*********************************************** 

The “officially released” date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was 

released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions 

and petitions for certification is the “officially released” 

date appearing in the opinion. 

All opinions are subject to modification and technical 

correction prior to official publication in the Connecticut 

Reports and Connecticut Appellate Reports. In the event of 

discrepancies between the advance release version of an 

opinion and the latest version appearing in the Connecticut 

Law Journal and subsequently in the Connecticut Reports 

or Connecticut Appellate Reports, the latest version is to 

be considered authoritative. 

The syllabus and procedural history accompanying the 

opinion as it appears in the Connecticut Law Journal and 

bound volumes of official reports are copyrighted by the 

Secretary of the State, State of Connecticut, and may not 

be reproduced and distributed without the express written 

permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. 

*********************************************** 
STATE OF CONNECTICUT v. ANTRON GORE

(SC 20211)

McDonald, D’Auria, Mullins, Kahn,

Ecker and Keller, Js.

Syllabus

Pursuant to the applicable provision (§ 7-3 (a)) of the Connecticut Code of

Evidence, testimony in the form of an opinion is generally inadmissible

if it embraces an ultimate issue to be decided by the trier of fact.

Pursuant further to this court’s decision in State v. Finan (275 Conn. 60),

lay opinion testimony identifying a defendant in video surveillance footage had been deemed inadmissible when the identification embraced

an ultimate issue.

Convicted of the crimes of murder and criminal possession of a firearm in

connection with the shooting death of the victim, the defendant appealed

to this court, claiming, inter alia, that the trial court improperly had

admitted the testimony of P, a police officer, that C, a close friend of

the defendant, made a statement identifying the defendant in a still

photograph taken from a surveillance video of the shooting. At the start

of the defendant’s trial, the defendant filed a motion in limine, seeking

to preclude the state from introducing C’s statement to the police identifying the defendant in the surveillance video and still photograph. The

trial court ruled that C’s identification of the defendant in the surveillance

video would constitute lay opinion testimony concerning an ultimate

issue and thus was inadmissible under § 7-3 (a) of the Code of Evidence.

The court, however, left open the possibility that the state could introduce C’s identification of the defendant in the still photograph if the

state were able to demonstrate that C had, independently of the video,

identified the subject depicted in the still photograph as the defendant.

During C’s testimony at trial, C denied that he ever had identified the

defendant in the still photograph, and P testified, in accordance with

the court’s ruling, that C had told him that the subject in the still photograph was the defendant. During deliberations, the jury asked the court if

it could provide the jury with a magnifying glass. Over defense counsel’s

objection, the court provided the jury with a magnifying glass supplied

by the state. The jurors submitted a subsequent request for a ‘‘better’’

magnifying glass, which the trial court denied. After the verdict was

announced, the court learned that some of the jurors had used additional,

unauthorized magnifying glasses to view certain photographs in evidence. The court held a hearing to question the jurors about the matter,

and, on the basis of the answers the jurors provided and its observation

of the additional magnifying glasses, the court denied the defendant’s

motion for a mistrial and a new trial based on alleged juror misconduct. Held:

1. The defendant could not prevail on his claim that the trial court improperly

admitted P’s testimony that C had identified the subject in the still

photograph as the defendant:

a. This court amended § 7-3 (a) of the Connecticut Code of Evidence

and overruled Finan and its progeny, holding that opinion testimony

that relates to the identification of persons depicted in surveillance

video or photographs is not inadmissible simply because it embraces an

ultimate issue and that such lay opinion testimony is admissible if it

meets the general requirements for the admissibility of such testimony

set forth in § 7-1 of the Code of Evidence, that is, it is rationally based

on the perception of the witness and is helpful to a clear understanding

of the testimony of that witness or the determination of a fact in issue:

the application of the ultimate issue rule in § 7-3 (a) to identifications

of criminal defendants in video surveillance footage had spawned a line

of cases in which courts struggled to draw an illusory distinction between

fact and opinion testimony and to determine when such identifications

embrace an ultimate issue, and this court determined that the better

approach should focus on the relative helpfulness of the testimony

regarding the identification to the trier of fact versus the potential prejudice that such testimony would pose to the defendant; accordingly, this
court adopted a totality of the circumstances test under which courts

are to consider four factors in determining whether there is some basis

for concluding that the witness is more likely than the jury to correctly

identify the defendant from surveillance video or photographs, including

the witness’ general familiarity with the defendant’s appearance, the

witness’ familiarity with the defendant’s appearance, including items of

clothing worn, at the time that the surveillance video or photographs

were taken, any change in the defendant’s appearance between the time

the surveillance video or photographs were taken and the time of trial,

or the subject’s use of a disguise in the surveillance footage, and the

quality of the video of photographs, as well as the extent to which the

subject is depicted in the surveillance footage; moreover, with respect

to the first factor, the witness’ general familiarity with the defendant’s

appearance, this court declined to join the majority of jurisdictions that

adhere to a minimum threshold for general familiarity and concluded,

instead, that, in order for this factor to weigh in favor of admitting lay

opinion testimony relating to the identification of persons depicted in

surveillance footage, the proponent of the testimony must demonstrate

that the witness possesses more than a minimal degree of familiarity

with the defendant, and trial courts, in considering whether a witness’

level of familiarity with the defendant is sufficient to satisfy this factor,

should consider the particular, relevant circumstances, including, but

not limited to, the frequency, number and duration of any individual

prior contacts between the witness and the defendant, the duration of

the entire course of contacts and the length of time since the contacts,

the relevant viewing conditions, and the nature of the relationship

between the witness and the defendant, if any.

b. In the present case, although the record did not reflect whether the

defendant’s appearance had changed between the time the surveillance

video was recorded and the time of trial, C’s long-standing and intimate

association with the defendant, whom C had known for years, easily

satisfied the general familiarity factor, C was familiar with the defendant’s

appearance when the surveillance footage was recorded, the defendant

was not wearing a disguise in that footage, and the quality of the still

photograph weighed in favor of admission of the identification testimony,

as the trial court found that the subject in the photograph was close

enough to the camera and that the subject’s face was visible enough to

allow for recognition.

2. The trial court acted within its discretion in finding that the defendant

had failed to prove that he was prejudiced by the conduct of the jurors

in bringing into the deliberations two unauthorized magnifying glasses

to assist in their review of the photographic evidence, and, accordingly,

the trial court properly denied the defendant’s motion for a mistrial and

a new trial based on alleged juror misconduct; the trial court found that

the additional magnifying glasses did not allow the jury to do anything

different or additional beyond what the court provided magnifying glass

allowed and did not introduce new evidence or alter existing evidence.

Argued September 17, 2020—officially released February 7, 2022*

Procedural History

Information charging the defendant with the crimes

of murder and criminal possession of a firearm, brought

to the Superior Court in the judicial district of Hartford,

where the court, Schuman, J., denied in part the defendant’s motion to preclude certain evidence; thereafter,

the charge of murder was tried to the jury before Schuman, J.; verdict of guilty; subsequently, the charge of

criminal possession of a firearm was tried to the court;

finding of guilty; thereafter, the court, Schuman, J.,

rendered judgment in accordance with the jury verdict

and the court’s finding, from which the defendant appealed

to this court. Affirmed.

Julia K. Conlin, assigned counsel, with whom was

Emily Graner Sexton, assigned counsel, for the appellant (defendant).
Linda F. Currie-Zeffiro, senior assistant state’s attorney, with whom, on the brief, were Gail P. Hardy,

former state’s attorney, and Chris A. Pelosi, former

senior assistant state’s attorney, for the appellee (state).

Lisa J. Steele filed a brief for the Connecticut Criminal Defense Lawyers Association as amicus curiae.
Opinion

MULLINS, J. When the judges of the Superior Court

adopted the Connecticut Code of Evidence in 1999, § 7-

3 (a) codified the existing common-law evidentiary rule,

which prohibited lay opinion testimony that embraced

an ultimate issue to be decided by the trier of fact.1

In

accordance with that rule, this court held, in State v.

Finan, 275 Conn. 60, 66–67, 881 A.2d 187 (2005), that

lay opinion testimony identifying a defendant in video

surveillance footage is prohibited when that identification embraces an ultimate issue.

In this appeal, we reconsider the wisdom of the ‘‘ultimate issue rule’’ as applied to lay witness identifications

of persons depicted in video surveillance footage.2

In

this limited context, we join the majority of federal and

state jurisdictions in concluding that the rule is neither

tenable nor necessary. Accordingly, we hereby amend

§ 7-3 (a) of the Connecticut Code of Evidence to incorporate an exception to the ultimate issue rule for lay

opinion testimony that relates to the identification of

persons depicted in surveillance video or photographs,

and overrule State v. Finan, supra, 275 Conn. 60.3 As

we explain in part I of this opinion, we adopt a totality

of the circumstances test for determining whether lay

opinion testimony identifying a person in surveillance

video or photographs is admissible.

The defendant, Antron Gore, appeals from the judgment of conviction, rendered following a jury trial, of

murder in violation of General Statutes § 53a-54a (a),

and criminal possession of a firearm in violation of

General Statutes § 53a-217 (a) (1).4 The defendant raises

two claims on appeal. First, he contends that the trial

court improperly allowed an officer to testify regarding

a witness’ identification of the defendant in a still photograph taken from video surveillance footage. Second,

the defendant claims that the trial court improperly

denied his motion for a new trial based on juror misconduct.

