EYEWITNESS IDENTIFICATION-MISIDENTIFICATION PRESENTED

MISIDENTIFICATION

EYEWITNESS IDENTIFICATION-

PRESENTED BY KATHRYN L. “SUNNY” LIPPERT, January 29, 2010

SPONSORED BY: ALABAMA CRIMINAL DEFENSE LAWYERS ASSOCIATION

1. EYEWITNESS ID REFORM

A. LEGISLATION

B. LITIGATION

2. EYEWITNESS ID CASES

3. EYEWITNESS ID EXPERT

4. YOUR CASE:

A. PRETRIAL

B. TRIAL

C. INSTRUCTIONS

1. EYE WITNESS IDENTIFICATION REFORM

I serve as the Alabama Criminal Defense Lawyers Association’s liaison to the reform network on eyewitness identification reform, a coalition of groups including the National Association of Criminal Defense Lawyers, the

National Legal Aid and Defender Association and the Innocence Project. I have attended two conferences in Manhattan that have been amazing, educating us about the science of eye witness identification and the litigation techniques needed to utilize the existing science.

I was asked to serve as the State’s ‘point person’ to the network several years ago. I had unsuccessfully challenged a state court ruling denying the admission of expert testimony on eyewitness identification. When a member of ACDLA, Steve Glassroth, requested assistance on admitting an expert on the listserve, I shared my brief with him and later motions I had filed in other cases where I was successful in obtaining my eye witness ID expert. He got funding for his expert, pretrial testimony in from the expert and was able to settle the case based upon her assistance. Thereafter, I became the queen of eyewitness ID in our criminal defense community which led to my serving as our state’s point person. All opinions in this handout are mine and sho uldn’t be attributed to any of the organizations listed.

A. Legislation

One aspect of reform in this area is legislation. As countless cases have received attention about wrongful convictions that were based upon eye witness ID’s largely as a result of DNA exonerations, state legislatures have become more willing to entertain and pass legislation that requires more reliable police procedures for eye witness identification procedures. Many cities, counties and states have adapted the policies and procedures that science indicates will alleviate wrongful convictions. The Department of

Justice under Janet Reno, published “Eyewitness Evidence: A Guide for

Law Enforcement” in 1999. This publication that has been the caveat for reform is still available to download on the DOJ website. The Innocence

Project testifies regularly before State legislative committees advocating reform legislation. The most compelling testimony, however, comes from

the victims of misidentification; the victims of the offenses and the wrongly accused defendants.

B. Litigation

The litigation aspect of reform that our network is focused on is the revision of

Manson v. Brathwaite

, 432 U.S. 98 (1977). The

Manson

court established a test to determine when due process requires suppression of out of court identification produced by suggestive police procedures. The reason

Manson

is now a train wreck is that even if the police ID procedure was unnecessarily suggestive, the ID is admitted if any of the following five factors is deemed reliable; 1) the opportunity of the witness to view the criminal at the time of the offense 2) the witness’s degree of attention 3) the accuracy of his prior description of the criminal 4) the level of certainty demonstrated at the confrontation and 5) the time between the crime and the confrontation.

The problem with the

Manson

rule is that the above factors have proven not to be good indicators of reliability. Human memory is fallible and the ability to recall face of a stranger is rarely possible thus subject to suggestive police procedures. State courts are accordingly setting higher bars, adapting to the existing science, by allowing experts to testify about memory, updating jury instructions, limiting admissibility of concerning practices such as show up identificatio ns, etc. But… not Alabama so we have work to do!

2. ALABAMA AND THE 11 TH CIRCUIT

… are so far behind the majority trend that it is a tragedy. We must need a high profile exoneration to get some change because the public absolutely demands it or in the mean time keep fighting from our trenches to move

Alabama into this millennium of eye witness identification science.

Ex Parte Williams

, 594 So.2d 1225 (Ala. 1992) held the admission of expert testimony on memory is at the trial court’s discretion in cases turning on eye witness identification and no error because the expert wasn’t familiar with the facts of the case and had no personal contact with the victim. The

holding is justified by following a 3rd circuit case,

United States v. Downing

,

753 F.2d 1224 (3 rd Cir. 1985) that established a “balancing test” applicable to the admission of expert testimony weighing 1) “the reliability of the scientific principles upon which the expert testimony rests, hence the potential of the testimony to aid the jury in reaching an accurate resolution of a disputed issue and 2) the likelihood that introduction of the testimony may in some way overwhelm or mislead the jury.

Williams

also cites

Downing had indicated such admissibility also depends on a showing that features of the ID involved impaired accuracy and is later reviewed under the abuse of discretion standard.

The problem

Williams

established, unique to the trend of cases regarding admission of memory experts, is the prong regarding the expert’s knowledge of facts of the case and no personal contact with the victim.

The most recent case regarding eye witness testimony and experts out of the 11 th Circuit that I could find is

United States v. Smith

, an unreported opinion, 148 Fed. Appx.867, 2005 WL 2219055 (C.A.11(Ga.)) holding that eye witness testimony of certainty in their identifications is admissible, excluding an expert is not an abuse of discretion and refusal to give a jury instruction on the accuracy of eyewitness identifications was not an abuse of discretion.

Supreme Court of Alabama.

Ex parte Ted WILLIAMS.

(Re Ted Williams v.

State).

1901723.

Feb. 21, 1992.

Defendant was convicted of attempted murder and first-degree robbery, in the Montgomery Circuit Court, Nos. CC-

89-1928 and CC-89-1929, and defendant appealed. The Court of Criminal Appeals, 586 So.2d 310, affirmed.

Defendant petitioned for writ of certiorari, which was granted. The Supreme Court, Ingram, J., held that: (1) expert testimony on subject of human memory can be introduced into evidence, subject to trial court's discretion, in cases turning on eyewitness identification, and (2) such testimony was inadmissible when expert was not familiar with facts of case and had no personal contact with victim.

Affirmed.

West Headnotes

[1] Criminal Law 110 474.3(2)

110 Criminal Law

110XVII Evidence

110XVII(R) Opinion Evidence

110k468 Subjects of Expert Testimony

110k474.3 Credibility, Veracity, or Competency

110k474.3(2) k. Eyewitnesses. Most Cited Cases

Criminal Law 110 476.6

110 Criminal Law

110XVII Evidence



110k476.6 k. Miscellaneous Matters. Most Cited Cases

Expert testimony on subject of human memory can be introduced into evidence in cases turning on eyewitness identification.

[2] Criminal Law 110 476.6

110 Criminal Law

110XVII Evidence



110k476.6 k. Miscellaneous Matters. Most Cited Cases

Admissibility of expert testimony on subject of human memory in cases turning on eyewitness identification is subject to discretion of trial court.

[3] Criminal Law 110

110 Criminal Law

110XXIV Review

1153.12(3)

110XXIV(N) Discretion of Lower Court

110k1153 Reception and Admissibility of Evidence

110k1153.12 Opinion Evidence

110k1153.12(3) k. Admissibility. Most Cited Cases

(Formerly 110k1153(1))

Trial court's rulings on admissibility of expert testimony on subject of human memory will not be disturbed on appeal absent clear abuse of discretion.

[4] Criminal Law 110 474.3(2)

110 Criminal Law

110XVII Evidence





Expert testimony by psychologist concerning the way in which victim's eyewitness identification might have been influenced by human memory processes was inadmissible, where psychologist was not familiar with facts of case and had no personal contact with victim.

*1225 William R. Blanchard of Blanchard, Calloway, Campbell & Jackson, P.C., Montgomery, for appellant.

James H. Evans, Atty. Gen., and David B. Karn, Asst. Atty. Gen., for appellee.

INGRAM, Justice.

A jury convicted Ted Williams of attempted murder and of robbery in the first degree, based on evidence that he had slashed a woman's throat and had stolen her purse. Williams was sentenced to a term of 25 years in the state penitentiary on the attempted murder conviction and 20 years on the robbery conviction. Williams appealed to the

Court of Criminal Appeals, which affirmed his convictions with an unpublished memorandum, 586 So.2d 310. This

Court granted Williams's petition for the writ of certiorari to examine the issue whether the trial court abused its discretion in refusing to allow Williams's expert witness to testify as to the reliability of the State's eyewitness testimony.

*1226 The evidence adduced by the State linking Williams to the incident at issue consisted of the victim's eyewitness identification of Williams as her assailant and the corroboration, by police investigators, of the victim's identification of Williams. The evidence reveals that the police initially interviewed the victim at the scene of the attack and at the hospital while her wounds were being treated.

On the morning following her attack, the victim went to the police station and worked with a police detective in preparing a composite sketch of her attacker. On that day or the next, the police had the victim view a “photograph line-up.” The victim stated that she looked at the photographs and immediately eliminated four of the six pictures.

She continued to look at the other two photographs, one of which was Williams's, but was ultimately unable to make a positive identification from those two.

On the evening after viewing the photograph line-up, the victim went to the police station and viewed a live line-up.

The victim testified that she immediately picked out Williams from the line-up as being her attacker. Furthermore, at trial, the victim once again identified Williams as her attacker.

In Williams's defense, Williams's counsel sought to introduce, over the State's objection, the testimony of Dr.

Norman Ellis, a psychologist at the University of Alabama. Dr. Ellis was tendered as an expert in the field of human memory and learning. Williams's counsel sought to present, through Dr. Ellis, expert testimony concerning the way in which the victim's eyewitness identification may have been influenced by human memory processes.

After an extensive voir dire examination of Dr. Ellis had taken place, the trial court sustained the State's objection to

Dr. Ellis's testimony. In sustaining the State's objection, the trial court cited Hancock v. City of Montgomery, 428

So.2d 29 (Ala.1983), wherein this Court held that where the record indicated that a criminologist, who was tendered as an expert witness, was not familiar with the facts surrounding the automobile accident at issue, the trial court did not abuse its discretion in refusing to accept the criminologist as an expert witness.

Initially, we note that the admissibility of expert testimony on the subject of human memory processes has never been considered by the appellate courts of this state, although a number of courts in other jurisdictions have considered the issue. Williams cites us to several of those cases in which expert testimony on the subject of human memory processes has been allowed. Perhaps the most instructive of these cases is United States v. Downing, 753

F.2d 1224 (3d Cir.1985).

The issue in Downing was whether a defendant in a criminal prosecution should be permitted to adduce, from an expert in the field of human perception and memory, testimony concerning the reliability of eyewitness identifications. The district court had refused to admit the testimony of a psychologist offered by the defendant, apparently because the court believed that such testimony could never meet the “helpfulness” standard of

Fed.R.Evid. 702. In reversing the judgment of the district court, the Downing court first noted that the admission of expert testimony on the subject of human memory processes is not automatic but conditional. The court went on to hold that the admissibility of such evidence is determined by a balancing test centering on two factors: (1) the reliability of the scientific principles upon which the expert testimony rests, hence the potential of the testimony to aid the jury in reaching an accurate resolution of a disputed issue; and (2) the likelihood that introduction of the testimony may in some way overwhelm or mislead the jury.

The Downing court further indicated that admissibility should also depend upon a showing that scientific research has established that particular features of the eyewitness identifications involved may have impaired the accuracy of those identifications. The court also concluded that a district court's ruling on the admissibility of such expert testimony will be reviewable under an abuse of discretion standard, with *1227 the district court retaining the discretionary authority to exclude any relevant evidence that would unduly waste time or confuse the issues at trial.

[1][2][3][4] Our research in this case reveals many cases in accord with Downing. E.g., United States v. Alexander,

816 F.2d 164 (5th Cir.1987); United States v. Moore, 786 F.2d 1308 (5th Cir.1986); People v. McDonald, 37 Cal.3d

351, 208 Cal.Rptr. 236, 690 P.2d 709 (1984). It is clear from these cases that there is presently a trend in the law to allow expert testimony on the subject of human memory. In keeping with that trend, we hold that expert testimony on the subject of human memory can be introduced into evidence in cases turning on an eyewitness identification.

We further hold, however, that the admissibility of such evidence is, like all other types of expert testimony, subject to the discretion of the trial court, see Rannells v. Graham, 439 So.2d 12 (Ala.1983). Furthermore, the trial court's rulings on the admissibility of such evidence will not be disturbed on appeal absent a clear abuse of that discretion.

Hulcher v. Taunton, 388 So.2d 1203 (Ala.1980). After reviewing the record in the present case, we find no abuse of discretion by the trial court in refusing to admit the expert testimony.

The trial transcript reveals the following colloquy, which took place at the conclusion of the voir dire examination of

Dr. Ellis by both the State and Williams's counsel:

“THE COURT: Let me ask this. Do you know [the victim] in this case?

“[DR. ELLIS]: No, sir.

“THE COURT: Have you ever talked to her?

“[DR. ELLIS]: No, sir.

“THE COURT: Do you know anything about her experience, educational background or occupation or vocation?

“[DR. ELLIS]: I believe [Williams's counsel] told me she had done some portrait artist work or something one time.

That's all I can come up with.

“THE COURT: Do you know anything at all about the facts and circumstances surrounding this case?

“[DR. ELLIS]: The transcript I read, the preliminary, that's all.

“THE COURT: What was that? Do you remember?

“[DR. ELLIS]: It was a document [Williams's counsel] sent me.

“THE COURT: Can you tell me what it was?

“[DR. ELLIS]: My memory is rather poor, because it was some weeks ago and I read it rather hurriedly. It had to do with some of the facts, details of the case in terms of where the event occurred, and what happened at that time.

And I can't remember whether it was question and answer of the witness or not. I do remember some of the details about the event.

“THE COURT: Like what?

“[DR. ELLIS]: Well, that the man was mumbling to himself and he approached her at a little theater somewhere and he snatched her purse and they struggled. I remember she had a Coca-Cola bottle in her hand, as I remember. Her throat was cut. The police were called and they gave her first aid. That's about the extent of what I remember.”

Following this colloquy, the trial court, in ruling Dr. Ellis's testimony inadmissible, stated:

“If he [Dr. Ellis] had conducted an examination of this witness and had run tests, and that kind of thing, it would be different. Since he admittedly knows nothing about her, other than what you've outlined, the Court feels any probative value here is outweighed by the prejudicial effect of it....”

From this excerpt from the transcript and from the trial court's stated reliance on Hancock v. City of Montgomery, supra, it appears that the trial court's ruling on the State's objection to Dr. Ellis's testimony was based upon the fact that Dr. Ellis was not familiar with the facts of the case and had had no personal contact with the victim. Therefore, we conclude that the trial court did not abuse its discretion in ruling Dr. Ellis's testimony inadmissible.

