Distinguishing Fact Witness Testimony from Lay Opinion Identification Testimony under FRE 701

Third Circuit concludes in robbery trial that lay opinion identification testimony under FRE 701 was not implicated where the cooperating witness testified as a fact witness and identified and described the participants in a robbery using a photograph and video, in United States v. Shabazz, 564 F.3d 280 (3d Cir. April 16, 2009) (No. 08-2145)

Lay opinion identification may be used under FRE 701 where the opinion is “(a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue, and (c) not based on scientific, technical or other specialized knowledge within the scope of Rule 702.” Whether a witness identification is made may depend on whether the witness has sufficient familiarity to make the identification and whether an identification will assist the jury. The Third Circuit recently considered a challenge to an identification involving a cooperating defendant who referred to video and a photograph during his testimony. The circuit distinguished lay identification testimony.

In the case, defendants Shabazz, Young, Patton and Johnson planned a robbery of a Philadelphia Wal-Mart. Patton served as the assistant manager of the store. Johnson was an assistant manager at another Wal-Mart store. Johnson enlisted the assistance of his brother-in-law, Shabazz, who requested the assistance of Young. As planned, Patton let Shabazz and Young into the store at about 2:00 a.m. They were to go to the safe room and tie up Patton. However, in going to the safe room, another store employee came to talk with Patton. Patton and store employee were then taken by gunpoint to the safe room.

Patton was directed to open the safe. Both Patton and the store employee were tied up. More than $351,000 in cash was stolen. After Patton untied himself and freed the store employee, the police were called. At first, Patton claimed to be a victim. However, upon reviewing the surveillance video which revealed him letting in the two robbers, he confessed. He implicated Johnson, who explained that Shabazz and Young were involved. The four men were charged and all of the defendants pled guilty before trial, except defendant Shabazz who elected to proceed to trial. During the trial:

“Patton testified about planning the robbery with Johnson and Shabazz, and about Shabazz’s alleged actions in carrying it out. During his testimony, the Government introduced footage of the robbery from the store’s surveillance cameras, which Patton narrated over Shabazz’s objection. The footage showed the man Patton identified as Shabazz walking toward the store from the parking lot, entering the store, grabbing Tate by the store register and putting a gun to his neck, shoving Tate to the ground in the safe room and putting a gun to his head, taking money from the safe and putting it in a trash bag and his clothing, and leaving the safe room with the money. In addition, Patton identified (also over objection) Shabazz as the man holding a gun in a still picture taken from the robbery.”
Shabazz, 564 F.3d at 284. The jury convicted defendant Shabazz and he was sentenced to 360 months’ imprisonment. On appeal, he claimed the trial court erred in admitting the identification of him during Patton’s testimony, under FRE 701. Specifically, “because he was present in the courtroom, the jury was capable of determining for itself whether he was the man in the surveillance footage and the still Photo” and the identification testimony was not needed to assist the jury.


The circuit affirmed the witness testimony. The circuit found the defense argument was “misplaced.” The circuit distinguished between fact witness testimony and lay opinion testimony under FRE 701, although acknowledging that the distinction could not be “drawn with surgical precision.” Shabazz, 564 F.3d at 287. Lay opinion testimony is permitted under FRE 701 and typically involves a request of a witness to identify an individual in a photograph or video “based simply on general familiarity with the defendant’s appearance.” Shabazz, 564 F.3d at 287. In contrast, FRE 701 was not implicated because the witness testified as a fact witness. As the circuit explained:

“Yet that is not what occurred here. Patton identified Shabazz in images taken from a surveillance video of events in which Patton himself took part. Indeed, the District Court expressly limited Patton’s narration of the video to those incidents to which Patton was an eyewitness, excluding him from discussing what was happening in those portions of the video that depicted actions to which Patton’s back was turned at the time. Accordingly, Patton’s testimony was admissible as ordinary fact testimony.”
Shabazz, 564 F.3d at 287.

Prior Federal Evidence Review Articles

Other cases involving lay opinion testimony was reviewed in:

  • Practice Tip: “Admitting Law Enforcement Lay Opinion Identification Testimony,” 4 Fed. Evid. Rev. 1487 (Oct. 2007)
  • Lead Story: “FRE 701 (Lay Witness Opinion Testimony) — Ten Common Questions & Misconceptions,” 3 Fed. Evid. Rev. 873 (July 2006)
  • Practice Tip: “The Intersection Of FRE 701 Lay Opinion Evidence With Other Rules,” 3 Fed. Evid. Rev. 881 (July 2006)

Federal Rules of Evidence
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