With respect to the defendant’s first claim, the parties

originally relied on State v. Finan, supra, 275 Conn. 60,

in support of their respective positions. The defendant

argued that, because the witness’ identification constituted a lay opinion that embraced the ultimate issue to

be decided by the trier of fact, the admission of the

officer’s testimony recounting that lay opinion violated

§ 7-3 (a) of the Connecticut Code of Evidence. The state

responded that the officer’s testimony recounted the

witness’ factual recognition of the defendant in the

photograph, and, therefore, the testimony was not lay

opinion testimony subject to § 7-3 (a) of the Connecticut

Code of Evidence. Following oral argument, we ordered

the parties to submit supplemental briefs addressing

two issues: (1) ‘‘Whether this court should adopt [r]ule

704 (a) of the Federal Rules of Evidence5 and overrule
State v. Finan, [supra, 275 Conn. 60]?’’ (Footnote

added.) And (2) ‘‘[i]f the court adopts [r]ule 704 (a) of

the Federal Rules of Evidence, what standard should

govern the admission of lay opinion testimony identifying a defendant as depicted in photographic or video

surveillance?’’6

In his supplemental brief, the defendant urges the

court to refrain from abandoning the ultimate issue rule

and overruling Finan. The defendant contends that the

rule change would be drastic, and that he would suffer

unfair prejudice if the court applies the rule in the

present case. The defendant argues that, if the court

adopts rule 704 (a) of the Federal Rules of Evidence,

the standard by which the admissibility of lay opinion

testimony identifying a defendant in photographic or

video surveillance should be crafted in a manner designed

to protect, to the greatest extent possible, the jury’s role

as the fact finder.

As we explain subsequently in this opinion, our amendment of § 7-3 (a) to the Connecticut Code of Evidence

to incorporate an exception for testimony relating to

the identification of persons depicted in surveillance

video or photographs does not affect the result in this

appeal.7 We affirm the judgment of the trial court.

The jury could have found the following relevant

facts. At approximately 1 p.m. on January 20, 2017, the

defendant shot and killed the victim, Jason Reddick, at

a Sunoco gas station located at 550 Albany Avenue in

Hartford. Video surveillance cameras at the gas station,

as well as cameras located at nearby buildings on

Albany Avenue and Garden Street, captured the shooting. The video footage showed the victim, wearing a

turquoise hooded sweatshirt, walking toward one of

the gas pumps at the station. The shooter, subsequently

identified as the defendant, wore blue and white Nike

sneakers and a Los Angeles Lakers cap. He entered the

frame, pulled out a gun and fired once at the victim,

hitting him in the torso. The victim retreated on foot

northbound on Garden Street. The shooter followed

the victim, first in his vehicle, then on foot. The shooter’s

vehicle was an older model, green, four door Volvo,

with mismatched front and rear rims, a blue sticker

attached to the windshield and a unique license plate

holder.

Officers who reported to the scene discovered the

victim’s body in a parking lot at 520 Albany Avenue.

They also discovered one spent .25 caliber shell casing

near one of the gas pumps in the gas station lot and a

trail of blood leading northbound on Garden Street.

When the police later searched the defendant’s vehicle,

they found, under the driver’s seat, an unfired, .25 caliber bullet, with the same casing as the one found at the

gas station.

On the day following the shooting, the police located
an older model, green Volvo in the driveway at 31 Winchester Street in Hartford, the home of Caron Canty.

The Volvo had mismatched rims, a blue sticker on the

windshield and a license plate frame resembling the one

depicted in the surveillance video. The license plates

on the car were registered to a different vehicle, owned

by Crystal Gore. Detectives spoke with Canty, who told

them that the car belonged to the defendant. Canty

accompanied the detectives to the major crimes division of the Hartford Police Department, where he gave

a statement. Canty had never seen anyone other than

the defendant drive the Volvo, and, as far as Canty

knew, the defendant was the only person who had keys

to the car. The defendant lived in Middletown and,

when staying in Hartford, he sometimes left his car in

Canty’s driveway.

Canty described the defendant as a close friend,

whom he had known for ‘‘half [his] life.’’ He had seen

the defendant, whom he referred to as his ‘‘cousin,’’ on

most days around the time of 2016 and 2017. He, in

fact, had seen the defendant at approximately 5:30 p.m.

on the day of the shooting. On that day, the defendant

arrived at Canty’s home in the Volvo, wearing what

Canty described as a red ‘‘Nike outfit.’’ The defendant,

Canty, and the defendant’s sister’s boyfriend spent the

evening in the south end of Hartford together. The next

day, Canty and the defendant spent several hours

together at Canty’s house. The defendant departed before

the police arrived, but he left his car in Canty’s driveway.

At the station, the lead detective in the case, Jeffrey

Placzek, showed Canty a photograph of the defendant

that had been posted on the defendant’s Facebook page

in December, 2016, less than one month before the

shooting. Canty identified the defendant in the photograph, then signed, dated, and wrote the defendant’s

nickname, ‘‘Tron,’’ at the bottom of the photograph. In

the photograph, the defendant wore a Lakers cap and

blue and white sneakers. Placzek then showed Canty

a 2015 booking photograph of the defendant. After identifying the defendant in the photograph, Canty signed,

dated, and wrote ‘‘my cousin Tron’’ underneath the photograph.

Placzek next showed Canty a still photograph of the

vehicle in the video surveillance footage. Canty identified the vehicle as the defendant’s, then signed, dated,

and indicated on the back of the photograph that it was

the defendant’s vehicle.8 Finally, Placzek showed Canty

a still photograph taken from the video surveillance

footage. Canty identified the person depicted in the

photograph as the defendant. He signed, dated, and

wrote ‘‘Tron’’ on the back of the photograph.

Subsequently, during the defendant’s trial, Placzek

testified that Canty identified the subject depicted in

the still photograph as the defendant. Following his

conviction, the defendant appealed directly to this
court.

I

We first address the defendant’s claim that the trial

court improperly allowed Placzek to testify that Canty

had identified the defendant as the person depicted in

the still photograph taken from the video surveillance

footage. The parties’ disagreement centers on whether

the trial court properly concluded that Canty’s identification was not a statement of opinion but, rather, a

recounting of Canty’s factual recognition of the defendant. The state posited that it was permissible factual

testimony. The defendant countered that it was prohibited lay opinion. Until today, that distinction mattered.

As we explain in this opinion, the application of the

ultimate issue rule, as set forth in § 7-3 (a) of the Connecticut Code of Evidence, to identifications of criminal

defendants in video surveillance footage has spawned

a line of cases that, rather than focusing on the relative

helpfulness of the testimony to the trier of fact versus

the potential prejudice to the defendant, have struggled

to distinguish between fact and opinion testimony, and

then, if the testimony is deemed opinion testimony,

whether it embraces an ultimate issue. We now eschew

those distinctions in favor of focusing on whether a

witness’ testimony would be helpful to the jury and not

prejudicial to the defendant. We therefore conclude,

albeit on different grounds, that the trial court properly

admitted the testimony.

We emphasize that, even if we applied § 7-3 (a) of

the Connecticut Code of Evidence without the amendment we announce today, we would conclude that the

trial court acted within its discretion in admitting the

testimony. We nonetheless ground our decision on the

application of the rule change we announce today because

doing so illustrates the application of the new rule. In

addition, trial courts have struggled to apply § 7-3 (a)

of the Connecticut Code of Evidence in this context,

laboring both to draw an illusory distinction between

fact and opinion testimony suggested by Finan and

its progeny, and to determine when identifications of

persons in video footage or still photographs embrace

an ultimate issue.9 Rather than apply an analysis that

we have determined to be grounded on artificial and

illusory distinctions, we believe that the better approach

is to provide the trial courts with an illustration of the

application of the totality of the circumstances test that

we adopt today.

We begin with the following additional procedural

background. The primary issue at trial was identification. At the start of trial, the defendant filed a motion

in limine to preclude the state from introducing Canty’s

statement to the police identifying the defendant in the

video and the still photograph. The defendant argued

that the admission of Canty’s statement would violate
the prohibition in § 7-3 (a) of the Connecticut Code of

Evidence against lay opinion testimony that embraces

an ultimate issue to be decided by the trier of fact.

In support of his argument that such evidence would

constitute a statement of opinion, the defendant contended that the facial features of the subject were not

discernible in either the video or the still photograph.

The state relied on Canty’s familiarity with the defendant to argue that, even if the images of the individual

in the video and the still photograph were not clear to

persons unfamiliar with the defendant, they were discernible to Canty.

The court first determined that, because the video

footage shown to Canty preceded the footage showing

the actual shooting by only twenty seconds or so,

Canty’s identification of the defendant in the video

embraced an ultimate issue in the case—the identification of the shooter. Because § 7-3 (a) of the Connecticut

Code of Evidence applies only to opinion testimony,

the remaining issue was whether Canty’s identification

was a matter of fact or opinion. To resolve that question,

the trial court turned to this court’s decision in State

v. Finan, supra, 275 Conn. 60, and its progeny. Specifically, relying on the Appellate Court’s refinement of

Finan in State v. Felder, 99 Conn. App. 18, 25 n.6, 912

A.2d 1054, cert. denied, 281 Conn. 921, 918 A.2d 273

(2007), the trial court explained that, if there is a sufficient basis for recognition in the video or photograph,

a witness’ recognition of a subject based on their longstanding association is a statement of fact, not opinion.

Applying that principle from Felder, the trial court

found that, in the video footage, the suspect was too far

away to be recognized. Therefore, the court concluded,

Canty’s identification of the defendant in the video

would constitute lay opinion testimony as to an ultimate

issue to be decided by the trier of fact, in violation of

§ 7-3 (a) of the Connecticut Code of Evidence.

By contrast, the court found that the photograph

allowed for recognition because it showed the defendant’s face from fairly close up and still. Because Canty

indicated in his written statement, however, that he had

signed the back of the photograph ‘‘to confirm that this

was Tron in the video,’’ the court granted the motion

in limine as to both the video and the photograph. The

court reasoned that, because the person in the video

was not recognizable, any testimony stating that the

persons depicted in the photograph and the video were

one and the same, which inherently required a comparison between the two, was a matter of opinion.

