1 

SYLLABUS 

This syllabus is not part of the Court’s opinion. It has been prepared by the Office 

of the Clerk for the convenience of the reader. It has been neither reviewed nor 

approved by the Court and may not summarize all portions of the opinion. 

State v. Quintin D. Watson (A-23-22) (087251) 

Argued March 27, 2023 -- Decided August 2, 2023 

RABNER, C.J., writing for a unanimous Court. 

This appeal raises two principal issues: (1) the propriety of “first-time incourt identifications” -- that is, in-court identifications that are not preceded by a 

successful out-of-court identification -- and (2) the extent to which investigators 

may narrate video recordings. Defendant Quintin Watson was convicted of bank 

robbery based on evidence that included testimony from a teller, who identified 

defendant for the first time in court, and from the lead detective, who narrated a 

bank surveillance video for the jury. The lead detective also testified about 

consulting with other law enforcement agencies regarding defendant, and the 

propriety of that testimony under the Confrontation Clause is a third issue here. 

In January 2017, an individual wearing a baseball cap and gloves robbed a 

bank in North Brunswick. After entering the bank, he put a note on the counter that 

read, “everything now”; he left with the $5,772 he received. Bank surveillance 

footage captured the entire 57-second robbery. In November 2017, defendant was 

charged in three other robberies after his former girlfriend, “Joan,” identified him in a 

wanted photo from one of those robberies. After the office investigating the other 

robberies notified the North Brunswick Police Department about defendant, he became 

a suspect in the North Brunswick robbery as well. In September 2018, a detective 

showed the teller six photos, one at a time, and asked if he could identify the person 

who robbed the bank. The teller picked a photo of someone other than defendant and 

said at trial that he was 75-90 percent sure of the identification. 

At trial, the prosecutor asked the teller if he could identify the robber in court. 

The teller identified defendant, who was seated in between his lawyers at counsel table. 

The teller said he was “maybe like . . . 80 percent” sure. The prosecution did not 

provide advance notice of the in-court identification, and defense counsel did not object 

to it. During cross-examination, the teller revealed that he had met with the prosecutor 

prior to trial and that the prosecutor had “informed [him] that the individual who was 

accused of committing this robbery is in court seated at the defense table.” Joan also 

testified at trial. She was shown two still photos from the bank surveillance video and 

testified she was 100 percent positive that each depicted defendant. 
2 

 Sergeant Frank Vitelli, Jr., testified about the investigation. Over objection, 

Sergeant Vitelli narrated the bank surveillance video. The prosecutor asked a series of 

questions while the video was played for the jury, ranging from general inquiries --

“What do you see?” -- to specific ones -- “With what [did he open the door]?” The 

more open-ended questions invited and led to more open-ended narrative responses. 

Sergeant Vitelli also testified about how his department learned about defendant. 

He confirmed that he had been “contacted by another law enforcement agency 

regarding” defendant, and that he “consult[ed] with that law enforcement agency . . . 

after which criminal complaints were signed against” defendant.

The jury found defendant guilty of robbery. The Appellate Division affirmed his 

conviction, 472 N.J. Super. 381, 404 (App. Div. 2022), and the Court granted 

certification, 252 N.J. 598 (2022).

HELD: (1) Based on the identification evidence alone, defendant’s conviction 

cannot stand. The inherently suggestive nature of first-time in-court identifications, 

conducted in front of a jury, risks depriving defendants of their due process rights. 

The Court holds that first-time in-court identifications may only be conducted when 

there is good reason for them and sets forth certain practices that must be observed 

in connection with in-court identifications. (2) The narration evidence in this case 

also ran afoul of the evidence rules, which do not allow for continuous, running 

commentary on video evidence by someone who has merely studied a recording. 

The Court identifies certain safeguards to underscore the limited use of narration 

evidence and adds that a party intending to present narration evidence should 

provide opposing counsel with a written summary of the proposed testimony before 

trial. (3) Confrontation Clause challenges are fact-specific. The testimony here 

about consultation with other law enforcement agencies violated defendant’s right to 

confrontation, and the Court provides guidance for remand. 

1. In State v. Henderson, the Court revised the standard for assessing whether 

eyewitness identification can be admitted in individual cases. 208 N.J. 208, 218-19

(2011). As to “showups” -- “single-person lineups” in which “a single suspect is 

presented to a witness to make an identification” -- Henderson reaffirmed that they 

are “inherently suggestive.” Id. at 259, 261. Henderson did not address in-court 

identifications. Certain factors discussed in the opinion, however, are directly 

relevant to a first-time in-court identification, which is essentially a live, singleperson line-up in a courtroom. Compared to a showup, the witness is given an even 

stronger impression that the authorities are already satisfied that they have the right 

man. Plus in-court identifications are conducted in the presence of a judge, lending 

the court’s imprimatur to the procedure. Further, memory weakens with time, see 

id. at 218, and in-court identifications at trial invariably occur months if not years 

after the crime was committed. (pp. 17-22) 
3 

2. Suggestive police procedures may so irreparably “taint” identifications that a 

defendant is denied due process. Suggestive behavior by private actors does not 

implicate due process, but a prosecutor’s conduct in court constitutes state action. 

Perry v. New Hampshire, 565 U.S. 228 (2012), did not hold otherwise. The 

Supreme Judicial Court of Massachusetts has held that a first-time in-court 

identification should be treated “as an in-court showup” and allowed “only where 

there is ‘good reason’ for its admission,” such as when a witness is already “familiar 

with the defendant” from before the crime, or when “the identification merely 

confirms that the defendant is the person who was arrested for the” offense. 

Commonwealth v. Crayton, 21 N.E.3d 157, 169-70 (Mass. 2014). Tighter restrictions 

apply when a witness previously “failed to make a positive identification.” See 

Commonwealth v. Collins, 21 N.E.3d 528, 536 (Mass. 2014). Connecticut has taken 

an even more restrictive approach to first-time in-court identifications, whereas 

other courts do not accord them special treatment. (pp. 22-26) 

3. Asking witnesses long after a crime was committed if they can identify the 

culprit -- when the only person who could reasonably be the defendant would be 

obvious to the witness, and when it is evident the prosecution team believes the 

person is the culprit -- presents an even greater risk of misidentification than an outof-court showup. The concerns outlined in Henderson therefore apply with even 

greater force to first-time in-court identifications. Yet first-time in-court 

identifications are not currently subject to advance scrutiny. It is hard to see how 

the court system can justify overseeing the very type of identification procedure it 

would likely criticize law enforcement officers for conducting. By conducting a 

suggestive identification procedure in a courtroom, the State may implicate due 

process concerns and deprive defendants of their due process rights in a way that 

neither cross-examination nor jury instructions can adequately address. (pp. 26-29) 

4. To avoid unduly suggestive identifications of defendants that may trigger serious 

due process concerns under the State Constitution, the Court draws on the standard 

in Crayton and holds that first-time in-court identifications can be conducted only 

when there is “good reason” for them. See 21 N.E.3d at 169. Traditional “good 

reasons” for out-of-court showups no longer apply at trial. Id. at 170. But other 

good reasons may exist, such as when an “eyewitness was familiar with the 

defendant before” the crime. Ibid. The better practice, however, is for the State to 

conduct appropriate identification procedures before trial. If it does not, there may 

well be no good reason to allow an in-court identification for the first time. And if a 

witness fails to make a positive identification at an earlier procedure, the State must 

show that the proposed, upcoming in-court identification would be more reliable and 

would “pose[] little risk of misidentification despite its suggestiveness.” Collins, 21 

N.E.3d at 536-37. To meet that burden, it is not enough to rely on the difference 

between still photos shown pretrial and the live presence of an individual in court. 

(pp. 29-30) 
4 

5. To ensure fair and orderly proceedings, the Court exercises its supervisory 

authority under the State Constitution to require, going forward, that certain 

practices be applied to proposed first-time in-court identifications: (1) The State 

must file a motion in limine if it intends to conduct a first-time in-court 

identification, and the parties and the court should explore at the hearing whether 

good reason exists; (2) Prosecutors must disclose in writing anything discussed with 

a witness during trial preparation that relates to an upcoming in-court identification; 

(3) if a hearing is needed to determine admissibility, it should be conducted and 

resolved before the start of trial. The Court calls on the Criminal Practice 

Committee to consider amendments to the court rules, including Rules 3:11 and 

3:13(b)(1)(J). The Court’s holding here applies to this and future cases, and to State 

v. Burney, ___ N.J. ___ (2023), filed today. (pp. 30-32)

6. The Court explains why it was error to allow the teller’s in-court identification in 

this case and why that error requires reversal of defendant’s conviction under Rule 

2:10-2. With or without the benefit of today’s ruling, the nature of the identification 

in this case raises concerns: Not only was the procedure highly suggestive given the 

layout of the courtroom and the stage of the case, but it is also difficult to imagine a 

more suggestive comment than telling a witness ahead of time where the defendant 

will be sitting -- and then asking the witness to make an identification. In this case, 

there was no physical or forensic evidence aside from video surveillance tapes. The 

State’s case rested on identification evidence, which can be quite powerful. Here, 

the inadmissible identification evidence from the teller reinforced Joan’s pivotal 

identification. At a retrial, the State may not ask the teller to identify defendant 

again. (pp. 32-35) 

7. N.J.R.E. 701 permits lay opinion testimony that “(a) is rationally based on the 

witness’ perception; and (b) will assist in understanding the witness’ testimony or 

determining a fact in issue.” And Rule 602, like Rule 701(a), has been held to 

require firsthand knowledge based on one’s senses. The Court reviews recent New 

Jersey case law applying Rules 701 and 602 to testimony by law enforcement 

officers. The Court also reviews case law from jurisdictions that have specifically 

considered lay witness testimony about a video. Courts have reached different 

conclusions as to whether a lay witness’s careful review of a recording before trial 

satisfies the “perception” or “personal knowledge” requirements embodied in Rules 

701 and 602. Applying the equivalent of Rule 701(b), some courts have found that 

certain lay witness narration testimony can be “helpful” to the jury. (pp. 35-46) 

8. No single rule of evidence is a perfect fit for the type of narration evidence at 

issue here. Rather, Rules 701, 602, and 403 provide, in tandem, the proper 

framework to assess video narration evidence by a witness who did not observe 

events in real time. That individual is not an eyewitness to a crime, but rather is 

commenting on an independent source of evidence -- an objective recording of the 
5 

event -- based on the witness’s direct perception of the video. An investigator who 

has carefully reviewed a video a sufficient number of times prior to trial can 

therefore satisfy the rules’ “perception” and “personal knowledge” requirements as 

to what the video depicts, as in United States v. Begay, 42 F.3d 486, 502-03 (9th 

Cir. 1994) (an officer who had watched a recording more than 100 times and had 

prepared an enhanced version of portions of the video “had sufficient personal 

knowledge” to narrate the enhanced video), and United States v. Torralba-Mendia, 

784 F.3d 652, 659 (9th Cir. 2015) (an officer who “had watched each video roughly 

fifty times” could provide narration). But Rule 701(b) contains a critical limiting 

requirement: a lay witness may only present testimony that will be helpful to the 

jury. Whether narration testimony is “helpful” depends heavily on the nature of the 

recording and the proposed comments. Scenes like the video of hundreds of 

demonstrators and violent incidents in Begay are a good example. Lengthy videos 

present similar problems, as can unclear or grainy footage. In sum, whether 

narration evidence is helpful turns on the facts of each case. (pp. 46-51) 

9. Narration testimony must also comply with N.J.R.E. 403. The Court establishes 

some specific limits to help in that regard. First, neither the rules of evidence nor 

the case law contemplates continuous commentary during a video by an investigator 

whose knowledge is based only on viewing the recording. To avoid running 

commentary, counsel must ask focused questions designed to elicit specific, helpful 

responses. Second, investigators can describe what appears on a recording but may 

not offer opinions about the content. Third, investigators may not offer their views 

on factual issues that are reasonably disputed, which are for the jury to decide. 