*1228 The judgment of the Court of Criminal Appeals is due to be affirmed.

AFFIRMED.

MADDOX, ALMON, ADAMS, HOUSTON, STEAGALL and KENNEDY, JJ., concur.

Ala.,1992.

Ex parte Williams

594 So.2d 1225

A much better case, though not a clear win regarding admission of the expert was published out of D.C. recently.

District of Columbia Court of Appeals.

Raymond L. BENN, Appellant, v.

UNITED STATES, Appellee.

No. 03-CF-946.

Argued Jan. 5, 2006.

Decided Sept. 3, 2009.

Background: Defendant was convicted in the Superior Court, Frederick H. Weisberg, J., of felony murder while armed and related kidnapping, assault, and weapons charges. Defendant appealed. The Court of Appeals, 801 A.2d

132, reversed and remanded. On remand, after the exclusion of defendant's expert on eyewitness identification and following a jury trial, defendant was convicted in the Superior Court, Geoffrey M. Alprin, J., of armed kidnapping and a related weapons offense, but was acquitted of murder. Defendant appealed.

Holdings: The Court of Appeals, Ruiz, J., held that:

(1) trial court failed to exercise its discretion when it excluded testimony of defendant's expert on eyewitness reliability, and

(2) trial court's error was not harmless, as prosecution's case relied exclusively on identifications by witnesses who were strangers to defendant and whose certainty in their identifications increased with time.

Remanded.

Schwelb, Senior Judge, concurred in the judgment and filed opinion.

West Headnotes


110 Criminal Law

474.3(2)

110XVII Evidence





When determining whether to admit or exclude expert testimony regarding eyewitness identification, a trial must apply three criteria: (1) the subject matter must be so distinctively related to some science, profession, business or occupation as to be beyond the ken of the average layman; (2) the witness must have sufficient skill, knowledge, or experience in that field or calling as to make it appear that his opinion or inference will probably aid the trier in his search for truth; and (3) expert testimony is inadmissible if the state of the pertinent art or scientific knowledge does not permit a reasonable opinion to be asserted even by an expert.

[2] Criminal Law 110 469.2

110 Criminal Law

110XVII Evidence



110k469.2 k. Discretion. Most Cited Cases

Criminal Law 110 662.1

110 Criminal Law

110XX Trial

110XX(C) Reception of Evidence

110k662 Right of Accused to Confront Witnesses

110k662.1 k. In General. Most Cited Cases

Although the admission of expert testimony falls within the discretion of a trial judge, because the right to confront witnesses and to present a defense are constitutionally protected, in exercising its discretion, the trial court must be guided by the principles that the defense should be free to introduce appropriate expert testimony. U.S.C.A.

Const.Amend. 6.


110 Criminal Law

388.1

110XVII Evidence

110XVII(I) Competency in General

110k388 Experiments and Tests; Scientific and Survey Evidence


Not only is a defendant entitled to present a defense, but that defense should not be put at a disadvantage in the use of scientific evidence comparable to that permitted to the government. U.S.C.A. Const.Amend. 6.


110 Criminal Law

110XVII Evidence

474.3(1)




110k474.3(1) k. In General. Most Cited Cases

Fairness dictates a balanced judicial approach in permitting use in criminal trials of expert testimony concerning subtle psychological factors that might affect witnesses. U.S.C.A. Const.Amend. 6.

[5] Criminal Law 110 474.3(2)

110 Criminal Law

110XVII Evidence





The defense in a criminal case should be permitted to present expert testimony on the unreliability of eyewitness testimony in appropriate cases, just as the government is allowed in appropriate cases to introduce expert evidence to explain the failure of government witnesses to promptly identify or accuse an attacker in order to build a case for the prosecution. U.S.C.A. Const.Amend. 6.

[6] Criminal Law 110 469.2

110 Criminal Law

110XVII Evidence



110k469.2 k. Discretion. Most Cited Cases

Criminal Law 110

110 Criminal Law

1153.12(3)

110XXIV Review





Whether to admit expert testimony is committed to the discretion of the trial court; a ruling either admitting or excluding such evidence will not be disturbed unless manifestly erroneous, i.e., for abuse of discretion.

[7] Criminal Law 110 1153.1

110 Criminal Law

110XXIV Review




When an evidentiary question is committed to the discretion of the trial judge, review on appeal is limited to whether the judge engaged in a proper exercise of discretion.


110 Criminal Law

110XX Trial

661

110XX(C) Reception of Evidence

110k661 k. Necessity and Scope of Proof. Most Cited Cases

The exercise of discretion on whether to admit evidence entails, first, recognition that there is discretion to be exercised, and then, after consideration of the correct legal factors, their reasonable application to the facts of the case before the court.


110 Criminal Law

474.3(2)

110XVII Evidence





Trial court failed to exercise its discretion when it excluded testimony of defendant's expert on eyewitness reliability, in trial in which prosecution relied exclusively on five eyewitnesses who were strangers to defendant and which resulted in conviction for armed kidnapping and related weapons offense; expert testimony on eyewitness reliability was not automatically inadmissible, court did not consider Dyas factors applicable when determining whether to admit expert testimony on eyewitness reliability, court's decision was not grounded in defendant's proffer and its relevance to the identifications at issue, court did not address assertion in defendant's proffer that scientific research had both identified factors that could lead a jury to question an eyewitness identification and determined that some of these factors were not evident to lay jurors, and court should have conducted a voir dire of witness before it made decision. Fed.Rules Evid.Rule 702, 28 U.S.C.A.


110 Criminal Law

469.1

110XVII Evidence



110k469.1 k. Aid to Jury. Most Cited Cases

The decision to admit or exclude expert testimony must be made on a case-by-case basis, grounded on the proffer made and on its potential to assist the jury in the particular case before the court.

[11] Criminal Law 110 486(2)

110 Criminal Law

110XVII Evidence


110k482 Examination of Experts

110k486 Basis of Opinion

110k486(2) k. Necessity and Sufficiency. Most Cited Cases

What Frye and Dyas require in order to admit expert testimony is acceptance within the scientific community of the methodology used, rather than judicial agreement with specific results.


110 Criminal Law

470(1)

110XVII Evidence



110k470 Matters Directly in Issue; Ultimate Issues

110k470(1) k. In General. Most Cited Cases

If expert testimony can assist the jury, it perforce does not usurp the jury's function; rather, it enhances the jury's ability to perform its role as factfinder.

[13] Criminal Law 110 561(1)

110 Criminal Law

110XVII Evidence

110XVII(V) Weight and Sufficiency

110k561 Reasonable Doubt

110k561(1) k. In General. Most Cited Cases

The jury's responsibility in a criminal case is to critically examine the government's evidence against the most exacting legal standard, guilt beyond a reasonable doubt, and this standard requires the factfinder to reach a subjective state of near certitude of the guilt of the accused.


110 Criminal Law

110XVII Evidence

474.3(2)





Expert testimony on eyewitness identification can be critical in confirming or undermining a juror's near certitude of guilt when the prosecution's case is grounded on the identification of eyewitnesses.

[15] Criminal Law 110 469

110 Criminal Law

110XVII Evidence



110k469 k. In General. Most Cited Cases

Any concern a trial judge may have that admission of expert testimony could confuse or overwhelm the jury is more appropriately dealt with, not by exclusion, but by placing reasonable limitations on the expert's testimony and instructing the jurors that they-and only they-are the ultimate fact finders. Fed.Rules Evid.Rule 702, 28 U.S.C.A.


110 Criminal Law

110XXIV Review

1153.12(3)





Although a trial court's ruling to exclude expert testimony is reversible only for abuse of discretion, or being manifestly erroneous, there is an important tradeoff for giving the trial court such latitude; that court must take no shortcuts and it must exercise its discretion with reference to all the necessary criteria, otherwise the very reason for such deference, i.e., the trial court's opportunity to observe, hear, and otherwise evaluate the witness, will be compromised.


110 Criminal Law

1147

110XXIV Review


110k1147 k. In General. Most Cited Cases

An appellate court must not affirm a ruling premised on trial court discretion unless the record clearly manifests either: (1) that the trial court has ruled on each essential criterion, or (2) that the trial court, as a matter of law, had but one option.

[18] Criminal Law 110 474.3(2)

110 Criminal Law

110XVII Evidence





There is not a per se requirement that all expert testimony about the reliability of eyewitness identification must be excluded.


110 Criminal Law

110XVII Evidence

474.3(2)





While the determination whether to admit expert testimony regarding eyewitness reliability lies within the discretion of the trial judge, this determination must be based upon a consideration of each of the three separate criteria identified in Dyas, taking into account the particular proffer made and in the concrete setting of that case.

[20] Criminal Law 110 474.3(2)

110 Criminal Law

110XVII Evidence





A trial court's determination on whether to admit expert testimony on eyewitness reliability must be case-specific, based on the proffered expert testimony, and the court must consider: (1) the current state of generally-accepted scientific research; (2) whether it is within the common knowledge of lay jurors; and (3) whether the testimony would assist the jury, taking into account the relevance and probative value of the proposed scientific evidence to the eyewitness identification in the case.


110 Criminal Law

110XVII Evidence

474.3(2)





It is the function of the trial judge to determine whether expert testimony on eyewitness reliability is likely to be helpful to the jury in evaluating the identification presented in a particular case, once having ascertained that the expert is qualified, and that the science is generally accepted and not within the common knowledge of jurors.

[22] Criminal Law 110 474.3(2)

110 Criminal Law

110XVII Evidence





In making the determination on whether to admit expert testimony on eyewitness reliability, a trial judge must consider whether expert testimony is the only means, or a particularly effective way, to address and correct common juror misconceptions about the reliability of the eyewitness identifications in the case, and there are certain cases where cross-examination may suffice to test the reliability of an identification made by an eye-witness.

[23] Criminal Law 110 474.3(2)

110 Criminal Law

110XVII Evidence





Reliance on cross-examination cannot be automatic or reflexively adopted in lieu of proffered expert testimony on eyewitness reliability.


110 Criminal Law

474.3(2)

110XVII Evidence





While cross-examination of an eyewitness is an attractive option when the reliability of an eyewitness identification is challenged, because it is familiar to judges and less time-consuming than determining the qualification of experts and resolving challenges and objections that admission of expert scientific evidence can entail, it is not necessarily a satisfactory alternative; the efficacy of cross-examination must be evaluated with care in the context of the particular case and against the value added to the jury of proffered expert testimony.

[25] Criminal Law 110 474.3(2)

110 Criminal Law

110XVII Evidence





When physical corroboration of eyewitness identification exists, the exclusion of proffered expert testimony on eyewitness reliability by a trial court generally does not constitute an abuse of discretion.


110 Criminal Law

474.3(2)

110XVII Evidence





Expert testimony on eyewitness reliability is not restricted to only cases in which a single witness has identified the defendant.

[27] Criminal Law 110 1169.9

110 Criminal Law

110XXIV Review

110XXIV(Q) Harmless and Reversible Error

110k1169 Admission of Evidence

110k1169.9 k. Opinion Evidence. Most Cited Cases

Error of trial court in failing to exercise its discretion when it excluded testimony of defendant's expert on eyewitness reliability was not harmless, in trial that resulted in conviction of defendant for armed kidnapping and a related weapons offense, where prosecution relied exclusively on five eyewitnesses who were strangers to defendant, witnesses initially identified defendant in a photo spread, four of the five witnesses initially stated that one of the photographs “looked like” the tall man of the two suspects who abducted the victim, there was no corroborating evidence, the eyewitnesses' identifications increased in certainty over time, prosecution emphasized the alleged credibility of the eyewitnesses during closing argument, and without the expert's testimony defendant's attorney could only make what appeared to be unwarranted attacks on the credibility of witnesses perceived to be honest.

*1261 Lee Richard Goebes, Public Defender Service, for appellant. James W. Klein, Sandra K. Levick, and Erin

Murphy, Public Defender Service, were on the brief, for appellant.

Ann K.H. Simon, Assistant United States Attorney, with whom Kenneth L. Wainstein, United States Attorney at the time the brief was filed, John R. Fisher, Assistant United States Attorney at the time the brief was filed, and Roy W.

McLeese III and Colleen Covell, Assistant United States Attorneys, were on the brief, for appellee.

Before WASHINGTON, Chief Judge, RUIZ, Associate Judge, and SCHWELB, Senior Judge.

FN*

FN* Judge Schwelb was an Associate Judge of the court at the time of argument. His status changed to

Senior Judge on June 24, 2006.

RUIZ, Associate Judge:

Raymond Benn appeals his convictions, after a second jury trial, for the armed kidnapping of Charles “Sean”

Williams on December 1, 1992. This appeal raises an issue we have grappled with before, the admission of expert testimony on the potential unreliability of eyewitnesses. For the first time, however, we do not affirm the trial court's exclusion of the proffered expert testimony. In excluding the expert testimony proffered by appellant, the trial court applied incorrect legal principles. It came dangerously close to employing a per se rule of exclusion and made a determination that contravened a holding of this court following the first trial. Moreover, the court did not follow the analysis established in Dyas v. United States, FN2 which requires the trial court to consider three distinct factors in determining whether to admit expert testimony on the reliability of eyewitness identifications, and to do so in the context of the proffered expert testimony and evidence in the particular case. Because we cannot say that exclusion of the expert testimony proffered here was harmless, in a case that depended exclusively on the identification of eyewitnesses, we remand for further proceedings consistent with the analysis set forth in Dyas and this opinion.

FN2. 376 A.2d 827 (D.C.), cert. denied, 434 U.S. 973, 98 S.Ct. 529, 54 L.Ed.2d 464 (1977).

We do not reverse appellant's convictions nor do we order a new trial. Rather, we remand and instruct the court to consider the credentials of appellant's proffered expert and the admissibility of his testimony in accordance with the three criteria established in Dyas.

We note that while the trial court expressed the view that appellant's expert was qualified, and the government generally did not contest his qualifications, the trial court has not ruled on the particular scientific studies that appellant's proffered expert, Professor Steven Penrod, planned to use or their application to the government's evidence in the case.

FN3 Because such fact-intensive analysis is best conducted by the trial court, we leave the determination to its discretion in the first instance. We add *1262 that even if the trial judge decides, after considering all the relevant factors for admissibility, that the proffered expert witness is qualified and that his testimony should be admitted, the trial judge retains discretion to place reasonable limitations on the expert's testimony to avoid overwhelming the jury or unduly burdening the court, so long as these limitations are consistent with the requirements of the defense.