The court left open the possibility that the state could

introduce Canty’s identification of the defendant in the

still photograph if it were able to demonstrate that

Canty had—independently of the video—identified the

subject depicted in the still photograph as the defendant. The state proposed to do precisely that through
the testimony of Placzek. Specifically, anticipating that

Canty would deny his identification of the defendant,

the state proposed that Placzek would testify that, during his interview with Canty, Canty verbally told Placzek, independently of his written statement and without

reference to the video, that the subject in the photograph was the defendant. The court ruled that Placzek’s

testimony as proposed by the state could come in for

the truth of the matter asserted pursuant to State v.

Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied,

479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986).

Thereafter, at trial, Canty denied that he ever identified

the defendant in the still photograph. Consistent with

the court’s ruling, Placzek testified that Canty had told

him that the subject in the still photograph was the

defendant.

In the context of lay witness identifications of a person in surveillance video or photographs, the prohibition against opinion testimony on an ultimate issue in

§ 7-3 (a) of the Connecticut Code of Evidence sometimes requires courts to draw tortuous distinctions in

order to render the rule workable. The present case

exemplifies the problem—in order to determine whether

the identification of the defendant as the subject in

the footage embraced an ultimate issue, the trial court

found itself counting the seconds between the footage

shown to the witness and the footage depicting the

offense. It is debatable whether a longer time gap would

always suffice to draw the distinction. In some cases,

the nature of the video footage may make it impossible

to identify the suspect as the defendant at any point in

the footage without also finding that the defendant is

depicted in the video as the person committing the

crime. For instance, if a shooter’s movements are

depicted without pause in hours of footage, including

during the actual shooting, the identification of the suspect as the defendant at the beginning of the video,

hours before the offense is recorded, may very well

embrace an ultimate issue.

Laborious calculations of the timing in video footage

represent only one of the potential hurdles set by § 7-

3 (a) of the Connecticut Code of Evidence. The Finan

decision illustrates a more fundamental challenge created by the ultimate issue rule—distinguishing between

testimony that ‘‘embraces an ultimate issue’’ and testimony that is simply material to the state’s case. In

Finan, four officers had identified the defendant as one

of two men depicted in video surveillance footage of a

convenience store clerk being robbed at gunpoint. State

v. Finan, supra, 275 Conn. 61–62. The video footage

depicted the two men entering the store, one armed

and one unarmed. The unarmed man, whom the officers

identified as the defendant, walked past the checkout

area out of camera range. The armed man, who

remained in camera range, aimed his gun at the store

clerk. The armed man then exited the store; the
unarmed man walked out simultaneously. Id., 62. Each

officer testified as to how long he or she had known

the defendant, ranging from eight to sixteen years, and

also testified as to what enabled him or her to identify

the defendant as the unarmed man depicted in the

video. Id., 63. The officers cited to details such as the

defendant’s profile, his mannerisms and his distinctive

walk. Id.

In its analysis of the defendant’s claim that the officers’ testimony violated § 7-3 (a) of the Connecticut

Code of Evidence, the Appellate Court concluded that

the testimony did not embrace an ultimate issue to be

decided by the trier of fact. State v. Finan, 82 Conn.

App. 222, 232, 843 A.2d 630 (2004). The court reasoned

that not ‘‘every fact that is material to guilt is, for that

reason alone, an ultimate issue.’’ Id. In order for an

issue or fact to embrace the ultimate issue, it must be

so interwoven with the question of guilt that it cannot

reasonably be separated. Id., 231. Although the identification of the defendant as one of the men in the video

was material to the state’s case, that identification could

be disentangled from the ultimate question of guilt. Id.,

232. All that the video proved, the court explained, was

that the defendant was in the store simultaneously with

the robber—the state still needed to prove that the

defendant had participated in the crime. Id. The court

concluded, therefore, that the officers’ testimony did

not violate § 7-3 (a) of the Connecticut Code of Evidence. See id., 233.

In the appeal to this court, although we began with

the same definition of ‘‘ultimate issue’’ as the Appellate

Court, this court concluded that the identifications

embraced an ultimate issue. State v. Finan, supra, 275

Conn. 66–67. This court’s review of the record persuaded it that the identification of the defendant as the

person shown in the video was central to the jury’s

determination of the defendant’s guilt. Id., 67–69.

Although this court’s decision in Finan did not discuss

whether there is a distinction between evidence that is

material and evidence that embraces the ultimate issue,

its analysis suggests that the court saw none.

In applying § 7-3 (a) of the Connecticut Code of Evidence, Connecticut courts have also struggled to distinguish between fact and opinion testimony. Although

this court has not had occasion to consider the distinction, the Appellate Court has done so. See State v. Holley, 160 Conn. App. 578, 127 A.3d 221 (2015), rev’d on

other grounds, 327 Conn. 576, 175 A.3d 514 (2018); State

v. Felder, supra, 99 Conn. App. 18. Both the Felder

and Holley decisions relied on the witness’ level of

familiarity with the defendant to distinguish between

factual recognition and mere opinion.

In Holley, the defendant was convicted of numerous

crimes, including felony murder, in connection with a

home invasion. State v. Holley, supra, 160 Conn. App.
582. At trial, the state presented testimony from Nicole

Clark, a coworker of the defendant, who identified him

on video surveillance footage taken on a bus he rode

home with his coconspirator after committing the

crimes. Id., 615. The Appellate Court concluded that

Clark’s testimony that she recognized the defendant’s

face in the still photographs from the footage ‘‘is not

characterized accurately as opinion testimony as to

whether the photograph depicted the defendant. Clark

recognized the defendant’s face as it appeared in the

still image based on the fact of her past acquaintance

with him; she did not merely offer an opinion as to

whether the still image depicted the defendant. Thus,

her testimony was based on the fact that she recognized

the defendant, not on an opinion that the photograph

depicted him.’’ (Emphasis in original.) Id., 617.

In Felder, the defendant was convicted of robbery

in the first degree and larceny in the third degree in

connection with a bank robbery. State v. Felder, supra,

99 Conn. App. 19–20. At trial, his girlfriend and former

roommate, Michelle Mills, testified that she recognized

him in photographs taken from the bank surveillance

video. Id., 21. Mills testified that her recognition of the

defendant was based on his head covering, sneakers,

nose and posture. Id. On appeal, the defendant relied

on this court’s decision in Finan to argue that Mills’

testimony should have been excluded as lay opinion

testimony that went to the ultimate issue. Id., 25 n.6.

The Appellate Court rejected the defendant’s claim on

the ground that Mills’ testimony did not constitute opinion testimony. Id. Although the court did not explain

the reasoning that led it to that conclusion, in the facts

section, the court specifically detailed Mills’ level of

familiarity with the defendant, listed the bases of her

recognition, and stated that she testified that she ‘‘recognized’’ the defendant. Id., 21.

Both Holley and Felder envision a continuum. At one

end, the testimony of witnesses with an intimate level

of familiarity, such as a parent or sibling, concerns

factual recognition, and such testimony is not subject

to § 7-3 (a) of the Connecticut Code of Evidence. At

the opposite end, witnesses who never met or saw the

defendant prior to identifying him as depicted in video

or still photographs would be prohibited by § 7-3 (a)

of the Connecticut Code of Evidence from offering lay

witness opinion testimony that embraces an ultimate

issue. The Felder/Holley approach holds a certain familiar appeal. After all, as the trial court in the present

case explained, it would be odd to question the ability

of a parent to recognize his or her child in a photograph

or video.

Our prior case law also offers insight into the particular nature of this type of identification evidence, namely,

the process of recognizing a familiar face. In Shields v.

State, 45 Conn. 266, 269 (1877), this court explained
that ‘‘[a] witness well acquainted with another usually

identifies him without conscious mental effort in the

way of comparison or inference. In the absence of striking peculiarities of form or feature the identification

may be, and often is, by the mere expression of countenance, which cannot be described. And the witness may

be correct in his opinion, and yet be unable to give a

single feature, or the color of the hair, or of the eyes,

or any particulars as to the dress. In such cases the

distinction between opinion and fact is so very nice

that it might perhaps have been as well to consider

such identification as a fact, like any other direct perception of the senses.’’ (Internal quotation marks omitted.)

To be sure, both the federal courts and legal scholars

have characterized the distinction between fact and

opinion as illusory. The United States District Court

for the Eastern District of New York summarized the

problem, observing that ‘‘Wigmore . . . questioned the

possibility of clearly distinguishing the two: ‘As soon

as we come to analyze and define these terms . . .

the distinction vanishes . . . .’ [7 J. Wigmore, Evidence

(Chadbourne Rev. 1978) § 1919]. Moore also acknowledged ‘the illusory quality of such a fact-opinion distinction.’ [11 J. Moore, Moore’s Federal Practice (2d Ed.

1976) § 701.02]. The critical point bearing on the issue

. . . is not simply the philosophical insight that statements usually contain both objective and subjective

components . . . but rather the practical experience

that opinions often represent a summary of statements

of fact. The lay witness uses his opinion as a shorthand

rendition of a set of collective facts otherwise difficult

to state.’’ (Citations omitted; internal quotation marks

omitted.)In re Franklin National Bank Securities Litigation, 478 F. Supp. 577, 584 (E.D.N.Y. 1979); see also

Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 168, 109

S. Ct. 439, 102 L. Ed. 2d 445 (1988) (observing that

‘‘[i]t has frequently been remarked that the distinction

between statements of fact and opinion is, at best, one

of degree: All statements in language are statements of

opinion, i.e., statements of mental processes or perceptions. So-called statements of fact are only more specific statements of opinion.’’ (Internal quotation marks

omitted.)); G. Bach, ‘‘Moderating the Use of Lay Opinion

Identification Testimony Related to Surveillance Video,’’

47 Fla. St. U. L. Rev. 445, 451 (2020) (‘‘[i]n its ‘purest form,’

lay opinion testimony is just a ‘shorthand rendition’ of

the facts that a witness observed’’).