Fourth, investigators should not comment on what is depicted in a video based on 

inferences or deductions, including any drawn from other evidence. The Court 

provides examples of permissible and impermissible testimony and notes that State 

v. Allen, also decided today, provides additional examples of what narration 

evidence may and may not include. ___ N.J. ___ (2023). The examples in this 

opinion and in Allen are illustrative, not comprehensive. (pp. 51-55)

10. The Court also establishes procedures for the admission of narration testimony 

and calls on the Criminal Practice Committee to consider including those steps in the 

court rules. And the Court asks the Model Criminal Jury Charge Committee to 

develop appropriate jury instructions for narration testimony. Neither the new 

procedures nor the guidance the Court provides alters other settled issues, such as 

the distinctions between what types of testimony about electronic recordings require 

expert rather than lay witnesses. (pp. 55-58) 

11. Because the Court reverses defendant’s conviction on the basis of the in-courtidentification evidence, it does not analyze each aspect of Sergeant Vitelli’s 

narration testimony. Instead, it offers observations about places where the testimony 

went awry by way of guidance. (pp. 58-60)
6 

12. The Confrontation Clause prohibits a police witness from implying to the jury 

that he possesses superior knowledge, outside the record, that incriminates the 

defendant. Challenges based on that prohibition are fact-specific, and the Court 

provides guidance, applicable on remand, based on the facts here. (pp. 60-64) 

 REVERSED and REMANDED for a new trial.

JUSTICES PATTERSON, SOLOMON, PIERRE-LOUIS, WAINER APTER, 

and FASCIALE and JUDGE SABATINO (temporarily assigned) join in CHIEF 

JUSTICE RABNER’s opinion. 
 

1 

SUPREME COURT OF NEW JERSEY

A-23 September Term 2022

087251

State of New Jersey, 

Plaintiff-Respondent, 

v.

Quintin D. Watson, 

Defendant-Appellant. 

On certification to the Superior Court, 

Appellate Division, whose opinion is reported at 

472 N.J. Super. 381 (App. Div. 2022).

Argued 

March 27, 2023 

Decided 

August 2, 2023

Lauren S. Michaels, Assistant Deputy Public Defender, 

argued the cause for appellant (Joseph E. Krakora, Public 

Defender, attorney; Lauren S. Michaels and Ashley T. 

Brooks, Assistant Deputy Public Defender, of counsel 

and on the briefs). 

Nancy A. Hulett, Assistant Prosecutor, argued the cause 

for respondent (Yolanda Ciccone, Middlesex County 

Prosecutor, attorney; Nancy A. Hulett, of counsel and on 

the briefs). 

Alexander Shalom argued the cause for amicus curiae

American Civil Liberties Union of New Jersey (American 

Civil Liberties Union of New Jersey Foundation, 

attorneys; Alexander Shalom and Jeanne LoCicero, on

the brief). 
2 

Joseph A. Hayden, Jr., argued the cause for amicus curiae 

Association of Criminal Defense Lawyers of New Jersey 

(Pashman Stein Walder Hayden, attorneys; Joseph A. 

Hayden, Jr., on the brief). 

Ian S. Marx argued the cause for amicus curiae The 

Innocence Project (Greenberg Traurig and The Innocence 

Project, Inc., attorneys; Ian S. Marx, Caroline J. Heller 

(Greenberg Traurig) a member of the New York bar, 

admitted pro hac vice, M. Chris Fabricant (The Innocence 

Project, Inc.) a member of the New York bar, admitted 

pro hac vice, and Anton Robinson (The Innocence 

Project, Inc.) a member of the New York and Florida

bars, admitted pro hac vice, on the brief). 

Amanda G. Schwartz, Deputy Attorney General, argued

the cause for amicus curiae Attorney General of New

Jersey (Matthew J. Platkin, Attorney General, attorney; 

Amanda G. Schwartz, of counsel and on the brief). 

CHIEF JUSTICE RABNER delivered the opinion of the Court. 

Defendant Quintin Watson was convicted of bank robbery after a jury 

trial. The evidence against him included testimony from a teller, who 

identified defendant for the first time in court, and from the lead detective, 

who narrated a bank surveillance video for the jury. This appeal raises two 

principal issues: (1) the propriety of first-time in-court identifications, and (2) 

the extent to which investigators may narrate video recordings. 

In the case of first-time in-court identifications, witnesses are asked if 

they can identify their culprit long after the crime took place. They see a 
3 

single individual seated at the defense table beside a lawyer. And it is evident 

the prosecution team believes that person is the culprit. The inherently 

suggestive nature of the procedure, conducted in front of a jury, evades wellsettled protections that the law provides. It therefore risks depriving 

defendants of their due process rights. To avoid unduly suggestive 

identifications in court that can trigger serious due process concerns, we hold 

that first-time in-court identifications may only be conducted when there is 

good reason for them. In addition, before attempting to conduct a first-time incourt identification, the State must give fair notice to the defense. 

As to narration evidence, an investigator who has carefully reviewed a 

video recording can satisfy the “perception” prongs under N.J.R.E. 701 and 

602 and the “helpfulness” prong under N.J.R.E. 701 and offer lay witness 

testimony. By drawing attention to key details that a jury might otherwise 

overlook -- as is the case, for example, with a potentially confusing, complex, 

or unclear recording -- such evidence can be particularly helpful. 

Although an investigator’s specific comments can assist a jury in 

determining facts in issue, the rules of evidence do not allow for continuous, 

running commentary on video evidence by someone who has merely studied a 

recording. We therefore identify certain safeguards to underscore the limited 

use of narration evidence: investigators should give focused responses to 
4 

specific questions; they can provide objective, factual comments but not 

subjective interpretations; they may not comment on facts that are reasonably 

in dispute, which should be left for the jury to decide; and they should not 

offer testimony based on inferences drawn from other evidence. 

In addition, a party that intends to present narration evidence should 

provide opposing counsel a written summary of the proposed testimony before 

trial. The parties can then ask the court to address any disputed areas at a Rule 

104 hearing. 

 We also briefly address a question related to the Confrontation Clause. 

 The evidence before the jury in this case ran afoul in all three areas. 

Based on the identification evidence alone, defendant’s conviction cannot 

stand. We therefore reverse the judgment of the Appellate Division, which 

upheld the conviction, and remand for a new trial. 

I.

A.

 Shortly before noon on January 14, 2017, an individual robbed a bank in 

North Brunswick. A single teller and the branch manager were on duty when 

the robber entered the bank at about 11:53 a.m. He wore a baseball cap and 

gloves. The robber opened the bank’s exterior and interior doors with his 
5 

gloved right hand, removed his gloves, and approached the teller window. He 

then put a note on the counter that read, “everything now.” 

 The teller first emptied the top drawer at his station. At the robber’s 

direction, he removed cash from the bottom drawer as well. The robber took 

the cash -- which totaled $5,772 -- and left the bank. He placed his bare left 

hand on both interior door handles and then pushed open the exterior door with 

his left elbow. 

 Bank surveillance footage captured the entire robbery. It lasted all of 57 

seconds. Neither the manager nor any of the few customers in the bank at the 

time realized what had happened. 

 The North Brunswick Police Department responded soon after the 

robbery. The teller told the police the suspect was Black, muscular, around 

six-foot-two or six-foot-three, and had an accent. Sergeant Frank Vitelli, Jr., 

the lead detective, checked the area for possible DNA evidence but found 

none. He lifted seven fingerprints from the door handles and counter, but none 

matched any fingerprints in the State Police database. Sergeant Vitelli also 

sent a bulletin known as a TRAKs message to other law enforcement agencies. 

It contained information about the robbery and a still photo of the suspect from 

the bank surveillance video. 
6 

 Nine months later, in October 2017, J.H. -- whom we refer to as Joan --

read a newspaper article and saw an accompanying photo of a man wanted in 

connection with a different bank robbery in Princeton. She recognized the 

person in the photo as defendant Quintin Watson, her former boyfriend. Joan 

had dated and lived with defendant for four years. They broke up in 2012 

when defendant told Joan he was leaving her for another woman who was 

pregnant. Defendant later married the other person. 

 Joan contacted the police and ended up speaking with officers about two 

other bank robberies in Somerset County. Based on Joan’s identification and 

other evidence, defendant was charged in three robberies in November 2017: 

the one in Princeton and two in Somerset County. 

 According to the State, Somerset County officials contacted the North 

Brunswick Police Department that same month and suggested they investigate 

defendant for the January 2017 robbery in North Brunswick -- the subject of 

this appeal. After viewing surveillance footage from the Somerset robberies, 

the North Brunswick Police Department charged defendant in November 2017 

with the bank robbery in North Brunswick. A grand jury in Middlesex County 

later indicted him for the robbery, contrary to N.J.S.A. 2C:15-1. 

On September 25, 2018, 20 months after the robbery, a detective with 

the Middlesex County Prosecutor’s Office showed the teller six photos, one at 
7 

a time, and asked if he could identify the person who robbed the bank. The 

teller picked a photo of someone other than defendant Quintin Watson and said 

at trial that he was 75 to 90 percent sure of the identification. On crossexamination, he said he had been 85 percent sure. 

 The next month, October 2018, the Prosecutor’s Office showed Joan a 

single still photo taken from the bank surveillance video. She said she was 

100 percent positive the photo depicted defendant. 

The State filed a pretrial motion to admit evidence of the other three 

robberies at trial. The trial court denied the motion and provided guidance 

about what Joan could say about her initial contact with the police. In 

addition, the trial court explained it would allow limited, sanitized testimony 

from a North Brunswick police officer about prior contacts he had with 

another law enforcement agency. 

A two-day trial was conducted in November 2018 -- 22 months after the 

robbery. We focus on three points relevant to this appeal. 

B. 

1.

 First, the prosecutor asked the teller if he could identify the robber in 

court. The teller identified defendant, who was seated in between his lawyers 

at counsel table. The teller said he was “maybe like . . . 80 percent” sure. The 
8 

prosecution did not provide advance notice of the in-court identification, and 

defense counsel did not object to it. 

 During cross-examination, the teller revealed that he had met with the

prosecutor prior to trial. This exchange followed:

DEFENSE COUNSEL: And [the prosecutor] informed 

you what was going to happen today, right? 

TELLER: Yes. 

DEFENSE COUNSEL: And he informed you that the 

individual who was accused of committing this robbery 

is in court seated at the defense table, right? 

TELLER: Yes, he did. 

The State asked no follow-up questions on that point. 

 Joan also testified at trial. She was shown two still photos from the bank 

surveillance video and testified she was 100 percent positive that each depicted 

defendant. She later confirmed that the top 20 to 25 percent of the robber’s 

face was not visible in the photo she had viewed before and at trial. Because 

the suspect wore a hat pulled down over his eyes, it was not possible to see the 

person’s eye color or whether he had hair. 

2. 

