IAN S. MARX: MUCH APPRECIATED, JUSTICE PATTERSON FOR THE
QUESTION. THERE IS NO REASON FOR THIS ELABORATE PROCESS TO TAKE PLACE. THE
HENDERSON EXERCISE HAS LED THIS COURT TO THE CONCLUSION REACHED IN HENDERSON
AND TO THE RULES THAT HAD BEEN IMPLEMENTED. JUSTICE PATTERSON: FOR
OUT OF COURT. I WASN'T PART OF THE COURT AT THE TIME THAT THE CHIEF WROTE
HENDERSON, BUT NOWHERE IN HENDERSON, UNLESS I AM MISSING IT DID ANYBODY EVER BRING
UP IN COURT IDENTIFICATIONS AS PARTED OF THE ISSUE. IF WHAT
YOU'RE SG ASKING IS THAT WE APPLY THE SYSTEM VARIABLES OF HENDERSON TO IN COURT,
THAT'S APPLE LS AN ORANGES, ISN'T IT? IAN S. MARX: I RESPECTFULLY
DON'T THINK SO, YOUR HONOR. WE ARE ASKING -- WE ARE SAYING THAT THE COURT
IN HENDERSON IDENTIFIED THESE FLAWS ASSOCIATED WITH IDENTIFICATIONS GENERALLY.
THE SCIENCE IS THE SAME, WHETHER IT'S IN COURT OR OUT OF COURT.
SO THE SCIENCE SAYS THAT FOR EXAMPLE, IF YOU'RE ASKING -- IF
YOU'RE DOING A SHOWUP WHICH IS ESSENTIALLY WHAT THIS IS, THE FIRST TIME IN-COURT
IDENTIFICATION IS TASH DASH THERE IS NO ARRAY, THERE IS NO OTHER POTENTIAL
SUSPECTS, THERE ONLY IS ONE. WHEN YOU'RE DOING THAT, IN ORDER FOR IT TO PASS
CONSTITUTIONAL MUSTER, YOU HAVE TO TELL THE WITNESS, THE SUSPECT MIGHT NOT
BE PRESENT AND YOU'RE NOT REQUIRED TO MAKE AN IDENTIFICATION, OTHERWISE THE SCIENCE
SAYS, IT'S UNDULY SUGGESTIVE. AND SO, THAT CAN NEVER BE DONE
WITH THE FIRST IN-COURT IDENTIFICATION. HENDERSON ALSO SAYS
THAT IN ORDER TO BE RELIABLE THE IDENTIFICATION PROCEDURE SHOULD BE DONE IN
A BLIND OR DOUBLE BLIND PROCESS TO ELIMINATE THE EXPECTANCY EFFECT SO THAT THERE IS
NO CONFIRMATORY -- JUSTICE PATTERSON: THAT JUST COMES TO MIND.
THAT JUST IS A COMPLETE NON SEQUITUR WHEN IT COMES TO A DOUBLE BLIND PROCESS
IN THE COURTROOM. IAN S. MARX: AGREED, YOUR HONOR. IT IS NOT
AMENABLE. OF THE SO I APPRECIATE THE APPLES AN ORANGES METAPHOR, BUT THE
SCIENCE IS THE SAME. IT RENDERS THE IDENTIFICATION UNRELIABLE IF THE QUESTION
ER KNOWS WHOM HE SUSPECTS THE SUSPECT IS AND IF EVERYONE IN THE COURTROOM
KNOWS THAT THE STATE BELIEVES IT IS THE PERSON SITTING AT THE DEFENSE TABLE, IT
CREATES THE EXPECTANCY THAT THAT'S WITH WHAT THE WITNESS SHOULD SAY AN THE
SCIENCE SAYS THAT REPRESENTED DERS RENDERS IT UNRELIABLE. THE
COURTROOM ITSELF IS AN INHERENTLY SUGGESTIVE ENVIRONMENT THE WITNESS FIELDS
EXPECTATIONS FROM THE PROSECUTOR, THE JUDGE AN THE JURY THAT A PERSON SITTING
ON THE WITNESS STAND WILL IDENTIFY THE DEFENDANT AN THE SCIENCE TALKS ABOUT THE
COMMITMENT OR THE EXPECTANCY EFFECT THAT RENDERS THE RESULTING IDENTIFICATION
TO BE UNRELIABLE. CAN I ADDRESS A COUPLE OF ISSUES THAT
PARTIES, THE STATE USES TO JUSTIFY A CASE BY CASE APPROACH THAT THEY'RE ADD VOE
INDICATING FOR? TYPICALLY, IT'S ARGUED THAT CROSS-EXAMINATION
CAN REMEDY ANY SUGGESTIVENESS IN THE FIRST-TIME IDENTIFICATION PROCESS.
WE DISAGREE WITH THAT. FIRST, THE SCIENCE THAT WE COLLECT
IN OUR BRIEF SUGGESTS THAT THE INFLUENCE OF SUGGESTIVENESS IS NOT SOMETHING
-- IT'S NOT A CONCEPT THAT JURIES READILY UNDERSTAND SO THE POINT OF THE
CROSS-EXAMINATION IS TO SHOW THE SUGGESTIVENESS OF THE COURTROOM SETTING;
THAT'S NOT SHOWN BY THE SCIENCE TO BE A WINNING ARGUMENT. ALSO,
CROSS-EXAMINATION, THE CRUCIBLE OF TRUTH THAT WE TALK ABOUT IS DESIGNED TO ACCESS
WHETHER THE WITNESS IS TELLING THE TRUTH. WE CAN GENERALLY AGREE THAT JURIES
ARE CAPABLE OF THAT, BUT THE PROBLEM WITH UNRELIABLE WITNESS IDENTIFICATIONS IS
THAT THE WITNESS DOESN'T BELIEVE THAT SHE'S LYING, SHE BELIEVES SHE IS
TELLING THE TRUTH APPEND THAT'S WHAT THE SCIENCE SAYS. SO CROSS-EXAMINATION IS
NOT HELPFUL. WE'VE ALSO TALKED ABOUT -- JUSTICE
FASCIALE: WOULDN'T THE JURY CHARGE IN CONJUNCTION WITH CROSS-EXAMINATION, I THINK
THAT'S THE MAJORITY OF THE STATE'S -- OF THE -- THE MAJORITY POSITION AS
ESPOUSED IN PERRY V NEW HAMPSHIRE ADDRESS THAT CONCERN OF YOURS.
