dissenting.
Marshall Jackson (“Jackson”) was the only person charged and tried for alleged participation in a three-man daylight armed robbery of the Broadway Bank. Of the three eyewitnesses who testified, only one *1127(teller Alice Koch) positively identified Jackson, and there were serious doubts as to other aspects of her identification efforts (one other person identified by her in a photo spread, and one other person in the lineup she said looked like the leader of the robbers, were wholly unrelated to the incident — in fact, the other person she referred to in the lineup was actually a Chicago police sergeant, Tr. 114, 142).
Neither of the other two testifying eyewitnesses positively identified Jackson.1 Indeed the other teller, shown pictures of the lineup, was also unable to identify him.2
Only one witness was called by the defense, FBI agent William Keefe. His testimony was directed to the identification deficiencies just referred to 3 and to the fact the fingerprints lifted from the counter at the teller’s window were definitely not Jackson’s (Tr. 146-47).
All this is not of course to retry the case, but rather to indicate that the disputed identification testimony of Louise Heneghan was an important element of proof. We do not deal here with a clear situation of potential harmless error, though that is the impression the majority opinion would give.
Against that backdrop the Heneghan identification bulks large. And the majority opinion is, I submit, seriously flawed in its treatment of the evidentiary problem posed by the Heneghan testimony. Equally important, the opinion does not reflect that it conflicts with the views of other circuits and, I suggest, takes a position less attuned to the realities than those other opinions.
We do not confront on this appeal the usual problems of eyewitness identification. Instead the issue is posed by surveillance photos of the robbery itself — photos that went to the jury for its determination as the finder of fact. Our question is thus whether someone else, a non-eyewitness, should have been permitted to opine on the very question that was at the heart of the jury determination: Was the person depicted in the photo Jackson?
What circumstances can justify that kind of lay opinion evidence? Reason teaches that there must also be sufficient other evidence to support the conclusion that the lay non-eyewitness is better able to identify the defendant than the jury. Were the rule otherwise there would be no logical basis to exclude a parade of people, having more or less acquaintance with the defendant, from coming to the stand and swearing that the photo did or did not resemble the defendant. That would restore a procedure akin to the medieval concept of trial by wager of law, wholly at odds with our modern notions of trial.4 It is in that sense that Rule 701 must be read in relation to this problem:
If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.
*1128True enough, one possible predicate that has been a condition precedent to other courts’ admissibility of such lay opinions did exist here. It was apparent to the jury that the physical appearance of the person in the surveillance photos differed from that of Jackson at trial, 11 months later. Under such circumstances testimony of a witness well acquainted with the defendant at the time of the crime, linking defendant’s appearance at that time to the surveillance photo, obviously meets the Rule 701 requirement. It does something the jury cannot do equally well for itself.5
But that key connection is missing in this case. Ms. Heneghan had seen Jackson only once, and that over four months before the robbery (just under a year before she was shown the photo). For aught that appeared in the record Jackson did not have the same kind of facial hair as the robber, nor was he as bulky, in December 1979, when Ms. Heneghan saw him, any more than he did or was at trial in March 1981, when the jury saw him.6 It is not enough to assert, from the mere fact of Ms. Heneghan’s identification and without any testimony at all (by Ms. Heneghan or anyone else), the inference that Jackson did look the same on the one occasion Ms. Heneghan had seen him.
It may perhaps be argued that my position puts too high a premium on the prosecutor’s failure to ask the questions that might have provided the missing link and obviated the problem.7 From a different perspective, however, the majority’s analysis permits a six-year prison term to rest on surmise — a result at odds with the fundamental right of a defendant to require proof of guilt beyond a reasonable doubt.
Lest it be thought that this opinion reflects a solitary view, it coincides — as the majority view does not — -with that of the Sixth Circuit in United States v. Calhoun, 544 F.2d 291 (6th Cir. 1976). There the court reversed a conviction of an alleged bank robber whose parole officer had identified a surveillance photograph, testifying he had seen and talked with defendant about nine or ten times in the three months *1129preceding the robbery, most recently just three days before. One of the two alternative grounds for decision was equally applicable here (id. at 295): 8
We think it is important to note here that it is not claimed that Snyder’s opinion testimony was that of an expert and thus subject to the more specialized rules concerning expert opinion testimony embodied in Rule 702, Federal Rules of Evidence. Unlike [citing,cases], it cannot be claimed that Snyder was possessed of any expertise superior to that of the jury, [citing eases] On the contrary, Snyder’s testimony was offered solely as that of a lay witness whose close familiarity with Calhoun at the time of the robbery enabled him to make an ordinary identification of Calhoun, as he then appeared, from the surveillance photograph which had been offered and received in evidence. [citing case]
Rule 701 of the Federal Rules of Evidence governs opinion testimony by lay witnesses:
If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.