FN4 In particular, the trial judge may prohibit “the introduction of ultimate conclusions by an expert witness as to the truthfulness of a witness ... and the guilt of the defendant.” FN5

FN3. Cf. Steele v. D.C. Tiger Mkt., 854 A.2d 175, 181 (D.C.2004) (describing the balance between admissible and inadmissible expert evidence as “easier to state in the abstract” and requiring “a considerable measure of judicial discretion” to implement).

FN4. See State v. Chapple, 135 Ariz. 281, 660 P.2d 1208, 1219 (1983) (noting that “the consumption of time involved in taking testimony of the expert witness in question was certainly not ‘undue’ in comparison with the importance of the issue”).

FN5. Mindombe v. United States, 795 A.2d 39, 43 (D.C.2002); see People v. Drake, 7 N.Y.3d 28, 817

N.Y.S.2d 583, 850 N.E.2d 630, 633 (2006) (noting that trial court should instruct jurors that “if they accept the expert's testimony, they may consider it along with all other evidence in the case in determining whether the [state has] proved the defendant's guilt beyond a reasonable doubt”).

I. Trial and Retrial

The trial in this case followed our remand for a new trial in Benn v. United States ( Benn I ).

FN6 There, we directed the trial court to permit appellant to present evidence supporting his alibi defense, that appellant was at his mother's house celebrating her birthday on the evening of the murder.

FN7 At the first trial, appellant had been convicted of felony murder while armed FN8 and of related kidnapping, assault, and weapons charges, in connection with the shooting death of Sean Williams. We reversed his convictions because the trial court had refused to allow appellant's mother to retake the stand after she had sat in on the trial during the testimony of her son in contravention of the trial judge's rule on witnesses. The defense proposed to call appellant's mother in order to rebut the suggestion of the prosecutor, while cross-examining appellant, that he and his mother had rehearsed his alibi. Appellant had proffered that the reason they had not talked about the case was because defense counsel had cautioned them not to do so, and he wished to assure that the jury would be informed of that fact.

FN6. 801 A.2d 132 (D.C.2002).

FN7. See id.

at 136-39.

FN8. See D.C.Code §§ 22-2401, -3202 (1981) (current versions at D.C.Code § 22-2101, -4502 (2001)).

At the second trial, however, appellant did not renew his alibi defense, and neither he nor his mother testified.

Instead, appellant's defense centered on challenging the reliability of the identifications of the witnesses who testified that appellant was one of the men who kidnapped Sean Williams. Prior to trial, appellant sought permission to present expert testimony on the “unreliability [of] stranger-to-stranger eyewitness identifications” and certain other specific factors that, according to appellant's proffer, can affect the accuracy of an eyewitness's identification and recollection. Appellant proffered as his expert Professor Steven Penrod, a well-known scholar with many published articles in the area of eyewitness identifications. At the conclusion of the second trial, the jury, after deliberating for over a day, found appellant guilty of armed kidnapping and the related weapons offense. FN9 Unlike

in the *1263 first trial, the second jury acquitted appellant of murder.

FN10 The sole issue presented in this appeal is whether the trial court abused its discretion in rejecting the proffered expert testimony.

FN9. See D.C.Code §§ 22-2101, -3202 (1981) (current versions at D.C.Code § 22-2001, -4502 (2001))

(conspiracy); D.C.Code § 22-3204(b) (1981) (current version at D.C.Code § 22-4504 (2001)) (possession of a weapon during a crime of violence).

FN10. At the first trial, appellant was convicted of murder and sentenced to a total of thirty years to life imprisonment. At the second trial, appellant was sentenced to a total of fourteen to forty-two years imprisonment.

II. Facts

In the second trial, as in the first, the government's case relied exclusively on the testimony of five members of the

Mahoney family, none of whom knew or had ever seen appellant before. Each of these witnesses selected appellant from a photo array and identified him in court as “the taller” of two unknown men who entered their Southeast

Washington, D.C. home, on December 1, 1992, and forcibly abducted Sean Williams. The gist of the trial testimony concerning their identifications follows.

Marcelle Anthony Mahoney, then thirteen years of age, was returning home when he saw “a tall guy about-oh 6'3",

6'5", dark-skinned, wearing glasses, standing in the middle of the street [outside a double-parked] car.” This made

Marcelle afraid, so he hurried inside. A few minutes later, that same tall man, and a shorter man who had a black gun, dragged Sean Williams into the apartment. Marcelle testified that he was “kind [of] frantic about seeing the gun.”

The two intruders went to the bedroom of April Mahoney, who was Sean Williams's fiancée and the mother of his child. She noticed that although it was December, her fiancé was wearing only a T-Shirt, without a coat, and that he had blood all over his face and clothes. The shorter unknown man, who was wearing her child's panties on his head, ordered April to leave the room and to take her baby, along with Darren and Marcelle Mahoney, out of the bedroom.

Darren Mahoney, who was twelve at the time, testified that he stayed at least long enough to see Williams

“rambl[e]” around April's room as he kept asking, “April, where my stuff at?”

Willie Mae Mahoney, April's mother, testified that she was in her bedroom and became alarmed when April told her about the sudden appearance in the home of the two unknown men. When April was unable to explain why the men were there, Willie Mae “hollered” at them to not “disrespect [my] home.” As the intruders walked out of April's room without responding, Willie Mae followed them and repeated her demand, leading the taller man to calmly explain that he would commit no violence toward, and intended no disrespect of, her home. When she tried to talk directly to Sean Williams, the tall man interrupted her, saying, “[Sean is] going to be all right. He ... has to settle a debt,” and the three men left. Willie Mae Mahoney testified that Sean Williams looked “scared” and “pitiful.”

William “Butch” Mahoney, Willie Mae's son and April's older brother, testified that he was in the kitchen when the men entered the home. He followed the intruders as far as the front step, and from there he called out to Sean

Williams, who tried to give an optimistic response, while the two men pulled him into a car and drove off.

The intrusion into the Mahoney home lasted about six minutes. That was the last time the Mahoneys saw Sean

Williams alive. His bullet-ridden body was discovered nearby early the following morning on the grounds of an elementary school.

FN11

FN11. See Benn I, 801 A.2d at 135.

Approximately one week after Sean Williams's murder, the Mahoney family *1264 was shown a stack of nine photos from which each identified appellant as the taller of the two men who had entered their home.

FN12 Darren,

Marcelle, and Willie Mae Mahoney made these identifications one after the other, while Butch viewed the photo array later the same evening, and April several days later. Detective Mayberry testified that prior to making their

identifications, Darren, Marcelle, and Willie Mae were all placed in a back bedroom of the apartment. Each would then come individually to the dining room to view the photos, and then go to the living room. However, Willie Mae

Mahoney testified that after her grandsons viewed the photographs, they returned to her, in the bedroom. Neither

Darren nor Marcelle could remember the sequence in which they moved from one room to another.

FN13

FN12. Detective Mayberry, of the Metropolitan Police Department, told the Mahoneys to “[t]ake a look at

[the pictures] and tell me if one of the people is the people that came into your apartment with Sean.” The array was composed of pictures of appellant and of foils who were selected to look like the picture of appellant, and not geared to the description of the culprit given by the Mahoneys. Detective Mayberry, who constructed the photo array, was asked, “when you're thinking about what characteristics to go on, you pay attention to what the witnesses have told you they saw when they saw the suspect, right?” The detective responded, “Not so much as that. Once a suspect is developed and there is a photograph of that suspect, then in making a photo spread then I will go along the lines of the picture itself.” The record does not reveal how the police came to identify appellant as a suspect.

FN13. Curiously, Butch Mahoney testified that he remembered the family gathering in one of the two bedrooms in the apartment (he could not recall whether his sister April was present). He described how each would go from the bedroom to the dining room to view the photographs. Then, he testified, each would go to the second of the two bedrooms (Willie Mae's) in the apartment. Even after being reminded that he had not been present when Darren, Marcelle, and Willie Mae made their identifications, Butch insisted that each one left the dining room, after making an identification, and went to Willie Mae's bedroom.

Following the identifications, April Mahoney testified, “we never discussed pictures, we just discussed what happened,” but Butch Mahoney contradicted her, admitting that he discussed his identification of appellant with his family. At the time they identified appellant from the photo array, Marcelle, Willie Mae, and April Mahoney expressed “95%” certainty that they had correctly identified appellant as one of the perpetrators. This, we said in

Benn I, was a remarkable “coincidence” that “understandably troubled the judge [during the first trial] and indicates, at least, that someone probably suggested something to somebody.” FN14

FN14. See Benn I, 801 A.2d at 145.

At appellant's two trials, the government presented only the testimony of the five members of the Mahoney family present at the time of Sean Williams's kidnapping. There was no evidence of motive, for example, that appellant (or anyone connected to him) was owed money by Sean Williams. No relationship was established between appellant and the “shorter man” who entered the house, or with the car in which the men drove off with Sean Williams. The prosecutor presented no physical evidence linking appellant to the abduction at the Mahoneys' home or the place where Sean Williams's body was found.

All five members of the Mahoney family acknowledged that they did not know and had never before seen either of the men who entered their home and abducted Sean Williams that day, nor did they have any other knowledge of the men. FN15 But *1265 they each positively identified appellant as the taller of the two men who had entered their home. Each witness was impeached with various inconsistencies concerning his or her initial identification from the photographs that were presented in the days after the kidnapping. FN16 When the Mahoneys first selected appellant's photograph, several did so with some qualification: April said that appellant's photograph “looks like the guy” who abducted Mr. Williams; Willie Mae thought that appellant “looks like the guy if his face were slimmer”; and Darren thought “that looks like him.” Marcelle picked out appellant's picture saying that it “looks like the person.” By the time of the second trial, however, the qualifications had disappeared. Darren testified that he was “absolutely positive”; April said she was “very sure” that appellant was the “tall guy” who had come into their apartment;

Marcelle testified, when asked how he could be sure, that appellant “looks just the same” as the kidnapper; Willie

Mae said she was “sure” that appellant was the same “gentleman” who entered her house “[b]ased on the way he's looking at me”; and, referring to both his photo and in-court identification, Butch Mahoney said, “I'm sure then, and

I'm sure now. That's him.” The witnesses expressed this high level of confidence in their identifications of appellant after each was asked at the second trial to confirm that they had previously twice identified appellant, first from the photo array and, a second time, under oath at the first trial.

FN15. See id.

at 134.

FN16. At trial, April testified that she looked “[the taller man] dead in his face” and described his appearance. Her testimony was inconsistent with a statement she had given to the police in 1993, shortly after the kidnapping and murder, in which she said, “the only thing I really remember was the glasses[;] I tried not to look at [the tall man] in his face.” Willie Mae Mahoney said at trial that she focused her attention on the taller man; she did not want to look at the shorter man because he had a gun. However, during cross-examination, she acknowledged that at the time when the men were in her home, she “may have thought” that both men were armed.

III. Eyewitness Identifications

Although the testimony of a single eyewitness can be sufficient to support a conviction “so long as a ‘reasonable person could find the identification convincing beyond a reasonable doubt,’ ”

“[t]he identification of strangers is proverbially untrustworthy.” FN18

FN17 the Supreme Court has noted that

“Even if the witness professes certainty, ‘it is well recognized that the most positive eyewitness is not necessarily the most reliable.’ ” FN19 These judicial pronouncements *1266 are supported by research studies that have concluded that “eyewitness error is the leading cause of wrongful conviction in the United States.” FN20 However, “most exonerees had no successful basis for challenging what we now know to be incorrect eyewitness identifications.” FN21

FN17. Peterson v. United States, 657 A.2d 756, 760 (D.C.1995) (quoting Beatty v. United States, 544 A.2d

699, 701 (D.C.1988)).

FN18. United States v. Wade, 388 U.S. 218, 228, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); see also Wehrle v.

Brooks, 269 F.Supp. 785, 792 (W.D.N.C.1966) (“Positive identification of a person not previously known to the witness is perhaps the most fearful testimony known to the law of evidence.”), aff'd, 379 F.2d 288

(4th Cir.1967).

FN19. Webster v. United States, 623 A.2d 1198, 1204 n. 15 (D.C.1993) (quoting Crawley v. United States,

320 A.2d 309, 312 (D.C.1974)); see also Wade, 388 U.S. at 228, 87 S.Ct. 1926 (“The vagaries of eyewitness identification are well known; the annals of criminal law are rife with instances of mistaken identification.”); United States v. Stevens, 935 F.2d 1380, 1400 (3d Cir.1991) (“That witnesses ofttimes profess considerable confidence in erroneous identifications is fairly counterintuitive.”); In re AS.H., 851

A.2d 456, 459-60 (D.C.2004) (citing cases spanning five decades that cast doubt on the reliability of eyewitness identifications); In re L.G.T., 735 A.2d 957, 964 (D.C.1999) (Schwelb, J., concurring dubitante )

(“This court and other courts have repeatedly recognized the unreliability of identification of strangers made on the basis of brief observation under stressful conditions.”).

FN20. ELIZABETH F. LOFTUS, JAMES M. DOYLE & JENNIFER E. DYSART, EYEWITNESS

TESTIMONY: CIVIL AND CRIMINAL § 1-3, at 3 (4th ed. 1997), cited in Strickler v. Greene, 527 U.S.

263, 307, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999).

FN21. Brandon Garrett, Judging Innocence, 108 COLUM. L.REV. 55, 81 (2008).

In this case, appellant proffered a study, conducted in 2001, in which experts on the subject of eyewitness testimony were asked whether certain observed “phenomena” were “reliable enough for psychologists to present in courtroom testimony.” FN22 This study sought to update one of a similar nature conducted in 1989.

FN23 In addition to identifying sixteen such phenomena, FN24 the study revealed other important facts regarding the reliability of eyewitness testimony. First, the study identified several areas of research which experts had previously considered either unreliable or within the “common sense” knowledge of a juror. For example, in the 1989 study, the *1267 surveyed experts did not agree that the methodology of studies concluding that “[t]he presence of a weapon impairs a witness's ability to accurately identify the perpetrator's face” was sufficiently sound to qualify as expert testimony.

FN25 By 2001, however, 87% of the experts surveyed agreed that the science concerning the effect of

weapon-related stress had advanced to the point that it was reliable.

FN26 34% of the experts agreed that it would be a matter of “common sense” knowledge for the average juror, FN27 as compared to 11.4% in 1989.

study listed thirteen new areas of scientific study that were deemed reliable.