IAN S. MARX: IT DOES JUSTICE FASH AND AS WE SAID BEFORE WE HAVE CONCERNS ABOUT
WHETHER JURY CHARGES ARE A COMPLETE PAN THAT SEE A. THEY ARE HELPFUL BUT
BECAUSE THEY COME AT THE END OR THEY COME IF THEY COME AT THE TIME THEY MIGHT HIGHLIGHT
THE SIGNIFICANCE OF THE TESTIMONY IN A WAY THAT IS NOT RELIABLE. THERE IS ONLY
SO MUCH THAT CAN BE DONE WITH JURY CHARGES. SO, TO REITERATE
WE WOULD ASK THAT THE COURT, NOTWITHSTANDING OUR RECOGNITION THAT THE
COURT IS TYPICALLY ADVERSE TO BRIGHT LINE RULES WE ADVOCATE FOR ONE, IF NOT,
THEN WE ASK THAT THE COURT ADOPT THE FALL BACK PROCEDURE THAT WE OUTLINE.
THERE WAS A FINAL ISSUE THAT WE BROUGHT UP IN OUR BRIEF CONCERNING THE STATEMENT
OF HEIGHTENED COMPETENCE THAT A WITNESS EXHIBITS. WE ASK THAT THE COURT
-- ON THAT SUBJECT, THE PHENOMENON IS WHETHER AT TRIAL A WITNESS WHOSE TESTIMONY
TASH DASH WHOSE IDENTIFICATION CONFIDENCE HAS PREVIOUSLY BEEN RECORDED, AS
IS REQUIRED BY THE REVISED RULE, CAN BE PERMITTED BY AT TRIAL TO BE --
JUSTICE WAINER APTER: WHY WOULD THAT BE IMPLICATED IN THIS CASE BECAUSE DIDN'T
MR. GAMBARROTTI NOT PREVIOUSLY IDENTIFY THE DEFENDANT AT ALL? MAX MAX
CORRECT. JUSTICE WAINER APTER: SO YOU'RE ASKING US TO REACH
OUT AND DECIDE THAT ISSUE EVEN THOUGH IT IS NOT ACTUALLY PRESENTED IN THIS CASE.
IAN S. MARX: CORRECT. JUDGE SABATINO: I HAVE
ONE LAST THING VERY QUICKLY ON YOUR FALL BACK PROCEDURE. IAN S.
MARX: YES. JUDGE SABATINO: COULD THE STATE AVOID ANY DISCLOSURE
BY AS APPEARS TO BE TRUE IN THIS CASE NOT TAKING THE NEXT STEP AFTER THE WITNESS
INTERACTION TO ASK SPECIFICALLY CAN YOU IDENTIFY THE DEFENDANT AS THE PERSON
BECAUSE, YOU KNOW, WE HAD A LITTLE BIT IN THE OPENING IN WATSON, IT MIGHT BE A
PERRY MASON MOMENT IN THIS CASE, BUT THEY NEVER ASKED. SO AS LONG AS THEY DON'T
KNOW FOR SURE WHAT WILL HAPPEN IN THE COURTROOM, IS THERE ANY DISCLOSURE OBLIGATION?
IAN S. MARX: I THINK THE STATE WOULD HAVE TO LIVE WITH --
THE STATE DOESN'T DISCLOSE BECAUSE THEY ARE UNCLEAR WHAT IS GOING TO TO HAPPEN
IN THE COURTROOM, THEY HAVE TO LIVE WITH THAT CHOICE. JUDGE
SABATINO: AND BE PRECLUDED FROM THEN ASKING THE WITNESS CAN YOU IDENTIFY THIS
PERSON NOW? IT'S A RISK THAT TRIAL LAWYERS ARE TOLD IN CLASS
WHEN YOU'RE TRAINED DOEPT ASK QUESTIONS THAT YOU'RE NOT SURE OF THE ANSWER, BUT
IF THEY GO THAT ROUTE YOU'RE SAYING THEY SHOULD BE PRECLUDED FROM ASKING IT
BECAUSE IT WAS NEVER AN EKER SIZE DONE WITH DISCLOSURE DURING DISCOVERY?
IAN S. MARX: AND BECAUSE THERE WAS NO PRIOR OUT-OF-COURT IDENTIFICATION.
JUDGE SABATINO: EVEN THOUGH THERE WERE INTERACTIONS WHERE
-- PARTICULARLY IN THE NEXT CASE, AFTER BEING SHOWN THE PHOTO NO ONE WAS SURPRISED
THAT THIS WITNESS WAS ABLE TO IDENTIFY. IAN S. MARX: IN THE
BURNEY CASE, THE SUGGESTIVENESS -- THE SUGGESTIVENESS IN BURNEY WAS PROFOUND.
JUDGE SABATINO: WE'LL GET THERE. IAN S. MARX:
BUT THERE IS NO TASH DASH THERE IS NO REASON WHY AN APPROPRIATE NONSUGGESTIVE OUT
OF COURT PROCEDURE COULD NOT HAVE BEEN DONE PRIOR TO TRIAL.
