State v. Gore

***********************************************
    The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.

   All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.

   The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
     STATE OF CONNECTICUT v. ANTRON GORE
                  (SC 20211)
                      McDonald, D’Auria, Mullins, Kahn,
                           Ecker and Keller, Js.

                                    Syllabus

Pursuant to the applicable provision (§ 7-3 (a)) of the Connecticut Code of
     Evidence, testimony in the form of an opinion is generally inadmissible
     if it embraces an ultimate issue to be decided by the trier of fact.
Pursuant further to this court’s decision in State v. Finan (275 Conn. 60),
     lay opinion testimony identifying a defendant in video surveillance 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).


***********************************************
    The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.

   All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.

   The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
     STATE OF CONNECTICUT v. ANTRON GORE
                  (SC 20211)
                      McDonald, D’Auria, Mullins, Kahn,
                           Ecker and Keller, Js.

                                    Syllabus

Pursuant to the applicable provision (§ 7-3 (a)) of the Connecticut Code of
     Evidence, testimony in the form of an opinion is generally inadmissible
     if it embraces an ultimate issue to be decided by the trier of fact.
Pursuant further to this court’s decision in State v. Finan (275 Conn. 60),
     lay opinion testimony identifying a defendant in video surveillance 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        (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).


***********************************************
    The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.

   All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.

   The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
     STATE OF CONNECTICUT v. ANTRON GORE
                  (SC 20211)
                      McDonald, D’Auria, Mullins, Kahn,
                           Ecker and Keller, Js.