In considering Snyder’s testimony as a lay witness, we note that his testimony or indeed the testimony of anyone who might have known Calhoun at the time, teases the outer limits of Rule 701.9 The bank surveillance photos themselves had already been received in evidence. The jury could see both the photographs and Mr. Calhoun.
An examination of the testimony given by Snyder shows that it meets the requirement of Rule 701(a) as being rationally based on the perception of the witness. However, whether this testimony was “helpful to the determination of a fact in issue” under Rule 701(b) is not at all clear. According to the testimony of Glenna Porter, at least, Calhoun’s appearance at the time of trial was different from that on the day of the offense. Thus one intimately acquainted with Calhoun at the time of the robbery might conceivably be in a better position than the jury to recall his appearance then and compare it with a photograph. However, Snyder was in fact uncertain whether at the time of the robbery Calhoun had a mustache, goatee, or sideburns; the only certainty was that he had “facial hair” of some kind. We also question whether Snyder’s testimony was merely an “attempt ... to introduce meaningless assertions which amount to little more than choosing up sides.” Advisory Committee’s Note on Rule 701.
Reversal here should follow a fortiori from the Calhoun rationale.
Similarly the analysis in United States v. Robinson, 544 F.2d 110 (3d Cir. 1976), cert. denied, 434 U.S. 1050, 98 S.Ct. 901, 54 L.Ed.2d 803 (1978) supports this opinion and not the majority conclusion. There the court distinguished between the admissibility and non-admissibility of two kinds of lay opinion testimony as to bank surveillance photographs, and it based its distinction wholly on whether the “comparison that [the witness] was going to make was one which the jury could not have made for *1130itself, so his testimony did not suffer from a ‘lack of helpfulness’ ” (id. at 113). In fact, as indicated at n.5, the same concept underpins all but one of the authorities on which the majority opinion relies.
Five things, then, are troublesome in the majority opinion:
(1) Its proposition that Ms. Heneghan’s “original identification of the man shown in the photograph reflected a comparison of that person’s features with the appearance of every person she had ever met” proves too much. Consider for a moment the application of that notion, as the majority would, to the situation in which the appearance of the defendant when the witness saw him is no different from his appearance at the time of trial.10 When the jury views the defendant over the course of the trial and then views the man shown in the photograph, each juror too makes the same “comparison of that person’s features with the appearance of every person [he or],she had ever met.” That same comparison based on universal experience enables each juror to exercise his or her judgment whether or not the person in the photograph and the defendant are one and the same — that is after all what identification is all about. And it should be remembered that the witness has compared the photo with stale recollection, based on a single short meeting a year earlier, while the jurors’ comparison of the photo is with a current in-the-flesh viewing over the entire period of the trial. Thus all the witness can provide is something the jury can do far better for itself.
(2) As already indicated, applied literally it would permit an endless parade to the witness stand, a kind of impermissible plebiscite. All of us know the perils of imperfect identification, and such an approach would compound the risk.
(3) It misses entirely the significance of changes in appearance. In that respect the critical comparison is not, as the majority opinion would have it, between the time of arrest and the time of the lineup. Rather there are two important comparisons:
(a) Difference in appearance between the time of the photo and the time of trial is an essential prerequisite to any introduction of lay opinion testimony (unless of course the witness can testify about something in the surveillance photo other than the defendant himself, such as his clothing, as in Saniti and Young Buffalo — and in that event the significant identification is after all of something other than the person).
(b) Once the initial requirement is met, similarity of appearance between the time of the witness’ acquaintance and the time of the photo is equally essential, else the evidence has not satisfied the need to demonstrate that the witness had a better opportunity for judgment than the jury. This is the critical gap in our case.
(4) It treats as similar to this case a group of decisions all but one of which meet the standards of this opinion, as Jackson’s ease does not.
(5) It seeks to distinguish the contrary authority (Calhoun and Robinson), but I believe a full reading of those opinions reflects a substantive and material conflict with the approach and result of the majority opinion. All of us of course recognize the significance of conflict among circuits (including the potential for certiorari).