JUDGE SABATINO: THANK YOU. IAN S. MARX: THANK YOU VERY MUCH.
THE COURT: THANK YOU MR. MARX. THE COURT: MS.
HULETT, LET'S START, MAYBE WE WILL GET TO A CONFRONTATION, MAYBE NOT AN THEN WE
WILL CALL A BREAK FOR A HALF AN HOUR. NANCY A. HULETT: MAY
IT PLEASE THE COURT I I HAD ASKED FOR AN OPENING BUT I WOULD LIKE TO WAIVE IT
AN I WILL GET RIGHT INTO THE ISSUES. WITH RESPECT TO ONE ON
THE CONFRONTATION CLAUSE I WOULD LIKE TO MAKE ONE POINT. T THE STATE
RECOGNIZES THAT THE APPELLATE DIVISION HERE WROTE A VERY AUTHORIZE LOW AND THOUGHTFUL
AND WELL THOUGHT OUT OPINION. THERE IS NO QUESTION. WHERE
THE STATE FEELS IT MADE A BLIP WAS WHEN IT WAS CONSTRUING WHETHER OR NOT OFFICER
VITELLI HAD CREATED AN INESCAPABLE INFERENCE IN VIOLATION V OF BANKS TON
WHEN HE TESTIFIED THAT WHEN THE OFFICER DEPARTMENT CALLED HIM HE CONSULTED WITH
THAT DEFENDANT. NENS, IN ESSENCE, THEY TOOK IT OUT OF CONTEXT BECAUSE FOR
THE SAME REASON THAT IT FOUND ARM LESS ERROR, IT HAS TO LOOK AT THE RECORD AS A
WHOLE, WHICH INCLUDES JENNIFER HILL AND ALL OF OFFICER VITELLI'S TESTIMONY.
WHAT I WOULD LIKE TO SAY IS THIS CASE IS LIKE MEDINA WHERE THE INESCAPABLE
INFERENCE WAS NOT MADE BECAUSE THERE WAS EVIDENCE RECORD TO SHOW DEFENDANT WAS
STEERED TO POLICE BY INVESTIGATION THAT INVOLVED WITNESSES WHO TESTIFIED.
THERE WAS NO INESCAPABLE INFERENCE THAT SOME UNAVAILABLE WITNESS HAD INCRIMINATED
THE DEFENDANT. THAT MAKES THIS CASE DISTINGUISHABLE FROM BRANCH, WHERE
THERE WAS NO TESTIMONY OR EVIDENCE THAT THE DEFENDANT WAS STEERED TO THE POLICE
OTHER THAN THE POLICE OFFICERS TESTIMONY THAT HE DEVELOPED A SUSPECT BASED
UPON INFORMATION HE RECEIVED. SO WHAT IS THE TESTIMONY HERE?
THE TESTIMONY HERE IS FROM FIRST JENNIFER HILL WHO TESTIFIED THAT IN OCTOBER
2017 SHE WAS READING THE NEWSPAPER AND SAW THE A A PHOTOGRAPH OF DEFENDANT AND
SHE CALLED POLICE. THEN YOU HAVE OFFICER VITELLI TAKE THE STAND,
HE TESTIFIES TO HIS INVESTIGATION AND HOW IN NOVEMBER, ONE MONTH LATER, HE GETS
A CALL FROM LAW ENFORCEMENT, HE CONSULTS AN THEN DEFENDANT IS CHARGED.
LATER ON DURING HIS CROSS-EXAMINATION, EXCUSE ME, DEFENSE COUNSEL ASKS THE SERIES
OF QUESTIONS ABOUT THE TRAKS BULLETIN THAT HE DISTRIBUTED BACK IN JANUARY
AFTER THE BANK ROBBERY AND HE ELICITED FROM THE OFFICER THAT THE PHOTOGRAPH THAT
HE ATTACHED IN THAT BULLETIN WAS A STILL FROM THE BANK SURVEILLANCE VIDEO.
THEN HE ASKED HIM A LEADING QUESTION. IT'S ON PAGE 208, LINE 24 TO PAGE
209 LINE 24 AND HE ASKED THE OFFICER, DID THAT BULLETIN THAT YOU SENT OUT TO
OTHER LAW ENFORCEMENT AGENCIES WITH THAT PIKT, WHICH LED TO THE IDENTIFICATION OF
THIS INDIVIDUAL, WHICH COULD ONLY HAVE BEEN DEFENDANT, WAS THAT IN YOUR CASE FOLDER
AND THE OFFICER SAID NO. THE OFFICER WAS -- HE WAS TRYING TO
GET THE OFFICER TO PROVIDE THE DEFENSE WITH A COPY OF THE STILL PHOTO THAT
HAD BEEN ATTACHED AND THE OFFICER REALLY WASN'T ABLE TO DO IT.
THEN, MOVE AHEAD THE VERY NEXT DAY TO SUMMATIONS WHEN THE PROSECUTOR ARGUES ABOUT
THE INVESTIGATION AND ON PAGE 51 OF HIS SUMMATION HE TALKS ABOUT HOW THE
INVESTIGATION STARTED WITH THE ROBBERY, THE VIDEO, THE TRAKS BULLETIN WHICH LED
TO THE IDENTIFICATION FROM JENNIFER FER HILL. JUSTICE PATTERSON:
SO THE POINT THAT YOU'RE MAKING HERE IS THAT TO THE EXTENT THAT THE JURY KNEW A
FAIR AMOUNT BY A PRIOR INVESTIGATION OR ANOTHER INVESTIGATION OF THIS
DEFENDANT, SOME OF THAT CAME FROM THE LEADING QUESTION OF THE DEFENSE COUNSEL? ?