FN28 Second, the 2001

FN29 For example, 95% of the eyewitness experts surveyed in 2001 agreed that the scientific method behind the observed phenomenon that an eyewitness's confidence can be influenced by a number of factors unrelated to accuracy is sufficiently reliable to be presented to a jury.

FN30 Only 10% of the experts surveyed, however, concluded that this phenomenon is within the common knowledge of lay jurors.

FN31

FN22. Saul M. Kassin, et al., On the “General Acceptance” of Eyewitness Testimony Research: A New

Survey of the Experts, 56 AMERICAN PSYCHOLOGIST 405, 407 (2001) [hereinafter “Kassin, et al., On the ‘General Acceptance’ ”]. In its brief on appeal, the government argued that the Kassin study has been criticized and expert testimony relying on it excluded, citing People v. LeGrand ( LeGrand I ), 196 Misc.2d

179, 747 N.Y.S.2d 733, 744-45 (Sup.Ct.2002) (questioning the selection and size of the pool of experts surveyed), aff'd, 28 A.D.3d 318, 814 N.Y.S.2d 37 (App.Div.2006), rev'd, 8 N.Y.3d 449, 835 N.Y.S.2d 523,

867 N.E.2d 374 (2007). That judgment was subsequently reversed by the New York Court of Appeals, which bypassed the question of the adequacy of the Kassin study because “the defense expert's testimony considered sufficient studies to confirm that the principles upon which the expert based his conclusions are generally accepted by social scientists and psychologists.” People v. LeGrand ( LeGrand II ), 8 N.Y.3d 449,

835 N.Y.S.2d 523, 867 N.E.2d 374, 379 (N.Y.2007). Although we are not generally bound by the rulings in another jurisdiction, we find that the New York high court's analysis is thorough and persuasive. See also

People v. Williams, 14 Misc.3d 571, 830 N.Y.S.2d 452, 466 (Sup.Ct.2006) (concluding that expert testimony was admissible because proffered expert rebutted challenge to Kassin study). Here, even though the expert proffered by appellant was available to testify, as we discuss infra, the trial court did not consider the specific proffer made, or take the opportunity to question Professor Penrod, but appeared to reject the expert testimony outright. We refer to the Kassin study not as an endorsement of its methodology, but to highlight some of the scientific research that was proffered to the trial court for its consideration.

FN23. See Saul M. Kassin, et al., The “General Acceptance” of Psychological Research on Eyewitness

Testimony: A Survey of the Experts, 44 AM. PSYCHOLOGIST 1089 (1989) [hereinafter “Kassin, et al., The

‘General Acceptance’ ”].

FN24. The sixteen were deemed sufficiently reliable to be presented to a jury, based on agreement by at least 80% of the experts surveyed. They include: (1) that the wording of questions and instructions can influence an eyewitness's testimony about events and identification, (2) that an eyewitness's confidence can be affected by factors unrelated to accuracy, (3) that exposure to mug shots increases the likelihood of that suspect being selected as the perpetrator, (4) that eyewitnesses are more accurate when identifying members of their own race, (5) that the presence of a weapon reduces the accuracy of an eyewitness's perception, (6) that an eyewitness is susceptible to inadvertently substituting the face of a person seen later for that of the actual perpetrator, and (7) that an eyewitness's confidence in an identification does not correlate with the accuracy of the identification. According to the experts surveyed, anywhere between 5 and 61% agreed that these scientific findings were within the “common sense” of lay jurors, depending on the specific finding. See Kassin, et al., On the “General Acceptance,” supra note 22, at 412 tbl. 4.

FN25. See Kassin, et al., The “General Acceptance,” supra note 23, at 1091 tbl. 1.

FN26. Studies show that most potential jurors believe that a person's memory functions like a camera, capable of retrieving a captured image on demand. See NATHAN R. SOBEL, EYEWITNESS

IDENTIFICATION: LEGAL AND PRACTICAL PROBLEMS § 1:1, at 3 (2007-2 rev.), cited in Reese v.

Fulcomer, 946 F.2d 247, 262 (3d Cir.1991). But memory, according to studies, is influenced by a variety of factors such as stress, including the stress induced by the presence of a weapon. LOFTUS, DOYLE &

DYSART, supra note 20, § 2-9, at 33-34; BRIAN L. CUTLER & STEVEN PENROD, MISTAKEN

IDENTIFICATION: THE EYEWITNESS, PSYCHOLOGY, AND THE LAW 101 (1995) (“[T]he presence of a weapon during a crime attracts the attention of the witness to the weapon, leaving less attention to the perpetrator's facial and physical characteristics.”), cited in Commonwealth v. Cruz, 445 Mass. 589, 839

N.E.2d 324, 332 (2005).

FN27. See Kassin, et al., On the “General Acceptance,” supra note 22, at 412 tbl. 4.

FN28. See Kassin, et al., The “General Acceptance,” supra note 23, at 1094 tbl. 4.

FN29. Of the thirteen new propositions tested since the 1989 study, six were identified as presently reliable by the experts. These include:

[1] that eyewitness confidence is malleable and influenced by factors unrelated to accuracy ..., [2] that exposure to mug shots of a suspect increases the likelihood of his or her selection from a subsequent lineup ..., [3] that young children are more vulnerable than adults to suggestion and other social influences ..., [4] that alcohol impairs eyewitness performance ..., [5] that eyewitnesses find it relatively difficult to identify members of a race other than their own ..., and [6] that the risk of false identification is increased by the use of a simultaneous as opposed to sequential presentation format.

Kassin, et al.,

On the “General Acceptance,” supra

note 22, at 410-11.

FN30. See id.

at 412 tbl. 4; see also Kenneth Deffenbacher, Eyewitness Accuracy and Confidence: Can We

Infer Anything About Their Relationship?, 4 L. HUM. BEHAV.. 243, 258 (1980) (cited in the defense proffer and explaining that correlation varies based upon the “processing conditions” of an identification).

FN31. See Kassin, et al., On the “General Acceptance,” supra note 22, at 412 tbl. 4.

Whether experts generally accept the scientific research on the reliability of eyewitness testimony is only part of the necessary inquiry on the admissibility of scientific evidence. Courts must also determine the extent to which expert testimony will provide information that is not likely to be known by lay jurors.

FN32 Trial courts, both in our jurisdiction and in others, have excluded expert testimony on eyewitness reliability because it was *1268 deemed to be within the common sense knowledge, i.e., “not ... beyond the ken,” of the average juror.

FN33 Certain factors that can influence an eyewitnesses' observation and recall are familiar to lay persons. According to a majority of the experts surveyed in the Kassin study, for example, three factors-unreliability due to the susceptibility of young children to suggestion, alcohol intoxication, and cross-racial identifications-are understood by lay jurors.

FN34

“jurors, as a matter of common sense, are not fully aware of the factors that influence eyewitness testimony.”

But

FN35

For example, the average juror is likely to believe that witnesses remember the details of violent events better than those of nonviolent ones. FN36 Scholarship on the subject, however, reveals that the opposite is true. In general, witnesses are just as likely to underestimate the duration of an event as to overestimate it, but in the case of a violent crime, however, witnesses most often think that the incident lasted longer than it did. FN37 Similarly, jurors believe that the more confident a witness seems, the more accurate that witness's testimony will be.

FN38 Research reveals, however, that the correlation between a witness's expression of certainty in an identification and its accuracy is, at a minimum, greatly overstated, and perhaps unwarranted.

FN39

FN32. See Frye v. United States, 54 App.D.C. 46 46, 47, 293 F. 1013, 1014 (1923); see also CUTLER &

PENROD, supra note 26, at 217.

FN33. See, e.g., Green v. United States, 718 A.2d 1042, 1053 (D.C.1998) (citing cases), cert. denied,

Landon v. United States, 526 U.S. 1011, 119 S.Ct. 1156, 143 L.Ed.2d 222 (1999) (citing cases); see also

Tanja Rapus Benton, et al., On the Admissibility of Expert Testimony on Eyewitness Identification: A Legal and Scientific Evaluation, 2 TENN. J.L. & POL'Y 392, 413 (2006); LOFTUS, DOYLE & DYSART, supra note 20, § 13-11 at 374 (“Courts that have excluded expert testimony have used a variety of formulations ...

[with some holding] that expert testimony, while valid and interesting, simply tells jurors things that they already know and, therefore, fails to aid the trier of fact.”); Id.

§ 13-11, at 373 n. 57 (citing cases).

FN34. See Kassin, et al., On the “General Acceptance,” supra note 22, at 412.

FN35. LOFTUS, DOYLE & DYSART, supra note 20, § 6-5, at 130; see also Keith A. Findley, Learning

From Our Mistakes: A Criminal Justice Commission to Study Wrongful Convictions, 38 CAL. W.L.REV.

333, 334 (2002) (“[H]ard evidence shows that jurors do not understand the psychological processes at work in an eyewitness identification and tend to rely an unwarranted extent on such identifications....

Nonetheless, courts in many jurisdictions routinely continue to exclude expert testimony designed to educate jurors on these matters, often on the ground that such information is within the common knowledge of jurors or would usurp the role of the jury.” (footnote omitted)); Deffenbacher, supra note 30, at 258

(“[T]he apparent majority of American judges, ... acting within permitted judicial discretion, do not allow expert testimony to be admitted into evidence.”).

FN36. See LOFTUS, DOYLE & DYSART, supra note 20, § 6-6, at 130 (citing Saul M. Kassin & Kimberly

A. Barndollar, The Psychology of Eyewitness Testimony: A Comparison of Experts and Prospective Jurors,

22 J. APPLIED SOCIAL PSYCHOLOGY 1241, 1246 (1992)).

FN37. See id.

FN38. See id.

§ 6-6, at 130-31 (citing Kassin & Barndollar, supra note 36, at 1241).

FN39. See id.

; see also Noah Clements, Flipping a Coin: A Solution for the Inherent Unreliability of

Eyewitness Identification Testimony, 40 IND.L.REV. 271, 282 (2007) (“If there is one thing that the research is virtually unanimous on, it is this: there is no correlation whatsoever between eyewitness certainty and accuracy.”).

Against this general background we discuss, first, the legal standard for admission of expert testimony on eyewitness identification, and then, the reasons for the trial judge's rejection of the defense proffer and its potential relevance to the identifications that were presented to the jury in this case.

*1269 IV. The Legal Standard

[1] In Dyas we identified three distinct criteria that trial judges must apply in considering whether to admit or exclude expert testimony regarding eyewitness identification:

(1) the subject matter “must be so distinctively related to some science, profession, business or occupation as to be beyond the ken of the average layman

;” (2) “the witness must have sufficient skill, knowledge, or experience in that field or calling as to make it appear that his opinion or inference will probably aid the trier in his search for truth ;” and (3) expert testimony is inadmissible “if the state of the pertinent art or scientific knowledge does not permit a reasonable opinion to be asserted even by an expert.” FN40

FN40. Dyas, 376 A.2d at 832 (alteration in original) (quoting MCCORMICK ON EVIDENCE, § 13, at 29-

31 (E. Cleary, 2d ed. 1972)).

The first and third Dyas criteria reflect the standard for admissibility of expert testimony set forth by the U.S. Court of Appeals for the District of Columbia in Frye v. United States.

FN41 Dyas's requirement that the evidence be

“beyond the ken of the average layman,” FN42 derives from Frye's standard, that the subject matter of the expert testimony must be “such that inexperienced persons are unlikely to prove capable of forming a correct judgment,” because the subject “does not lie within the range of common experience or common knowledge.” FN43 And the third

Dyas requirement reflects Frye's standard that there be “general acceptance” of the underlying methodology in the relevant scientific community.

FN44

FN41. 54 App.D.C. at 46, 293 F. at 1014.

FN42. Dyas, 376 A.2d at 832.

FN43. Frye, 54 App.D.C. at 47, 293 F. at 1014.

FN44. Id.

at 47, 293 F. at 1014; see Ibn-Tamas v. United States, 407 A.2d 626, 638 (D.C.1979)

(“[S]atisfaction of the third Dyas criterion [involves] a determination of whether there is general acceptance of a particular scientific methodology, not an acceptance, beyond that, of particular study results based on that methodology.”). In Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d

469 (1993), the Supreme Court rejected Frye's requirement of “general acceptance” as a precondition to admissibility and required instead that the trial judge, acting as “gatekeeper,” determine whether the proffered expert testimony is “scientific knowledge,” so that “evidentiary reliability will be based upon scientific validity.” Id.

at 590 & n. 9, 113 S.Ct. 2786; cf. People v. Wesley, 83 N.Y.2d 417, 611 N.Y.S.2d 97,

633 N.E.2d 451, 464 (1994) (Kaye, C.J., concurring) (noting that the “general acceptance” prong of the

Frye test “emphasizes ‘counting scientists' votes rather than on verifying the soundness of a scientific conclusion’ ”) (quoting Jones v. United States, 548 A.2d 35, 42 (D.C.1988)). Daubert has not been adopted in this jurisdiction.

[2][3][4][5] Although the admission of expert testimony falls within the discretion of the trial judge, FN45 we have cautioned that because the right to confront witnesses and to present a defense are constitutionally protected, “[i]n exercising its discretion, the trial court must be guided by the principles that ‘the defense should be free to introduce appropriate expert testimony.’ ” FN46 Not only is the defendant entitled *1270 to present a defense, but that defense should not be put at a disadvantage in the use of scientific evidence comparable to that permitted to the government.

Fairness dictates a balanced judicial approach in permitting use in criminal trials of expert testimony concerning subtle psychological factors that might affect witnesses. The defense should be permitted to present expert testimony on the unreliability of eyewitness testimony in appropriate cases, just as the government is allowed in appropriate cases to introduce expert evidence to explain the failure of government witnesses to promptly identify or accuse an attacker in order to build a case for the prosecution.

FN47

FN45. See Hager v. United States, 856 A.2d 1143, 1147 (D.C.2004).

FN46. Ibn-Tamas, 407 A.2d at 632 (quoting Fennekohl v. United States, 354 A.2d 238, 240 (D.C.1976)); see also Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973) (“Few rights are more fundamental than that of an accused to present witnesses in his own defense.”); Ferensic v.

Birkett, 501 F.3d 469, 480 (6th Cir.2007) (finding error in a trial court's exclusion of expert testimony on the reliability of eyewitness identifications because the defendant had been “denied his Sixth Amendment right to present a defense”).

