State v. Gore ( 2022 )


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    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 foot-
    age 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 identi-
    fying 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 intro-
    duce 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 photo-
    graph 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 evi-
    dence. 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 miscon-
    duct. 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 preju-
    dice 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 defen-
    dant’s motion to preclude certain evidence; thereafter,
    the charge of murder was tried to the jury before Schu-
    man, 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 appel-
    lant (defendant).
    Linda F. Currie-Zeffiro, senior assistant state’s attor-
    ney, 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 Crimi-
    nal 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 identifica-
    tion embraces an ultimate issue.
    In this appeal, we reconsider the wisdom of the ‘‘ulti-
    mate 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 incor-
    porate 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 judg-
    ment 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 photo-
    graph taken from video surveillance footage. Second,
    the defendant claims that the trial court improperly
    denied his motion for a new trial based on juror mis-
    conduct.
    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 consti-
    tuted 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 identi-
    fying 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 amend-
    ment 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 shoot-
    ing. 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 cali-
    ber 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 Win-
    chester 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 divi-
    sion 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 photo-
    graph, 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 iden-
    tifying the defendant in the photograph, Canty signed,
    dated, and wrote ‘‘my cousin Tron’’ underneath the pho-
    tograph.
    Placzek next showed Canty a still photograph of the
    vehicle in the video surveillance footage. Canty identi-
    fied 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 identifi-
    cation was not a statement of opinion but, rather, a
    recounting of Canty’s factual recognition of the defen-
    dant. The state posited that it was permissible factual
    testimony. The defendant countered that it was prohib-
    ited 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 Con-
    necticut 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 amend-
    ment 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 identifica-
    tion. 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 con-
    tended 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 defen-
    dant 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 dis-
    cernible 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 identifica-
    tion 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. Specifi-
    cally, 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 suffi-
    cient basis for recognition in the video or photograph,
    a witness’ recognition of a subject based on their long-
    standing 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 defen-
    dant’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 compari-
    son 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 defen-
    dant. 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, dur-
    ing his interview with Canty, Canty verbally told Plac-
    zek, independently of his written statement and without
    reference to the video, that the subject in the photo-
    graph 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 per-
    son in surveillance video or photographs, the prohibi-
    tion against opinion testimony on an ultimate issue in
    § 7-3 (a) of the Connecticut Code of Evidence some-
    times 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 sus-
    pect 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 cre-
    ated by the ultimate issue rule—distinguishing between
    testimony that ‘‘embraces an ultimate issue’’ and testi-
    mony 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 offi-
    cers’ 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 identifi-
    cation 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 Evi-
    dence. 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 per-
    suaded 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 Evi-
    dence, Connecticut courts have also struggled to distin-
    guish between fact and opinion testimony. Although
    this court has not had occasion to consider the distinc-
    tion, the Appellate Court has done so. See State v. Hol-
    ley, 
    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 opin-
    ion 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 ‘‘recog-
    nized’’ 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 famil-
    iar 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 particu-
    lar 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 strik-
    ing peculiarities of form or feature the identification
    may be, and often is, by the mere expression of counte-
    nance, 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 per-
    ception of the senses.’’ (Internal quotation marks omit-
    ted.)
    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 acknowl-
    edged ‘the illusory quality of such a fact-opinion distinc-
    tion.’ [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 state-
    ments 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 Liti-
    gation, 
    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 percep-
    tions. So-called statements of fact are only more spe-
    cific 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 advi-
    sory 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, Evi-
    dence (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 circum-
    locutions which were said not to violate the rule.’’10
    For all these reasons, we now hold that opinion testi-
    mony that relates to the identification of persons depicted
    in surveillance video or photographs is not inadmissible
    solely because it embraces an ultimate issue. Lay opin-
    ion 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 testi-
    mony. 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’ rec-
    ollection of what the witness observed during the inci-
    dent in question, an identification of a defendant by a
    nonpercipient witness in surveillance video or photo-
    graphs is grounded on the witness’ general familiarity
    with the defendant’s appearance or the witness’ famil-
    iarity 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 eye-
    witness 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 defen-
    dant 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 defen-
    dant 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 determin-
    ing whether the witness is more likely to correctly iden-
    tify the defendant than is the jury: (1) the witness’
    general level of familiarity with the defendant’s appear-
    ance; 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 defen-
    dant’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 defen-
    dant’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 foot-
    age. 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 testi-
    mony 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 famil-
    iar 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 boy-
    friend of one of building’s tenants, and had seen defen-
    dant 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) (hold-
    ing that detective’s contact with defendant ‘‘on six occa-
    sions 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 proba-
    tion 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 identi-
    fication 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 require-
    ment 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 Inter-
    pretation 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 defen-
    dant’s appearance was sufficient to render video or
    photographic surveillance identification testimony
    helpful to jury).
    Even in jurisdictions expressing the standard for gen-
    eral familiarity in language that suggests a higher bar,
    courts routinely find that standard met when the wit-
    ness 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 pro-
    ponent 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 inci-
    dent.15 The court stated that the general familiarity
    requirement is met when ‘‘the witness has had substan-
    tial and sustained contact with the person in the photo-
    graph.’’ (Emphasis added.) 
    Id.