In short—at least in this narrow context—we have

arrived at the same conclusion that prompted the advisory committee for the Federal Rules of Evidence to

abolish the ultimate issue rule. See Fed. R. Evid. 704

(a), advisory committee notes. Specifically, the advisory

committee notes to rule 704 (a) of the Federal Rules

of Evidence state that ‘‘[t]he rule was unduly restrictive,

difficult of application, and generally served only to
deprive the trier of fact of useful information. [7 J.

Wigmore, supra, §§ 1920 and 1921; C. McCormick, Evidence (1954) § 12]. The basis usually assigned for the

rule, to prevent the witness from ‘usurping the province

of the jury,’ is aptly characterized as ‘empty rhetoric.’

[7 J. Wigmore, supra, § 1920]. Efforts to meet the felt

needs of particular situations led to odd verbal circumlocutions which were said not to violate the rule.’’10

For all these reasons, we now hold that opinion testimony that relates to the identification of persons depicted

in surveillance video or photographs is not inadmissible

solely because it embraces an ultimate issue. Lay opinion testimony identifying a person in surveillance video

or photographs is admissible if that testimony meets

the requirements of § 7-1 of the Connecticut Code of

Evidence.11 That is, such testimony is admissible if the

opinion is ‘‘rationally based on the perception of the

witness and is helpful to a clear understanding of the

testimony of the witness or the determination of a fact

in issue.’’ Conn. Code Evid. § 7-1. To the extent that

this court’s decision in Finan is inconsistent with the

rule we adopt today, that decision and its progeny; see

State v. Holley, supra, 160 Conn. App. 578; State v.

Felder, supra, 99 Conn. App. 18; are overruled.12

Because § 7-1 of the Connecticut Code of Evidence

essentially mirrors rule 701 of the Federal Rules of

Evidence,13 we look to federal decisions for guidance

in determining whether the trial court in the present

case acted within its discretion in allowing the testimony. The Third Circuit explained the careful balancing

intended to be effectuated by rule 701 of the Federal

Rules of Evidence, which represents ‘‘a movement away

from . . . courts’ historically skeptical view of lay

opinion evidence, and is rooted in the modern trend

away from fine distinctions between fact and opinion

and toward greater admissibility. . . . The [r]ule is

nonetheless designed to exclude lay opinion testimony

that amount[s] to little more than choosing up sides

. . . or that merely tell[s] the jury what result to reach

. . . .’’ (Citations omitted; internal quotation marks

omitted.) United States v. Stadtmauer, 620 F.3d 238,

262 (3d Cir. 2010), quoting Fed. R. Evid. 704, advisory

committee notes.

We begin with the observation that identifications of

a defendant in surveillance video or photographs differ

from eyewitness identifications. Unlike eyewitness

identifications, which are grounded on the witness’ recollection of what the witness observed during the incident in question, an identification of a defendant by a

nonpercipient witness in surveillance video or photographs is grounded on the witness’ general familiarity

with the defendant’s appearance or the witness’ familiarity with the defendant’s appearance at the time that

the incident occurred.

An eyewitness, therefore, testifies regarding some-
thing that the jury cannot itself observe—that the eyewitness observed the defendant engaged in conduct

that is relevant to whether he committed the offense

with which he is charged. Jurors can never be on the

same footing as an eyewitness because they were not

there. In contrast, a witness who identifies the defendant in surveillance video or photographs testifies

regarding material that the jury also is able to observe.

Unlike the past events testified to by an eyewitness,

the video or photographs in evidence are physically

present in the courtroom. So is the defendant. The jury

is therefore able to compare the defendant with the

video or photographs. Accordingly, as a general rule,

nonpercipient lay opinion testimony identifying a defendant in surveillance video or photographs is admissible

only ‘‘if there is some basis for concluding that the

witness is more likely to correctly identify the defendant

from the photograph [or video] than is the jury.’’ United

States v. Farnsworth, 729 F.2d 1158, 1160 (8th Cir.

1984).

In making this determination, courts evaluate the

totality of the circumstances. See, e.g., United States

v. Beck, 418 F.3d 1008, 1015 (9th Cir. 2005). Courts

consider the following four factors relevant to determining whether the witness is more likely to correctly identify the defendant than is the jury: (1) the witness’

general level of familiarity with the defendant’s appearance; see, e.g., United States v. Jackman, 48 F.3d 1,

3–6 (1st Cir. 1995) (defendant’s former wife and two

acquaintances, each of whom had known defendant for

years, had sufficient relevant familiarity with defendant

to allow testimony identifying defendant in surveillance

footage); (2) the witness’ familiarity with the defendant’s appearance, including items of clothing worn, at

the time that the surveillance video or photographs

were taken; see, e.g., United States v. Saniti, 604 F.2d

603, 605 (9th Cir.) (roommates allowed to identify

defendant in surveillance footage based both on general

familiarity with defendant and familiarity with defendant’s clothing), cert. denied, 444 U.S. 969, 100 S. Ct. 461,

62 L. Ed. 2d 384 (1979); (3) a change in the defendant’s

appearance between the time the surveillance video or

photographs were taken and trial, or the subject’s use

of a disguise in the surveillance footage; see, e.g., United

States v. Farnsworth, supra, 729 F.2d 1160 (defendant

wore scarf over his face at time of robbery and had

grown full beard by time of trial); and (4) the quality

of the video or photographs, as well as the extent to

which the subject is depicted in the surveillance footage. See, e.g., United States v. Allen, 787 F.2d 933, 936

(4th Cir. 1986) (‘‘less than clear’’ quality of photographs,

which provided only ‘‘limited glimpses’’ of individual

depicted, rendered testimony of witnesses familiar with

defendant more helpful to jury), vacated on other

grounds, 479 U.S. 1077, 107 S. Ct. 1271, 94 L. Ed. 2d

132 (1987).
A witness’ general familiarity with the defendant is

relevant both to whether the testimony is rationally

based on the witness’ perception and whether the testimony is helpful to the fact finder. The Fourth Circuit

explained: ‘‘[T]estimony by those who knew defendants

over a period of time and in a variety of circumstances

offers to the jury a perspective it could not acquire

in its limited exposure to defendants. Human features

develop in the mind’s eye over time. These witnesses

had interacted with defendants in a way the jury could

not, and in natural settings that gave them a greater

appreciation of defendants’ normal appearance. Thus,

their testimony provided the jury with the opinion of

those whose exposure was not limited to three days in

a sterile courtroom setting.’’ Id.

Decisions of state and federal courts have set a low

bar for general familiarity, holding that, as long as a

witness has a greater degree of familiarity with the

defendant than does the jury, the general familiarity

requirement favors admissibility.14 For example, courts

have held this factor to support admissibility when law

enforcement witnesses gained familiarity with the

defendant by observing him from a distance. See, e.g.,

United States v. Houston, 813 F.3d 282, 287, 292 (6th

Cir.) (trial court properly allowed video surveillance

identification testimony of federal agent who had

observed defendant in drive-bys of defendant’s farm),

cert. denied, U.S. , 137 S. Ct. 567, 196 L. Ed. 2d

448 (2016); id., 292 (‘‘someone who is personally familiar with an individual is presumptively better able to

identify the individual in a photograph than a juror’’).

Courts have concluded that witnesses who have had a

handful of encounters of undetermined or brief duration

with the defendant have nonetheless acquired sufficient

general familiarity. See, e.g., United States v. Arroyo,

600 Fed. Appx. 11, 15 (2d Cir. 2015) (superintendent of

apartment building who recognized defendant as boyfriend of one of building’s tenants, and had seen defendant in building ‘‘several times,’’ was properly allowed

to identify defendant in video surveillance); United

States v. Kornegay, 410 F.3d 89, 95 (1st Cir. 2005) (holding that detective’s contact with defendant ‘‘on six occasions within a few months is within the zone that courts

have found acceptable to show that the witness was

sufficiently familiar with the defendant to provide a

useful identification’’); United States v. Pierce, 136 F.3d

770, 775 (11th Cir.) (identification testimony of probation officer who met defendant ten times over seven

months was properly admitted because those contacts

provided some basis for concluding that witness was

‘‘more likely’’ than jury to correctly identify defendant

from photograph (internal quotation marks omitted)),

cert. denied, 525 U.S. 974, 119 S. Ct. 430, 142 L. Ed.

2d 350 (1998); United States v. Wright, 904 F.2d 403,

404–405 (8th Cir. 1990) (court properly admitted identification testimony of police officer who had seen defen-
dant eight to ten times over two to three years); United

States v. Allen, supra, 787 F.2d 935 (familiarity requirement was met when parole officer briefly met defendant

on six or seven occasions); People v. Mixon, 129 Cal.

App. 3d 118, 129, 180 Cal. Rptr. 772 (1982) (police officer

possessed sufficient relevant familiarity when he had

never spoken with defendant but had seen him from

relatively close range on ‘‘numerous occasions’’ over

period between one and ten years (internal quotation

marks omitted)). Some courts have required even less,

holding that a witness who viewed the defendant on a

single occasion had sufficient general familiarity with

the defendant. See, e.g., United States v. Jackson, 688

F.2d 1121, 1123–25 (7th Cir. 1982) (witness who met

defendant only once, at holiday party, had sufficient

general familiarity), cert. denied, 460 U.S. 1043, 103 S.