For all these reasons I respectfully dissent.
. Moreover, of the six eyewitnesses to the robbery who viewed the lineup, only Ms. Koch identified Jackson (Tr. 102). One other, Ms. Liberman, said Jackson’s eyes “resembled” those of the robber, but that statement was more than balanced by her specifying several substantial differences in appearance (Tr. 80-81, 141).
. Teller Curtis Brown, from whom the robber also took money, was shown frontal and profile pictures of the FBI-conducted lineup and did not identify Jackson as a participant in the robbery (Tr. 132).
. Among other things, Agent Keefe’s testimony reflected that a number of eyewitnesses had said they would be able to identify the robbers if given the opportunity (Tr. 138, 139, 140). As reflected at nn. 1 and 2, none was able to identify Jackson.
. This very point was made as to Fed.R.Evid. (“Rule”) 701 by the Advisory Committee on Proposed Rules, immediately after the partial quotation repeated at n. 5 of the majority opinion:
If, despite these considerations, attempts are made to introduce meaningless assertions which amount to little more than choosing up sides, exclusion for lack of helpfulness is called for by the rule.
. That is precisely the rationale of all but one of the cases relied on by the majority opinion: Saniti, 604 F.2d at 605 (witnesses able to identify clothing on the person in the photograph'— clothing unavailable to the jury for its comparison — as belonging to defendant); Young Buffalo, 591 F.2d at 513 (same); Boirelli (stepfather with whom defendant lived for five years, moving only a few days before robbery, held “in a much better position than the jury to give an opinion” because of defendant’s significantly altered appearance between time of robbery and trial); Ingram, 600 F.2d at 601-02 (same, as to testimony by close acquaintances of defendant whose appearance had changed between time of robbery and trial). Only Butcher, 557 F.2d at 669-70, truly supports the majority opinion’s approach — and even there the same court’s later opinion in Young Buffalo stressed the aspect of Butcher holding “that the use of such testimony is not encouraged because the balance does not weigh heavily in favor of probative value over prejudicial effect.” Thus the majority opinion’s “supporting” authorities are weak reeds (or no reeds) on which to lean.
. As the majority opinion states, Jackson’s appearance differed substantially at the time of arrest (in January 1981) from the way he looked at the time of the lineup (in February 1981) — and both appearances differed from the depiction in the surveillance photos. Yet the majority opinion is willing to indulge the presumption, without any record support on the issue, that Jackson’s appearance in Christmas 1979 was the same as at the time of the robbery, four months later. It contrasts that four-month lapse with the eleven-month lapse between the robbery and trial. But the vital factor is not the mere passage of time but what happened to Jackson’s appearance during the time interval, and the only relevant evidence (as distinct from speculation) on that score is that one month (January to February 1981) had been enough for a meaningful change.
. It is not as though the prosecutor were unaware of the issue. When Jackson filed a pretrial motion to suppress, the trial judge asked specifically “you are going to put on somebody who knew Tiny in April of 1980 [the time of the robbery]?” (Tr. 22). When the prosecutor responded “Right,” the trial judge ruled he would “certainly allow . . . testimony that in April of 1980 that the defendant had facial hair, if that were the case, you know” (Tr. 23). That initial ruling by the trial court focused on the proper predicate for any opinion evidence as to the surveillance photo. After the prosecutor did not deliver as originally advertised — by using a casual meeting in December 1979 rather than acquaintance at the vital April 1980 date — he cannot fairly shift the consequences of his flawed prosecution onto the defendant.
. It is true that Calhoun referred to the “main defect” in permitting the parole officer to testify stemmed from the parolee-parole officer relationship, id. at 295 -96; see n. 3 of the majority opinion in this case. That however does not detract from the force of the analysis or of the court’s statement on the issue discussed in the text of this opinion.
. Note 6 of the majority opinion adverts to this language as evidence that Calhoun does not conflict with the majority decision here. But what “teased the outer limits” in Calhoun was “testimony of anyone who might have known [the defendant] at the time" (emphasis added). Where as in this case the witness’ only observation of the defendant had been a single instance substantially removed from the time of the robbery (and not one of “close familiarity ... at the time of the robbery”), and where there was no proof at all to connect the defendant’s appearance at those two discrete times, Calhoun plainly would view the witness’ testimony as outside “the outer limits of Rule 701.”
. As already stated, on the record before us there is nothing to indicate that was not in fact the case here.