                                    Syllabus

Pursuant to the applicable provision (§ 7-3 (a)) of the Connecticut Code of
     Evidence, testimony in the form of an opinion is generally inadmissible
     if it embraces an ultimate issue to be decided by the trier of fact.
Pursuant further to this court’s decision in State v. Finan (275 Conn. 60),
     lay opinion testimony identifying a defendant in video surveillance 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 opin-
ion testimony that relates to the identification of per-
sons 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 opin-
ion 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 improp-
erly allowed an officer to testify regarding a witness’
identification of the defendant in a still photograph taken
from video surveillance footage. Second, the defendant
claims that the trial court improperly denied his motion
for a new trial based on juror misconduct.
   With respect to the defendant’s first claim, the parties
originally relied on State v. Finan, supra, 275 Conn. 60,
in support of their respective positions. The defendant
argued that, because the witness’ identification 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’ fac-
tual 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 opin-
ion testimony identifying a defendant as depicted in
photographic or video surveillance?’’6
   In his supplemental brief, the defendant urges the
court to refrain from abandoning the ultimate issue rule
and overruling Finan. The defendant contends that the
rule change would be drastic, and that he would suffer
unfair prejudice if the court applies the rule in the present
case. The defendant argues that, if the court adopts rule
704 (a) of the Federal Rules of Evidence, the standard
by which the admissibility of lay opinion testimony iden-
tifying a defendant in photographic or video surveil-
lance 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 defen-
dant 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 Ave-
nue and Garden Street, captured the shooting. The video
footage showed the victim, wearing a turquoise hooded
sweatshirt, walking toward one of the gas pumps at the
station. The shooter, subsequently identified as the defen-
dant, 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 Gar-
den 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 defen-
dant, 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 con-
stitute a statement of opinion, the defendant contended
that the facial features of the subject were not discern-
ible in either the video or the still photograph. The state
relied on Canty’s familiarity with the defendant to argue
that, even if the images of the individual in the video and
the still photograph were not clear to persons unfamiliar
with the defendant, they were discernible to Canty.
   The court first determined that, because the video
footage shown to Canty preceded the footage showing
the actual shooting by only twenty seconds or so,
Canty’s identification of the defendant in the video
embraced an ultimate issue in the case—the 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 defendant’s face
from fairly close up and still. Because Canty indicated
in his written statement, however, that he had signed
the back of the photograph ‘‘to confirm that this was
Tron in the video,’’ the court granted the motion in limine
as to both the video and the photograph. The court rea-
soned that, because the person in the video was not recog-
nizable, any testimony stating that the persons depicted
in the photograph and the video were one and the same,
which inherently required a comparison between the
two, was a matter of opinion.
   The court subsequently ruled that Placzek’s testimony
that Canty had told him that the subject in the still photo-
graph was the defendant was admissible pursuant to
§ 8-5 (2) of the Connecticut Code of Evidence, which
provides that the ‘‘identification of a person made by
a declarant prior to trial where the identification is
reliable’’ is not excluded from evidence by the hearsay
rule, provided the declarant is available for cross-exami-
nation at trial. The court noted that Canty was available
for cross-examination at trial. Although the court did
not expressly state that it found Canty’s identification
to be reliable, that finding may be inferred by the court’s
reference, in its ruling, to Canty’s ‘‘long-standing associ-
ation with [the defendant].’’ The court ruled that Plac-
zek’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 deter-
mination 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 analy-
sis 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 character-
ized 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 pho-
tographs would be prohibited by § 7-3 (a) of the Con-
necticut Code of Evidence from offering lay witness
opinion testimony that embraces an ultimate issue. The
Felder/Holley approach holds a certain familiar appeal.
After all, as the trial court in the present case explained,
it would be odd to question the ability of a parent to
recognize his or her child in a photograph or video.
   Our prior case law also offers insight into the 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 identi-
fies him without conscious mental effort in the way of
comparison or inference. In the absence of striking
peculiarities of form or feature the identification may
be, and often is, by the mere expression of countenance,
which cannot be described. And the witness may be
correct in his opinion, and yet be unable to give a single
feature, or the color of the hair, or of the eyes, or any
particulars as to the dress. In such cases the distinction
between opinion and fact is so very nice that it might
perhaps have been as well to consider such identifica-
tion as a fact, like any other direct perception of the
senses.’’ (Internal quotation marks omitted.)
    To be sure, both the federal courts and legal scholars
have characterized the distinction between fact and
opinion as illusory. The United States District Court
for the Eastern District of New York summarized the
problem, observing that ‘‘Wigmore . . . questioned the
possibility of clearly distinguishing the two: ‘As soon
as we come to analyze and define these terms . . .
the distinction vanishes . . . .’ [7 J. Wigmore, Evidence
(Chadbourne Rev. 1978) § 1919]. Moore also 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 regard-
ing 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 photo-
graphs. Accordingly, as a general rule, nonpercipient
lay opinion testimony identifying a defendant in surveil-
lance 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 photo-
graph [or video] than is the jury.’’ United States v. Farn-
sworth, 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 defen-
dant than does the jury, the general familiarity require-
ment favors admissibility.14 For example, courts have
held this factor to support admissibility when law enforce-
ment witnesses gained familiarity with the defendant
by observing him from a distance. See, e.g., United
States v. Houston, 813 F.3d 282, 287, 292 (6th Cir.) (trial
court properly allowed video surveillance identification
testimony of federal agent who had observed defendant
in drive-bys of defendant’s farm), cert. denied,       U.S.