NANCY A. HULETT: YES. IN OTHER WORDS, IT HAS
TO BE AN INESCAPABLE INFERENCE THAT OFFICER VITELLI HAD SUPERIOR KNOWLEDGE
FROM WHAT THE JURY KNEW AND THAT JUST DIDN'T HAPPEN. SO, IT JUST
DIDN'T TAKE THE TESTIMONY IN CONTEXT. THIS CASE IS LIKE MED
INA IT'S NOT LIKE BRAVRJ. JUSTICE WAINER APTER: WERE YOU REQUIRED
TO FILE A CROSS APPLICATION FOR US TO REACH THIS AT ALL. NANCY
A. HULETT: THE STATE SUBMITS NO BECAUSE THE APPELLATE DIVISION AFFIRMED THE
CONVICTION SO THE STATE WASN'T AN AGGRIEVED PARTY. THERE WOULD BE NOTHING
FOR US TO ASK FOR THE CONVICTION WAS AFFIRMED. JUDGE SABATINO: YOU HAVE
THE OPTION. WHETHER IT'S MANDATORY YOU HAVE THE OPTION OF FILING A PROTECTIVE
CROSS PETITION, RIGHT, IN A RULING THAT WAS MADE THAT WENT THE OTHER WAY?
WELL, NEVER MIND -- NANCY A. HULETT: I'M SORRY, YOUR HONOR.
I WOULDN'T FILE A PETITION WHERE I DIDN'T THINK IT WAS NECESSARY
SO NO, I WIENT DO IT THAT WAY. JUDGE SABATINO: OKAY.
NANCY A. HULETT: BUT MAYBE SOME OTHER ATTORNEY MIGHT TO PROTECT THEMSELVES.
SO, I SUBMIT THE WHOLE ISSUE IS BEFORE THE COURT, BUT EVEN IF THE COURT
AGREES WITH THE APPELLATE DIVISION THAT THERE WAS A VIOLATION, IT SHOULD BE
HARMLESS BEYOND A REASONABLE DOUBT FOR THE REASONS THAT THE APPELLATE DIVISION RULED.
AN UNLESS THE COURT WANTS TO ASK ME ANYTHING ABOUT THE
CONFRONTATION CLAUSE, I WILL MOVE ON TO POINT 2, THE NARRATION ISSUE.
WITH NARRATION, ONE, THE DEFENDANT IS ASKING THE COURT FOR A PERCENT SAY RULE, THE
COURT SHOULD NOT GO THAT ROUTE. NARRATION CAN BE ADMITTED UNDER
CORRECT CIRCUMSTANCES AND AS THE STATE HAS OUTLINED IN ITS BRIEF, THAT NARRATION
OR TESTIMONY COULD BE FACTUAL, NUT RAL, OBJECTIVE. IT COULD ALSO IN THE RIGHT
CASE BE LAY OPINION. HERE, IT WAS ON THE FORMER AND THE TRIAL COURT, THE
STATE SUBMITS, DID A VERY FINE JOB OF MAKING SURE THAT THE OFFICER STUCK TO WHAT
THE JURY WAS LOOKING ALONG WITH HIM ON THE SCREEN AND THAT'S NOT LAY OPINION.
AND THAT WOULD INCLUDE TESTIMONY ABOUT WHAT THE JURY SEES WHEN I'M WITH
HIM. THE BEST WAY THE STATE CAN EXPLAIN WHY THIS IS RELEVANT
IS IT IS JUST HELPING TO FACILITATE PRESENTATION OF THIS EVIDENCE TO THE JURY
BECAUSE THE JURY IS SEEING IT FOR THE TIME. JUDGE PIERRE-LOUIS
WHY IS IT SO HELPFUL TO THE JURY IN A CASE LIKE THIS. THE VIDEO IS NOT BRUR RE.
IT'S NOT DIFFICULT TO PERCEIVE WHAT IS TAKING PLACE. A MAN IS WALKING IN
TO A BANK, HANDING A NOTE OVER TO THE TELLER WE SEE EXACTLY WHAT IS GOING ON AND
BY THE WAY THE SAME TELLER TESTIFIED AND THE VIDEO WAS NOT PLAYED EVEN THOUGH
HE WAS THERE WHEN IT HAPPENED. THIS KIND OF VIDEO -- THIS IS NOT A
VERY COMPLICATED VIDEO. WHY DOES THE JURY NEED HELP TO BE TOLD
THERE IS SOMEONE WALKING. THERE IS SOMEONE HANDING A NOTE. LETTER I
DON'T UNDERSTAND WHY THE JURY NEEDS THAT HELP. NANCY A. HULETT: WELL,
IF THE COURT LOOKS TO THE AREAS WHERE THE PROSECUTOR ASKED HIM QUESTIONS, WHEN
HE ASKED QUESTIONS, IT WAS WHERE YOU MIGHT NOT -- YOU MIGHT NOT NOTICE A DETAIL
IF YOU'RE JUST WATCHING IT. JUDGE PIERRE-LOUIS AN IN SUMMATION,
THE PROSECUTOR COULD SAY PAY ATTENTION TO THE PORTION WHERE HE OPENS THE
DOOR, PAY ATTENTION TO THE SUSPECT STANDING IN FRONT OF THE TELLER, PAY ATTENTION
HERE. NANCY A. HULETT: THE PROSECUTOR COULD ARGUE THAT, AS
WELL, BUT AS I SAID, AT THE OUTSET, THE NARRATION THAT WAS DONE IN THIS CASE WAS
DONE TO HELP FACILITATE IT BEING PRESENTED TO THE JURY FOR THE FIRST TIME
THAT SO THAT THE STATE COULD POINT OUT TO THE JURY PARTICULAR POINTS DURING THE
VIDEO THAT IT NEEDS TO PAY ATTENTION TO SO THAT WOULD BE THINGS LIKE HOW YOU OPEN
THE DOOR USING HIS ELBOW AND WHEN HE PUT THE NOTE, HE SLID SLID THE NOTE
ON THE TELLER'S COUNTER, THINGS THAT YOU DON'T NECESSARILY -- WOULD NECESSARILY
PAY ATTENTION TO. JUSTICE WAINER APTER: DOESN'T THAT RUN
INTO -- SO I THOUGHT YOU WERE ARGUING THAT RULE 701 WASN'T IMPLICATED AT ALL
BECAUSE SKT VITELLI'S VIDEO NARRATION WAS ONLY ABOUT OBJECTIVE FACTS, BUT HE ACTUALLY
DIDN'T PHRASE IT THAT WAY IN MANY INSTANCES SO, FOR EXAMPLE, SERGEANT
VITELLI SAID, QUOTE, IN MY OPINION, FROM MY OBSERVATION BES, IT LOOKS LIKE THE SUSPECT
HAS TWO FINGERS ON THE NOTE AS IT IS ON THE COUNTER SO EASE HE'S NOT FRAMING
IT EVEN AND HE'S THE LAW ENFORCEMENT OFFICER HE IS NOT FRAMING IT AS AN EXPERT
FACTOR HE IS SAYING IN MY OPINION, FROM MY OBSERVATIONS. NANCY A.