FN47. See, e.g., Nixon v. United States, 728 A.2d 582, 589 (D.C.1999) (approving use of expert testimony on Battered Women Syndrome), cert. denied, 528 U.S. 1098, 120 S.Ct. 841, 145 L.Ed.2d 707 (2000);

Oliver v. United States, 711 A.2d 70, 73 (D.C.1998) (permitting expert testimony on behavioral characteristics and psychological dynamics of sexually-abused children); see also Blakeney v. United

States, 653 A.2d 365, 369 (D.C.1995) (permitting expert testimony on habits of drug traffickers).

V. The Defense Proffer and the Trial Court's Ruling

Two weeks before trial, FN48 defense counsel filed a forty-page motion proffering the expert testimony of Professor

Steven D. Penrod, Ph.D., J.D., a social psychologist and lawyer with extensive credentials in the field of eyewitness identifications. Dr. Penrod's fourteen-page curriculum vitae reveals that Dr. Penrod has published widely on the subject. The motion set out the evidence presented by the government at the first trial and the prosecution's exclusive dependence on the identifications by the five Mahoneys. The motion addressed each of the three criteria for admissibility established in Dyas, requested a hearing, and offered to make Professor Penrod available for examination. With respect to the state of scientific research on the subject, the motion stated that in the last twentyfive years “psychologists have made great strides in understanding the factors that lead to accurate and inaccurate eyewitness identification.” The proffer pointed to the 2001 Kassin survey discussed above, which indicates that certain findings “are generally well accepted by experts,” and to the increasing acceptance of such findings by law enforcement, with specific reference to the Department of Justice's publication, Eyewitness Evidence.

FN49 In

addressing whether the subject matter of the proffered expert testimony was “beyond the ken” of the average juror, the defense asserted that while many trial judges are “educated ... in the many problems inherent in eyewitness testimony,” this is “not generally understood by the average member of the public.”

FN48. Defense counsel again moved for the admission of expert testimony mid trial, noting the government's emphasis on the witnesses' “certainty” in their identification of appellant.

FN49. In 1999, then-Attorney General Janet Reno commissioned an investigation into the first twenty-eight cases of persons who were convicted and were later exonerated by DNA evidence. This study documented the reality of wrongful convictions that had been based on erroneous eyewitness identification. See generally NATIONAL INSTITUTE OF JUSTICE, OFFICE OF JUSTICE PROGRAMS, U.S. DEPT. OF

JUSTICE EYEWITNESS EVIDENCE: A GUIDE FOR LAW ENFORCEMENT (1999) [hereinafter

EYEWITNESS EVIDENCE]. The resulting report fueled an expansion in the research into eyewitness reliability, and led the Attorney General to conclude that: “Even the most honest and objective people can make mistakes in recalling and interpreting a witnessed event; it is the nature of human memory.” Id.

at iii.

A more recent study, of the first two hundred persons exonerated by DNA evidence, disclosed that in 79% of the cases there had been at least one erroneous eyewitness identification. See Garrett, supra note 21, at

60. In 28% of these cases, the victim's erroneous identification was the central evidence supporting conviction. See id.

at 79.

*1271 Appellant's motion outlined the substance of Professor Penrod's proposed testimony, which included “a description of the various research studies and experiments upon which his conclusions would be based,” and stated

“that controlled experiments have led him and other experts in the field to draw [a number] of general conclusions” about the reliability-or lack thereof-of eyewitness identification when certain specific factors are present. Eleven specific factors were set out and explained in the motion. FN50 These included, inter alia, the unreliability of identifications from observation made under stressful circumstances, such as when a witness is focused on the presence of a weapon; the lack of correlation between witness confidence and accuracy; the influence of knowing that others have identified the same suspect; FN51 and the use of “unreliable investigative procedures,” including photo arrays, that can affect eyewitness reliability. FN52 The motion also asserted that these findings are not known to lay jurors, and, more specifically, that the lack of correlation between an eyewitness's confidence in an identification and the accuracy of that identification is not only unknown to lay persons, but is also “counterintuitive.” FN53

FN50. The factors included: (1) “[a] high level of stress and emotional arousal at the time of the eyewitness' observations may make the eyewitness less likely to retain an accurate memory and perception of details of an event”; (2) “[a] brief period of interaction decreases an eyewitness' ability to perceive and remember accurately the details of an assailant's physical appearance”; (3) “[t]he presence of a weapon, ... causes the witness not to pay close attention to how the assailant actually appears”; (4) “general[ly], the level of an eyewitness' confidence is only modestly correlated to the likelihood that the eyewitness' identification is accurate”; (5) “[a] witness may over time become increasingly confident in the accuracy of his [or her] identification ... ha[ving] no correlation whatsoever to the likelihood that the eyewitness' identification is accurate”; (6) “subjects are susceptible to suggestion in making their eyewitness identifications”; (7) “[t]he absence at show-ups or in photographic arrays of any ‘foils'-non-suspects who resemble descriptions given previously by the eyewitness-increases the likelihood that an eyewitness will, for lack of any choice of comparison, incorrectly identify ... one of the persons present in the line-up or array”; (8) “[w]itnesses readily incorporate suggestions from others into their memory for events”; (9) “[t]he passage of time between the incident [and] the identification procedure has a marked effect on the accuracy of a subsequent identification”; (10) “knowing that someone else positively identified the same suspect has also been found to inflate individuals' confidence in their identifications”; and (11) “[t]he type of identification procedures used by police officers, and the way the police conduct those procedures, has a significant impact on the accuracy of the identifications produced by those procedures.”

FN51. See Amy L. Bradfield, Gary L. Wells & Elizabeth A. Olson, The Damaging Effect of Confirming

Feedback on the Relation Between Eyewitness Certainty and Identification Accuracy, 87 J. APPLIED

PSYCHOLOGY 112, 117 (2002), cited in State v. Ledbetter, 275 Conn. 534, 881 A.2d 290, 312 (2005).

FN52. For example, U.S. Department of Justice guidelines explain that prior to conducting a photo array, an eyewitness should be instructed “that the person who committed the crime may or may not be present,”

EYEWITNESS EVIDENCE, supra note 49, at 19; see also Gary L. Wells & Elizabeth Loftus, Eyewitness

Memory for People and Events, in 11 HANDBOOK OF PSYCHOLOGY 157-58 (A.M. Goldstein, ed.

2003) (“[F]ailure to give explicit instructions to the eyewitness that emphasize that the perpetrator might not be in the lineup leads eyewitnesses to pick someone from the lineup at very high rates regardless of whether the perpetrator is present.”), that they should “not ... discuss the identification procedure or its results with other witnesses involved in the case,” EYEWITNESS EVIDENCE, supra note 49, at 34, and caution that “investigator's unintentional cues (e.g., body language, tone of voice) may negatively impeach the reliability of eyewitness evidence.” Id.

at 9.

FN53. In the motion, counsel also asserted that Professor Penrod's testimony was important to show that the government had failed to conduct a reliable and thorough investigation, invoking the right to present such a defense as enunciated in Kyles v. Whitley, 514 U.S. 419, 445, 115 S.Ct. 1555, 131 L.Ed.2d 490

(1995), Greer v. United States, 697 A.2d 1207, 1209-11 (D.C.1997), and Allen v. United States, 603 A.2d

1219, 1222-23 (D.C.), cert. denied, 505 U.S. 1227, 112 S.Ct. 3050, 120 L.Ed.2d 916 (1992). This argument is not raised on appeal.

*1272 In its opposition, the government did not challenge Professor Penrod's qualifications. The prosecutor did not proffer its own expert offering a contrary position, arguing that, because the motion was filed shortly before trial, it did not have sufficient time to formulate a substantive response. Instead, the government argued that this court had in the past upheld the exclusion of similar expert evidence, citing Dyas, FN54 and our earliest cases on the subject,

Smith v. United States, FN55 Brooks v. United States, FN56 and Taylor v. United States.

FN57 The government dismissed the claim made in the proffer that research in the field had “progressed so profoundly” that it should be considered anew, citing our affirmance in Green, a case in which testimony by the same expert, Professor Penrod, had been proffered as an expert witness as recently as 1998, but had been excluded.

FN54. 376 A.2d at 832.

FN55. 389 A.2d 1356 (D.C.1978).

FN56. 448 A.2d 253 (D.C.1982).

FN57. 451 A.2d 859 (D.C.1982).

At the hearing on the defense motion, the trial court initially asked counsel for “the score” in terms “of which [trial] judges ... allow[ ] this and who doesn't,” and opined that “[i]t's largely in favor of not allowing it.” FN58 The trial court accepted Professor Penrod's qualifications, (“Dr. Penrod's credentials look excellent. And I'm sure that he would qualify as he has in other jurisdictions.”), but questioned the substance of Dr. Penrod's proffered testimony.

Referring to the proffered opinion regarding the untrustworthiness of stranger identifications, the trial court commented:

FN58. According to the prosecutor, of the judges on the Superior Court of the District of Columbia, “only one” has allowed expert evidence on eyewitness identifications. Appellant's proffer referred to two cases in which Superior Court judges had permitted such expert testimony; one of the judges has since been serving on the U.S. District Court for the District of Columbia. We do not know whether this information was (or is) correct. As we discuss infra, although the statistic may be of interest, it cannot be dispositive on the question of admissibility in a particular case.

That seems one of the ... to be one of these revealed truths in the law that somebody said about 100 years ago and it's picked up in opinion after opinion after opinion. And we don't know that that's so. I don't know that that's so. And

I don't know that Penrod knows that it's so either.

* * *

I'm not convinced in any way when an appellate court says stranger-to-stranger identification has some danger of misidentification.... I don't know why they are in any position to make that statement case after case, year after year, century after century, if you will.

In addition to questioning the expert's scientific opinion, the trial judge concluded that the expert testimony would not be of assistance to the jury because “[t]he identification of persons by other persons ... [is] something we do all the time. It is not an esoteric matter for everybody.... I don't really believe that this type of-what this expert would testify to is beyond the ken of normal jurors.” The trial court seemed particularly convinced that the number of eyewitnesses in the case made the proffered expert dispensable. “[W]hen [w]e have five eyewitnesses, and *1273 apparently that's what we have in this case, who positively identify somebody, you feel much more confident about the accuracy of the overall identification process than you do if its only one witness.” The trial judge concluded,

And that does not mean that they [the jurors] will get it right every time. I think we all know that this is an imperfect system that doesn't always come up with the right verdict in civil and criminal cases. But I am not at all concerned that the testimony of Dr. Penrod or anybody like him would make it more likely that a jury would come up with the right decision in this case or in any case.

The trial court denied the defense motion to call Dr. Penrod, the case went to trial, and appellant was convicted on the strength of the Mahoneys' identifications.

VI. Analysis

[6][7][8][9] Whether to admit expert testimony is committed to the discretion of the trial court; “a ruling either admitting or excluding such evidence will not be disturbed unless manifestly erroneous”i.e., for abuse of discretion.

FN59 When an evidentiary question is committed to the discretion of the trial judge, as here, our review on appeal is limited to whether the judge engaged in a proper exercise of discretion. As we have said on many occasions, the exercise of discretion entails, first, recognition that there is discretion to be exercised, and then, after consideration of the correct legal factors, their reasonable application to the facts of the case before the court.

FN60 For the reasons that follow, we conclude that in this case the trial court applied incorrect legal principles, and did not fully consider the proffer presented under the three-part analysis we set forth in Dyas.

Because of the potential importance of the proffered expert testimony, that was grounded exclusively on eyewitness identification, we are constrained to remand so that the trial court may reconsider appellant's proffer in light of the correct legal factors and the evidence presented at trial.

FN59. Hager, 856 A.2d at 1147 (quoting Green, 718 A.2d at 1050).

FN60. See Johnson v. United States, 398 A.2d 354, 361 (D.C.1979).

[10][11] First, in excluding the expert evidence, the trial judge did not explicitly consider the three Dyas factors-or indeed, any one of them-in light of the specific and detailed proffer made by defense counsel. Rather, the court appears to have excluded the expert evidence at least in part based on an a priori belief that the untrustworthiness of eyewitness identification is “one of those revealed truths in the law that somebody said about 100 years ago ... And we don't know that that's so.” This view was encouraged by the prosecutor's argument, made during the motions hearing, that “there's never a case where the type of expert testimony [appellant] is seeking to introduce is appropriate because it would usurp the very gut of what the jurors are here to do.” Both statements are categorical and reflect a lack of attention to the specific proffer made by defense counsel and its potential relevance to the eyewitness identifications in this particular case. These statements not only overlook the substance of the proffered expert testimony, but also miss the critical role of the judge in evaluating its admissibility. As we emphasized in

Green, the decision to admit or exclude expert testimony must be made on a case-by-case basis, grounded on the proffer made and on its potential to assist the jury in the particular case before the court. FN61 *1274 Moreover, to the extent that the trial court expressed disagreement with the substance of the proffered scientific testimony, we note that what Frye and Dyas require is acceptance within the scientific community of the methodology used, rather than judicial agreement with specific results.

FN62

FN61. 718 A.2d at 1051.

FN62. See Ibn-Tamas, 407 A.2d at 638; see also United States v. Moore, 786 F.2d 1308, 1312 (5th

Cir.1986) (“The scientific validity of the studies confirming the many weaknesses of eyewitness identification cannot be seriously questioned at this point.”) (quoting Abney, Expert Testimony and

Eyewitness Identification, 91 CASE & COMMENT 26, 29 (Mar./ Apr. 1986)). Under the more relaxed

Daubert standard, the judicial role also is limited to assessing the reliability of the proffered evidence, and it is not the function of the judge to take issue with the substance of research findings that are determined to be reliable. See 509 U.S. at 593-94, 113 S.Ct. 2786 (pointing to factors that might be considered by trial judges: whether a theory or technique is testable and has been tested; whether it has been subject to peer review and publication; the rate of error of the specific scientific technique; the existence of standards controlling the technique employed; and the degree of acceptance within the scientific community).

[12][13][14] We emphasize our disagreement with the prosecutor's statement that expert testimony on eyewitness identification is “ never ... appropriate because it would usurp” the jury's function.

FN63 If expert testimony can assist the jury, it perforce does not usurp the jury's function. Rather, it enhances the jury's ability to perform its role as factfinder. FN64 The jury's responsibility in a criminal case is to critically examine the government's evidence against the most exacting legal standard, guilt beyond a reasonable doubt. This standard “requires the factfinder to ‘reach a subjective state of near certitude of the guilt of the accused.’ ” FN65 According to some scholars, “evidence of identification, however untrustworthy, is taken by the average jur[or] as absolute proof.

