Police Testimony Identifying Defendant in Video Ruled Improper

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark

This is a further affirmation by the Appellate Division that limits the police from using out of court identifications and hearsay information/testimony to bring evidence before a jury in a prejudicial manner.  In this case, State of New Jersey vs. Cooper, the appellate division disapproved of the prosecutor’s attempt at trial to get the police officer to testify as to what s/he “believed” a surveillance video reflected in order to persuade the jury.  Also, the trial court allowed the officer, who was told what the defendant looked like without first knowing the defendant at all, to testify  that the defendant was in the video, even with a limiting instruction.

In this case the defendant was convicted of second-degree robbery and conspiracy to commit robbery. At trial the jury was shown surveillance footage from the motel where the robbery took place. During the presentation of the video at trial in front of the jury a detective testified as to what he observed on the video, AS WELL AS WHAT HE BELIEVED based on a non-testifying officer’s information provided to him after reviewing the surveillance video.

The Appellate Division found an error of law on two different issues. The court ruled that the state’s police officer witness was only allowed to testify about what he believed he observed  on the video, not a play by play with an ‘identification’ of the defendant. The court also ruled the police officer could not make that ‘identification’ of the defendant from a video when he was not present at the scene of the crime and did not have his own independent opportunity to make his own observation of the defendant at the time of the offense, especially when he did not know the defendant personally.  The court considered this essentially a “hearsay identification” which the defendant could not cross examine.

As a result of the improper hearsay identification by a police officer who did not witness the defendant at the scene the court reversed the judgment of conviction and remanded the matter for a new trial because this officer’s testimony was too prejudicial and ultimately affected the outcome of the trial.

Jeffrey S. Hark, Esq.
609-471-1959. Cell
856-354-0050 Office