HULETT: I THINK HE WAS TRYING TO BE CAUTIOUS IN HOW HE PHRASED HIMSELF BECAUSE
THERE WERE QUITE A NUMBER OF OBJECTIONS DURING THE COURSE OF HIS NARRATION.
IF THE COURT LOOKS AT THE BANK VIDEO, IT'S CLEAR, ESPECIALLY
FROM THE CAMERA BEHIND THE BANK TELLER THAT THE DEFENDANT HAS TWO FINGERS ON THE
NOTE. I THINK THE OFFICER WAS JUST BEING CAREFUL IN HOW HE PHRASED HIMSELF.
JUSTICE WAINER APTER: WHAT ABOUT WHEN OFFICER VITELLI --
I'M SORRY, STATED, QUOTE, THAT THE SUSPECT WAS VERY CAREFUL, PROCEEDING IN AND
OUT OF THE BANK, NOT ATTEMPTING TO LEAVE ANY TYPE OF EVIDENCE BEHIND.
EVEN THOUGH THE SUSPECT DID TOUCH TWO SEPARATE INTERIOR DOOR HANDLES SO
IT IS TRUE THAT THE EXTERIOR DOOR HANDLE, HE POENTD OUT, YOU YOU KNOW, HE USED
HIS ELBOW BUT THE INTERIOR HE TRIES TO OPEN ONE AND HE CAN'T AN HE OPENS THE OTHER
ONE WITH HIS BARE HAND SO WHY WOULD THAT AGAIN BE AN OBJECTIVE FACT THAT THE
SUSPECT WAS QUOTE, VERY CAREFUL PROCEEDING IN AND OUT OF THE BANK NOT ATTEMPTING
TO LEAVE ANY TYPE OF EVIDENCE BEHIND WHEN IN THE VIDEO YOU CAN SEE THAT THE SUSPECT
DOES TOUCH TWO DOOR HANDLES WITH HIS BARE HANDS. NANCY A. HULETT:
FIRST, YOUR HONOR IF MY MEMORY IS CORRECT THE TRIAL COURT SUSTAINED THAT.
JUSTICE WAINER APTER: WEREN'T THERE A FEW TIMES WHERE THE JUDGE SAID OBJECTION
SUSTAINED, BUT DID NOT SAY YOU MUST DISREGARD ALL TESTIMONY FROM HERE TO
HERE OR YOU MUST IGNORE EVERYTHING THAT YOU JUST HEARD IN THE PAST TWO MINUTES?
NANCY A. HULETT: YES, YOUR HONOR. THERE WERE NO CURATIVE
INSTRUCTIONS ISSUED AFTER THE OBJECTIONS THAT WERE MADE THAT WERE SUSTAINED WERE
MADE. HOWEVER, I POINT OUT TO THE COURT THAT IN THE FINAL CHARGE TO THE
JURY, WHICH HAPPENED THE NEXT DAY THE JURY WAS TOLD THAT ANYTHING THAT THE JUDGE
STRUCK COULD NOT BE CONSIDERED? JUSTICE WAINER APTER: HOW
DID THEY KNOW THAT THE WORD OBJECTION SUSTAINED MEANT THAT CERTAIN TESTIMONY
WAS STRUCK AND HOW WOULD THEY EVEN KNOW WHICH TESTIMONY WAS STRUCK.
NANCY A. HULETT: BECAUSE I THINK IN THE JUDGESES INSTRUCTIONS TO THE JURY HE INFORMED
THEM THAT HE HAD SUSTAINED OBJECTIONS AND THAT IF HE HAD STRUCK TESTIMONY
THEY WEREN'T TO CONSIDER IT. I THINK THAT'S HOW THE JURY KNEW FROM THE INSTRUCTIONS.
JUSTICE WAINER APTER: YOU'RE SAYING THEY KNEW THAT THE WORDS
OBJECTION SUSTAINED MEANS TESTIMONY IS STRICKEN? NANCY A.