    In LaPierre, the court held that neither of those con-
    ditions was met. There was no evidence that the defen-
    dant’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 admissibil-
    ity, 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 defen-
    dant was ‘‘very limited’’ and acquired only after defen-
    dant 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 foot-
    age was improperly admitted when agent made identifi-
    cation 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 individ-
    ual 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 ‘‘familiar-
    ity’’ 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 detec-
    tive, who had seen defendant once, that defendant was
    depicted in surveillance photograph, as degree of famil-
    iarity 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-examina-
    tion 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 admissibil-
    ity unless the witness has had virtually zero prior con-
    tacts 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 gen-
    eral 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 intro-
    duce this type of testimony.
    We conclude that the low threshold for general famil-
    iarity applied in virtually all jurisdictions that have con-
    sidered the admissibility of lay witness identifications
    of a defendant in surveillance video or photographs
    does not afford sufficient protection to criminal defen-
    dants 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 wit-
    ness possesses more than a minimal degree of familiar-
    ity with the defendant. We acknowledge that we are
    eschewing the bright line rule applied by other jurisdic-
    tions in favor of one that relies on trial courts to exercise
    their discretion to determine whether this factor sup-
    ports 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 con-
    sider whether the witness’ level of familiarity with the
    defendant is sufficient to render the identification reli-
    able. In making that determination, courts should con-
    sider 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 circum-
    stances, an itemized review of some of these circum-
    stances 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 pro-
    tect defendants against good faith, mistaken identifica-
    tions in the related context of eyewitness identification.
    As we have observed in this opinion, eyewitness identi-
    fications are different from identifications of a defen-
    dant in surveillance footage. The two contexts, however,
    overlap in one significant respect: both involve the wit-
    ness’ claimed recognition of the defendant.
    We have recognized that recent scientific develop-
    ments ‘‘abundantly [demonstrate] the many vagaries of
    memory encoding, storage and retrieval; the malleabil-
    ity of memory; the contaminating effects of extrinsic
    information; the influence of police interview tech-
    niques 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 identifica-
    tions, this court has increased the procedural safe-
    guards 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 long-
    standing 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 supervi-
    sory authority to require trial courts to instruct jury of
    risk of misidentification in cases in which law enforce-
    ment failed to instruct witness that perpetrator may or
    may not be present in identification procedure, unless
    no significant risk of misidentification exists) (over-
    ruled 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 lat-
    est scientific [research] and best procedures’’). None
    of the procedural safeguards in § 54-1p is currently
    required for witnesses who identify a defendant in sur-
    veillance video or photographs.17 In light of our restric-
    tion 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 famil-
    iarity in order for this prong to weigh in favor of admissi-
    bility significantly reduces the risk of mistaken identifi-
    cations.
    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 Eyewit-
    ness 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 scien-
    tists 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. Guilb-
    ert, supra, 
    306 Conn. 259
    –60 (recognizing, in context
    of eyewitness identifications, that, ‘‘although there are
    exceptions, identification of a person who is [well-
    known] to the eyewitness generally does not give rise
    to the same risk of misidentification as does the identifi-
    cation of a person who is not [well-known] to the eye-
    witness’’). The more problematic question is how much
    familiarity is required to render an identification of a
    defendant in surveillance video or photographs suffi-
    ciently 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 iden-
    tify 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 expecta-
    tions (the belief that one will come across a familiar
    face), the presence of a disguise, cross-racial identifica-
    tions, 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 assur-
    ance 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 mini-
    mum 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 defen-
    dant’s appearance to weigh in favor of admitting such
    testimony, the proponent of the testimony must demon-
    strate that the witness possesses more than a minimal
    degree of familiarity with the defendant. Some illustra-
    tive examples of persons who may satisfy this standard
    are friends, longtime acquaintances, neighbors, cowork-
    ers, family members, and former classmates.
    We believe that this standard comports with the
    requirement of § 7-1 of the Connecticut Code of Evi-
    dence 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 sur-
    veillance footage, any change in the defendant’s appear-
    ance 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 admis-
    sibility 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 asso-
    ciation with the defendant easily meets the general
    familiarity prong, which favors admitting Placzek’s tes-
    timony 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 admissi-
    bility. Canty was familiar with the defendant’s appear-
    ance 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, there-
    fore, 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. Specifi-
    cally, 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 mag-
    nifying glasses to assist them in reviewing the photo-
    graphic 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 rele-
    vant 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, particu-
    larly the still photograph of the suspect taken from the
    video surveillance footage.
    When the court questioned the foreman, he con-
    firmed 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 view-
    ing 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 defen-
    dant’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 sim-
    ply 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 proceed-
    ings over which he or she personally has presided . . .
    and thus is in a superior position to evaluate the credibil-
    ity 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 ‘‘sub-
    stantial and irreparable prejudice to the defendant’s
    case’’); Practice Book § 42-53 (in motion for new trial,
    defendant must show that error was ‘‘materially injuri-
    ous’’ 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 foot-
    age’’ 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 identifi-
    cations 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 Associ-
    ation 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 consti-
    tute 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 high-
    lighting the difficulty of the fact/opinion distinction.
    10
    The vast majority of states also have enacted evidentiary codes abolish-
    ing 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 (sum-
    marizing 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. Common-
    wealth, 
    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, there-
    fore, witness more likely than jury to correctly identify defendant in vid-
    eotape).
    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 publica-
    tion 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 wit-
    ness].’’ 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 identifica-
    tions 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 famil-
    iarity 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 enforce-
    ment. 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 correc-
    tions 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 [wit-
    ness’] 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 enforce-
    ment 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 appro-
    priate 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 closed-
    circuit 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 approxi-
    mately 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 weak-
    ness 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).