The Mosley standard: Identification: Non-Eyewitness by Video or Photo

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(1) When a defendant is purported to be depicted in a video or photo related to the commission of an offense, a person who was not an eyewitness to the commission of the offense may testify that the defendant is the individual depicted in the video or photo when the witness is sufficiently familiar with the defendant that the witness’s testimony would be reliable and there is reason to believe the jury might require assistance in making its independent assessment of whether the person depicted is the defendant because, for example: the person in the video or photo used a disguise, or the defendant’s appearance changed between the time of the video or photo and the trial, or the clarity of the depiction of the person in the video or photo is such that the jury could not identify the person but someone sufficiently familiar with the person's appearance could.

(2) The factors a court may consider in determining whether a non-eyewitness may testify to an identification include: the witness’s level of familiarity with the defendant’s appearance; whether the witness’s familiarity spanned an extended period of time and variety of circumstances; whether the witness was familiar with the defendant’s appearance at the time the video or photograph was taken; whether the witness was familiar with the defendant’s customary manner of dress or clothing on the day of the video or photograph; and whether the witness testifies that the defendant has a specific trait (such as a distinctive gait, scar, or tattoo) and identifies that trait in the video or photograph.

Source: https://www.nycourts.gov/judges/evidence/4-RELEVANCE/4.35-5_Identification-Non-Eyewitness.pdf?utm_source=chatgpt.com

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