HULETT: YES. JUSTICE WAINER APTER: EVEN IF THE JUDGE NEVER
SAID THEREFORE, THE TESTIMONY IS STRICKEN. NANCY A. HULETT: HE SIS
SUSTAINED THE OBJECTION SO I THINK THE JURY UNDERSTOOD BECAUSE THERE WERE
OTHER TIMES THE JUDGE OVERRULED THE OBJECTION SO THE JURY HAD TO UNDERSTAND THAT
SOMETIMES THE DEFENDANT'S OBJECTION WAS AGREED TO BY THE JUDGE AND THEN
THE OFFICER WASN'T ALLOWED TO ANSWER AND THEN ON OTHER OCCASIONS THE JUDGE OVERRULED
AN THEN THE OFFICER WAS ALLOWED TO ANSWER. JUSTICE FASCIALE:
MS. HULETT, YOU AGREE, THEN THAT THE TESTIMONY WAS IMPROPER?
NANCY A. HULETT: YES, BUT TO MY MEMORY -- JUSTICE FASCIALE: BECAUSE
THE JURY WAS REQUIRED JUST BY VIRTUE OF THE RULING TO NOT CONSIDER IT, RIGHT?
NANCY A. HULETT: YES. JUSTICE FASCIALE: SO
WHY WAS IT IMPROPER? NANCY A. HULETT: BECAUSE THAT PARTICULAR
TESTIMONY WENT TO THE ISSUE THE JURY HAD TO RESOVMD. JUDGE
PIERRE-LOUIS WHICH ONE ARE WE TALKING ABOUT. NANCY A. HULETT:
I THOUGHT WE WERE TALKING ABOUT WHERE HE SAID HE MADE A POINT NOT TO LEAVE ANY
EVIDENCE BEHIND. THAT GOES I DON'T UNDERSTAND -- THAT'S OPINION OR
INFERENCE FROM WHAT YOU SEE. JUSTICE FASCIALE: THAT'S WHAT I AM GETTING
TO. WHAT IS IT ABOUT THAT OPINION TESTIMONY THAT IS IMPROPER. IS IT
THAT IT IS BEING OFFERED BY A LAY WITNESS, IT SHOULD BE OFFERED BY AN EXPERT OR
IT SHOULDN'T EVEN BE TESTIMONY WHATSOEVER, LET THE JURY CONSIDER IT AN NOT
HAVE SOME WITNESS SAY WHAT THE VIDEO SHOWS OR WHAT IS HAPPENING ON THE VIDEO LIKE
MR. HAYDEN SAID. NANCY A. HULETT: I THINK IT'S NOT
PERMISSIBLE BECAUSE IT GOES MORE TO A FACT THAT THE JURY HAS TO FIND. IT'S LIKE
MAK CLAN. JUSTICE PATTERSON: THIS IS ABOUT AN ULTIMATE ISSUE.
NANCY A. HULETT: THAT'S WHAT I AM SAYING.
JUSTICE PATTERSON: THERE IS A LITTLE MORE TO THIS BECAUSE HE'S TRYING NOT TO LEAVE
FINGERPRINTS AND, THEREFORE, JURY, WHEN YOU HEAR THERE WERE NO FINGERPRINTS,
THIS IS THE EXPLANATION FOR WHY IT IS, THAT'S NOT REALLY THE ULTIMATE ISSUE IS
IT. NANCY A. HULETT: WELL IT GOES TO WHETHER OR NOT THERE WAS
A MISIDENTIFICATION BECAUSE IT WAS ALL OF THE STATE -- THIS ARGUMENT WAS MADE TO
ADDRESS THE DEFENDANT'S ARGUMENT THAT THERE WAS NO PHYSICAL EVIDENCE AND
THAT'S WHY IT SUPPORTED HIS ARGUMENT OF MISIDENTIFICATION. SO
FOR THE OFFICER TO SAY, IN A FACTUAL NARRATION THAT, YOU KNOW, THE SUSPECT WAS
CAREFUL NOT TO LEAVE ANY EVIDENCE BEHIND, THAT GOES BEYOND WHAT HE WAS CALLED
TO DO. JUSTICE FASCIALE: SO IT SOUNDS TO ME LIKE YOU'RE ALIGNED
WITH WHAT MR. HAYDEN PROPOSED, THE WITNESS CAN TESTIFY ABOUT FOUNDATIONAL ISSUES,
THE LAYOUT OF THE BANK, TIMING, LIGHTING, DURATION, ETC., BUT NOT TESTIFY
ABOUT WHO DID WHAT AND WHAT IS HAPPENING ON THE VIDEO ITSELF BECAUSE THAT WOULD
REQUIRE EITHER OPINION TESTIMONY OR TESTIMONY FROM WHICH THE JURY CAN DRAW
CERTAIN INFERENCES THAT ARE IMPROPER FROM A LAY WITNESS, AM I RIGHT ABOUT THAT.
NANCY A. HULETT: YES, YES. JUSTICE WAINER APTER:
YOU AGREE THAT A LAW ENFORCEMENT OFFICER CANNOT TESTIFY EVER TO WHAT HAPPENED
IN A VIDEO, EVEN, FOR EXAMPLE, TO SAY, LOOK NOW WHEN THE DEFENDANT IS OPENING
THE DOOR AND NOTICE THAT WHEN HE TOUCHES THE DOOR HE IS NOT WEARING A GLOVE?
NANCY A. HULETT: NO, I SUBMIT THAT THAT TESTIMONY IS NOT LAY
OPINION; THAT'S JUST DESCRIBING FOR THE JURY WHAT IS ON THE SCREEN. THAT, HE CAN
SAY. JUSTICE WAINER APTER: BUT MR. HAYDEN DID NOT SAY THAT
THE DEFENDANT COULD SAY THAT SO YOU'RE NOT AGREEING WITH MR. HAYDEN.
NANCY A. HULETT: I'M SORRY, MAYBE I MISUNDERSTOOD YOUR QUESTION.
THE STATE'S POSITION IS SIMPLE OBJECTIVE NARRATIVE TESTIMONY ON WHAT IS ON THE
SCREEN IS ADMISSIBLE IT'S NOT LAY OPINION. THE COURT: ARE
THERE ANY LIMITS TO THAT PRINCIPLE. NANCY A. HULETT: YES.