Ct. 1441, 75 L. Ed. 2d 797 (1983); Robinson v. People,

927 P.2d 381, 382, 384 (Colo. 1996) (detective who had

single, prior encounter with defendant had sufficient

general familiarity); People v. Thompson, 49 N.E.3d 393,

408 (Ill. 2016) (witness who never met defendant, but

saw him once, when he was sleeping on porch of mutual

friend’s house, had sufficient familiarity); see also

annot., B. Filbert, ‘‘Admissibility of Lay Witness Interpretation of Surveillance Photograph or Videotape,’’ 74

A.L.R.5th 643, 654–74, § 3 [a] (1999) (citing cases in

which courts held that witness’ familiarity with defendant’s appearance was sufficient to render video or

photographic surveillance identification testimony

helpful to jury).

Even in jurisdictions expressing the standard for general familiarity in language that suggests a higher bar,

courts routinely find that standard met when the witness possesses marginally greater familiarity with the

defendant than does the jury. For example, in United

States v. LaPierre, 998 F.2d 1460, 1465 (9th Cir. 1993),

the Ninth Circuit identified two means by which a proponent could introduce this type of testimony—by

establishing general familiarity with the defendant or

by demonstrating changed appearance and familiarity

with the defendant’s appearance at the time of the incident.15 The court stated that the general familiarity

requirement is met when ‘‘the witness has had substantial and sustained contact with the person in the photograph.’’ (Emphasis added.) Id.

In LaPierre, the court held that neither of those conditions was met. There was no evidence that the defendant’s appearance had changed, and the witness, a

police officer, ‘‘not only did not know [the defendant],

he had never even seen him in person.’’ Id. Despite

the high standard for general familiarity described in

LaPierre, the Ninth Circuit subsequently has applied

the same low bar as that applied in other jurisdictions.

See, e.g., United States v. Beck, supra, 418 F.3d 1015

(witness who had seen defendant four times in two

month period for total of more than seventy minutes
was sufficiently familiar).

In the handful of cases in which courts applying either

rule 701 of the Federal Rules of Evidence or a state

analogue to the rule have concluded that witnesses

lacked sufficient general familiarity to favor admissibility, the witness had little or no familiarity with the

defendant. See, e.g., United States v. Fulton, 837 F.3d

281, 299 (3d Cir. 2016) (identification testimony was

improper when detectives’ sole familiarity with defendant was ‘‘very limited’’ and acquired only after defendant was under investigation), cert. denied, U.S. ,

139 S. Ct. 214, 202 L. Ed. 145 (2018); United States v.

Jadlowe, 628 F.3d 1, 24 (1st Cir. 2010) (testimony of

federal agent identifying defendant in surveillance footage was improperly admitted when agent made identification by comparing defendant’s image on screen with

his driver’s license photograph, which was in evidence),

cert. denied, 563 U.S. 926, 131 S. Ct. 1833, 179 L. Ed.

2d 788 (2011); United States v. LaPierre, supra, 998

F.2d 1465 (testimony was inadmissible when witness

did not know defendant, had never seen him in person,

and based identification in surveillance footage on

review of photographs of defendant and witnesses’

description of him); Commonwealth v. Vacher, 469

Mass. 425, 442, 14 N.E.3d 264 (2014) (video surveillance

identification testimony of detective was improperly

admitted when record did not reveal that ‘‘detective

possessed any special familiarity with the defendant

that the jury lacked, or that the defendant’s appearance

had changed since the time the footage was taken, such

that the jury needed assistance in identifying the individual depicted’’); see also annot., 74 A.L.R.5th, supra, § 3

[b], pp. 674–78 (citing cases in which courts have held

that witness’ level of familiarity with defendant was

insufficient to render testimony helpful to jury).

Courts have recognized that the concept of ‘‘familiarity’’ with another person is not an either/or dichotomy

of ‘‘unfamiliar’’ versus ‘‘familiar.’’ Universally, however,

courts have held that the degree of familiarity goes

to the weight rather than to the admissibility of the

testimony. For instance, in United States v. Jackson,

supra, 688 F.2d 1126, the Seventh Circuit concluded

that a witness who had met the defendant only once,

at a holiday party, was properly permitted to identify

the defendant in a surveillance photograph. The court

explained that, ‘‘[w]hile we recognize that there is a

difference between identification testimony which is

based [on] a [witness’] one social encounter with the

defendant and identification testimony which is based

[on] a [witness’] close and on-going relationship with

the defendant, we do not believe that the difference

. . . is determinative of the issue of admissibility of

the evidence. The amount of time that the witness had

to observe the defendant goes to the weight to be

accorded to the testimony by the jury rather than to

its admissibility.’’ Id., 1125; see also United States v.
Beck, supra, 418 F.3d 1012, 1015 (probation officer’s

four contacts with defendant, each for thirty minutes

or less, was sufficient for admissibility of testimony

identifying defendant in surveillance photograph, as

degree of familiarity goes to weight rather than to

admissibility); Robinson v. People, supra, 927 P.2d 384

(rejecting defendant’s challenge to testimony of detective, who had seen defendant once, that defendant was

depicted in surveillance photograph, as degree of familiarity goes to weight rather than to admissibility). But

see United States v. Calhoun, 544 F.2d 291, 294–96 (6th

Cir. 1976) (it was abuse of discretion to admit parole

officer’s testimony identifying defendant in surveillance

photograph because probative value was outweighed

by prejudice to defendant on basis that cross-examination to test witness’ level of familiarity with defendant

would reveal that he was on parole).

In summary, our review of the relevant case law

reveals that courts regularly find that this prong of the

totality of the circumstances inquiry favors admissibility unless the witness has had virtually zero prior contacts with the defendant. The low bar for general

familiarity renders this prong close to meaningless, a

mere rubber stamp on the road to admissibility. Rather

than inquiring whether a witness has some degree of

‘‘familiarity’’ with the defendant’s appearance, the general familiarity prong, as applied in federal and state

courts, merely asks whether the witness has ever, even

once, seen the defendant prior to identifying him in

surveillance video or photographs.

The low standard for general familiarity tends to favor

the prosecution.16 Although a defendant in some instances

may seek to introduce testimony that he is not the

person depicted in surveillance video or photographs;

see, e.g., United States v. Jackman, supra, 48 F.3d 4

(defendant’s brother testified that suspect depicted in

surveillance photographs was not defendant); in the

vast majority of cases, it is the state that seeks to introduce this type of testimony.

We conclude that the low threshold for general familiarity applied in virtually all jurisdictions that have considered the admissibility of lay witness identifications

of a defendant in surveillance video or photographs

does not afford sufficient protection to criminal defendants against good faith mistaken identifications. We

believe that the better rule is to require, in order for

the witness’ general familiarity with the defendant’s

appearance to weigh in favor of admissibility, that the

proponent of the testimony demonstrate that the witness possesses more than a minimal degree of familiarity with the defendant. We acknowledge that we are

eschewing the bright line rule applied by other jurisdictions in favor of one that relies on trial courts to exercise

their discretion to determine whether this factor supports admissibility. That determination will rest on the
facts and circumstances of each case. For instance,

although we are confident that viewing a defendant

sleeping on a porch on a single occasion is insufficient

to render a witness’ testimony identifying the defendant

in video surveillance footage reliable; contra People v.

Thompson, supra, 49 N.E.3d 408; we cannot rule out

the possibility that, under some circumstances, a single

encounter will be sufficient to satisfy this factor. In

exercising their discretion to determine whether the

proponent has satisfied this factor, courts should consider whether the witness’ level of familiarity with the

defendant is sufficient to render the identification reliable. In making that determination, courts should consider the particular, relevant circumstances, including,

but not limited to, the frequency, number and duration

of any individual prior contacts; the duration of the

entire course of contacts and the length of time since

the contacts; the relevant viewing conditions; and the

nature of the relationship between the witness and the

defendant, if any. Of course, under certain circumstances, an itemized review of some of these circumstances will not be required. For example, in the present

case, in which the witness had known the defendant

for half of his life, it would make little sense to question

the relevant viewing conditions during his contacts with

the defendant.

Our conclusion is guided in part by the measures

taken, both by this court and by the legislature, to protect defendants against good faith, mistaken identifications in the related context of eyewitness identification.

As we have observed in this opinion, eyewitness identifications are different from identifications of a defendant in surveillance footage. The two contexts, however,

overlap in one significant respect: both involve the witness’ claimed recognition of the defendant.

We have recognized that recent scientific developments ‘‘abundantly [demonstrate] the many vagaries of

memory encoding, storage and retrieval; the malleability of memory; the contaminating effects of extrinsic

information; the influence of police interview techniques and identification procedures; and the many

other factors that bear on the reliability of eyewitness

identifications.’’ (Internal quotation marks omitted.)

State v. Guilbert, 306 Conn. 218, 237, 49 A.2d 705 (2012).

In light of the growing body of scientific research and

studies revealing the fallibility of eyewitness identifications, this court has increased the procedural safeguards that apply in the context of eyewitness

identifications. See, e.g., State v. Harris, 330 Conn. 91,

115, 191 A.3d 119 (2018) (state constitution required

modification of factors set forth in Neil v. Biggers, 409

U.S. 188, 199–200, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972),

in light of ‘‘recent developments in social science and

the law’’); State v. Guilbert, supra, 234–35 (relying on

‘‘near perfect scientific consensus’’ in reversing longstanding bar on admission of expert testimony on falli-
bility of eyewitness identification); State v. Ledbetter,

275 Conn. 534, 578–79, 881 A.2d 290 (2005) (relying on

growing body of scientific research in invoking supervisory authority to require trial courts to instruct jury of

risk of misidentification in cases in which law enforcement failed to instruct witness that perpetrator may or

may not be present in identification procedure, unless

no significant risk of misidentification exists) (overruled in part on other grounds by State v. Harris, 330

Conn. 91, 191 A.3d 119 (2018)), cert. denied, 547 U.S.