” FN66 Expert testimony can therefore be critical in helping to confirm-or undermine-a juror's “near certitude” of a defendant's guilt when the prosecution's case is grounded on the identification of eyewitnesses, and in furthering the truth-seeking purpose of a trial.

FN63. (emphasis added).

FN64. See 7 JOHN HENRY WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW § 1920, at 18

(Chadbourn rev. 1978) (“A phrase often put forward as explaining why the testimony we are concerned with is excluded, declares that the witness, if allowed to express his ‘opinion,’ would be ‘usurping the functions of the jury.’ ... [T]he phrase is so misleading, as well as unsound, that it should be entirely repudiated. It is a mere bit of rhetoric.” (footnotes omitted)); see also United States v. Downing, 753 F.2d

1224, 1226 (3d Cir.1985) (“[Federal Rule of Evidence 704] rejects as ‘empty rhetoric’ the notion that some testimony is inadmissible because it usurps the ‘province of the jury.’ ” (quoting WIGMORE, supra, §

1920, at 17)); People v. Jones, 73 N.Y.2d 427, 541 N.Y.S.2d 340, 539 N.E.2d 96, 98 (1989) (“Expert opinion testimony is used in partial substitution for the jury's otherwise exclusive province which is to draw

‘conclusions from the facts.’ It is a kind of authorized encroachment in that respect.”) (quoting People v.

Cronin, 60 N.Y.2d 430, 470 N.Y.S.2d 110, 458 N.E.2d 351, 352 (1983)).

FN65. Rivas v. United States, 783 A.2d 125, 133 (D.C.2001) (en banc) (quoting Jackson v. Virginia, 443

U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

FN66. John C. Brigham & Robert K. Bothwell, The Ability of Prospective Jurors to Estimate the Accuracy of Eyewitness Identifications, 7 L. & HUM. BEHAV.. 19, 20 (1983); see also LOFTUS, DOYLE &

DYSART, supra note 20, § 6-2, at 124 (“Although sometimes attempts to discredit the eyewitness succeed in making the eyewitness less persuasive than one who is unimpeached, generally even discredited eyewitness testimony carries some weight.”).

[15] In construing and applying Federal Rule of Evidence 702 concerning “scientific, *1275 technical, or other specialized knowledge,” the Supreme Court has remarked on the “ ‘liberal thrust’ of the Federal Rules and their

‘general approach of relaxing the traditional barriers to opinion testimony.’ ” FN67 The Court advised that judges should rely on the adversary system, rather than on the exclusion of evidence, to guard against potential juror confusion from the presentation of scientific evidence, noting that “[v]igororous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of

attacking shaky but admissible evidence.” FN68 Any remaining concern a trial judge may have that admission of expert testimony could confuse or overwhelm the jury is more appropriately dealt with, not by exclusion, but by placing reasonable limitations on the expert's testimony and instructing the jurors that they-and only they-are the ultimate fact finders.

FN67. Daubert, 509 U.S. at 588, 113 S.Ct. 2786 (quoting Beech Aircraft Corp. v. Rainey, 488 U.S. 153,

169, 109 S.Ct. 439, 102 L.Ed.2d 445 (1988)).

FN68. Id.

at 596, 113 S.Ct. 2786.

To the extent that the trial court excluded the proffered expert testimony based on what “most” other judges do, or because, as the government urged, that expert testimony questioning eyewitness identification is “never” helpful to the jury, it was error to fail to exercise discretion.

FN69 But even if the trial court did not apply an automatic rule of exclusion, FN70 the ruling was nonetheless defective because it did not address the correct legal factors set out in

Dyas or apply them to the expert testimony that the defense proffered.

FN69. Johnson, 398 A.2d at 364 (application of a general rule to all cases without regard to facts before the court is an abuse of discretion).

FN70. We are aware that the trial judge said that this was “the first time I've ever had a motion like this....

And I don't want to be construed as saying I would never allow it. But I don't think this is the right case.”

In cases raising this issue to date, we have upheld the trial court's decision to exclude expert testimony on factors that may affect the reliability of eyewitness identifications. In Dyas, we affirmed the exclusion of expert evidence regarding the effects of stress, lapse of time, suggestion by persons in authority and a prior identification by the witness, after the trial court found that such expert evidence was not “beyond the ken of the average layman” and would not assist the jury. We noted that counsel had the opportunity to “fully explore [the witness's] perception and recollection” of an armed robbery.

FN71 Shortly after Dyas, in two cases, we summarily upheld the exclusion of scientific evidence that was “akin” or “similar” to that proffered in Dyas.

FN72 In Smith, for example, the court emphasized that counsel had “ample opportunity to test the reliability of the complainant's identification through vigorous cross-examination.” FN73 In 1982, the court decided two appeals, Brooks and Taylor , which also raised the use of expert *1276 testimony in eyewitness identification cases. In Brooks, we upheld exclusion of expert evidence on “the nature of human memory and perception and the mental processes involved in an eyewitness's identification,” where the trial court had determined that the proffered testimony was not “beyond the ken of jurors in the District of Columbia,” because through cross-examination counsel had been given the “opportunity to fully explore each victim's perception and recollection of the assault and her ability to identify the assailant.” FN74 In

Taylor , we also affirmed the exclusion of expert evidence “on the subject of the nature of human memory and perception and mental processes involved in an eyewitness identification,” where the trial court had concluded that

“[t]here is no reason to believe that the jurors were incapable of properly evaluating the evidence by using their experience and common sense, in lieu of expert elucidation.” FN75

FN71. 376 A.2d at 832.

FN72. See Jackson v. United States, 420 A.2d 1202, 1203 n. 2 (D.C.1979) (en banc) (upholding, in a footnote, exclusion of the “proffered expert psychological testimony on eyewitness identifications,” where trial court concluded proffer was “akin” to that rejected in Dyas and therefore “not ... a proper subject for expert testimony”); Smith, 389 A.2d at 1358-59 (upholding, in a per curiam opinion, exclusion of expert evidence “on the psychological principles underlying eyewitness identification,” where trial court had concluded that the proffer was “similar to the evidence offered [in Dyas, ]” and therefore was inadmissible).

FN73. Smith, 389 A.2d at 1358.

FN74. 448 A.2d at 258.

FN75. 451 A.2d at 866-67.

In Green, decided in 1998, we upheld the trial court's exclusion of expert evidence after it determined that “the proffered expert testimony did not deal with subject matter beyond the ken of the average juror and would present information unnecessary to this particular jury that would be hearing the case.” FN76 There, the defendant proffered expert evidence regarding “unconscious transference”; “photo-biased identifications”; “the negative effects of stress, fear, and emotion[,] ... of violence or the use of a weapon [,] ... [and] lighting conditions and brief periods of interaction between an eyewitness and a perpetrator on the accuracy of the eyewitness's memory”; and the

“reluctance of an eyewitness who has publicly identified someone to change that identification later, or even to admit doubt.” FN77 We noted that the trial court had observed that during the first trial, counsel's cross-examination had been so effective that the eyewitness had been made to look “silly” in front of the jury.

court's “lengthy ... ruling” (quoted in full in the appellate opinion), FN79 we affirmed.

FN80

FN78 Deferring to the trial

More recently, in Hager, decided in 2004, we upheld the exclusion of expert evidence “concerning the correlation between witness confidence and accuracy in eyewitness identifications,” FN81 because it was irrelevant, pointing out that the studies relied on by the proffered expert concerned “stranger identification [and] not an identification of a person known to the witness, as in this case.” FN82 And last year, in Burgess v. United States, FN83 we affirmed after the trial court excluded expert evidence “on the psychological factors of memory and perception that affect the accuracy of eyewitness identifications especially when it involves cross-racial identifications.” FN84 We ruled on the insufficiency of the proffer, for the defendant had “failed to identify his expert witness, the expert's qualifications, and the particular opinions to be rendered.” FN85

FN76. 718 A.2d at 1050, 1053.

FN77. Id.

at 1051-52.

FN78. Id.

at 1052.

FN79. Id.

at 1053.

FN80. See id.

at 1053.

FN81. 856 A.2d at 1147.

FN82. Id.

at 1149.

FN83. 953 A.2d 1055 (D.C.2008).

FN84. Id.

at 1056.

FN85. Id.

at 1063.

[16][17] While we will defer to the trial court's exclusion of expert testimony when it is based on a reasoned and reasonable exercise of discretion, automatic reliance *1277 on Dyas or on other past cases to exclude expert evidence will not suffice, except in clear-cut cases. As we explained in Ibn-Tamas,

[A]lthough a trial court's ruling to exclude expert testimony is reversible only for abuse of discretion-for being

“manifestly erroneous,”-there is an important tradeoff for giving the trial court such latitude: that court must take no shortcuts; it must exercise its discretion with reference to all the necessary criteria. Otherwise, the very reason for such deference-i.e., the trial court's opportunity to observe, hear, and otherwise evaluate the witness-will be compromised. Thus, the appellate court must not affirm a ruling premised on trial court discretion unless the record clearly manifests either (1) that the trial court has ruled on each essential criterion, or (2) that the trial court, as a matter of law, had “but one option.” FN86

FN86. 407 A.2d at 635 (internal citations omitted) (quoting Douglas v. United States, 386 A.2d 289, 295

(D.C.1978); Johnson, 398 A.2d at 363-67).

[18] As we have expressly stated in our more recent cases, “ Dyas and its progeny do not articulate a per se requirement that all expert testimony about the reliability of eyewitness identification must be excluded.” FN87

Moreover, we have taken note of the fact-supported by the studies discussed above-that the “art of the inquiry or the scientific methodology governing the psychological study of eyewitness identification, including cross-racial identification, and also pertinent case law in other jurisdictions, reflect new developments since our 1977 Dyas decision, and hence, the first Dyas factor may require more than cursory scrutiny today.” FN88 Here, the trial court appears to have overlooked the more recent studies, mentioned in the proffer, which were published after the cases relied upon by the government in opposing the defense motion. Consistent with the studies we have discussed here, we have observed that “[d]espite the fact that jurors may be familiar from their own experience with factors relevant to the reliability of eyewitness observation and identification, ... it cannot be said that psychological studies regarding the accuracy of an identification are within the ken of the typical juror.” FN89 This, too, was mentioned in the proffer. The trial court here expressed a contrary view, stating that eyewitness identifications are a common experience and “not an esoteric matter for everybody.” But the proffer-not adverted to by the court-was precisely that scientific research had both identified factors that may lead a jury to question an eyewitness identification and that some of these factors are not evident to lay jurors. Indeed, with respect to the correlation between confidence and accuracy of an identification, the proffer noted that the scientific research findings are counterintuitive. Careful consideration of the proffer and, as suggested by defense counsel, a voir dire examination of Professor Penrod, would have provided the trial judge with evidence on which to make a determination whether the research underlying the findings Dr. Penrod proposed to present is generally accepted in the relevant scientific community and beyond the ken of most lay persons. Without such an inquiry and factual determination, the trial court is not free to *1278 disregard this court's expressed views on the subject.

FN90

FN87. Green, 718 A.2d at 1051.

FN88. Burgess, 953 A.2d at 1063 n. 12; see Jules Epstein, The Great Engine That Couldn't: Science,

Mistaken Identifications, and the Limits of Cross-Examination, 36 STETSON L.REV. 727, 735-36 (2007)

(“[O]ver a thirty-year period, the study of eyewitness perception, memory, and recall exploded.”).

FN89. Hager, 856 A.2d at 1147 (quoting People v. Lee, 96 N.Y.2d 157, 726 N.Y.S.2d 361, 750 N.E.2d 63,

66 (2001)).

FN90. Provided that the ruling is on point and recent enough to reflect current scientific knowledge, prior rulings on specific proffers of scientific evidence are binding. See, e.g., Mindombe, 795 A.2d at 42 (“[T]his court has previously recognized that expert testimony involving ‘the behavioral characteristics of child molestation victims, ... [and] the psychological dynamics of a victim of child sexual abuse are beyond the ken of the average juror.’ ”) (alteration in original) (quoting Oliver, 711 A.2d at 73 (internal quotation marks omitted)). The provisos are all-important, however, as different factual settings as well as scientific developments may require that the court consider afresh whether a particular proffer meets the Dyas standard. On this record, we have no reason to doubt the observation we made in Hager in 2004, that jurors generally lack knowledge about psychological studies regarding the accuracy of identifications. See 856

A.2d at 1147. The more recent studies we discuss earlier confirm it.

[19][20] We reiterate, as we said in Green, that while the determination whether to admit expert testimony regarding eyewitness reliability lies within the discretion of the trial judge, this determination must be based upon a consideration of each of the three separate criteria identified in Dyas, taking into account “the particular proffer made and in the concrete setting of that case.” FN91 In short, the court's determination must be case-specific, based on the proffered expert testimony, and must consider: (1) the current state of generally-accepted scientific research; (2) whether it is within the common knowledge of lay jurors; and (3) whether the testimony would assist the jury, taking into account the relevance and probative value of the proposed scientific evidence to the eyewitness identification in the case. Because the record in this case does not show that the trial court gave such individualized consideration to the proffer made by the defense, we remand the case so that the judge may do so.

FN91. Green, 718 A.2d at 1051; cf. id.

at 1052 (quoting trial judge as saying, “So I am not making this ruling without some cognizance of basically what is out there [in terms of scientific research], but rather I am making this ruling based upon my conclusion that this proffered testimony and evidence do not meet the first prong of the Dyas three-prong test”).

We do not purport to conduct on appeal the deliberate consideration of the proffer, in the context of the eyewitness identifications in this case, that the trial judge must conduct. But because the issue is an important one that continues to be raised on appeal with some frequency, and is likely to continue to arise because of the pace of scientific research, we make some general observations. First, is the fairly obvious fact, gleaned from experience, that a theory, initially untested, unrecognized, and unsupported by evidence, over time might receive widespread recognition and the support of experts in the respective field of social science research. Courts have taken cognizance of such developments in social science, which has led to changes in the law of evidence.

FN92 The state of social science research with respect to the reliability of eyewitness testimony has developed in recent years to the point where it can credibly be argued by defense counsel that it has reached that critical juncture. Whereas once we could only speculate as to the inaccuracy of an eyewitness identification, now there is published scientific research that questions its accuracy when made under certain conditions and exonerations, based on DNA evidence, that confirm *1279 what previously were only suspicions.

FN93

FN92. See, e.g., Nixon, 728 A.2d at 589 (approving the use of expert testimony on the subject of Battered

Women Syndrome); Oliver, 711 A.2d at 73 (permitting expert testimony on effects of child sexual abuse on recollection); cf. Frye, 54 App.D.C. at 47, 293 F. at 1014 (rejecting “systolic blood pressure deception test” because it had not gained general acceptance).