   , 137 S. Ct. 567, 196 L. Ed. 2d 448 (2016); id., 292
(‘‘someone who is personally familiar with an individual
is presumptively better able to identify the individual
in a photograph than a juror’’). Courts have concluded
that witnesses who have had a handful of encounters
of undetermined or brief duration with the defendant
have nonetheless acquired sufficient general familiarity.
See, e.g., United States v. Arroyo, 600 Fed. Appx. 11,
15 (2d Cir. 2015) (superintendent of apartment building
who recognized defendant as boyfriend of one of build-
ing’s tenants, and had seen defendant in building ‘‘sev-
eral times,’’ was properly allowed to identify defendant
in video surveillance); United States v. Kornegay, 410
F.3d 89, 95 (1st Cir. 2005) (holding that detective’s con-
tact with defendant ‘‘on six occasions within a few
months is within the zone that courts have found accept-
able to show that the witness was sufficiently familiar
with the defendant to provide a useful identification’’);
United States v. Pierce, 136 F.3d 770, 775 (11th Cir.)
(identification testimony of probation officer who met
defendant ten times over seven months was properly
admitted because those contacts provided some basis
for concluding that witness was ‘‘more likely’’ than jury
to correctly identify defendant from photograph (inter-
nal quotation marks omitted)), cert. denied, 525 U.S.
974, 119 S. Ct. 430, 142 L. Ed. 2d 350 (1998); United
States v. Wright, 904 F.2d 403, 404–405 (8th Cir. 1990)
(court properly admitted identification testimony of
police officer who had seen defendant eight to ten times
over two to three years); United States v. Allen, supra,
787 F.2d 935 (familiarity requirement was met when
parole officer briefly met defendant on six or seven
occasions); People v. Mixon, 129 Cal. App. 3d 118, 129,
180 Cal. Rptr. 772 (1982) (police officer possessed suffi-
cient 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 famil-
iarity), 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 famil-
iarity); People v. Thompson, 49 N.E.3d 393, 408 (Ill.
2016) (witness who never met defendant, but saw him
once, when he was sleeping on porch of mutual friend’s
house, had sufficient familiarity); see also annot., B.
Filbert, ‘‘Admissibility of Lay Witness Interpretation of
Surveillance Photograph or Videotape,’’ 74 A.L.R.5th
643, 654–74, § 3 [a] (1999) (citing cases in which courts
held that witness’ familiarity with defendant’s appear-
ance 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 estab-
lishing general familiarity with the defendant or by dem-
onstrating changed appearance and familiarity with the
defendant’s appearance at the time of the incident.15
The court stated that the general familiarity requirement
is met when ‘‘the witness has had substantial and sus-
tained contact with the person in the photograph.’’
(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 pol-
ice officer, ‘‘not only did not know [the defendant], he
had never even seen him in person.’’ Id. Despite the high
standard for general familiarity described in LaPierre,
the Ninth Circuit subsequently has applied the same
low bar as that applied in other jurisdictions. See, e.g.,
United States v. Beck, supra, 418 F.3d 1015 (witness
who had seen defendant four times in two month period
for total of more than seventy minutes was sufficiently
familiar).
  In the handful of cases in which courts applying either
rule 701 of the Federal Rules of Evidence or a state
analogue to the rule have concluded that witnesses lacked
sufficient general familiarity to favor admissibility, the
witness had little or no familiarity with the defendant.
See, e.g., United States v. Fulton, 837 F.3d 281, 299 (3d
Cir. 2016) (identification testimony was improper when
detectives’ sole familiarity with defendant was ‘‘very
limited’’ and acquired only after defendant was under
investigation), cert. denied,     U.S. , 139 S. Ct. 214,
202 L. Ed. 145 (2018); United States v. Jadlowe, 628
F.3d 1, 24 (1st Cir. 2010) (testimony of federal agent
identifying defendant in surveillance footage was improp-
erly admitted when agent made identification by com-
paring 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 (testi-
mony was inadmissible when witness did not know
defendant, had never seen him in person, and based
identification in surveillance footage on review of pho-
tographs of defendant and witnesses’ description of
him); Commonwealth v. Vacher, 469 Mass. 425, 442,
14 N.E.3d 264 (2014) (video surveillance identification
testimony of detective was improperly admitted when
record did not reveal that ‘‘detective possessed any
special familiarity with the defendant that the jury
lacked, or that the defendant’s appearance had changed
since the time the footage was taken, such that the jury
needed assistance in identifying the individual depicted’’);
see also annot., 74 A.L.R.5th, supra, § 3 [b], pp. 674–78
(citing cases in which courts have held that witness’
level of familiarity with defendant was insufficient to
render testimony helpful to jury).
   Courts have recognized that the concept of ‘‘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 testi-
mony. 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 identifica-
tion 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 pho-
tograph, as degree of familiarity goes to weight rather
than to admissibility); Robinson v. People, supra, 927
P.2d 384 (rejecting defendant’s challenge to testimony
of detective, who had seen defendant once, that defen-
dant was depicted in surveillance photograph, as degree
of familiarity goes to weight rather than to admissibil-
ity). But see United States v. Calhoun, 544 F.2d 291,
294–96 (6th Cir. 1976) (it was abuse of discretion to
admit parole officer’s testimony identifying defendant
in surveillance photograph because probative value was
outweighed by prejudice to defendant on basis that
cross-examination to test witness’ level of familiarity
with defendant would reveal that he was on parole).
   In summary, our review of the relevant case law reveals
that courts regularly find that this prong of the totality
of the circumstances inquiry favors admissibility unless
the witness has had virtually zero prior contacts with
the defendant. The low bar for general familiarity ren-
ders this prong close to meaningless, a mere rubber
stamp on the road to admissibility. Rather than inquiring
whether a witness has some degree of ‘‘familiarity’’ with
the defendant’s appearance, the general familiarity
prong, as applied in federal and state courts, merelyasks
whether the witness has ever, even once, seen the defen-
dant prior to identifying him in surveillance video or
photographs.
  The low standard for general familiarity tends to favor
the prosecution.16 Although a defendant in some instances
may seek to introduce testimony that he is not the person
depicted in surveillance video or photographs; see, e.g.,
United States v. Jackman, supra, 48 F.3d 4 (defendant’s
brother testified that suspect depicted in surveillance
photographs was not defendant); in the vast majority
of cases, it is the state that seeks to introduce this type
of testimony.
   We conclude that the low threshold for general 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        (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).