THE COURT: BECAUSE HOW DO YOU AVOID A RUNNING COMMENTARY ABOUT
VIRTUALLY EVERYTHING THAT IS ON THE SCREEN IF THE ONLY STANDARD THAT I HEARD SO
FAR IS IT WILL HELP FACILITATE THE PRESENTATION OF EVIDENCE.
NANCY A. HULETT: WELL, I GUESS, UNITED STATES, IT DEPENDS ON THE VIDEO EVIDENCE
AT ISSUE, HOW COMPLICATED IT IS, HOW LONG IT IS, THAT'S WHY A RULE 104 HEARING
THAT THE APPELLATE DIVISION SUGGESTED IS A VERY GOOD SUGGESTION BECAUSE IT DEPENDS
ON WHAT THE VIDEO EVIDENCE IS. THERE CAN'T BE JUST ONE ANSWER FOR EVERY
SINGE L CASE. EVERY CASE HAS TO BE ON ITS OWN FACTS. THE COURT:
HERE FOR EXAMPLE, THERE IS A QUESTION, I AM LOOKING AT THE TRANSCRIPT, DO YOU SEE
ANYONE ON THE OTHER SIDE OF THE DOOR, YEAH, THERE IS SOMEBODY, IT LOOKS
LIKE BANKING RIGHT HERE. NO LIMITS TO THE KIND OF NARRATION THAT CAN
BE AAFFORDED ALONG THESE LINES. NANCY A. HULETT: WHEN THE
COURT LOOKS AT THE VIDEO, WHEN YOU SEE THROUGH THE DMRAS DOOR, IT'S VERY
CLEAR THAT THERE IS SOMEONE, A PERSON AT A DESK, YOU KNOW, WRITING. I MEAN THAT'S
NOT GOING BEYOND WHAT THE JURY SEES ON THE VIDEO. HE IS POINTING OUT TO THEM
SOMETHING THAT THE JURORS MAY NOT SEE WHILE THEY ARE CONCENTRATING ON LOOKING
AT THE DOOR AND WAITING TO SEE FOR SOMEONE TO ENTER. HE WAS JUST POINTING OUT
TO THEM SOMETHING THAT IS SEEN ON THE VIDEO. I DON'T THINK THAT IS
DISPUTED. THERE IS CLEARLY A PERSON THERE. YOU CAN SEE THE PERSON USING -- WRITING.
THE COURT: SO IF THAT SORT OF ANSWER IS APPROPRIATE, WHAT
ISN'T? HAD. NANCY A. HULETT: WELL, WHAT WOULD BE -- THE
WHAT WOULDN'T BE FACTUAL NARRATION WOULD BE GOING BEYOND WHAT THE JURORS SEE ON
THE VIDEO ALONG WITH THE PLAY-BY-PLAY NARRATION OF THE OFFICER. SO IF THE
OFFICER STARTS INFERRING BEYOND WHAT YOU SEE, SO, FOR EXAMPLE, IN THE CONVENIENCE
STORE VIDEO, THE OFFICER TESTIFIED TO PLACEMENT OF THE KRAUZ SER STORE IN
RELATION TO THE BANK. HE IDENTIFIED STREETS, WHICH YOU CANNOT SEE FROM THE VIDEO
SO THAT INVOLVES LAY OPINION BECAUSE HE IS GOING BEYOND WHAT YOU SEE IN TRYING
TO IDENTIFY FOR THE JURY WHAT IS ON THERE; THAT'S LAY OPINION.
JUDGE SABATINO: WHAT IF IT'S A DISPUTED FACT? I WILL GIVE
YOU A CONCRETE EXAMPLE. THERE WAS A DISPUTE IN THIS CASE AS TO
WHETHER NOT ONLY WERE THE TWO FINGERS TOUCHING THE PAPER BUT WHETHER ANOTHER PART
OF THE HAND CAME INTO CON TACK T WITH THE SURFACE OF THE COUNTER. THERE WAS A
DISPUTE ABOUT WHETHER YOU CAN OR CANNOT SEE THAT. . DO YOU
AGREE IT'S IMPROPER FOR THE LAY WITNESS TO PRESENT AN OPINION ABOUT THAT DISPUTED
FACT, WHETHER THE HAND DID OR DID NOT TOUCH THE OTHER PARTS OF THE HAND
TOUCHED THE COUNTER. NANCY A. HULETT: WELL, I HAVE A HESITATION
WITH IF THE VIDEO SHOWS SOMETHING, THEN IT SHOULDN'T BE DISPUTED.