 Second, Sergeant Vitelli testified. At the outset, he described his 

training and experience and then testified about the investigation. He 
9 

explained that he interviewed witnesses, checked for DNA evidence, dusted 

for fingerprints, took photos, and watched surveillance footage taken from the 

bank and a convenience store nearby. He testified that he watched the bank’s

surveillance videos “numerous times.” 

 Over the objection of defense counsel, Sergeant Vitelli narrated the bank 

surveillance video. The prosecutor asked a series of questions while the video 

was played for the jury. They ranged from general inquiries -- “What do you 

see?” -- to specific ones -- “With what [did he open the door]?” The more 

open-ended questions invited and led to more open-ended narrative responses. 

 Among other things, the officer testified about how and where the 

suspect entered the bank, that he wore gloves when he entered and then 

removed the glove on his right hand, that he placed the demand note on the 

teller’s counter and held it there with two fingers, that he used his left elbow to 

open the door to leave the bank, and that he appeared to run when he left the 

bank. At one point, Sergeant Vitelli offered his opinion that “the suspect was 

very careful” in the way he acted, “attempting [not] to leave any type of 

evidence behind.” The trial court sustained defense counsel’s objection to the 

comment but did not strike the answer or instruct the jury not to consider it. 

Sergeant Vitelli also testified about several still photos from the bank 

surveillance footage and responded “yes” when asked whether the note was “a 
10

barrier between [the suspect’s fingertips] and the” counter. In addition, the 

officer briefly narrated the convenience store video. He testified it showed 

someone walking toward the bank and, soon after, jogging back from that 

direction. 

3. 

 Third, Sergeant Vitelli provided limited testimony about the history of 

the investigation and how the North Brunswick Police Department learned 

about defendant. The officer explained that, after the robbery, he sent a 

TRAKs message to other law enforcement agencies in the hope of getting 

relevant information in response. The following exchange then took place: 

PROSECUTOR: In November 2017, were you 

contacted by another law enforcement agency 

regarding Quintin Watson? 

SGT. VITELLI: Yes, I was. 

PROSECUTOR: And at some point did you consult 

with that law enforcement agency and after which 

criminal complaints were signed against Mr. Watson?

SGT. VITELLI: Yes, they were. 

C. 

As part of its final instructions to the jury, the trial court read from the 

model jury charge on in-court and out-of-court identifications. See Model Jury 

Charges (Criminal), “Identification: In-Court and Out-of-Court 
11

Identifications” (rev. May 18, 2020). The jury found defendant guilty of the 

single charge of robbery. The court later sentenced him to an extended fifteenyear term of imprisonment and ordered defendant to pay $5,772 in restitution. 

The Appellate Division affirmed defendant’s conviction in a 

comprehensive opinion. State v. Watson, 472 N.J. Super. 381, 404 (App. Div. 

2022). We summarize its findings on the three issues central to this appeal. 

 First, the appellate court concluded the trial court erred when it allowed 

Sergeant Vitelli “to testify that he had been contacted by and consulted with 

another police department just before filing” charges against defendant. Ibid. 

In the Appellate Division’s view, the testimony violated defendant’s 

Confrontation Clause rights under the Sixth Amendment because it created an 

“inescapable inference” that the other “department possessed incriminating 

evidence that was not presented to the jury.” Id. at 404, 435. However, the 

appellate court found the error harmless beyond a reasonable doubt. Id. at 

404-05, 445. 

 Second, the Appellate Division concluded the trial court did not abuse its 

discretion when it allowed Sergeant Vitelli to narrate the bank surveillance 

video. Id. at 405, 470. The appellate court declined to adopt a rule that would 

bar a witness “from pointing out an event or circumstance depicted in [a] video 

or from otherwise offering a description of or comment on any such event or 
12

circumstance.” Id. at 459. Whether “to allow a witness to describe and 

highlight something on the screen that the jury [can] see for itself,” the court 

explained, must be decided “on a case-by-case if not comment-by-comment 

basis.” Ibid. 

 Focusing on N.J.R.E. 701, the appellate court found the rule’s personalknowledge prong was satisfied when a “police witness reviewed the 

surveillance video before trial”; the witness need not have seen the actual 

crime in real time. Id. at 463. 

To help determine whether the rule’s helpfulness prong is met in 

individual cases, the court outlined six factors: (1) whether the proposed 

comment provides background context about the video such as the location, 

angle, date, and time of the recording; (2) whether the comment explains “the 

length of the video” or “pertains to specific events or circumstances” using 

“neutral language”; (3) whether the comment “pertains to a fact in dispute”; 

(4) whether the “comment is based on an inference or deduction drawn from or 

supported by other facts in evidence, or from the officer’s training and 

experience”; (5) “[t]he clarity and resolution of the video”; and (6) “the 

complexity of the video . . . and the amount of visual information being 

displayed simultaneously.” Id. at 464-69. 
13

Applying a deferential standard of review, the Appellate Division upheld 

the decision to allow the narration testimony. Id. at 469-70. The court also 

directed that, in future cases, the State should move in advance to introduce 

video narration testimony at a Rule 104 hearing. Id. at 471-73. In addition, 

the court recommended that juries be told “they are free to reject any lay 

opinion testimony provided by the narrator.” Id. at 474-75. 

Third, the Appellate Division concluded it was not error to allow the 

bank teller to identify defendant for the first time in the courtroom. Id. at 476. 

The court declined to impose a new per se rule forbidding first-time in-court 

identifications. Id. at 475-76. Although it acknowledged the inherent 

suggestiveness and potential unreliability of those identifications, the appellate 

court stated that cross-examination and jury instructions could address those 

concerns. Id. at 501-02. 

We granted defendant’s petition for certification limited to the three 

issues discussed above. 252 N.J. 598 (2022). We also granted leave to appear 

as friends of the court to the Attorney General, the American Civil Liberties 

Union of New Jersey (ACLU), the Association of Criminal Defense Lawyers 

of New Jersey (ACDL), and the Innocence Project. 
14

II. 

 Defendant submits that the Appellate Division properly found a 

Confrontation Clause violation but incorrectly concluded the error was 

harmless. He also argues that Sergeant Vitelli’s narration testimony was 

inadmissible under N.J.R.E. 701. He contends that viewing a video does not 

satisfy the rule’s perception requirement and cannot assist the jury. In 

addition, defendant suggests that when lay opinion testimony by a narrator is 

proffered, courts should require notice and a pretrial hearing, and if the 

evidence is allowed, the jury should be instructed on how to consider it. 

Finally, defendant argues that first-time in-court identifications should be 

barred because they are inherently unreliable and unduly prejudicial. 

 Several amici present arguments that align with defendant’s position. 

The ACLU and ACDL stress that lay opinion testimony must be based on 

firsthand perception, that the Appellate Division took an overly expansive 

view of N.J.R.E. 701, and that the Court should adopt clear procedural 

protections. 

 The Innocence Project submits that first-time in-court identifications 

implicate due process protections under the Federal and State Constitutions. 

The ACLU as well as the Innocence Project argue that first-time in-court 

identifications are extremely suggestive and unreliable, and should be barred. 
15

The Middlesex County Prosecutor’s Office, which prosecuted the case, 

and the Attorney General, as amicus, contend that Sergeant Vitelli’s narration 

testimony was properly admitted. The Attorney General explains that police 

narration based on an officer’s repeated viewing of video footage satisfies 

Rule 701’s perception requirement. In addition, the Attorney General submits 

that the Appellate Division’s non-exhaustive list of six factors can guide courts 

as they decide whether proposed testimony will be helpful to the jury. Both 

the Prosecutor’s Office and the Attorney General argue the officer’s testimony 

in this case was proper. The Attorney General stresses that the testimony 

appropriately highlighted details that were not immediately apparent and did 

not invade the province of the jury. Both also endorse the use of Rule 104 

hearings to determine the scope of narration testimony. 

 The Prosecutor’s Office and the Attorney General also argue against a 

per se rule that would preclude first-time in-court identifications. They 

contend that concerns about suggestiveness and unreliability can be addressed 

on a case-by-case basis through cross-examination and appropriate jury 

instructions. 

The Prosecutor’s Office additionally argues that the Appellate Division 

improperly found a Confrontation Clause violation but correctly concluded the 

error was harmless. 
16

III. First-Time In-Court Identifications 

 We begin with the in-court identification of defendant. In State v. 

Henderson, this Court addressed various issues related to the admissibility of 

eyewitness identification evidence. 208 N.J. 208 (2011). Based on an 

extensive record developed at an evidentiary hearing, the Court observed “that 

the possibility of mistaken identification is real” and “that eyewitness 

misidentification is the leading cause of wrongful convictions across the 

country.” Id. at 218. 

 In light of the scientific evidence, the Court concluded “that memory is 

malleable, and that an array of variables can affect and dilute memory and lead 

to misidentifications.” Ibid. The opinion detailed a series of variables and 

their possible impact on the reliability of identification evidence. Id. at 248-

72. Among other factors, Henderson addressed “showups” -- “single-person 

lineups” in which “a single suspect is presented to a witness to make an 

identification,” id. at 259 -- and reaffirmed that they are “inherently 

suggestive,” id. at 261 (citing State v. Herrera, 187 N.J. 493, 504 (2006)).

In the end, the Court revised the standard to assess whether eyewitness 

identification can be admitted in individual cases. Id. at 218-19. Henderson 

also called for the development of jury charges to help jurors better understand 

relevant factors related to reliability and weigh them properly. Id. at 219. 
17

A.

Under the current legal framework for out-of-court identifications, 

defendants are entitled to a pretrial hearing if they can “show[] some evidence 

of suggestiveness that could lead to a mistaken identification.” Id. at 288. 

“That evidence, in general, must be tied to a system . . . variable” -- a 

“variable[] within the State’s control.” Id. at 248, 288-89. Next, “the State 

must . . . offer proof to show that the proffered eyewitness identification is 

reliable[,] accounting for” variables within its control as well as those that are 

not. Id. at 289. The latter factors are known as “estimator variables.” Id. at 

261. Defendants have “the ultimate burden . . . to prove a very substantial 

likelihood of irreparable misidentification.” Id. at 289. 

 After weighing all the evidence, if the trial court finds the defendant has 

carried that burden, it “should suppress the identification evidence.” Ibid. If 

the evidence is allowed before the jury, “the court should provide appropriate, 

tailored jury instructions” keyed to variables that are relevant to the case. Ibid. 

B.

Henderson involved a suggestive pretrial out-of-court identification. Id. 

at 222-24. The opinion did not address in-court identifications. Certain 
18

factors discussed in the opinion, however, are directly relevant to first-time incourt identifications.1

 

 An in-court identification is essentially a live, single-person line-up in a 

courtroom. It is comparable to a showup but is conducted well after the crime 

has taken place. Settled case law, scientific studies, and common sense 

underscore the problems with first-time in-court identifications. 

 In 2006, this Court observed in Herrera that “showups are inherently 

suggestive . . . because the victim can only choose from one person,” who is 

generally in police custody. 187 N.J. at 504. But a showup, standing alone, is 

not considered impermissibly suggestive when it is conducted “on or near the 

scene . . . ‘before memory has faded.’” Ibid. (quoting State v. Wilkerson, 60 

N.J. 452, 462 (1972)). 

 Showups can serve a valuable purpose if conducted within hours of a 

crime. They may help the police confirm whether they “have captured the 

perpetrator or whether the perpetrator is still at large,” while a witness’s 

memory is still fresh. Commonwealth v. Crayton, 21 N.E.3d 157, 165 (Mass. 

