The Appellate Division Declines to Follow an Outmoded Errors and Appeals Decision About Age-Related Lay Opinion Testimony

State v. Gerena, ___ N.J. Super. ___ (App. Div. 2021). Defendant was convicted of fourth degree lewdness. A statutory grading element of that offense is that one or more of the children whom witnesses testified were near defendant were under the age of thirteen. To address the age issue, the State offered testimony of witnesses who provided lay opinion as to what they perceived as the children’s ages and heights.

Defendant appealed his conviction, primarily on the ground that it was error to admit that lay opinion testimony. In State v. Koettgen, 89 N.J.L. 678 (E. & A. 1916), a case involving a charge of operating a “disorderly house” by selling intoxicating liquors to persons under age eighteen, a majority of the Court of Errors and Appeals, which was then New Jersey’s highest court, held that [t]he fact of age is not within the category of things … which … can be proved by opinion testimony.” Defendant here relied on that case on his appeal.

In an opinion by Judge Sabatino, however, the Appellate Division declined to be bound by Koettgen and instead upheld the admission of the lay opinion testimony. After the citing the abuse of discretion standard of review for rulings on evidence, Judge Sabatino noted that “[t]he flat prohibition on age opinion testimony announced by the Koettgen majority has not been reaffirmed in over a century.” He reviewed the only three published post-Koettgen opinions on the subject and observed that none of them had “applied an absolute bar to such testimony.” The Supreme Court, New Jersey’s highest court since the 1947 Constitution, has not specifically addressed the age opinion issue or mentioned Koettgen even once, Judge Sabatino said.

Meanwhile, other jurisdiction have adopted a rule that allows age opinion testimony on a case-by-case basis, as Judge Sabatino catalogued. Moreover, New Jersey’s adoption of Evidence Rule 56(1) in 1967 and New Jersey Rule of Evidence 701 in 1993, “which prescribe a flexible approach to the admission of lay opinion– as well as Supreme Court case law expansively applying those rules– … contravene and displace the kind of rigid categorical prohibition on lay opinion articulated in Koettgen.”

Thus, “[a]lthough opinions of the former Court of Errors and Appeals are presumptively binding,” the Appellate Division was “not constrained to follow the obsolete total ban on age-related opinion testimony set forth in Koettgen.” Instead, the panel adopted “a multi-factor approach that is consistent with the Supreme Court’s modern rules of evidence and evolved case law.” Those factors included “(1) distance, (2) length of time of the observation, (3) any observed activity of the person, (4) physical comparisons with the height or size of nearby objects or other persons, (5) whether the eyewitness attests to a range rather than a specific height or age, (6) whether the observed individual has a comparatively similar age or height as the witness, (7) whether there is corroborating proof, and (8) the totality of circumstances.”

Judge Sabatino’s thorough opinion is lengthy, detailed, and well worth reading in full. Older opinions that have not been relied upon for decades and have been left behind by changes in the law or developments in business, society, or otherwise should not continue to be binding, even if those opinions were issued by a higher court. This decision rightly recognizes that, rather than following the outmoded opinion and urging the Supreme Court to take up the case and overrule the old authority, a process that takes more time and may not produce the desired result, since the Supreme Court does not always grant review.