1082, 126 S. Ct. 1798, 164 L. Ed. 2d 537 (2006).

The General Assembly has also enacted legislation

adding significant procedural protections in the context

of eyewitness identifications. See General Statutes § 54-

1p. In adding the procedural safeguards, the legislature,

like this court, relied on scientific research. See, e.g.,

54 H.R. Proc., Pt. 23, 2011 Sess., p. 7813, remarks of

Representative Gary Holder-Winfield (stating that new

procedural safeguards intended to incorporate ‘‘the latest scientific [research] and best procedures’’). None

of the procedural safeguards in § 54-1p is currently

required for witnesses who identify a defendant in surveillance video or photographs.17 In light of our restriction of this type of testimony to witnesses who possess

more than a minimal degree of familiarity with the

defendant, we deem it unnecessary at this time to

require any additional procedural protections in this

context. Requiring more than a minimal degree of familiarity in order for this prong to weigh in favor of admissibility significantly reduces the risk of mistaken identifications.

In comparison to the vast amount of scientific research

on stranger identifications, there have been only a small

number of studies focused on the accuracy of familiar

identifications. See J. Vallano et al., ‘‘Familiar Eyewitness Identifications: The Current State of Affairs,’’ 25

Psychol. Pub. Policy & L. 128, 128–29 (2019) (observing

that bulk of scientific studies of accuracy of eyewitness

identifications have focused on stranger identifications,

whereas ‘‘familiar identifications’’ have received only

‘‘sporadic and haphazard attention among social scientists and legal practitioners’’). The relevant field studies

in the area, however, are ‘‘remarkably consistent’’ and

demonstrate that, as a general rule, familiarity renders

an identification significantly more reliable than

stranger identifications. Id., 131; see also State v. Guilbert, supra, 306 Conn. 259–60 (recognizing, in context

of eyewitness identifications, that, ‘‘although there are

exceptions, identification of a person who is [wellknown] to the eyewitness generally does not give rise

to the same risk of misidentification as does the identification of a person who is not [well-known] to the eyewitness’’). The more problematic question is how much

familiarity is required to render an identification of a

defendant in surveillance video or photographs sufficiently reliable to allay concerns regarding a lack of
available procedural protections against a mistaken

identification.

As we have already stated, the concept of familiarity

encompasses a broad range of possibilities. Unlimited,

the term may include both a person’s spouse of fifty

years and a stranger’s onetime brief encounter. Few

would doubt the ability of a spouse to accurately identify his or her partner—even from the relatively poor

quality that is common among surveillance video and

photographs—but we do not have the same confidence

in an identification by a person who has a minimal

degree of familiarity with a defendant.18

We particularly note that, although familiarity increases

the accuracy of identifications, these identifications are

not immune from detracting factors such as expectations (the belief that one will come across a familiar

face), the presence of a disguise, cross-racial identifications, and an increased distance between the witness

and the target individual. J. Vallano et al., supra, 25

Psychol. Pub. Policy & L. 133. Requiring more than a

minimal degree of familiarity provides greater assurance that a witness’ identification of a defendant in

surveillance footage will be less affected by these

detractors. See V. Bruce et al., ‘‘Matching Identities of

Familiar and Unfamiliar Faces Caught on CCTV

Images,’’ 7 J. Experimental Psychol.: Applied 207, 212

(2001) (demonstrating high level of accuracy in high

degree familiarity identifications despite poor video

quality). Indeed, in a given case, the presence of such

detractors may prompt the trial court to exercise its

discretion to allow expert testimony on the risks of

misidentification pursuant to this court’s decision in

State v. Guilbert, supra, 306 Conn. 246–48. In addition,

the trial court may provide a cautionary jury instruction.

See, e.g., State v. Harris, supra, 330 Conn. 134–35 (‘‘it

may be appropriate for the trial court to craft jury

instructions to assist the jury in its consideration of

[the reliability of eyewitness testimony]’’).

In accordance with these principles, we decline to

join the majority of jurisdictions that adhere to a minimum threshold for general familiarity and hold that the

degree of a witness’ familiarity with a defendant goes

to the admissibility of the witness’ identification of the

defendant in surveillance video or photographs. In

order for the witness’ general familiarity with the defendant’s appearance to weigh in favor of admitting such

testimony, the proponent of the testimony must demonstrate that the witness possesses more than a minimal

degree of familiarity with the defendant. Some illustrative examples of persons who may satisfy this standard

are friends, longtime acquaintances, neighbors, coworkers, family members, and former classmates.

We believe that this standard comports with the

requirement of § 7-1 of the Connecticut Code of Evidence that lay witness opinion testimony must be ratio-
nally based on the perception of the witness and helpful.

When a witness who is familiar with the defendant’s

appearance views surveillance video or photographs

that may or may not depict him, that witness brings to

the task of identification an ability the jury cannot

acquire in the context of a criminal trial. The witness’

process of recognition is informed by having observed

the defendant in different contexts, over an extended

period of time. That wealth of experience renders the

testimony helpful to the jury. See United States v. Allen,

supra, 787 F.2d 936 (contrasting perspective of jury

with witness who had observed defendant in variety of

circumstances over extended period of time).

The remaining three factors—the witness’ familiarity

with the defendant’s appearance at the time of the surveillance footage, any change in the defendant’s appearance since the surveillance or any disguise worn by the

subject at the time of the surveillance, and the quality

of the video or photographs—also should be considered

under the totality of the circumstances along with the

witness’ general familiarity with the defendant. With

respect to the quality of the video or photographs, we

agree with the First Circuit that this factor favors admissibility when ‘‘the [video or] photographs are not either

so unmistakably clear or so hopelessly obscure that the

witness is no [better suited] than the jury to make the

identification.’’ United States v. Jackman, supra, 48

F.3d 5.

Applying these principles to the present case, we

conclude that Canty’s long-standing and intimate association with the defendant easily meets the general

familiarity prong, which favors admitting Placzek’s testimony that Canty had identified the suspect in the

photograph as the defendant. Canty and the defendant

had known each other for years. As Canty himself

stated, he had known the defendant for half his life.

They were so close that Canty described the defendant

as his cousin.

The second prong, the witness’ familiarity with the

defendant’s appearance at the time that the surveillance

footage was recorded, also weighs in favor of admissibility. Canty was familiar with the defendant’s appearance when the surveillance video was recorded. Indeed,

he spent several hours with the defendant both on the

day of the shooting and the following day. In addition,

at the time of the shooting, Canty saw the defendant

regularly—he spent time with the defendant on most

days. He was familiar with the type of clothing the

defendant wore, describing him as favoring Nike outfits.

As for the remaining two prongs, the record does not

reflect whether the defendant’s appearance changed

between the time the surveillance video was recorded

and the time of trial, and, although he wore a baseball

cap in the surveillance footage, he was not wearing a

disguise.19 The quality of the photograph, however, also
weighs in favor of admission. The trial court found that,

although it was not unmistakably clear, the subject was

close enough to the camera, and his face was visible

enough, to allow for recognition. The trial court, therefore, properly admitted Placzek’s testimony that Canty

had identified the subject in the photograph as the

defendant.

II

We next address the defendant’s claim that the trial

court improperly denied his motion for a mistrial and

a new trial based on alleged juror misconduct. Specifically, the defendant claims that the trial court abused

its discretion in denying the defendant’s motion for a

new trial, in which he argued that he suffered prejudice

when jurors brought in and used two unauthorized magnifying glasses to assist them in reviewing the photographic evidence during their deliberations. The state

responds that the trial court acted within its discretion

in concluding that the defendant had failed to prove that

he suffered prejudice due to the alleged misconduct.

We agree with the state.

The record reveals the following additional facts relevant to the resolution of this claim. In its final charge

to the jurors, the court instructed them that they were

not allowed to ‘‘go outside the evidence introduced in

court to find the facts.’’ On the first day of deliberations,

the jury sent the court a note requesting a magnifying

glass. Over defense counsel’s objection, the court

marked and sent to the jury a magnifying glass supplied

by the state.20 The jury sent a second note, requesting

a ‘‘better’’ magnifying glass—the court denied that

request.

After the verdict was announced, the trial judge met

with the jurors ‘‘to talk to [them] informally about the

trial process.’’ During that discussion, after the jurors

had returned the magnifying glass that the court had

provided to them, the judge observed one of the jurors

remove a different magnifying glass from her backpack,

then replace it. The court subsequently held a hearing,

pursuant to State v. Brown, 235 Conn. 502, 668 A.2d

1288 (1995), during which the court questioned both

the foreman and the female juror who had displayed

the magnifying glass. The female juror confirmed that

she had brought in a magnifying glass, a toy belonging

to her preschool aged son. She told the court that,

although she did not use that magnifying glass, she

believed that at least two other jurors did.

She informed the court that the foreman had also

brought in a magnifying glass. She saw the foreman use

the magnifying glass that he had brought but did not

see anyone else use it. When the court pressed for more

information regarding how the jurors had used the extra

magnifying glasses, she explained that the jurors wished

to use the magnifying glasses to assist them in evaluat-
ing the photographs that were not very clear, particularly the still photograph of the suspect taken from the

video surveillance footage.

When the court questioned the foreman, he confirmed that he had brought a magnifying glass into court

during deliberations. He told the court that the glass is

called a ‘‘loupe,’’ and it is used in photography for viewing negatives. The glass was old and foggy, no better

than reading glasses. He used the magnifying glass to

view the still photograph of the suspect. He believed

that one or two jurors seated near him also viewed the

photograph through the magnifying glass.