1

 We use the phrase “first-time in-court identification” to refer to in-court 

identifications that are not preceded by a successful out-of-court identification. 

To be clear, if the discovery supplied to the defense reflects that a witness was 

unable to identify anyone or identified someone other than the defendant 

before trial, and the witness is then asked to identify the defendant in court, we 

consider the later attempt a “first-time in-court identification.” 
19

2014). Some states tailor the admissibility of showup identifications to such 

situations. Henderson, 208 N.J. at 259-60. Massachusetts, for example, 

requires that there be “good reason for the use of a showup.” Commonwealth 

v. Martin, 850 N.E.2d 555, 562-63 (Mass. 2006). 

Henderson reaffirmed the highly suggestive nature of showups and also 

found they “present a heightened risk of misidentification” if “conducted more 

than two hours after an event.” 208 N.J. at 261. In reaching that conclusion, 

the Court relied on a number of scientific studies. See, e.g., A. Daniel Yarmey 

et al., Accuracy of Eyewitness Identifications in Showups and Lineups, 20 

Law & Hum. Behav. 459, 464 (1996); Jennifer E. Dysart et al., Show-ups: 

The Critical Issue of Clothing Bias, 20 Applied Cognitive Psych. 1009, 1019 

(2006). 

The Court observed in Herrera “that only a little more is required in a 

showup to tip the scale toward impermissibly suggestive.” 187 N.J. at 504. 

Identifications made in court for the first time present a good deal more to be 

concerned about. As the Court observed three decades ago in State v. 

Madison, in-court identifications are “extremely suggestive” when “the only 

person sitting at the defense table who reasonably could [be] the defendant” is 

the accused. 109 N.J. 223, 243 (1988). 
20

Most anyone who has watched a trial on television knows where the 

defendant sits in a courtroom. Beyond that, compared to a showup, “the 

witness is given an even stronger impression that the authorities are already 

satisfied that they have the right man.” Ibid. (quoting Wayne R. LaFave & 

Jerold H. Israel, Criminal Procedure, § 7.4 at 341-42 (1985)). So “[i]f a oneon-one confrontation at the police station is highly suggestive, then surely such 

a confrontation in court is the most suggestive situation of all.” Ibid. (quoting 

LaFave & Israel, § 7.4 at 341). Plus in-court identifications are conducted in 

the presence of a judge, lending the court’s imprimatur to the procedure. 

A number of scholarly sources agree that first-time in-court 

identifications are highly suggestive and unreliable. The National Academy of 

Sciences in 2014 observed that in-court identifications “do not reliably test an 

eyewitness’ memory” because “[i]n the courtroom, the eyewitness can easily 

see where the defendant is sitting.” Nat’l Rsch. Council of the Nat’l Acad. of 

Scis., Identifying the Culprit: Assessing Eyewitness Identification 36 n.28 

(2014). The Academy also found that “in-court eyewitness identifications can 

influence juries in ways that cross-examination, expert testimony, or jury 

instructions are unable to counter effectively.” Id. at 110. 

For those and other reasons, the Academy concluded that “[a]n 

identification . . . typically should not occur for the first time in the 
21

courtroom.” Ibid. The Academy recommended that “[i]f no identification 

procedure was conducted during the investigation, a judge should consider 

ordering that an identification procedure be conducted before trial.” Ibid. 

In 2019, the Third Circuit Task Force on Eyewitness Identifications 

noted that “the extreme suggestivity of a defendant sitting at counsel table with 

defense counsel should, by itself, raise caution flags regarding the independent 

reliability of an in-court identification. Yet, jurors may not understand this 

point.” 2019 Report of the Third Circuit Task Force on Eyewitness 

Identification 59 (2019); see also Aliza B. Kaplan & Janis C. Puracal, Who 

Could It Be Now? Challenging the Reliability of First Time In-Court 

Identifications After State v. Henderson and State v. Lawson, 105 J. Crim. L. 

& Criminology 947, 990 (2015) (concluding that first-time in-court 

identifications have “all the suggestiveness of . . . show-up[s]” and should be 

banned). 

 Fading memories compound the problem. As we noted in Henderson, 

“[m]emory decay ‘is irreversible’; memories never improve” with time. 208 

N.J. at 267. So “the more time that passes, the greater the possibility that a 

witness’ memory of a perpetrator will weaken.” Ibid. (citing Carol Krafka & 

Steven Penrod, Reinstatement of Context in a Field Experiment on Eyewitness 

Identification, 49 J. Personality & Soc. Psych. 58, 65 (1985)); see also 
22

Kenneth A. Deffenbacher et al., Forgetting the Once-Seen Face: Estimating 

the Strength of an Eyewitness’s Memory Representation, 14 J. Experimental 

Psych.: Applied 139, 142 (2008); Yarmey et al., 20 Law & Hum. Behav. at

464. In-court identifications at trial, of course, invariably occur months if not 

years after the crime was committed. 

C.

 The Attorney General concedes that in-court identification procedures, 

guided by prosecutors who are state actors, should be analyzed through the 

lens of due process. As this Court has recognized, “suggestive police 

procedures may ‘so irreparably “taint[]” . . . out-of-court and in-court 

identifications’ that a defendant is denied due process.” Henderson, 208 N.J. 

at 285 (alteration in original) (quoting Madison, 109 N.J. at 239); see also Neil 

v. Biggers, 409 U.S. 188, 198 (1972) (“It is the likelihood of misidentification 

which violates a defendant’s right to due process . . . .”); State v. Emanuele, 51 

F.3d 1123, 1128 (3d Cir. 1995) (“A government identification procedure 

violates due process when it is ‘unnecessarily suggestive’ and creates a 

‘substantial risk of misidentification.’” (quoting Gov’t of Virgin Islands v. 

Riley, 973 F.2d 224, 228 (3d Cir. 1992))).

Other courts have also found that in-court identification procedures 

implicate the due process rights of defendants. See State v. Dickson, 141 A.3d 
23

810, 824, 828 (Conn. 2016) (“[F]irst time in-court identifications, like in-court 

identifications that are tainted by an unduly suggestive out-of-court 

identification, implicate due process protections.”); see also United States v. 

Greene, 704 F.3d 298, 305-07 (4th Cir. 2013); United States v. Rogers, 126 

F.3d 655, 657-58 (5th Cir. 1997); United States v. Morgan, 248 F. Supp. 3d 

208, 212-13 (D.D.C. 2017); City of Billings v. Nolan, 383 P.3d 219, 224-25 

(Mont. 2016). 

 Suggestive behavior by private actors, as opposed to suggestive 

procedures arranged by the police, “does not implicate due process concerns.” 

State v. Chen, 208 N.J. 307, 317-18 (2011). But prosecutors who investigate 

and then attempt to prove criminal allegations in court are not private actors. 

“[A] prosecutor’s conduct in court constitutes state action.” Dickson, 141 

A.3d at 828; see also Morgan, 248 F.Supp.3d at 213. 

 Perry v. New Hampshire, 565 U.S. 228 (2012), did not hold otherwise. 

It addressed suggestive pretrial circumstances that were not arranged by law 

enforcement officers and explained “that due process concerns arise only when 

law enforcement officers use an identification procedure that is both 

suggestive and unnecessary.” Id. at 234, 238-39, 248. The question whether 

suggestive in-court identifications carried out by a prosecutor could pose due 

process concerns was not before the Court, Dickson, 141 A.3d at 828; see also 
24

Perry, 565 U.S. at 244, 247, and we disagree with courts that have interpreted 

Perry differently, see, e.g., United States v. Whatley, 719 F.3d 1206, 1216 

(11th Cir. 2013); Garner v. People, 436 P.3d 1107, 1119 (Colo. 2019).

D. 

Other jurisdictions have addressed the question of first-time in-court 

identifications. 

In Crayton, the Supreme Judicial Court of Massachusetts held that when 

“an eyewitness has not participated before trial in an identification procedure,”

an in-court identification by the witness should be treated “as an in-court 

showup” and allowed “only where there is ‘good reason’ for its admission.” 

21 N.E.3d at 169 (emphasis added). 

The court explained that “good reason” in this setting can include 

several situations, such as when a witness is already “familiar with the 

defendant” from before the crime, or when “the witness is an arresting officer 

who” saw the crime and “the identification merely confirms that the defendant 

is the person who was arrested for the” offense. Id. at 170. In both

circumstances, the court reasoned, the identifications are confirmatory. As a 

result, “there is little risk of misidentification” based on the suggestiveness of 

the in-court showup because the witness is not relying “solely on his or her 

memory of witnessing the defendant at the time of the crime.” Ibid. 
25

The Crayton court added that other good reasons that would generally 

justify out-of-court showups -- “concerns for public safety”; the need for a 

prompt investigation right after the crime; and the benefits of a “prompt 

confirmation” -- would “never justify an in-court” identification. Ibid. Those 

justifications, the court explained, “depend[] on the short duration of time 

between the crime and the showup.” Ibid. 

In a companion case, Commonwealth v. Collins, the Supreme Judicial 

Court imposed tighter restrictions when a witness previously “failed to make a 

positive identification.” 21 N.E.3d 528, 536 (Mass. 2014). In those 

circumstances, the court held that an in-court identification would usually have 

to be justified by a showing that it “is more reliable than the witness’s earlier 

failure.” Ibid. 

Crayton requires the prosecution to move in limine to admit in-court 

identifications. 21 N.E.3d at 171. The court encouraged prosecutors to file 

motions before trial so that there is time to conduct less suggestive out-ofcourt identifications in the event the in-court identification is suppressed. Ibid. 

The Connecticut Supreme Court takes an even more restrictive approach 

to first-time in-court identifications. In Dickson, the court held that they may 

be conducted “only if . . . there is no factual dispute as to the identity of the 

perpetrator, or the ability of the particular eyewitness to identify the defendant 
26

is not at issue.” 141 A.3d at 835-36. First-time in-court identifications also 

require advance permission from the trial court. Id. at 835. And if an 

eyewitness cannot identify the defendant in a nonsuggestive pretrial procedure, 

“a one-on-one in-court identification should not be allowed.” Id. at 836-37.

Other courts do not accord special treatment to first-time in-court 

identifications. See, e.g., State v. Doolin, 942 N.W.2d 500, 512 (Iowa 2020); 

Garner, 436 P.3d at 1119; United States v. Thomas, 849 F.3d 906, 910-11 

(10th Cir. 2017); Whatley, 719 F.3d at 1216-17; Byrd v. State, 25 A.3d 761, 

767 (Del. 2011); United States v. Recendiz, 557 F.3d 511, 525 (7th Cir. 2009); 

State v. King, 934 A.2d 556, 561 (N.H. 2007). 

E. 

The approach outlined in Henderson was meant to “both protect the 

rights of defendants, by minimizing the risk of misidentification, and enable 

the State to introduce vital evidence.” 208 N.J. at 219-20. We consider incourt identifications with the same concerns in mind. 

Asking witnesses long after a crime was committed if they can identify 

the culprit -- when the only person at counsel table who could reasonably be 

the defendant would be obvious to the witness, and when it is evident the 

prosecution team believes the person is the culprit -- presents an even greater 

risk of misidentification than an out-of-court showup. 
27

The approach hardly resembles the appropriate pretrial standard --

having a person who does not know the identity of the suspect conduct the 

identification procedure after first giving neutral instructions to the witness. 

