Witnesses That Are Not Expert Witnesses Can Only Testify as To Their Firsthand Knowledge
Appellate Docket No.: A-37-19
Decided January 21, 2021
Submitted by New Jersey Criminal Lawyer, Jeffrey Hark
In a recent opinion, the Supreme Court of New Jersey reviewed whether a detective’s reference to “the defendant” while narrating surveillance footage of a robbery and comparing defendant’s shoes to those in the video were reversible errors warranting defendant a new trial.
In State v. Singh, a man entered a gas station store wielding a machete and told the cashier to give him the money. The man took the money and fled. The cashier described the man as wearing dark clothes and gloves. The events were captured on the gas station’s surveillance video, which police retrieved that night.
Officers dispatched to the scene noticed and chased an individual in dark clothing. After losing sight of the suspect, one of the officers found an individual — later identified as defendant — wearing dark clothing, sweating, and breathing heavily in a nearby backyard. Defendant resisted arrest. Detective Jorge Quesada, who also responded to the dispatch, joined the effort to subdue defendant. Investigators found a machete and the robbery proceeds in the area where defendant was arrested. Police recovered a sweatshirt, one glove, and sneakers with a white sole and stripes from defendant.
At defendant’s trial, the cashier narrated the gas station’s surveillance footage for the jury. Detective Quesada testified next, and he also narrated the footage, which he reviewed prior to testifying. During the narration, he referred to an individual depicted in the video as “the defendant” twice. Defense counsel did not object. While showing surveillance footage, the prosecutor asked about “the defendant’s shoes.” Detective Quesada described the shoes as having white soles and three white stripes. The prosecutor next showed the detective a pair of sneakers admitted into evidence and Detective Quesada testified, “[t]hese were the sneakers that the defendant was wearing at the time of his arrest.” Defense counsel objected, but the trial judge permitted Detective Quesada to testify about the similarities between the sneakers he saw on the video and the sneakers worn by defendant at the time of his arrest.
Defendant was convicted of first-degree robbery and other offenses. Defendant appealed, arguing the detective’s testimony was impermissible and prejudiced the defendant. The Supreme Court of New Jersey ruled that under NJRE 701, governing lay opinions, the detective’s narration of the security footage was impermissible because the detective did not have firsthand knowledge that it was indeed the defendant depicted in the surveillance. However, because defense counsel did not object, it was not enough to be considered a plain error, as the other circumstantial evidence was enough to convict the defendant. What’s more, the Court also concluded that the detective comparing defendant’s shoes with the surveillance was appropriate because he had firsthand knowledge of the shoes.
Witnesses that are not expert witnesses can only testify as to their firsthand knowledge. Police officers are not an exception. Here, the detective’s reference to the individual in the surveillance as “the defendant” could have improperly persuaded the jury as to suggesting that it was indeed defendant in the surveillance and he was guilty of robbery. Instead, it is the jury’s job to take in testimony from the officer, such as comparison of the defendant’s shoes, and then view the video themselves and determine whether they believe it was the defendant in the surveillance. More importantly, defense counsel must object at the point where a police officer testifies outside their personal knowledge, otherwise, on appeal, it is viewed under the plain error standard – much higher than had defense counsel objected.
At Hark & Hark, we represent clients in Superior Court for criminal matters like the present case. We vigorously defend our clients by fighting to uphold their constitutional rights, and ensure law enforcement follow proper procedures to legally make an arrest.
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