Over the course of an additional two days, the court

questioned the remaining jurors. Two of the jurors were

questioned by telephone set to speaker mode in the

courtroom. Most recalled seeing at least one of the

additional magnifying glasses; many recalled both. Most

of them remembered seeing at least some jurors using

one of the additional magnifying glasses. The consensus

was that people were using the magnifying glasses to

view the photographs, particularly the still photographs

from the video surveillance footage.

In its memorandum of decision denying the defendant’s motion for a mistrial and a new trial, the trial

court found that neither of the additional magnifying

glasses, both of which had been marked as exhibits

for the purpose of the hearing, had high powers of

magnification. As to the loupe, the court found that it

was quite foggy. The court also found that the additional

two magnifying glasses did not allow the jury to do

anything different or additional beyond what the court

provided magnifier allowed.

Moreover, the court observed that ‘‘[t]he additional

magnifiers did not introduce new evidence or alter

existing evidence. Like the magnifying glass that the

court authorized, the additional magnifying glasses simply allowed the jury to look closer at existing evidence,

which was part of their task as jurors.’’ The magnifying

glasses, the court added, were ‘‘essentially neutral.’’ The

closer look allowed by a magnifier equally could have

benefitted the defendant or the state and, therefore,

was not inherently prejudicial to the defendant.

We review a trial court’s determination as to whether

juror misconduct has prejudiced a party for abuse of

discretion. See, e.g., State v. Roman, 262 Conn. 718,

727, 817 A.2d 100 (2003). ‘‘We recognize that the trial

judge has a superior opportunity to assess the proceedings over which he or she personally has presided . . .

and thus is in a superior position to evaluate the credibility of allegations of jury misconduct, whatever their

source.’’ (Citations omitted.) State v. Brown, supra, 235

Conn. 527–28. For both forms of relief requested by the

defendant, a mistrial and a new trial, he bore the burden

of establishing that the alleged misconduct prejudiced
him. See Practice Book § 42-43 (in motion for mistrial,

defendant must show that alleged error resulted in ‘‘substantial and irreparable prejudice to the defendant’s

case’’); Practice Book § 42-53 (in motion for new trial,

defendant must show that error was ‘‘materially injurious’’ to him). In light of the trial court’s findings that

the two unauthorized magnifiers did not allow the jurors

to do anything different or additional beyond what the

court provided magnifier allowed and did not introduce

new evidence or alter existing evidence, we conclude

that the court acted within its discretion in finding that

the defendant had failed to prove that he was prejudiced

by the alleged misconduct.

The judgment is affirmed.

In this opinion the other justices concurred.

* February 7, 2022, the date that this decision was released as a slip

opinion, is the operative date for all substantive and procedural purposes.

1 Section 7-3 of the Connecticut Code of Evidence provides: ‘‘(a) General

rule. Testimony in the form of an opinion is inadmissible if it embraces an

ultimate issue to be decided by the trier of fact, except that, other than as

provided in subsection (b), an expert witness may give an opinion that

embraces an ultimate issue where the trier of fact needs expert assistance

in deciding the issue.

‘‘(b) Mental state or condition of defendant in a criminal case. ‘No expert

witness testifying with respect to the mental state or condition of a defendant

in a criminal case may state an opinion or inference as to whether the

defendant did or did not have the mental state or condition constituting an

element of the crime charged or of a defense thereto, except that such

expert witness may state his diagnosis of the mental state or condition of

the defendant. The ultimate issue as to whether the defendant was criminally

responsible for the crime charged is a matter for the trier of fact alone.’

General Statutes § 54-86i.’’

2 Although we use the terms ‘‘surveillance video’’ and ‘‘surveillance footage’’ in this opinion, our reasoning applies with equal force to identifications

of a defendant in other types of video recordings and photographs that

depict an event relevant to the case. For example, the rule we announce

today would apply to any identifications of a defendant in cell phone videos

or photographs.

3 We emphasize that the rule change we announce today extends to identifications of any ‘‘person’’ depicted in surveillance video or photographic

footage. Because the current appeal involves a criminal defendant, however,

for ease of discussion, we sometimes refer to ‘‘defendants’’ depicted in

surveillance video or photographic footage. Those references are not

intended to narrow the scope of the exception we announce today to the

ultimate issue rule.

4 The trial court found the defendant guilty of criminal possession of a

firearm in violation of § 53a-217 (a) (1).

5 Rule 704 (a) of the Federal Rules of Evidence provides that ‘‘[a]n opinion

is not objectionable just because it embraces an ultimate issue.’’

6 Subsequent to the issuance of the supplemental briefing order, we

granted the application of the Connecticut Criminal Defense Lawyers Association for permission to submit an amicus brief.

7 The defendant urges the court not to make the rule change in this appeal,

contending that we should not raise the issue sua sponte. We disagree.

This appeal presents appropriate circumstances for this court to raise the

question sua sponte. The record is adequate for review, all parties have

been afforded the opportunity to be heard, and, because our application of

the amendment to § 7-3 (a) of the Connecticut Code of Evidence does not

affect the result of the appeal, the defendant will not suffer prejudice. See,

e.g., In re Yasiel R., 317 Conn. 773, 790, 120 A.3d 1188 (2015); Blumberg

Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., 311

Conn. 123, 155–61, 84 A.3d 840 (2014).

We emphasize that our narrow holding today is limited to the context of

identifications of persons depicted in surveillance video or photographs.

We do not address in this appeal whether we should abandon the ultimate

issue rule in its entirety.

8 Placzek also showed Canty an excerpt from the video itself, and Canty
identified the suspect in the video as the defendant. The jury did not hear

any evidence that Canty had identified the defendant in the video, however,

because the trial court granted the defendant’s motion in limine seeking to

preclude that identification.

9

In the present case, for example, during the hearing on the defendant’s

motion in limine, the trial court posed one hypothetical after another to

counsel, trying to navigate the distinction between identifications that constitute factual recognition and ones that are opinion testimony.

We also take judicial notice of the transcripts in State v. Bruny, 342 Conn.

169, A.3d (2022), which we also decide today. See Karp v. Urban

Redevelopment Commission, 162 Conn. 525, 527, 294 A.2d 633 (1972)

(‘‘[t]here is no question . . . concerning our power to take judicial notice

of files of the Superior Court, whether the file is from the case at bar or

otherwise’’). In Bruny, which also involves lay witnesses who identified the

defendant in surveillance footage, the trial court spoke more directly about

the difficulties of applying Finan. Specifically, the court commented on the

artificial distinction it was required to draw between video footage that

shows the offense being committed and footage that does not, in order to

determine whether the identification embraced an ultimate issue. The court

further remarked on the uncertainty regarding whether the ultimate issue

rule controlled when a witness was familiar with the defendant, thus highlighting the difficulty of the fact/opinion distinction.

10 The vast majority of states also have enacted evidentiary codes abolishing the ultimate issue rule. See Alaska R. Evid. 704; Ariz. R. Evid. 704 (a);

Ark. R. Evid. 704; Cal. Evid. Code § 805 (Deering 2004); Colo. R. Evid. 704;

Del. R. Evid. 704; Fla. Stat. Ann. § 90.703 (West 2011); Ga. Code Ann. § 24-

7-704 (a) (2013); Haw. R. Evid. 704; Idaho R. Evid. 704; Ill. R. Evid. 704; Ind.

R. Evid. 704 (a); Iowa R. Evid. 5.704; Kan. Stat. Ann. § 60-456 (d) (Cum.

Supp. 2020); La. Code Evid. Ann., art. 704 (2017); Me. R. Evid. 704; Md. R.

Evid. 5-704 (a); Mich. R. Evid. 704; Minn. R. Evid. 704; Miss. R. Evid. 704;

Mont. R. Evid. 704; Neb. Rev. Stat. § 27-704 (2016); Nev. Rev. Stat. § 50.295

(2019); N.H. R. Evid. 704; N.J. R. Evid. 704; N.M. R. Evid. 11-704; N.C. R.

Evid. 704; N.D. R. Evid. 704; Ohio R. Evid. 704; Okla. Stat. Ann. tit. 12, § 2704

(West 2020); Or. Rev. Stat. § 40.420 (2017); Pa. R. Evid. 704; R.I. R. Evid.

704; S.C. R. Evid. 704; S.D. Codified Laws § 19-19-704 (2016); Tenn. R. Evid.

704; Tex. R. Evid. 704; Utah R. Evid. 704 (a); Vt. R. Evid. 704; Wn. R. Evid.

704; W. Va. R. Evid. 704; Wis. Stat. Ann. § 907.04 (West 2000); Wyo. R. Evid.

704; see also Supreme Judicial Court Advisory Committee on Massachusetts

Evidence Law, Massachusetts Guide to Evidence (2021) § 704, p. 177 (summarizing Massachusetts law).

Virginia’s evidentiary rule prohibits ‘‘opinion testimony on the ultimate

issues of fact’’ in criminal proceedings, but not in civil cases. Va. R. Evid.

2:704. A lay witness who is familiar with the defendant and identifies him

in surveillance footage does not, however, testify as to an ultimate fact.

Under Virginia law, ‘‘[u]ltimate issues of fact for purposes of the conviction

of a crime are the statutory elements of [the] offense.’’ (Internal quotation

marks omitted.) Bowman v. Commonwealth, 30 Va. App. 298, 303, 516

S.E.2d 705 (1999); see id. (testimony of defendant’s father-in-law identifying

defendant in video surveillance footage did not implicate ‘‘ultimate issue of

fact’’ (internal quotation marks omitted)).