See id. at 248-53, 289-91. Plus, given the setting, confirmatory feedback is 

built into the prosecutor’s question. See id. at 253-55. And the lengthy delay 

between the time of the offense and the identification inevitably allows for 

memory to decay. See id. at 267, 292. 

 The concerns outlined in Henderson therefore apply with even greater 

force to first-time in-court identifications than they do to showups. Yet firsttime in-court identifications are not currently subject to advance scrutiny. 

They simply unfold in front of a jury. 

 Suppose the State were to conduct the following identification procedure 

months after a crime but before trial: the prosecution first informs a witness 

that it has located and identified the culprit; it next singles out or otherwise 

highlights a particular person for the witness to view; and it then asks if the 

witness can make an identification. To be sure, such a highly suggestive 

process could readily pose “a very substantial likelihood of irreparable 

misidentification.” Id. at 289 (citing Manson v. Brathwaite, 432 U.S. 98, 116

(1977)); see also Crayton, 21 N.E.3d at 167. The process also mirrors a firsttime in-court identification. 
28

 Courts should not sanction such highly suggestive procedures -- not in 

an individual case and not as a categorical approach to the introduction of 

certain evidence. Indeed, it is hard to see how the court system can justify 

overseeing the very type of identification procedure it would likely criticize 

law enforcement officers for conducting. Courts should instead take steps to 

guard against practices that pose serious due process concerns -- especially 

inside a court of law in front of a jury. See Dickson, 141 A.3d at 824 n.11 

(imposing a prophylactic constitutional rule to prevent the risk of due process 

violations in the context of first-time in-court identifications). 

 There are existing protections against unconstitutional eyewitness 

identifications. Law enforcement can follow federal and state authority about 

how to conduct identification procedures ahead of trial. Nothing in today’s 

ruling prevents the State from doing so. Defendants can then challenge an

identification at a pretrial hearing and try to prevent the jury from learning 

about potentially tainted evidence. See Henderson, 208 N.J. at 288-89. 

 It is not appropriate to bypass those protections if, for whatever reason, 

the State has not gathered identification evidence before trial. Otherwise, 

witnesses who could not identify the defendant in a fair, non-suggestive 

pretrial proceeding would be allowed to make an identification in court 

because suggestive cues directed them to the person on trial. See Dickson, 141 
29

A.3d at 824 n.11. By conducting a suggestive identification procedure in a 

courtroom, the State may implicate due process concerns and deprive 

defendants of their due process rights in a way that neither cross-examination 

nor jury instructions can adequately address. 

F.

 To avoid unduly suggestive identifications of defendants in court that 

may trigger serious due process concerns under the State Constitution, we 

draw on the standard in Crayton and hold as follows: first-time in-court 

identifications can be conducted only when there is “good reason” for them. 

See Crayton, 21 N.E.3d at 169. 

As the Supreme Judicial Court of Massachusetts observed, traditional 

“good reasons” for out-of-court showups no longer apply at trial. Id. at 170. 

By the time a criminal trial begins, the original investigation is long over, a 

suspect has been apprehended, and prompt confirmation is no longer needed to 

help ensure public safety. Ibid. 

But other good reasons may exist, such as when an “eyewitness was 

familiar with the defendant before” the crime. Ibid. Victims of domestic 

violence, for example, could properly be allowed to identify their assailant in 

court for the first time. Ibid. Friends or associates, among others, could 
30

identify someone they have known for some time. And officers could confirm 

that the person on trial was the same person they arrested. Ibid. 

The better practice, however, is for the State to conduct appropriate 

identification procedures before trial. If it does not, there may well be no good 

reason to allow an in-court identification for the first time. And if a witness 

fails to make a positive identification at an earlier procedure, the State must 

show that the proposed, upcoming in-court identification would be more 

reliable and would “pose[] little risk of misidentification despite its 

suggestiveness.” Collins, 21 N.E.3d at 536-37. To meet that burden, it is not 

enough to rely on the difference between still photos shown pretrial and the 

live presence of an individual in court.

To ensure fair and orderly proceedings, we also require the following 

practices going forward for proposed first-time in-court identifications. 

First, as with suggestive out-of-court identifications, defendants are 

entitled to advance notice and an opportunity to challenge in-court 

identification evidence before trial. With that in mind, the State must file a 

motion in limine if it intends to conduct a first-time in-court identification 

procedure. Although defendants are typically required to file motions to 

suppress, that approach does not make sense when only the prosecution knows 

whether it will ask a witness to make an identification in court. See Crayton, 
31

21 N.E.3d at 170. At the hearing, the parties and the court should explore 

whether good reason exists to conduct a first-time in-court identification. 

 When a witness has identified the defendant at a pretrial identification 

procedure, and the State has provided notice consistent with Rules 3:11 and 

3:13-3(b)(1)(J), no additional notice is required to conduct an in-court 

identification, and no hearing is necessarily called for. 

Second, just as law enforcement officers are required to make a record of 

an out-of-court identification under Rule 3:11, prosecutors must disclose in 

writing anything discussed with a witness during trial preparation that relates 

to an upcoming in-court identification. For example, if a prosecutor or law 

enforcement officer tells a witness that the defendant will be in court, or 

describes where the defendant will be seated, that information must be 

revealed to the defense. Similarly, if witnesses during trial preparation are 

shown photos they had previously viewed at prior out-of-court identifications, 

that must be disclosed as well. Cf. Henderson, 208 N.J. at 255-56 (discussing 

the effect of multiple viewings of a suspect). 

Third, if a hearing is needed to determine admissibility, it should be 

conducted and resolved before the start of trial. 

We rely on the Court’s supervisory authority under Article VI, Section 

2, Paragraph 3 of the New Jersey Constitution to require the above practices. 
32

We also call on the Criminal Practice Committee to consider amendments to 

the court rules, including Rules 3:11 and 3:13(b)(1)(J).2

 We apply the above standard here and provide clearer rules going 

forward. Today’s holding applies to this and future cases, and to State v. 

Roberson Burney, ___ N.J. ___ (2023), filed today. See Henderson, 208 N.J. 

at 302. 

G. 

We turn now to the in-court identification in this appeal. 

Twenty months after the robbery, the bank teller reviewed an array of 

six photos that included defendant’s picture. The teller identified a different 

person and said he was 75 to 90 percent sure that person was the robber. The

State properly disclosed the misidentification. It did not ask the teller to 

attempt another out-of-court identification, which might have raised concerns 

about multiple viewings of the same suspect. See Henderson, 208 N.J. at 255-

56. 

Defendant’s trial began two months later. Before the teller testified, the 

prosecutor told him that the person “accused of committing [the] robbery” 

2

 We do not address the Innocence Project’s argument that eyewitnesses 

should only be allowed “to testify up to the degree of certainty they had when 

they made their out-of-court identification.” The teller did not identify 

defendant prior to trial in this case, and no party has raised the issue. See State 

v. Mackroy-Davis, 251 N.J. 217, 238 n.7 (2022).
33

would be “in court seated at the defense table.” At trial, the teller identified 

defendant, who was seated at that very spot. 

There was no “good reason” for the State to conduct a first-time in-court 

identification here. The teller did not have a prior relationship with defendant 

or know him from before. The extremely suggestive in-court identification in 

this case therefore should not have taken place. 

 No court rule at the time required the State to give advance notice or 

disclose the guidance it gave the teller during trial preparation, and we do not 

suggest bad faith on the part of the prosecution. With or without the benefit of 

today’s ruling, however, the nature of the identification in this case raises 

concerns. 

 Not only was the procedure highly suggestive given the layout of the 

courtroom and the stage of the case, but it is also difficult to imagine a more 

suggestive comment than telling a witness ahead of time where the defendant 

will be sitting -- and then asking the witness to make an identification. Law 

enforcement officers should avoid similar comments before out-of-court 

identifications. Henderson, 208 N.J. at 250, 261. The same applies to the 

prosecution team before trial. 

In this case, there was no physical or forensic evidence aside from video 

surveillance tapes. The State’s case rested on identification evidence, which 
34

can be quite powerful. “[T]here is almost nothing more convincing than a live 

human being who takes the stand, points a finger at the defendant, and says 

‘That’s the one!’” Watkins v. Sowders, 449 U.S. 341, 352 (1981) (Brennan, J., 

dissenting) (quoting Elizabeth F. Loftus, Eyewitness Testimony 19 (1979)). 

The jury saw a video of the robber wearing a baseball cap that obscured 

the top 20 to 25 percent of his face. The jury also heard two witnesses identify 

defendant -- the teller and defendant’s former girlfriend, Joan. On crossexamination, defense counsel probed Joan’s possible bias in light of the way 

defendant ended their years-long relationship. But rather than assess her 

testimony on its own, the jury heard inadmissible identification evidence from 

the teller that reinforced her pivotal identification. 

Because defendant did not object at trial, we review the issue for plain 

error under Rule 2:10-2. We find that the error in this case was “clearly 

capable of producing an unjust result.” Ibid. Because defendant’s 

identification was central to the case, the error raises a reasonable doubt as to 

whether the jury reached a result it otherwise might not have. See State v. 

Singh, 245 N.J. 1, 13 (2021). We therefore reverse defendant’s conviction.

At a retrial, the State may not ask the teller to identify defendant again. 

Twenty-two months after the robbery, and months after he identified another 

person as the robber, the prosecution in effect told the teller whom to identify 
35

in court as the defendant. Under the circumstances, any further identification 

by the teller presents a “very substantial likelihood of irreparable 

misidentification.” See Henderson, 208 N.J. at 289. 

IV. Video Narration Testimony 

We next turn to Sergeant Vitelli’s narration of the surveillance videos. 

Defendant objected to the testimony at trial and argued that it violated N.J.R.E. 

701 and related evidentiary principles. 

A.

We begin with Rule 701, which governs the use of lay opinion testimony 

and serves as a springboard for our analysis. The rule provides that “testimony 

in the form of opinions or inferences may be admitted if it: (a) is rationally 

based on the witness’ perception; and (b) will assist in understanding the 

witness’ testimony or determining a fact in issue.” N.J.R.E. 701. The rule 

follows Fed. R. Evid. 701 in substance. See Sup. Ct. Comm. Cmt. on N.J.R.E. 

701 (1991), reprinted in Biunno et al., Current N.J. Rules of Evidence 749 

(2023). 

 Underlying Rule 701 is a basic principle set forth in N.J.R.E. 602:

A witness may testify to a matter only if evidence is 

introduced sufficient to support a finding that the

witness has personal knowledge of the matter. 

Evidence to prove personal knowledge may, but need 

not, consist of the witness’ own testimony. This rule 
36

does not apply to expert testimony under [N.J.R.E.]

703. 

The rule also follows its federal counterpart, Fed. R. Evid. 602. See Sup. Ct. 

Comm. Cmt. on N.J.R.E. 602 (1991), in Biunno, at 749. In short, Rule 602 

requires that a lay witness have “personal knowledge” to be allowed to testify. 

 Expert testimony, by comparison, is addressed by N.J.R.E. 702: “If 

scientific, technical, or other specialized knowledge will assist the trier of fact 

to understand the evidence or to determine a fact in issue, a witness qualified 

as an expert by knowledge, skill, experience, training, or education may testify 

thereto in the form of an opinion or otherwise.” 