FN93. See supra note 21. One example is the well-known case of Jennifer Thompson who, in court, identified Ronald Cotton as the man she believed had raped her and who was subsequently convicted of the crime. After serving more than eleven years in prison, Cotton was exonerated by DNA evidence. See generally JENNIFER THOMPSON-CANNINO & RONALD COTTON, PICKING COTTON: OUR

MEMOIR OF INJUSTICE AND REDEMPTION (2009). In Thompson's words:

The man I was so sure I had never seen in my life was the man who was inches from my throat, who raped me, who hurt me, who took my spirit away, who robbed me of my soul. And the man I had identified so emphatically on so many occasions was absolutely innocent.

Jennifer Thompson, Editorial, ‘I was Certain, but I was Wrong’, N.Y. TIMES, June 18, 2000, at A15, available at http:// www. nytimes. com/ 2000/ 06/ 18/ opinion/ i- was- certain- but- i- was- wrong. html.

Second, not all expert testimony concerning the potential unreliability of eyewitness identification is the same, or necessarily relevant, to a case even if the government's evidence includes identifications made by eyewitnesses. As we have discussed, there are particular factors that affect eyewitness reliability to a greater or lesser degree, and not all are present in every case in which an eyewitness has identified the defendant. Moreover, some, but not all, of these factors are understood by lay jurors.

[21][22][23][24] It is quintessentially the function of the trial judge to determine whether expert testimony is likely to be helpful to the jury in evaluating the identification presented in a particular case, once having ascertained that the expert is qualified, and that the science is generally accepted and not within the common knowledge of jurors.

FN94 In making that determination, a trial judge must consider whether expert testimony is the only means, or a particularly effective way, to address and correct common juror misconceptions about the reliability of the eyewitness identifications in the case. Thus, as we have previously recognized, there are certain cases where crossexamination may suffice to test the reliability of the identification made by an eyewitness.

FN95 Many judges rely on cross-examination as an effective way to expose weakness in an eyewitness identification, but reliance on crossexamination cannot be automatic or reflexively adopted in lieu of proffered expert testimony. Simply put, the information that an expert can provide about research studies is different in nature and cannot be elicited from a lay

witness during cross-examination. Moreover, studies show that exclusive reliance on cross-examination may be unfounded, for

FN94. See Hager, 856 A.2d at 1147 (“[I]n a jury trial the judge must exercise discretion to decide whether the proffered expert testimony is likely to assist the jury in the performance of its duties-that is to say, in understanding the evidence, determining the facts that must be found and rendering its verdict.”) (internal quotation marks omitted) (quoting Steele, 854 A.2d at 181).

FN95. See Green, 718 A.2d at 1052 (noting comment by trial judge that counsel for the defense “left nothing unturned in cross examining [the eyewitness,]” that “there was nothing else [defense counsel] could have asked him about his identifications,” and that “in some respects [defense counsel] made [the eyewitness] out to be silly in front of the jury, through the quality of ... cross-examination”). See generally

Christopher M. Walters, Comment, Admission of Expert Testimony on Eyewitness Identification, 73

CALIF.L.REV. 1402, 1403 (1985) (“[R]equirements of corroboration, cross-examination, and jury instructions have often been proposed as alternative remedies to expert testimony on eyewitness reliability.”). in the absence of expert testimony, witnessing and identification conditions had negligible effects on juror inferences about the eyewitness, the strength of *1280 defense and prosecution cases, or on juror decisions. In short, without the benefit of expert testimony, jurors did not make even minimal use of their purported knowledge of eyewitnessing factors and relied heavily on witness confidence in forming their judgments.

FN96

FN96. Steven Penrod & Brian Cutler, Witness Confidence and Witness Accuracy: Assessing Their Forensic

Relation, 1 PSYCHOLOGY, PUB. POL'Y & L. 817, 840 (1995), cited in State v. Guzman, 133 P.3d 363,

370 (Utah 2006) (Durham, C.J., concurring).

In short, while cross-examination is an attractive option because it is familiar to judges and less time-consuming than determining the qualification of experts and resolving challenges and objections that admission of expert scientific evidence can entail, it is not necessarily a satisfactory alternative; the efficacy of cross-examination must be evaluated with care in the context of the particular case and against the value added to the jury of proffered expert testimony. There is no one-size-fits-all solution.

We remand the case so that the trial judge may properly consider the expert testimony proffered by the defense in the context of the facts of this case. FN97 We do not hold that the trial judge, after exercising his discretion applying the three Dyas criteria, may not properly exclude the expert testimony.

FN98 But failure to exercise discretion upon careful consideration of the proffer in light of the Dyas factors was error as a matter of law.

FN99

FN97. See Downing, 753 F.2d at 1226 (remanding for further consideration where trial court “refused to admit the testimony of a psychologist offered by the defendant, apparently because the court believed that such testimony can never meet the [requisite] ‘helpfulness' standard of [the Federal Rules of Evidence]”).

FN98. We note that after the remand ordered by the appellate court in Downing, id.

, the District Court, after further proceedings, excluded the expert testimony because of a “weak fit” between the proffered scientific testimony and the disputed identification in the case. United States v. Downing, 609 F.Supp. 784, 792

(E.D.Pa.), aff'd mem., 780 F.2d 1017 (3d Cir.1985).

FN99. Although this opinion for the court and the concurrence may differ in style and emphasis, we perceive no substantive difference in-and take no issue with-the core points made by our concurring colleague as to why a remand is required.

VII. Remand

[25] It bears explaining why this appeal-for the first time in our court-requires a remand for further proceedings, while Hager and Green, our most recent cases in which we reviewed the trial court's exclusion of expert testimony

on the ground that it would not assist the jury, did not. First, Hager proffered testimony on the unreliability of stranger identifications, but none of the eyewitnesses who identified Hager was a stranger to him. This meant that the expert testimony was irrelevant and therefore could not aid the jury and might, in fact, confuse it.

FN100 Second, the case against Hager featured physical evidence that corroborated the eyewitnesses' identification. FN101 “[W]here such corroboration of identification exists, the exclusion of the proffered expert testimony by the trial court generally does not constitute an abuse of discretion.” FN102 The case against appellant, by contrast, was based on identifications *1281 made by strangers that corroborated each other, but is bereft of any other corroborative evidence. Similarly, in Green (and unlike in this case) the government presented corroborating physical evidence, appellant's jacket found with the murder victim's property and appellant's fingerprints in the getaway car. FN103 Also unlike in this case, the trial judge who excluded the scientific evidence in Green as unnecessary to test the credibility of the eyewitness, had been able to personally assess the efficacy of cross-examination and how it had undermined the eyewitness on the stand during the first trial.

FN104 Here, different judges presided over appellant's two trials, so that, in rejecting the proffered expert testimony prior to the second trial, the judge did not have a basis of personal observation of the witnesses' testimony to conclude that expert testimony would not assist the jury to an appreciable extent.

FN100. See Hager, 856 A.2d at 1149.

FN101. We are aware of no published opinion of this court, since our decision in Brooks twenty-seven years ago, affirming the exclusion of expert testimony on eyewitness identifications in a case in which the only evidence presented against the defendant was the identification of eyewitnesses who did not know the defendant.

FN102. Hager, 856 A.2d at 1149; see United States v. Blade, 811 F.2d 461, 465 (8th Cir.1987) (no error in excluding expert witness identification testimony, where multiple eyewitness identifications were presented and were corroborated by the presence of the defendant's identification both in the suspect vehicle and in a jacket found in the path of flight of the driver); United States v. Smith, 736 F.2d 1103, 1107-08 (6th

Cir.1984) (no error in excluding expert on eyewitness identifications where multiple eyewitness identifications were presented and physical evidence-the defendant's palm print at robbery site-discredited appellant's alibi).

FN103. See 718 A.2d at 1048.

FN104. Id.

at 1052.

[26] We agree with the trial court that expert testimony is likely to be more critical where only one eyewitness (who is a stranger) identifies the defendant as the perpetrator. But we must disagree, as have other courts, with the notion propounded by the government that expert testimony of the type proffered here is probative, if at all, only in cases in which a single witness has identified the defendant.

FN105

FN105. See Ferensic, 501 F.3d at 482 (“The significance of [the proffered expert's] testimony cannot be overstated. Without it, the jury had no basis beyond defense counsel's word to suspect the inherent unreliability of the [two eyewitnesses'] identifications.”); Downing, 753 F.2d at 1227 (remanding for further consideration of expert witness testimony on unreliability of eyewitness identifications because exclusion not harmless where “[t]he government's case against appellant consisted primarily of the testimony of twelve eyewitnesses who, with varying degrees of confidence, testified that appellant was the [perpetrator]”

(emphasis added)); People v. McDonald, 37 Cal.3d 351, 208 Cal.Rptr. 236, 690 P.2d 709, 726 (1984)

(reversing conviction where “in the testimony of each of the witnesses who identified defendant in the courtroom there were elements that could have raised reasonable doubts as to the accuracy of the identification,” there was no other corroborating evidence, and defendant presented alibi witnesses), overruled in part by People v. Mendoza, 23 Cal.4th 896, 98 Cal.Rptr.2d 431, 4 P.3d 265 (2000) (overruling

McDonald to the extent that it stated, in dictum, that a jury must specify the degree of murder to which it assigned guilt). But see United States v. Smith, 156 F.3d 1046, 1053-54 (10th Cir.1998) (no error in refusing

to permit testimony of an expert on the unreliability of eyewitness identifications where there were five such identifications, appellant changed his alibi, and the case was “admittedly close”).

[27] The trial court expressed “feel[ing] much more confident about the accuracy of the overall identification process” in this case because five eyewitnesses who identified appellant as “the taller” of the two men who kidnapped Sean Williams.

FN106 However, as we said following *1282 appellant's first trial:

FN106. Our standard instructions recognize that quantity does not necessarily equal quality. Civil Pattern

Jury Instruction 2.13 provides:

The weight of the evidence is not necessarily determined by the number of witnesses testifying for each side. Rather, you should consider all the facts and circumstances in evidence to determine which of the witnesses you believe. You may find that the testimony of a smaller number of witnesses on one side is more believable that the testimony of a greater number of witnesses on the other side.

[T]he prosecutor's evidence seems, at first blush, to be quite formidable, for Benn was identified by five apparently disinterested witnesses. But closer scrutiny places the strength of the case in substantial doubt.

All of the witnesses were strangers to Benn. When shown a photo spread which included Benn's picture, four of the five witnesses said that the photograph “looks like” the tall man who accompanied the decedent. Common sense tells us that many people resemble one another, and in that sense “looks like” is not really an identification at all. The purported coincidence that three of the witnesses described themselves as 95% certain understandably troubled the judge and indicates, at least, that someone probably suggested something to somebody. Benn was never placed in a line-up, and although all five witnesses “positively” identified him in the courtroom, it is difficult to hypothesize a more suggestive setting for an identifying witness, when the individual whom the witness had selected from the photo array was seated at the defense table, and the witness could infer that the police obviously believed that the man whose photograph the witness had described as “looking like” the culprit was indeed guilty. Depending on how the prosecution witnesses came across, the government may have had a fairly decent case, but by no means an overwhelming one.

FN107

FN107. Benn I, 801 A.2d at 145 (emphasis added) (footnotes omitted).

Whether or not the trial court disagreed with our judgment about the strength of the government's case, it was a necessary holding in our prior remand in Benn I and it was binding on the trial court.

FN108

FN108. Because the judge who rejected the proffered expert testimony before the second trial was not the same judge who presided over the first trial, this is not a situation where the court had a superior basis to evaluate the eyewitnesses' testimony than did the appellate court in Benn I.

We recognize the general proposition that as the number of eyewitness identifications increases, the probability that they are all mistaken decreases. But it was the accuracy of each individual witness's identification, and the circumstances that may have influenced those initial identifications and that made possible their mutual reinforcement as a group, that the expert's testimony would have questioned. If the jury were persuaded by the expert testimony that the identifications were not as reliable as they seemed at first blush, defense counsel could have argued that in their deliberations the jurors should discount the witnesses' professed certainty in their identifications and that this was cause for reasonable doubt in the absence of corroborating evidence.

FN109

FN109. In In re AS.H., we held that where an eyewitness's level of doubt in an identification lies within the

20-30% range, the evidence is insufficient (if that is all there is) to convict beyond a reasonable doubt as a matter of law. 851 A.2d at 462. In this case, the question is not whether the evidence is not sufficient to convict-it is more than sufficient, cf. id.

at 457-but whether appellant was wrongfully denied an opportunity to present expert evidence that could have enhanced the jury's ability to more accurately assess and question the reliability of the identifications on which the jury would necessarily have to base a finding that appellant was guilty of a violent crime.

Appellant argued that his defense depended on being able to cast doubt on the eyewitnesses' self-described confidence in their identifications of appellant, because it was the central feature of the government's case. In closing, the prosecutor *1283 identified the “credibility” of the Mahoneys' identifications as the “key issue” for decision and hammered home to the jury that appellant was guilty because “each and every one of [the Mahoneys'] testimonies was credible; it was certain; it was reliable.” FN110 Without expert testimony to provide a foundation for his arguments, defense counsel could only make unsupported assertions in closing argument.

FN111 In rebuttal, the prosecutor again pointed to the weight of “five positive identifications of people who have no motive to lie, no bias,

... no interest in the outcome of this case.”

FN110. The prosecutor argued in closing:

[T]he key question for you is this: Do you credit the five separate and independent eyewitness identifications of [appellant] as the man who abducted [ ] Williams out their apartment that night?

And I submit to you that you should credit it because each and everyone of those testimonies was credible; it was certain; and it was reliable.

* * *

So the question to ask yourself is: Did you believe these people when they got on the stand? Did they strike you, impress you as truthful people? And how do you do that?

You evaluate their demeanor. How did they appear when they were testifying? Did they appear evasive?

Or did they appear forthright?

* * *

And you can evaluate the witnesses based on how they look. Did they look [appellant's] attorneys in the eye when they were testifying? ....

* * *

Do they have a bias or a prejudice? None was brought out in this case. They didn't ask to be witnesses in this case....

Credibility. Let's talk about the certainty of their identifications of [appellant] as the man who abducted their loved one that night. How certain were they that this is the man who did it?

FN111. In its proffer to the court, defense counsel asserted that without the support of expert testimony, such arguments by counsel run the risk of being perceived by the jury as unwarranted attacks on honest, truth-telling witnesses.