Alabama is the only state other than Connecticut that has, through its

evidence code, expressly and categorically barred opinion testimony as to

an ultimate issue. See Ala. R. Evid. 704 (‘‘[t]estimony in the form of an

opinion or inference otherwise admissible is to be excluded if it embraces

an ultimate issue to be decided by the trier of fact’’). The Supreme Court

of Alabama, however, has long held that testimony identifying a defendant

as depicted in a surveillance video or photograph by a witness who has

general familiarity with the defendant is not opinion evidence; rather, the

witness is ‘‘testifying to facts that are within his personal knowledge.’’ Ex

parte Rieber, 663 So. 2d 999, 1011 (Ala.), cert. denied, 516 U.S. 995, 116 S.

Ct. 531, 133 L. Ed. 2d 437 (1995).

Kentucky’s evidence code does not expressly address the ultimate issue

rule. The decision of the Supreme Court of Kentucky in Stringer v. Commonwealth, 956 S.W.2d 883 (Ky. 1997), cert. denied, 523 U.S. 1052, 118 S. Ct.

1374, 140 L. Ed. 2d 522 (1998), however, resolved the issue. In Stringer, the

court recognized that its decisions in this area had been inconsistent. Id.,

890–91. The court overruled the decisions that were inconsistent with rule

704 (a) of the Federal Rules of Evidence and clarified that ‘‘[w]e now once

again depart from the ‘ultimate issue’ rule and rejoin the majority view on

this issue.’’ Id., 891.
Missouri’s evidence code also does not expressly abandon the ultimate

issue rule as to lay opinion testimony. Recent authority, however, follows

the majority rule that such testimony is not necessarily barred. See State

v. Saucy, 164 S.W.3d 523, 530 (Mo. App. 2005) (witness properly allowed

to identify defendant in surveillance video; because she lived with defendant

at time of crime and defendant’s appearance had since changed, and, therefore, witness more likely than jury to correctly identify defendant in videotape).

New York has no code of evidence. The New York Court of Appeals,

however, has upheld a trial court’s decision to allow lay witness opinion

testimony identifying a defendant in surveillance photographs. People v.

Russell, 79 N.Y.2d 1024, 1025, 594 N.E.2d 922, 584 N.Y.S.2d 428 (1992).

11 In this appeal, we address the effect of the rule change we announce

today on the admissibility of lay opinions identifying a person in video or

photographic surveillance footage. In State v. Bruny, 342 Conn. 169,

A.3d 169 (2022), also decided today, we address the effect of the rule change

on the admissibility of expert opinions in the same context.

12 Notwithstanding the codification of the common law in the Code of

Evidence, this court retains the authority to ‘‘develop and change the rules

of evidence through case-by-case common-law adjudication.’’ State v.

DeJesus, 288 Conn. 418, 421, 953 A.2d 45 (2008). Subsequent to the publication of this court’s opinion in DeJesus, the legislature authorized this court

to adopt the Connecticut Code of Evidence and expressly stated: ‘‘Nothing

in this section shall limit with respect to the law of evidence the authority

of the Supreme Court under common law . . . .’’ General Statutes § 51-14a

(c). This court’s subsequent notice of adoption emphasized our continuing

authority over the code, noting that, ‘‘[i]n adopting the Code of Evidence,

the Supreme Court expressly reserved to itself its common-law authority

regarding the law of evidence.’’ 76 Conn. L.J., No. 4, p. 1D (July 22, 2014);

see also E. Prescott, Tait’s Handbook of Connecticut Evidence (6th Ed.

2019) §§ 1.1.4 through 1.1.7, pp. 10–16.

13 Rule 701 of the Federal Rules of Evidence provides: ‘‘If a witness is not

testifying as an expert, testimony in the form of an opinion is limited to

one that is:

‘‘(a) rationally based on the [witness’] perception;

‘‘(b) helpful to clearly understanding the [witness’] testimony or to

determining a fact in issue; and

‘‘(c) not based on scientific, technical, or other specialized knowledge

within the scope of Rule 702.’’

14 Notably, even Alabama, the only other state besides Connecticut that

expressly retains the ultimate issue rule in its code of evidence; see footnote

10 of this opinion; has held that a lay witness may testify regarding the

identity of a defendant in surveillance video or photographs if the witness

‘‘is better qualified or in a better position than the jury to draw the conclusion

of identity from those facts personally observed by or known to [the witness].’’ Hardy v. State, 804 So. 2d 247, 269 (Ala. Crim. App. 1999), cert.

denied, 534 U.S. 1043, 122 S. Ct. 621, 151 L. Ed. 2d 543 (2001); see also Ex

parte Rieber, 663 So. 2d 999, 1011–12 (Ala.), cert. denied, 516 U.S. 995, 116

S. Ct. 531, 133 L. Ed. 2d 437 (1995).

If we were to retain the applicability of the ultimate issue bar to identifications of persons depicted in surveillance video or photographs, we would

find the reasoning of Ex parte Rieber, supra, 663 So. 2d 999, and Hardy v.

State, supra, 804 So. 2d 247, persuasive to the extent that it is consistent

with the Appellate Court decisions in State v. Felder, supra, 99 Conn. App.

18, and State v. Holley, supra, 160 Conn. App. 578. Specifically, Alabama

courts treat the testimony of a witness who identifies a defendant as depicted

in surveillance video or photographs—and who has sufficient general familiarity with a defendant—as fact, rather than opinion testimony. Ex parte

Rieber, supra, 1011. Such testimony, therefore, is not categorically barred

by the ultimate issue rule. To determine whether testimony identifying a

defendant in surveillance video or photographs is admissible, Alabama

courts evaluate the totality of the circumstances in the same manner as the

state and federal decisions on which we rely in this case. See Hardy v.

State, supra, 804 So. 2d 270–71 (quoting United States v. Pierce, supra, 136

F.3d 774–75, for the applicable standard).

Thus, even without the rule change we announce today, we would have

applied similar reasoning to that relied on by the Alabama courts, as well

as Felder and Holley. Given Canty’s familiarity with the defendant, both

generally and at the time that the surveillance footage was recorded, those

principles would have led us to the same conclusion that we arrive at
today, namely, that Canty’s identification of the defendant in the surveillance

footage, as testified to by Detective Placzek, was admissible.

15 The Ninth Circuit subsequently adopted the totality of the circumstances

approach followed by the majority of jurisdictions. See United States v.

Beck, supra, 418 F.3d 1015.

16 The disadvantage that criminal defendants suffer due to the majority

rule favoring admissibility unless the witness has no familiarity with the

defendant is most pronounced when the witness is a member of law enforcement. See generally G. Bach, supra, 47 Fla. St. U. L. Rev. 445 (highlighting

problems presented by law enforcement testimony in particular). Courts

have recognized the risk that ‘‘testimony from law enforcement or corrections personnel may increase the possibility of prejudice to the defendant

either by highlighting the defendant’s prior contact with the criminal justice

system, if the [witness’] occupation is revealed to the jury, or by effectively

constraining defense counsel’s ability to undermine the basis for the [witness’] identification on cross-examination . . . .’’ United States v. Pierce,

supra, 136 F.3d 776; see also United States v. Calhoun, supra, 544 F.2d

294–96.

Because the present case does not involve direct lay opinion testimony

from a member of law enforcement, we need not determine whether to adopt

any additional limitations on the use of such testimony. Some safeguards

that may merit future consideration include (1) restricting the use of lay

opinion testimony by members of law enforcement to instances ‘‘when no

other adequate identification testimony is available to the prosecution’’;

United States v. Farnsworth, supra, 729 F.2d 1161; see also United States

v. Butcher, 557 F.2d 666, 670 (9th Cir. 1977); (2) barring testimony concerning

the nature of the relationship between the defendant and the law enforcement witness; see G. Bach, supra, 47 Fla. St. U. L. Rev. 475–76; (3) allowing

the defendant an opportunity to examine the proffered witness outside the

presence of the jury, thus affording the trial court the opportunity to rule

on admissibility without risking prejudice to the defendant; see People v.

Thompson, supra, 49 N.E.3d 407; (4) limiting the number of law enforcement

witnesses who may offer such testimony; see G. Bach, supra, 476–77; and

(5) requiring that the witness have gained familiarity with the defendant

prior to the litigation. Id., 478.

17 Indeed, some of those protections would not be applicable or appropriate in this context. For instance, the prohibition against visible writings

or information concerning any previous arrest of the person suspected as

the perpetrator simply does not apply in this context. See General Statutes

§ 54-1p (c) (8). Another example: we question whether a requirement that

lineups be presented sequentially would be appropriate in this context.

18 One study found the effects of a high degree of familiarity to have a

significant impact on the accuracy of identifications from low quality closedcircuit television footage. See generally V. Bruce et al., ‘‘Matching Identities

of Familiar and Unfamiliar Faces Caught on CCTV Images,’’ 7 J. Experimental

Psychol.: Applied 207 (2001). One of the experiments in the study involved

two sets of participants. The first group had a high level of familiarity with

the target face in the video. The second group was unfamiliar with any

people in the experiment. Id., 208. Both groups were asked to determine

whether a photograph matched the target person shown in poor quality

video images. Id. The participants with a high degree of familiarity were

able to match or reject matches with more than 90 percent accuracy, despite

the poor quality of the video images. Id., 212. By comparison, the participants

with no familiarity were able to accurately match or reject a match approximately 75 percent of the time. Id.

19 Because we examine the totality of the circumstances in determining

whether the identification testimony was admissible, the failure to satisfy

this single factor to support admitting the testimony is not fatal. That weakness may be highlighted during cross-examination and in closing argument.

See, e.g., United States v. Jackman, supra, 48 F.3d 5 (witnesses’ lack of

familiarity with defendant’s appearance at precise time of robbery did not

render testimony inadmissible).

20 This court has held that it is within the discretion of the trial court to

allow a jury to use a magnifying glass to inspect photographic evidence

during deliberations. State v. Wallace, 78 Conn. 677, 678–79, 63 A. 448 (1906).