August 29, 2016 Articles

Rules Clarified for Admitting Identification Evidence in Illinois

The defendant should be able to examine the officer outside the jury's presence to explore familiarity, bias, or prejudice

by Michael R. Lied

People v. Thompson, 49 N.E.3d 393 (Ill. 2016), provides useful guidance on the admissibility of lay witness testimony for purposes of identifying a defendant. In Thompson, the Illinois Supreme Court held as a matter of first impression that: (1) a showing of sustained contact and/or special knowledge of the defendant is not a prerequisite to a lay witness giving identification testimony; (2) there is no per se rule against admission of a law enforcement officer’s identification testimony; and (3) when introducing lay opinion identification testimony from a law enforcement officer, the trial court should give the defendant an opportunity to examine the officer outside the presence of the jury. The key to admissibility is whether the lay witness is more likely than the jury to identify the defendant correctly. Whether lay opinion identification testimony is helpful is based on a totality of the circumstances. 

In Thompson, a jury convicted the defendant of violating the Illinois Methamphetamine Control and Community Protection Act. At trial, the trial judge admitted lay opinion identification testimony of four witnesses. Three of the witnesses were law enforcement, and the remaining witness was a woman who had once seen Thompson sleeping on a couch. All four witnesses identified Thompson as the person shown in surveillance videotape and photographs that were taken at the crime scene. 

Before trial, the defendant filed a motion in limine to exclude the lay opinion identification testimony of the four witnesses. The defendant anticipated the witnesses would testify that they believed he was the person shown on a surveillance video, and in still images produced from the video, of Hamson Ag, a farming supply company. Thompson asserted such testimony went to an ultimate fact and invaded the province of the jury. The trial court denied Thompson’s motion and allowed the government to play the surveillance video for the jury. 

During the investigation, Chief Deputy William Sandusky of the Hamilton County sheriff’s department conducted an interview of the defendant. Sandusky testified: 

After I informed [defendant] that he had been caught on surveillance video, he asked that he could—wanted to know if he could see the evidence. I showed him the still image. And he looked at it for several seconds and said, I wish this wasn’t me—or I wish I could say this wasn’t me, but it is.

Id. at 398. Proving that truth is often stranger than fiction, the defendant also stated the photo was “pretty cool” and wanted a copy and asked if it would be placed in the newspaper. According to Sandusky, the defendant admitted he had been manufacturing methamphetamine for four to five months and had stolen approximately two gallons of anhydrous ammonia from Hamson Ag on four or five different occasions. After the State rested, Thompson renewed his motion in limine regarding the lay opinion testimony, which the court denied. Thompson moved for a directed verdict, which was also denied. 

On appeal, the defendant argued the trial court erred in allowing the testimony of the police officers and woman identifying him in the video and still images. The appellate court agreed, finding the testimony constituted improper lay opinion testimony because none of the witnesses aided the jurors’ own identification of who was depicted in the surveillance. Therefore, the testimony encroached upon the function of the jury. 

The Illinois Supreme Court reversed. At issue was the admissibility of lay opinion identification testimony under Illinois Rule of Evidence 701. Rule 701 provides: 

If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are (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.

In most jurisdictions, a showing of sustained contact and/or special knowledge of the defendant is not a prerequisite to a lay witness giving identification testimony. Instead, a lay witness need only have sufficient contact with the defendant, which the jury would not possess, to achieve a level of familiarity that renders the lay opinion helpful. The court adopted a totality of the circumstances approach and agreed with other courts that various factors should be considered by the circuit court in determining whether there is some basis for concluding the witness is more likely to correctly identify the defendant. Such factors include the witness’s general familiarity with the defendant, the witness’s familiarity with the defendant at the time the recording was made or where the witness observed the defendant dressed in a manner similar to the individual depicted in the recording, whether the defendant was disguised in the recording or changed his or her appearance between the time of the recording and trial, and the clarity of the recording and extent to which the individual is depicted. The absence of any particular factor does not render the testimony inadmissible. The court held that lay identification testimony is admissible under these principles, with the caveat that it may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. 

The Illinois Supreme Court also addressed the issue of whether and under what circumstances law enforcement officers may provide identification testimony. The Illinois Supreme Court held that there is no per se rule against admission of a law enforcement officer’s identification testimony. When the State seeks to introduce lay opinion identification testimony from a law enforcement officer, the trial court should afford the defendant an opportunity to examine the officer outside the presence of the jury. This will provide the defendant an opportunity to explore the level of the witness’s familiarity as well as any bias or prejudice. Furthermore, the Illinois Supreme Court held that trial courts should instruct the jury before the testimony and prior to the start of jury deliberations that it need not give any weight at all to such testimony, and it is not to draw any adverse inference from the fact the witness is a law enforcement officer if that fact is disclosed. 

The court determined that the testimony of the woman and one of the law enforcement officers was admissible. The Illinois Supreme Court found that the testimony of the other two law enforcement officers was not admissible because the trial court had failed to follow appropriate precautionary procedures for law enforcement testimony. However, any error in admitting this testimony was harmless because the jury heard the defendant’s confession and other incriminating statements, including his admission that he had stolen from Hamson Ag on four to five other occasions to either make methamphetamine or trade for cigarette money. As such, the Illinois Supreme Court reversed the judgment of the appellate court and remanded the case to the appellate court to consider any other issues that were properly before it. 

This case provides useful guidance for the admission of recorded evidence as well as admission of identification evidence based on such recordings. 

Keywords: litigation, trial evidence, Rule 701, identification evidence, lay witness testimony, law enforcement testimony 

Copyright © 2016, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).