[180 NJSuper Page 96] Defendant Vincent M. Carbone is charged with the commission of five armed robberies at various banks between April 10, 1979 and July 3, 1979. During each of the bank robberies surveillance cameras were activated and took photographs of the alleged perpetrator. The photographs reveal an individual having a mustache and full beard, and wearing sunglasses. At
the time of his arrest Carbone had a mustache but no beard. Despite efforts by the State to obtain an identification of this defendant as the bank robber by witnesses at the scene, in only one of the robberies has any form of identification of this defendant by a witness been made.
Utilizing the bank surveillance photographs, however, the State has secured statements from a number of persons who knew Carbone at the time of the robberies that the person depicted in the photographs is Vincent Carbone. These persons include a boyhood friend of defendant who is presently a police officer, another policeman who was present at a wedding with defendant during the period of time immediately following the series of robberies, and other personal friends of defendant, all of whom were friendly and familiar with defendant at the time of the robberies. By way of pretrial memorandum, the State has alerted the court of its intent to offer into evidence the surveillance photographs and the testimony of these individuals that in their opinion the person in the photographs is defendant Vincent Carbone, notwithstanding that the individuals were not eyewitnesses to any of the robberies. The defense has filed a pretrial memorandum objecting to such evidence. I have conducted a hearing on this matter and decided to permit the State to introduce the photographs and testimony into evidence.
The issue before the court is a novel one in our jurisdiction and involves an interpretation of Evid. R. 56, which provides in pertinent part:
(1) If the witness is not testifying as an expert, his testimony in the form of opinion or inferences is limited to such opinions or inferences as the Judge finds (a) may be rationally based on the perceptions of the witness and (b) are helpful to a clear understanding of his testimony or to the determination of the facts in issue.
The question before me is whether this rule may be read so as to permit lay-witness testimony of personal photographic identification of a defendant before a jury by a person not a witness to a crime but with personal knowledge of and familiarity with a defendant's appearance at the time of the commission of the
offense charged where the defendant's appearance has changed since that time.
Although a matter of first impression in New Jersey, this same issue has been recently raised in a number of federal court opinions dealing with federal Evid. R. 701, which is identical to our own Evid. R. 56. Those cases have balanced the probative value of such evidence with the potential prejudice to defendant engendered by the possibility that such testimony will intrude upon the factfinding province of the jury as to the identification of the perpetrator.
For example, in United States v. Calhoun , 544 F.2d 291 (6 Cir. 1976), the prosecutor introduced opinion testimony at defendant's bank robbery trial of defendant's parole officer who identified defendant as the bank robber based on bank surveillance photographs of the alleged robber. In that case the court noted that one who was intimately acquainted with the defendant at the time of the robbery might be in a better position than the jury to recall his appearance and compare it with the photographs, particularly where there is evidence (as in the case before me) that defendant's appearance had changed since the time of the robbery. 544 F.2d at 295. The court, however, in ruling that such evidence had been improperly admitted, rested its holding on the fact that due to the witness' position as defendant's parole officer, defendant had been denied his right to effective cross-examination, since a probing and uninhibited questioning as to the basis of and motive for the identification would have revealed the witness' position (which the jury did not know) and thus the highly prejudicial fact that defendant was a convicted felon on parole. Id. In the instant case such prejudice is not present; although two of the potential witnesses are police officers, their relationship with Carbone was a personal one, not related to their status as law enforcement figures.
In United States v. Butcher , 557 F.2d 666 (9 Cir. 1977), at defendant's trial for bank robbery, the trial judge permitted the state to introduce the ...