The Court recently addressed Rule 701 and certain relevant case law in 

State v. Higgs, 253 N.J. 333 (2023). As the Court explained, the rule has two 

parts. Drawing on language from State v. McLean, 205 N.J. 438, 457 (2011), 

the Court noted that the first prong -- the “perception” prong -- requires that a 

witness’s “testimony . . . be based on the witness’s ‘perception,’ which ‘rests 

on the acquisition of knowledge through the use of one’s sense of touch, taste, 

sight, smell or hearing.’” Higgs, 253 N.J. at 363 (omission in original) 

(citation omitted); see also N.J.R.E. 602. The second prong -- the 

“helpfulness” prong -- limits lay opinion testimony “to testimony that will 

assist the trier of fact either by helping to explain the witness’s testimony or by 
37

shedding light on the determination of a disputed factual issue.” Ibid. (citation 

omitted). 

 The personal knowledge requirement in Rule 602 has similarly been 

described as requiring “firsthand knowledge -- that which comes to the witness 

through his own senses, mostly sight and hearing.” Christopher B. Mueller & 

Laird C. Kirkpatrick, Federal Evidence, § 6.5 (4th ed., July 2022 update); see 

also id. § 6.6 (“[P]ersonal knowledge means seeing directly the acts, events, or 

conditions in question”; “hearing them”; or getting sensory input from “the 

other senses of touch, smell, or taste.”). The threshold showing “is low, 

requiring only enough ‘to support a finding’ by some rational juror of personal 

knowledge.” Paul F. Rothstein, Federal Rules of Evidence, Rule 602 (2023). 

B.

 Recent case law has considered how Rules 701 and 602 apply to 

testimony by law enforcement officers. We review the cases for context and 

background even though they do not squarely address the issue presented in 

this appeal. 

 In State v. Lazo, the Court reviewed whether it was proper for an officer 

to testify that an arrest photo taken of the defendant in another matter “closely 

resembled a composite sketch of the assailant” in the case under investigation. 

209 N.J. 9, 12, 14 (2012). The sketch had been drawn based on the victim’s 
38

description. Id. at 14. The officer “had not witnessed the crime and did not 

know [the] defendant; [his] opinion stemmed entirely from the victim’s

description.” Id. at 24. We found that the testimony, which “was not based on 

prior knowledge,” did not comply with Rule 701. Ibid. 

In Singh, a detective testified that sneakers depicted in a surveillance 

video were similar to ones he saw the defendant wearing at the time of his 

arrest. 245 N.J. at 19. The sneakers and the video were in evidence. Id. at 4. 

Because the detective “had first-hand knowledge of what the sneakers looked 

like” from the arrest, we found the testimony “was rationally based on his 

perception.” Id. at 19-20. We also found the testimony was “helpful to the 

jury” even though the jurors “may have been able” to compare the items. Id. 

at 20. We explained that Rule 701 does not require that the lay witness have 

“superior” ability or “offer something that the jury does not possess.” Id. at 

19. 

 In State v. Sanchez, the Court addressed identification testimony from a

parole officer who had met with the defendant more than thirty times. 247 

N.J. 450, 458 (2021). As part of a homicide and robbery investigation, the 

officer identified the defendant in a still photo from a surveillance video. Ibid. 

The trial court found the proposed testimony failed both prongs of Rule 701. 

Id. at 462. We reached the opposite conclusion. Because the officer had met 
39

with the defendant on many occasions, we found the identification satisfied 

Rule 701’s perception prong. Id. at 469. As to the helpfulness prong, we 

noted that the officer’s contacts with the defendant “enable[d] her to identify 

him . . . more accurately than a jury could,” and that the quality of the 

surveillance photo in question -- neither too blurry nor too clear -- also 

weighed in favor of admitting the testimony. Id. at 474-75. 

 Most recently, in Higgs, we considered comments a detective made at 

trial about an image on a dashcam video. 253 N.J. at 365. The officer testified 

the defendant had a gun in his back waistband, which contradicted a critical 

point in the defendant’s testimony. Ibid. We found the admission of the 

testimony violated Rule 701. Id. at 366. As the Court explained, “the jury was 

able to view the video” and was “as competent” as the officer to determine 

what it showed. Ibid. The Court concluded that testimony “invaded the 

province of the jury.” Ibid. 

The Court also noted the detective’s testimony was based entirely on his 

watching the video but did “not rule out the possibility of allowing a law

enforcement officer to testify about a sequence in a video that is complex or 

particularly difficult to perceive.” Id. at 366-67 (citing United States v. Begay, 

42 F.3d 486, 502-03 (9th Cir. 1994); United States v. Torralba-Mendia, 784 

F.3d 652, 659-60 (9th Cir. 2015)). 
40

C. 

Courts in other jurisdictions have wrestled with the same questions 

presented in this appeal: under what circumstances can a lay witness testify 

about a video recording, and what limits apply to that type of testimony? We 

separately consider their analysis of Rule 701’s perception and helpfulness 

prongs and other pertinent evidence rules. 

1.

 Several courts have concluded that a lay witness’s careful review of a 

video recording before trial satisfies the “perception” or “personal knowledge” 

requirements embodied in Rules 701 and 602. 

In Begay, the Ninth Circuit addressed narration testimony by an officer 

who had watched a recording more than 100 times but did not witness the 

underlying event. 42 F.3d at 502. He also prepared an enhanced version of 

portions of the video and used it to explain his observations. Ibid. The 

appellate court found the officer had “sufficient personal knowledge” to 

narrate the enhanced video “based on his own perceptions” and “extensive 

review” of the full recording, even though he was not present at the incident 

depicted. Id. at 503 (citing Fed. R. Evid. 602). 

 Relying on Begay, the Ninth Circuit reached the same conclusion in 

Torralba-Mendia, 784 F.3d at 659. In that case, the court affirmed the 
41

admission of lay witness narration testimony from an officer who “had 

watched each video roughly fifty times.” Ibid. 

 Other courts have similarly held that watching a recording of an event 

can satisfy the “perception” or “personal knowledge” requirements of Rules 

701 and 602. See, e.g., McRae v. Commonwealth, 635 S.W.3d 60, 68, 70-71

(Ky. 2021) (citing Kentucky’s version of Rules 701 and 602 and upholding a 

detective’s narration of videos, including “events he was not personally 

familiar with”); State v. Small, 839 N.W.2d 160, 165 (Wis. Ct. App. 2013) 

(finding an officer could provide a lay opinion about the contents of a video he 

had watched 50 to 100 times “because it was ‘rationally based’ on his 

‘perception’”); People v. Fomby, 831 N.W.2d 887, 890-91 (Mich. Ct. App. 

2013) (finding that an officer’s identification of individuals depicted in still 

photos taken from a surveillance video was “rationally based on his . . . 

perception of the video” under the equivalent of Rule 701, even though he “did 

not observe firsthand the events depicted on the video”); State v. Walker, 135 

N.E.3d 444, 460 (Ohio Ct. App. 2019) (finding that the lead investigator who 

reviewed surveillance footage he had seized from a home “had personal 

knowledge of the contents of the video” under the equivalent of Rule 602, 

even though he “did not personally make or appear in the . . . video”), rev’d on 

other grounds sub nom., State v. Dent, 170 N.E.3d 816 (Ohio 2020); see also
42

Guay v. Sig Sauer, Inc., 615 F.Supp.3d 66, 72 (D.N.H. 2022) (finding that an 

employee’s deposition testimony about the contents of a video, based on 

“personal knowledge” from having watched the video, could be introduced 

under Fed. R. Evid. 602, without reference to Fed. R. Evid. 701); State v. 

Holley, 175 A.3d 514, 538-39 (Conn. 2018) (noting in dicta that, although 

courts are divided, “there is significant authority under [R]ule 701 of the 

Federal Rules of Evidence to support the proposition that a lay witness 

narrating a video to a jury may state his or her impressions of what is depicted 

in the video, even if he or she did not observe those events firsthand,” and 

concluding, without deciding whether there was error, that “any error” in the 

case was harmless). 

 Some courts, however, have barred lay witnesses from narrating a 

recording unless they were present at the event depicted. See Callaham v. 

United States, 268 A.3d 833, 848 (D.C. 2022) (rejecting the argument that 

detectives “obtained personal knowledge” of events “solely by watching 

recorded surveillance footage”); Boyd v. Commonwealth, 439 S.W.3d 126, 

131-32 (Ky. 2014) (finding that lay witnesses could narrate segments of a 

recording depicting events they “perceived in real time,” but not parts of the 

video “they did not perceive in real time”); Wells v. State, 604 So.2d 271, 279 

(Miss. 1992) (finding that a lay witness’s narration testimony was improper 
43

because he did not have “first-hand knowledge of the events depicted on the 

tape”); Nadeau v. Hunter Lawn Care, LLC, 585 F. Supp. 3d 158, 161 (D. 

Mass. 2022) (barring a witness from testifying “as to what he saw on [a] 

surveillance video because he did not perceive those events as they 

happened”). 

2.

Other courts have evaluated Rule 701’s helpfulness prong and found that 

certain lay witness narration testimony can be “helpful” to the jury and pass 

muster under the equivalent of Rule 701(b). 

In Begay, the Ninth Circuit found that an officer’s narration testimony 

“was likely to have been helpful to the jury.” 42 F.3d at 503. In that case, the 

officer watched a video recording that depicted a demonstration involving 

more than 200 people. Id. at 502-03. The demonstration turned into “a violent 

confrontation with tribal police” in which officers were assaulted, police cars 

were vandalized, a building was ransacked, and two demonstrators were killed. 

Id. at 489. The officer also copied parts of the video in slow motion and added 

“color-coded circles and arrows” to help the jury trace the movements of the 

defendants. Id. at 502. 

The jury watched the full video in its entirety. Id. at 503. The court 

nonetheless noted “it is reasonable to assume that one viewing a videotape of” 
44

the demonstration “would likely not see certain details, given the tremendous 

array of events all occurring simultaneously.” Ibid. As a result, the officer’s 

“testimony concerning which persons were engaged in what conduct at any 

given moment could help the jury discern correctly and efficiently the events 

depicted in the videotape.” Ibid. The court added that to have the jury devote 

as much time as the officer to view the complex video “would be an extremely 

inefficient use of the jury’s and the court’s time.” Ibid. 

In Torralba-Mendia, the Ninth Circuit similarly found that an officer’s 

narration testimony “helped the jury understand what they were seeing.” 784 

F.3d at 659-60. The prosecution involved a human smuggling operation in 

which individuals were smuggled across the border with Mexico, driven to a 

shuttle company in Tuscon, and then shuttled to safe houses where they were 

held “until family members paid for their release.” Id. at 657. The officer 

narrated surveillance videos that showed “vehicles dropping off and picking up 

people from” the shuttle company. Ibid. He also testified that he “often

watch[ed] the video feed live while it was being recorded.” Ibid. 

The Ninth Circuit noted it had “previously held that an officer who has 

extensively reviewed a video may offer a narration, pointing out particulars 

that a casual observer might not see.” Id. at 659 (citing Begay, 42 F.3d at 502-

03). In this case, the court explained, the officer’s testimony
45

provided the length of time lapses between video 

clips[;] . . . pointed out unique characteristics of the 

vehicles -- like their makes, models, and whether any 

bodywork had been done to them -- that helped the jury 

identify the same cars in subsequent videos[;] . . . linked 

the different cars to specific conspirators[;] . . . counted 

the number of passengers exiting or entering the 

vehicles (a difficult task because the video’s angle 

obscured the view)[;] [a]nd . . . pointed out the 

particular clothing of certain passengers, to show that a 

person dropped off in one video was the same person

picked up in a later video. 