JUDGE SABATINO: NANCY A. HULETT: IF IT IS DISPUTED AND IT
CANNOT BE DISCERNED FROM THE VIDEO, THEN THE NARRATION THE STATE IS TALKING
ABOUT, THAT SHOULDN'T BE SAID, THAT CAN BE LEFT FOR OTHER TESTIMONY TO ESTABLISH
OR FROM ARGUMENT FROM COUNSEL. IF THE STATE IS JUST ARGUE RG THAT THE BASIC
NARRATION BASED UPON WHAT IS ON THE SCREEN IS PERMISSIBLE AN IN THIS CASE IT WAS
VERY LIMITED. THE COURT: SO IN A 20-MINUTE BANK
SURVEILLANCE VIDEO WITH PERHAPS HUNDREDS OF FACTS CONTAINED THROUGHOUT, YOU COULD
JUST WALK THE LAW ENFORCEMENT OFFICER THROUGH EVERY ONE OF THOSE FACTS IN
THE FORM OF Q AND A. NANCY A. HULETT: YES, IF IT HELPS THE JURY
TO FACILITATE WHEN THEY SEE IT BECAUSE THE STATE'S OBJECTIVE IS TO HELP THE
JURY FOCUS ON WHAT IT FEELS IS IMPORTANT. CHIEF JUSTICE RABNER:
HOW DOES THAT HELP THE JURY FOCUS ON WHAT IS IMPORTANT IF EVERY SINGLE FACT IS
APPROPRIATE GRIST FOR DIRECT QUESTIONING. NANCY A. HULETT: WELL,
IT'S HARD FOR ME TO IMAGINE HOW THAT WOULD NOT WORK OUT BECAUSE SURVEILLANCE
VIDEOS RUN THE GAMUT. AND IF A VIDEO IS A VERY LENGTHY VIDEO THEN PERHAPS THE
TESTIMONY IS JUST GOING TO HAVE TO BE LENGTHY. I MEAN IF THE JURY HAS TO WATCH
THE SURVEILLANCE VIDEO IN ITS ENTIRETY, THEN THE NARRATION MIGHT BE LENGTHY,
AS WELL. IT RUNS THE GAMUT ON DMENDING ON WHAT THE EVIDENCE
IS SO THAT'S THE BEST I CAN SAY. JUSTICE WAINER APTER: CAN I BRING
YOU BACK TO YOUR PRIOR ANSWER TO THE CHIEF JUSTICE WHEN HE SPECIFICALLY
WAS -- IT SEEMED LIKE I THOUGHT YOU WERE SAYING THAT TESTIMONY THAT IS INFERENCE
OR DEDUCTION IS NOT PROPER AND SO I JUST WANTED TO MAKE SURE THAT THAT MEANS
YOU'RE DISAGREEING WITH FACTOR 4, I THINK, OF THE APPELLATE DIVISION'S DECISION
WHICH SAYS, QUOTE, THE EXTENT TO WHICH THE PROPOSED NARRATIVE COMMENT IS THE IS
BASED ON AN INFERENCE OR DEDUCTION DRAWN FOR OR SUPPORTED BEE OTHER FACTS
IN EVIDENCE OR FROM THE OFFICERS TRAINING OR EXPERIENCE RATHER THAN THE CONTENT
OF THE VIDEO ITSELF IS AN IMPORTANT CONSIDERATION. AS WE HAVE NOTED THERE
IS A DIFFERENCE BETWEEN NEUTRAL PURELY DESCRIPTIVE TESTIMONY AN A NARRATION COMMENT
BASED ON THE OFFICER'S ANALYSIS WHICH MIGHT INCLUDE A CONSIDERATION OF
CIRCUMSTANCES NOT DISPLAYED ON THE SCREEN. IT IS CONCEIVABLE THAT SOME LAYPERSON
TESTIMONY MIGHT BE HELPFUL PRECISELY BECAUSE IT IS BASED ON FACTS THAT
CANNOT BE GLEANED FROM THE FOUR CORNERS OF THE VIDEO RECORDING. IN
OTHER WORDS, THE TESTIMONY MIGHT BE HELPFUL TO THE JURY IN UNDERSTANDING THE VIDEO
BECAUSE IT SERVES TO PIECE TO BELIEVE TOGETHER FACTS FROM DIFFERENT SOURCES
IN THE TRIAL RECORD. SO YOU'RE DISAGREEING WITH THAT AND SAYING
IF IT IS BASED ON INFERENCES THAT IS NOT HELPFUL SO FACTOR 4 SHOULD NOT BE CONSIDERED?
NANCY A. HULETT: NO. IF IT IS INFERENCES OR DEDUCTION, WE'RE
NOT DEALING ANY MORE WITH A FACTUAL NARRATION, THEN YOU ARE WITHIN THE REALM OF
LAY OPINION. AND SO LONG AS THE OFFICER HAS THE REQUISITE KNOWLEDGEABLE
IT IS HELPFUL, THEN IT CAN BE GIVEN SO THAT'S WHAT THE STATE T'S POSITION IS.
JUSTICE WAINER APTER: YOU'RE SAYING RULE 701 IS ONLY IMPLICATED
WHEN YOU'RE TALKING ABOUT THESE IMPLICATIONSING BECAUSE OTHERWISE IT'S
THESE... JUSTICE FASCIALE: JUST SO I CAN MAKE SURE IF WE ARE
IN THE SUBJECT OF LAY OPINION TESTIMONY AND SETTING ASIDE THE SECOND PART OF THE
RULE THAT DEALS WITH WILL IT HELP THE JURY, AS TO PERCEPTION OF THE JURY,
WHAT IS YOUR POSITION? IS IT THAT IT MUST BE FIRSTHAND KNOWLEDGE
OF WHAT ACTUALLY HAPPENED AT THE TIME AT THE SCENE, FOR INSTANCE, OR, FIRSTHAND
KNOWLEDGE AFTER AFTER WATCHING THE VIDEO A HUNDRED TIMES? NANCY A.
HULETT: THE LATTER, THE APPELLATE DIVISION WAS CORRECT IN RULING THAT KNOWLEDGE
UNDER 701 CAN BE GAINED BY VIEWING A VIDEO BECAUSE UNDER THE EVIDENCE RULE
KNOWLEDGE IS GAINED THROUGH USE OF YOUR SENSES. IT'S NOT QUALIFIED BY ONLY FIRSTHAND
OR EYEWITNESS OBSERVATIONS. IT IS THROUGH YOUR SENSES WHICH CAN BE EYES,
NOSE, EARS, MOUTH, TOUCH. IF AN OFFICER INVESTIGATING A CRIME GETS
A SURVEILLANCE VIDEO AND HE WATCHES IT, HE HAS PERSONAL KNOWLEDGE OF WHAT
HE SEES IN THE VIDEO.