Eleventh Circuit Finds Rule 701(a) Violation in Identification Testimony by Detective

January 25, 2024

Federal Rule of Evidence 701 provides that

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’s perception;

(b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and

A good example of a violation of Rule 701(a) can be found in the recent opinion of the Eleventh Circuit in United States v. Daniels, 2024 WL 259756 (1th Cir. 2024).

In Daniels,

On October 7, 2019, Myrlande Dorziere was working at a 7-Eleven store at 533 NW 103rd St. in Miami, Florida. Around 7:26 p.m., a black male entered the store and asked Dorziere for Newport cigarettes. Dorziere turned to get the cigarettes, and when she turned back towards the man, he was pointing a gun at her. The man said, “Don’t do anything stupid. Open both registers and give me the money.” Dorziere complied.

According to Dorziere, the robber wore red shoes, a long-sleeve blue shirt, and a brimmed hat “like [the] ones the construction people” wear. When the police showed her a lineup, Dorziere identified Jonathan Daniels as the robber, stating that she knew it was Daniels “[a]s soon as [she] saw [Daniels’s] picture.” Cell site data showed that Daniels’s cellphone was detected in the general area of 533 NW 103rd St. between 7:06 p.m. and 7:15 p.m. on the day of the robbery. The robbery occurred around 7:26 p.m.

In addition to testimony by Dorziere, the jury heard from Detective Brad Hyatt, who testified “that, at the time of the photo lineup, he knew the identity of the robbery suspect and then later said that the person depicted in a still image from the robbery was the defendant, Daniels.”

According to the Eleventh Circuit,

Daniels is correct that Hyatt’s testimony contravened Rule 701(a). Hyatt was not an eyewitness to any of the robberies, and therefore, his identification of Daniels was not “rationally based on [his] perception.”…To be sure, “lay opinion identification testimony may be helpful to the jury where…‘there is some basis for concluding that the witness is more likely to correctly identify the defendant from [surveillance footage] than is the jury.’” …But the government does not explain why Hyatt was more likely than the jury to correctly analyze the surveillance footage. Thus, Hyatt’s opinion violated Rule 701(a).

Nonetheless, the Eleventh Circuit noted that Daniels failed to preserve this issue for appellate review and did not find that the admission of Hyatt’s testimony constituted plain error.

-CM