 

[Id. at 659-60.] 

The officer also offered expert testimony in other areas, which is not relevant 

to this appeal. Id. at 657. When he narrated the surveillance videos, he 

testified as a lay witness. Ibid. 

 In People v. Son, a detective “pointed out various aspects” of a video, 

which the trial court found “helpful” under the equivalent of Rule 701(b). 270 

Cal. Rptr. 3d 83, 87, 89-90 (Cal. Ct. App. 2020). The detective testified she

had “watched the video at least 50 times and that subsequent viewings 

revealed details she had not picked up on at first.” Id. at 89. Although the 

court acknowledged “the jury could have watched the video repeatedly and 

picked those details up on their own,” it emphasized that “the standard is not 

whether the testimony was essential. It’s whether it was helpful.” Id. at 90. 
46

The court added that the detective’s testimony helped the jury “speed up the 

process of teasing out obscure details in the video.” Ibid. 

 The court in People v. Brown similarly found that a detective’s narration

of the content of a surveillance recording was helpful to the jury. 82 N.E.3d 

148, 167 (Ill. App. Ct. 2017) (relying on the state’s version of Rules 701 and 

602). The officer testified about interactions between certain individuals and 

their movements in a parking lot. Id. at 157. The court noted the testimony 

“helped the jury focus on the relevant action because numerous people entered 

and exited the parking lot area, their faces were too distant from the camera to 

be discernible, their outdoor winter clothing somewhat concealed their 

identities, and the color of their clothing was muted.” Id. at 167. The court 

found it was error only for the officer to identify the defendant in the video. 

Id. at 167-68. 

D. 

1.

Our reading of the evidence rules and the case law suggests that no 

single rule is a perfect fit for narration evidence by a witness who did not 

observe events depicted in a video in real time. To resolve the issue of 

admissibility, we borrow from key aspects of Rules 701, 602, and 403. 
47

A fact witness who participated in an event can of course testify about it 

and recount relevant evidence without resort to Rule 701. Rule 701, in its 

purest form, allows witnesses to offer lay opinion testimony based on their 

firsthand observation of events in real time. Beyond that, they can offer lay 

opinion testimony about parts of a recording that depict what they perceived in 

real time. In those instances, they plainly have sufficient personal knowledge 

within the meaning of Rules 602 and 701. 

By way of example, bank employees can testify about the portion of a 

recording that depicts their encounter with a robber. Investigators can likewise 

testify about parts of a recording that reflect their investigative work at a crime 

scene or their familiarity with an area depicted in a video based on prior 

experience. See, e.g., McRae, 635 S.W.3d at 69. 

As discussed above, courts differ as to whether Rule 701(a) authorizes 

narration testimony from individuals who did not witness the actual event 

captured in a video as it happened. Their testimony would be based on 

observations of an objective record of the events in question. Their testimony 

would also differ from typical lay opinion witnesses in another important way. 

As we discuss later, narration evidence by a witness who did not observe 

events depicted in a video in real time may not include opinions about a 

video’s content and may not comment on facts the parties reasonably dispute.
48

Analyzing whether lay opinion testimony is helpful under Rule 701(b) is 

more straightforward and depends on the facts of the individual case. 

If narration testimony is allowed under Rule 701, other concerns arise, 

like the proper scope of what a witness may say. Plus the discovery rules do 

not require advance disclosure of typical lay opinion testimony under Rule 

701, unlike requirements that apply to expert reports linked to Rule 702. See 

Rule 3:13-3(b)(I). 

Narration testimony is not a classic form of expert testimony under 

N.J.R.E. 702 either. If an investigator simply watches a video multiple times, 

and even slows it down to better grasp what it reveals, it is not clear the person 

has acquired “scientific, technical, or other specialized knowledge,” as the rule 

requires. See N.J.R.E. 702. Put another way, what type of expert would

investigators who have viewed a complex video with care be? What 

specialized knowledge do they possess? To what field of expertise do they 

belong? Designating someone as an expert also poses another challenge: 

Does the designation enhance the witness’s status and the weight of their 

testimony in the eyes of the jury? Does it aggravate concerns that an “expert”

is invading the jury’s province?

At the same time, it is not reasonable to expect that jurors can perceive 

and understand all parts of a complex incident, or even a fleeting gesture in a 
49

simple scene, that is depicted in a video. Counsel, of course, can pinpoint 

particular spots in a video during closing argument. But that is not a 

satisfactory solution in all cases. Not only would it be impractical with a 

confusing or complex video, but it might also invite objections that counsel is

essentially testifying without being subject to cross-examination.

2.

We believe that Rules 701, 602, and 403 in tandem provide the proper 

framework to assess video narration evidence by a witness who did not 

observe events in real time.

 The individual is not an eyewitness to a crime, which would require 

firsthand knowledge of the event. The witness is instead commenting on an 

independent source of evidence -- an objective recording of the event. And the 

testimony offered is based on the witness’s direct perception of the video. An 

investigator who has carefully reviewed a video a sufficient number of times 

prior to trial can therefore satisfy the rules’ “perception” and “personal 

knowledge” requirements as to what the video depicts. See N.J.R.E. 602, 

701(a); see also Begay, 42 F.3d at 502-03; Torralba-Mendia, 784 F.3d at 659. 

 But Rule 701 also contains a critical limiting requirement that is 

important in the context of narration evidence: a lay witness may only present 

testimony that will be helpful to the jury. N.J.R.E. 701(b). Whether narration 
50

testimony is “helpful” depends heavily on the nature of the recording and the 

proposed comments. Even though it is for the jury to determine what a 

recording depicts, there are times when narration testimony can help jurors 

better understand video evidence and aid them in “determining a fact in issue.” 

Ibid. 

Scenes like the video of hundreds of demonstrators and violent incidents 

in Begay are a good example. See 42 F.3d at 502. Other types of chaotic or 

confusing recorded events that are not easy to follow raise similar concerns. It 

is unrealistic to think jurors can absorb that type of content when a video is 

played at trial, or that they will repeatedly play a video during deliberations 

and trace individual movements from frame to frame. But whether a narrator 

is needed is not the critical question. Rule 701(b) asks whether evidence is 

helpful, not whether it is necessary. See Son, 270 Cal. Rptr. 3d at 90. 

 Lengthy videos present similar problems. Even with short videos, jurors 

might miss a small or nuanced detail. An investigator who has carefully 

analyzed a video and can draw a jury’s attention to particular spots can be 

quite helpful to the finder of fact. The jury can then “make its own 

evaluation.” Watson, 472 N.J. Super. at 465. 

 The clarity of a video can also be a relevant consideration. Id. at 468. If 

footage is unclear or grainy, but not reasonably in dispute, testimony from 
51

investigators might help the jury. The opposite is true if a video is so unclear 

that it is difficult to decipher and the parties dispute its contents. See, e.g., 

Higgs, 253 N.J. at 366-67. Also, narration testimony may not be helpful if a 

video is clear and not otherwise hard to follow or grasp. See Sanchez, 247 

N.J. at 473. 

 Screenshots, stills, composite videos, and other demonstrative aids can 

help focus on details that casual observers might miss. Any testimony about 

them, however, is likewise limited by the rules of evidence considered here. 

 In sum, whether narration evidence is helpful turns on the facts of each 

case. Rule 701’s helpfulness prong can be satisfied when an investigator 

draws attention to key details that might be missed, or helps jurors follow 

potentially confusing, complex, or unclear videos that may otherwise be 

difficult to grasp. Counsel may offer other reasons to allow limited narration 

testimony, which courts should evaluate with care. 

 Narration testimony must also comply with N.J.R.E. 403. The rule 

guards against the risk of “[u]ndue prejudice, confusion of issues, . . . 

misleading the jury, . . . [and] needless presentation of cumulative evidence.” 

Placing appropriate limits on narration testimony can help avoid those 

problems. 
52

 In holding that Rules 701, 602, and 403 provide a framework for the 

admission of narration evidence, we note again that such testimony must 

accord with specific limits we discuss later -- specifically, that witnesses 

cannot offer opinions on the content of a recording or comment on reasonably 

disputed facts. 

A trial court’s evidentiary ruling on the admissibility and scope of 

narration testimony is subject to review for abuse of discretion. Singh, 245 

N.J. at 20. 

E.

We provide additional guidance both to emphasize the limited nature of 

narration testimony and to ensure that the testimony does not improperly 

intrude on the jury’s domain. Although much of the case law addresses 

testimony by law enforcement officials, defense investigators can also present 

appropriate narration testimony. The following principles apply to both. 

 First, neither the rules of evidence nor the case law contemplates 

continuous commentary during a video by an investigator whose knowledge is 

based only on viewing the recording. To avoid running commentary, counsel 

must ask focused questions designed to elicit specific, helpful responses. 

“What do you see?” as an introductory question misses the mark. 
53

 Second, investigators can describe what appears on a recording but may 

not offer opinions about the content. In other words, they can present 

objective, factual comments, but not subjective interpretations. See Boyd, 439 

S.W.3d at 131; Begay, 42 F.3d at 503; see also N.J.R.E. 403. The “individual 

opened the door with his elbow” can be allowed if not reasonably disputed; he 

did so “to avoid leaving fingerprints” cannot. See Watson, 472 N.J. Super. at 

462. The former comment appropriately sets the stage for the factfinder to 

reach its own conclusion. 

 Third, investigators may not offer their views on factual issues that are 

reasonably disputed. See id. at 467-68. Those issues are for the jury to 

decide. See Higgs, 253 N.J. at 366-67 (cautioning against testimony by a law 

enforcement officer that “usurp[ed] the jury’s assessment of” disputed facts). 

So a witness cannot testify that a video shows a certain act when the opposing 

party reasonably contends that it does not. We include a reasonableness 

requirement to prevent a party from disputing all facts in a recording in a 

manner that does not reflect good faith. 

 Fourth, although lay witnesses generally may offer opinion testimony 

under Rule 701 based on inferences, investigators should not comment on what 

is depicted in a video based on inferences or deductions, including any drawn 

from other evidence. That type of comment is appropriate only for closing 
54

argument. We therefore do not adopt factor four -- “Inferences and 

Deductions” -- in the Appellate Division’s opinion. See Watson, 472 N.J. 

Super. at 468. 

 Consistent with those principles, an investigator who carefully reviewed 

a video in advance could draw attention to a distinctive shirt or a particular 

style of car that appear in different frames, which a jury might otherwise 

overlook. 

 In a drunk-driving case, an investigator could testify that a bartender 

served a beverage to a customer with a thick beard at 11:15 p.m., at 11:45 

p.m., and at 12:20 a.m. -- while focused on each individual frame. If the 

person’s identity is not in dispute, the investigator could testify that the 

bartender served the defendant. 

 But the investigator could not say the defendant had been drinking 

heavily for an hour and a half. Nor could an investigator say, “that’s the same 

blue car” or “that’s the defendant,” if those facts were disputed. See Singh, 

245 N.J. at 18. It is for the jury to draw those conclusions. 

 State v. Dante Allen provides additional examples of what narration 

evidence may and may not include. ___ N.J. ___ (2023). The case involved a 

shooting incident with sharply disputed facts. The State maintained the 

“defendant deliberately shot at [a] police officer”; defendant claimed his 
55

“handgun fired accidentally” and “was not aimed at the officer.” Id. at ___ 

(slip op. at 2). Both the officer and the defendant testified. The lead detective, 

who helped process the crime scene but did not observe the shooting incident, 

testified as well. Ibid. Among other things, he testified about the contents of a 

surveillance video that captured the shooting incident. Ibid. 

The Court found that certain parts of the detective’s testimony were 

improper. In particular, his testimony that the video showed the defendant turn 

and fire his weapon at the officer -- facts that were reasonably disputed -- was 

improper. Id. at ___ (slip op. at 22-23). The Court, however, found no error 

in the detective’s narration testimony about how parts of the video helped him 

“locate areas of interest for his processing of the crime scene.” Id. at ___ (slip 

op. at 8, 23). 

The above examples are illustrative; they are not a comprehensive list. 

To avoid missteps before the jury, prosecutors must provide a written summary 

of proposed narration testimony to defense counsel, and vice versa, before 

trial. Counsel should then confer among themselves to try to narrow areas of 

disagreement. For items that remain in dispute, the proponent of the evidence 

should file a motion in limine to introduce the narration testimony. See 

Watson, 472 N.J. Super. at 473. The trial court, in its discretion, may conduct 

a Rule 104 hearing to resolve any outstanding issues. Ibid. We call on the 
56

Criminal Practice Committee to consider including those steps in the court 

rules. 

The limiting principles and notice requirement outlined above address 

legitimate practical concerns about the admission of narration testimony. 

 Like the Appellate Division, we ask the Model Criminal Jury Charge 

Committee to develop appropriate jury instructions for narration testimony. 

See id. at 474-75. Among other things, jurors should be told that they, and not 

a narration witness, are to decide what a video shows, and that they may reject 

any narration testimony. Ibid.; see, e.g., Callaham, 268 A.3d at 848-49 (“[W]e 

endorse the trial court’s efforts to ensure that the jurors in this case understood 

that they were the finders of fact and it was for them to decide what the video 

footage showed.”).

F.

The above discussion does not alter other settled issues. 

 Any party may hire an expert to enhance the quality of an electronic or 

video recording. The witness, if qualified as an expert, can testify about the 

modification, consistent with N.J.R.E. 702. 

 To present evidence of more elaborate forensic techniques that track an 

individual across a video, like “pixel tracking,” a party is typically required to 

call an expert witness pursuant to Rule 702. See State v. Bruny, 269 A.3d 38, 
57

51-55 (Conn. 2022) (upholding expert testimony from an FBI forensic video 

analyst who relied on “his specialized experience in tracking analyses and the 

adaptation of computer technology to enhance . . . video surveillance footage” 

and create a 52-minute enhanced video; the expert “compiled footage from 

multiple cameras, lightened images, added alphanumeric labels” to track 

“individuals throughout the enhanced video, inserted ‘halos’ over images . . . 

and simultaneously displayed coverage from two cameras in a slow motion, 

split screen image”); Commonwealth v. Williams, 255 A.3d 565, 572-76 (Pa. 

Super. Ct. 2021) (upholding the expert testimony of a certified forensic video 

analyst who used “specialized tools” to track the movement of individuals and 

“validate that tracking”). 

 Specialized knowledge would not ordinarily be required for other types 

of adjustments, like adjusting the speed of a video or creating a straightforward 

composite video, a screenshot, or an enlarged photo from a video. A lay 

witness can testify about those basic techniques, and parties can, of course, 

stipulate to admissibility in this and other areas. Once again, though, more 

elaborate forensic techniques should be presented by a qualified expert 

consistent with N.J.R.E. 702. As video technology advances, such expertise 

may become more prevalent. 
58

A lay witness with the requisite knowledge can also testify about basic 

foundation issues: how long a recording is; when it was recorded; what device 

recorded it; the angle of the recording device; and similar points. See Watson, 

472 N.J. Super. at 466. 

G.

Because we reverse defendant’s conviction on the basis of the in-courtidentification evidence, it is not necessary to analyze each aspect of Sergeant 

Vitelli’s narration testimony. We instead offer a few observations about places 

where the testimony went awry. 

 As noted earlier, the testimony began with an open-ended question --

“What do you see?” -- rather than focused questions about particular factual, 

reasonably undisputed details that might help the jury. The prompt, and 

questions that followed, invited “play-by-play” commentary about the

suspect’s movements throughout the 57-second surveillance video: how he 

entered the bank, that he removed a glove, placed a demand note on the teller’s 

counter, held the note with two fingers, pushed open the door with his elbow, 

and appeared to run across the parking lot. The officer also described what 

appeared in various stills of the surveillance footage, without an objection 

from defense counsel. 
59

The video was not confusing, chaotic, or lengthy; the jury, in general, 

could follow it on its own. Continuous commentary and speculation about 

each step the robber took inside the bank did not satisfy the requirements of 

the rules of evidence. 

We make note of certain additional comments as well. At various 

points, the officer used qualifying language that sounded as though he was 

offering an opinion, rather than stating a fact. He testified, for example, that 

“it appears the suspect removes the glove”; “it appears that either his left hand 

is on the door or in the area of the door”; and “it looks like he’s using his 

elbow.” The officer may have used softer language in presenting the facts as a 

matter of style. On remand, the officer can clarify the nature of his proposed 

testimony before trial begins. He may not, however, testify at a retrial about 

what he suspected or believed had happened based on his observation of the 

video. See id. at 450. 

Nor may he offer his opinion about what the video or still photos depict. 

For example, it was not proper to tell the jury, “In my opinion, from my 

observations, it looks like the suspect has two fingers on the note, holding the 

note as it’s on the counter.” Similarly, it was not appropriate to offer an 

opinion that “the paper” between the robber’s fingertips and the surface was “a 

barrier.” 

------
60

Sergeant Vitelli also testified that “the suspect was very careful in . . . 

not attempting to leave any type of evidence behind.” The judge properly 

sustained defense counsel’s objection to the officer’s subjective opinion. The 

court should have also stricken the testimony and directed the jury not to 

consider it. 

Despite the brevity of the recording, it was appropriate to draw attention 

to the split second when the suspect used his elbow to open the outer door -- a 

point that might otherwise have been missed. On cross-examination, defense 

counsel could likewise have asked about the times defendant touched surfaces 

in the bank with his bare hands. Consistent with the above principles, 

defendants can also affirmatively call investigators, who have carefully 

reviewed a video, to highlight certain points. 

We note as well that the officer appropriately refrained from referring to 

the robber as “the defendant” in his testimony. See Singh, 245 N.J. at 5, 18. 

V. Confrontation Clause 

Finally, we briefly address defendant’s Confrontation Clause argument.

A.

The trial court denied the State’s pretrial motion to admit evidence of 

“other crimes” -- the robberies in Princeton and Somerset County -- under 
61

N.J.R.E. 404(b). The trial court allowed only limited sanitized testimony to 

explain how defendant had become a suspect. 

 At trial, Sergeant Vitelli answered two leading questions in order to 

provide context. He answered “yes” to “In November 2017, were you 

contacted by another law enforcement agency regarding Quintin Watson?” 

And he answered “yes, they were” to the compound question, “[A]t some point 

did you consult with that law enforcement agency . . . after which criminal 

complaints were signed against Mr. Watson?” (emphasis added). 

 The Appellate Division found the testimony violated the Confrontation 

Clause but was harmless error.3 Because the State prevailed on the issue on 

appeal, it was not required to file a cross-petition as to the court’s finding of a 

violation. See State v. Lefante, 14 N.J. 584, 589-90 (1954) (“[A] respondent 

who is merely seeking to maintain his judgment may brief and argue on the 

appeal any points that will sustain his judgment and if he does not brief and 

argue such points he will be taken to have waived them. Only when the 

respondent in certification is not relying on his judgment below but is seeking 

affirmatively to overrule or modify it must he cross-petition for 

3

 The parties debate the import of footnote 22 in the Appellate Division 

decision. See Watson, 472 N.J. Super. at 444 n.22. Parties should attempt to 

include all the reasons why they believe an error was -- or was not -- harmless 

in their briefs. But they do not waive a strand of a harmless error argument if 

they neglect to present it in writing and instead raise it at oral argument. 
62

certification.”); Chimes v. Oritani Motor Hotel, Inc., 195 N.J. Super. 435, 443 

(App. Div. 1984) (“[A]ppeals are taken from judgments, not opinions, and,

without having filed a cross-appeal, a respondent can argue any point on the 

appeal to sustain the trial court’s judgment.”). 

B.

A defendant’s right “to be confronted with the witnesses against him” is 

guaranteed by the Sixth Amendment to the Federal Constitution and Article I, 

Paragraph 10 of the State Constitution. When an officer conveys information 

from someone who does not testify, either “directly or by inference,” and the 

information incriminates the defendant, both the Confrontation Clause and the 

hearsay rule are implicated. State v. Branch, 182 N.J. 338, 350 (2005); see 

also State v. Bankston, 63 N.J. 263, 268-69 (1973). 

“The common thread” throughout our case law “is that a police officer 

may not imply to the jury that he possesses superior knowledge, outside the 

record, that incriminates the defendant.” Branch, 182 N.J. at 351; see also 

Bankston, 63 N.J. at 271; State v. Irving, 114 N.J. 427, 445-46 (1989); State v. 

Medina, 242 N.J. 397, 414-16 (2020). 

 Bankston elaborated on the problem. In that case, a police officer 

testified that he “had been talking to an informer and that based on information 

received,” he approached the defendant at a tavern. 63 N.J. at 266. Although 
63

the officer “never specifically repeated what the informer had told” him, the 

Court found that “the inescapable inference from [the] testimony was that the 

informer had given information that” implicated the defendant in a narcotics 

offense. Id. at 271. The informer never testified and was not subjected to 

cross-examination. Ibid. The Court concluded the testimony should not have 

been admitted and amounted to reversible error. Id. at 271-73. 

 Confrontation Clause challenges are fact-specific. In this case, the 

Appellate Division focused primarily on the prosecutor’s second question: 

Did the officer “consult with” another law enforcement agency “after which 

complaints were signed against” defendant? (emphasis added). The court 

concluded that, by answering affirmatively, the officer’s “testimony did indeed 

imply that the other agency possessed incriminating evidence that was shared 

with Officer Vitelli but not revealed to the jury.” Watson, 472 N.J. Super. at

429. The court explained the use of the word “consult” implied “an exchange 

of information” that “influenced” the decision to charge defendant with 

robbery in this case. Id. at 430-31. It is not entirely clear, however, whether 

the officer agreed to one or both parts of the compound question posed. 
64

At a retrial, the prosecution should not refer, directly or indirectly, to the 

fact that it “consulted” with another law enforcement agency.4 Nor should the 

prosecution link any interaction with another police department with the filing 

of a criminal complaint, to avoid suggesting that incriminating information 

was conveyed. 

VI. 

For the reasons outlined above, we reverse the judgment of the Appellate 

Division and remand for a new trial. 

JUSTICES PATTERSON, SOLOMON, PIERRE-LOUIS, WAINER 

APTER, and FASCIALE and JUDGE SABATINO (temporarily assigned) join 

in CHIEF JUSTICE RABNER’s opinion.

4

 We do not opine on what may be presented if the defense suggests the police 

acted arbitrarily or with an improper motive in conducting the investigation. 

See Branch, 182 N.J. at 352. That did not happen at the first trial.