In a case grounded on eyewitness identifications of a stranger, without other corroborating evidence, and in which the defense depends entirely upon demonstrating that the identifying witnesses are not as reliable as they believe themselves to be, to preclude the defendant from presenting the scientific testimony of a qualified expert on research that is generally accepted and not known to lay jurors to prove this point is not harmless under Kotteakos v. United

States, FN112 provided that the facts underlying the identifications establish a sound foundation for applying the principles expounded by the expert.

FN113 As we *1284 concluded with respect to the effects of sexual abuse on a child's memory, “[w]ithout an understanding of the reasons behind these behaviors, a jury may automatically infer ” FN114 that an honest profession of certainty ends the inquiry into witness reliability. We remand for further proceedings FN115 on appellant's request to present expert testimony concerning certain factors that can affect the reliability of eyewitness identification.

FN116

FN112. 328 U.S. 750, 764-65, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). We need not decide whether the more stringent standard for constitutional error applies. See Chapman v. California, 386 U.S. 18, 24, 87 S.Ct.

824, 17 L.Ed.2d 705 (1967). The government does not contend that the trial court's exclusion of the evidence, if erroneous, was nonetheless harmless, and argues that if this court concludes that the trial court abused its discretion in excluding Dr. Penrod's testimony, “appellant would be entitled only to a remand for further proceedings on his motion.” We have said, however, that prejudice that would warrant reversal is an inherent part of the analysis before a reviewing court may conclude on appeal that the trial court abused its discretion. See Johnson, 398 A.2d at 361.

FN113. See LeGrand II, 835 N.Y.S.2d 523, 867 N.E.2d at 375-76 (“[W]e hold that where the case turns on the accuracy of eyewitness identifications and there is little or no corroborating evidence connecting the defendant to the crime, it is an abuse of discretion for a trial court to exclude expert testimony on the reliability of eyewitness identifications if that testimony is (1) relevant to the witness's identification of

[the] defendant, (2) based on principles that are generally accepted within the relevant scientific community, (3) proffered by a qualified expert and (4) on a topic beyond the ken of the average juror.”).

FN114. Mindombe, 795 A.2d at 46 (internal quotation marks omitted) (quoting State v. Chamberlain, 137

N.H. 414, 628 A.2d 704, 707 (1993)).

FN115. See Ibn-Tamas, 407 A.2d at 640 (remanding for trial court's consideration of second and third Dyas criteria).

FN116. Appellant's motion listed eleven specific factors. See supra note 50.

* * *

ACCORDINGLY, the case is REMANDED for further proceedings consistent with this opinion.

FN117

FN117. The government, at the time it opposed the motion in limine, asserted that it did not have enough time “to retain its own expert to counter the defense testimony.” We are confident that the government will be afforded sufficient time between our decision to remand and the commencement of proceedings on remand in which to procure its own expert if it so wishes. In fairness, appellant also should be permitted to amend the proffer to take into account more recent scientific developments and this opinion.

So ordered.

FN118

FN118. Because we do not decide that the expert testimony must have been permitted, but remand so that the trial judge may complete the appropriate analysis, we stop short of vacating the convictions and ordering a new trial.

SCHWELB, Senior Judge, concurring in the judgment:

I concur in the remand, and I agree with much of the discussion in Judge Ruiz' opinion. I write separately, however, because my emphasis differs significantly from the court's.

I.

As we reiterated in our opinion in Benn's first appeal,

[a]n exercise of discretion must be founded upon correct legal standards. See, e.g., In re J.D.C., 594 A.2d 70, 75

(D.C.1991). “A [trial] court by definition abuses its discretion when it makes an error of law,” Koon v. United

States, 518 U.S. 81, 100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996).

Benn v. United States, 801 A.2d 132, 142 (D.C.2002) ( Benn I ) (quoting Teachey v. Carver, 736 A.2d 998, 1004

(D.C.1999)). In my opinion, the transcript of the hearing at which the trial judge decided not to admit Dr. Penrod's testimony reveals that the judge departed from correct legal principles in three separate, though related, respects:

1. The judge seemed, at least initially, to treat the issue before him as being whether expert testimony is admissible in eyewitness identification cases generally. Indeed, the judge inquired as to the “score” as between judges who admit such testimony and those who exclude it. This approach effectively assumes that one rule fits all such cases, and that the answer is always yes or always no, regardless of the particular facts. This approach is contrary, inter alia, to Green v. United States, 718 A.2d 1042, 1051 (D.C.1998). Although the judge subsequently (and appropriately) disclaimed any absolute per se bar against receiving such expert testimony, he plainly disfavored such evidence, and he did not, at least explicitly, consider the specifics of the defense proffer in light of the record before him, as he was required to do by Green and by other authorities cited in the majority opinion.

*1285 2. The judge appeared to reject, as misinformed, the jurisprudence of appellate courts, including the Supreme

Court, see, e.g., United States v. Wade, 388 U.S. 218, 228, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); and this court, see, e.g., Benn I, 801 A.2d at 145 n. 11, to the effect that, more than other evidence, “stranger-to-stranger identification is often untrustworthy and presents some danger of misidentification.” Indeed, the judge stated: “I think, you know, it just doesn't.”

3. The judge declared that he was “not impressed” by our analysis in Benn I of the quality of the eyewitnesses identifications in this case. That analysis, however, was a part of our holding in Benn I, 801 A.2d at 145. We concluded in Benn I, that the evidence for the prosecution was “fairly decent ... but by no means overwhelming,” and we ruled, substantially for that reason, that the trial court's error in excluding Benn's mother's testimony (for a violation of the rule on witnesses) was prejudicial rather than harmless.

In my opinion, Benn has not shown that our precedents require reversal of his conviction or that, on the merits of the defense motion, the judge's exclusion of Dr. Penrod's testimony constituted an abuse of discretion. I am not satisfied, however, that the judge based his exercise of discretion on correct legal principles, and for that reason-and for that reason alone FN1 -I do not agree with the government's view that we should affirm Benn's conviction.

FN1. In their brief, counsel for Benn argued that the trial judge erred in relation to each of the three issues raised in this opinion, but they asked for reversal of Benn's conviction rather than for a remand. Counsel did not couch their argument explicitly in terms of the judge's failure to apply correct legal principles in the exercise of his discretion. The government might plausibly argue that the grounds for reversal relied on in the opinion of the court and in this concurring opinion have not been properly preserved, and that the government has not had the opportunity to brief these precise issues.

In my judgment, however, the basic points discussed in this concurring opinion are before the court, and the court is effectively granting “lesser included” relief to Benn. Although reasonable people might differ on the point, I conclude that Benn has preserved the underlying claim of abuse of discretion, and that although he has not made the precise arguments on which the remand is based, that is not dispositive. Cf.

Yee v. City of Escondido, 503 U.S. 519, 535-36, 112 S.Ct. 1522, 118 L.Ed.2d 153 (1992).

II.

This case is of ancient vintage. It arises from a crime which was committed in 1992. To some extent, almost seventeen years later, it remains shrouded in mystery. The record does not reveal, for example, how it came to be that Raymond Benn's photograph was included in the photo spread that was shown to the five members of the

Mahoney family several days after the kidnaping and murder of Charles (Sean) Williams. No connection between

Benn and the Mahoney family, or between Benn and Williams, was established. Although the motive for the crime was apparently the alleged nonpayment of a debt, there was no evidence that Williams owed Benn any money. Thus, almost two decades after Williams' death, we have yet to learn why Benn became a suspect.

Further, Benn secured a reversal in Benn I on the grounds that he was precluded from presenting an alibi defense, but he then asserted no such defense at the second trial. In other words, Benn initially claimed that he was denied a fair trial because his alibi was excluded, but when he had the opportunity to present his alibi to a jury, his attorneys declined to do so, preferring instead to attempt to attack the prosecution's case with expert testimony *1286 -a tactic which they could have used, but failed to employ, at Benn's first trial. I suppose that this was a legitimate defense tactic, but I find the sequence less than edifying.

However, be that as it may, it is undisputed, that all five Mahoneys positively identified Benn at the first trial FN2 as one of the two men who abducted Williams from their home. This was not, by any stretch of imagination, a flimsy government case. If Benn is innocent, then all five Mahoneys, none of whom knew Benn or had any motive to lie, must have been mistaken in making their identifications. The five identifications tend to corroborate one another.

Therefore, as we noted in Benn I, “the prosecution's evidence seems, at first blush, to be quite formidable, for Benn was identified by five apparently disinterested witnesses.” 801 A.2d at 145.

FN2. And, again, at the second trial.

But things are not always as simple as they seem. As we observed in Benn I, and as the court notes in the majority opinion, closer scrutiny places the strength of the case in substantial doubt. All of the witnesses were strangers to Benn.

When shown a photo spread which included Benn's picture, four of the five witnesses said that the photograph

“looks like” the tall man who accompanied the decedent. Common sense tells us that many people resemble one another, and in that sense, “looks like” is not really an identification at all.

[FN3] The purported coincidence that three of the witnesses described themselves as 95% certain understandably troubled the judge and indicates, at least, that someone probably suggested something to somebody. Benn was never placed in a line-up, and although all five witnesses “positively” identified him in the courtroom, it is difficult to hypothesize a more suggestive setting for an identifying witness, when the individual whom the witness had selected from the photo array was seated at the defense table, and the witness could infer that the police obviously believed that the man whose photograph the witness had described as “looking like” the culprit was indeed guilty.

[FN4]

FN3. If a photograph of the real perpetrator was not in the array, then the witnesses might well have identified the person in the photo spread who most resembled him.

FN4. See also In re As.H., 851 A.2d 456, 462 (D.C.2004):

Where ... the police consider an individual to be a possible perpetrator and a witness makes an initially ambiguous identification, there may develop a process of mutual bolstering which converts initial tentativeness into ultimate certainty. In re Dwayne W., 109 Daily Wash. L. Rptr. 1901, 1906 (Super. Ct.

D.C. 1981). “The victim relies on the expertise of the officer and the officer upon the victim's identification.” Id.

(quoting [JUDGE] NATHAN SOBEL, EYEWITNESS IDENTIFICATION, LEGAL

AND PRACTICAL PROBLEMS 12 (1972 & Supp. 1981)).

Id.

(footnote omitted). Because of our “substantial doubt” regarding the strength of the case, we concluded in Benn I that the erroneous exclusion of Benn's mother's testimony was not harmless and that it required reversal of Benn's convictions and a new trial. Our assessment of the flaws in the government's case at the first trial was a part of our holding and the law of the case, and it was binding on the trial court.

III.

At the beginning of the hearing regarding the admissibility of Dr. Penrod's proposed testimony, the judge posed the following question to Benn's attorney:

There are 59 judges on this court. What's the score? Do you keep score who allows [expert testimony regarding eyewitness identification] and who *1287 doesn't. It is largely in favor of not allowing it, isn't that true?

Counsel acknowledged that “it's largely been in favor of not allowing it although not exclusively in favor of not allowing it.” The judge's question was predicated on the assumption that expert testimony on this subject is either always admissible or always inadmissible, and that a majority of Superior Court judges who had confronted the question had ruled that it was inadmissible.

The prosecutor emphatically reinforced this assumption:

I don't know the exact count, but my understanding of the 59 judges in this court is that only one has allowed it in.

And that's because the vast majority of the judges in this court believe that this is a not uniquely scientific area that's appropriate for expert testimony.

Moreover, while acknowledging this court's statement in Green that “there may be cases in which a jury would find such testimony helpful,” 718 A.2d at 1051, the prosecutor argued for a somewhat curious construction of the Green opinion:

It doesn't say that there are cases where that would be helpful, but there may be at some point somewhere down the road a possibility.

This is not the case. It would be our position that in fact there's never a case where the type of expert testimony they are seeking to introduce is appropriate because it would usurp the very gut of what the jurors are here to do. The jurors are here to assess credibility.

(Emphasis added.)

In fact, and contrary to the prosecutor's argument, we made it clear in Green, 718 A.2d at 1051, that “ Dyas FN5 and its progeny do not articulate a per se requirement that all expert testimony about the reliability of eyewitness identification must be excluded.” On the contrary, we explained in Green, 718 A.2d at 1051, that

FN5. Dyas v. United States, 376 A.2d 827 (D.C.1977). the Dyas case and its progeny simply upheld discretionary calls by the trial court in the circumstances presented.

Dyas does not exclude expert testimony about the reliability of eyewitness identification for all purposes and under all circumstances, even where a trial court, in its discretion, believes the jurors might find such testimony truly helpful. Conversely, a determination by the trial court excluding such testimony as not “beyond the ken of the average layman” is a ruling only that upon the particular proffer made and in the concrete setting of that case, the possible assistance of the expert testimony to the jury is insufficient to outweigh the potential for distracting the jury or supplanting its customary role in evaluating credibility.

Under Dyas, as under any case concerning the admissibility of expert testimony, we will review the trial court's decision for abuse of discretion, whether the trial court admits or excludes the proffered testimony. See Oliver v. United States, 711 A.2d 70, 73

(D.C.1998) (per curiam) (“It is well established that a trial judge has broad discretion to admit or exclude expert testimony, and that a decision either way should be affirmed unless it is manifestly erroneous.”) (quoting Spencer v. United States, 688 A.2d 412, 417 (D.C.1997)); cf. General Elec. Co. v. Joiner, 522 U.S. 136, 118 S.Ct. 512, 139

L.Ed.2d 508 (1997) (“A court of appeals applying ‘abuse of discretion’ review to such rulings may not categorically distinguish between rulings allowing expert testimony and ruling which disallow it.”) In other words, Dyas and its progeny do not articulate a per se requirement that all expert testimony about the reliability

*1288 of eyewitness identification must be excluded.

(Emphasis added.) We further stated in a footnote:

In State v. Schutz, 579 N.W.2d 317 (Iowa 1998), the Iowa Supreme Court overruled its 1979 decision that established a per se rule excluding expert witness testimony on eyewitness identification. The court noted that it had found no appellate court other than Iowa that had such a per se rule. See id.

at 320. It also noted that most of the scientific literature on the subject had been published subsequent to the 1979 decision. See id.

at 319-20. The

Schutz court cited a number of recent decisions that upheld the admission of such expert testimony or even held its exclusion to be an abuse of discretion. See id.

Id.

at 1051 n. 9. Green thus stands for the proposition that, in exercising his or her discretion with respect to the admission of proffered expert testimony such as Dr. Penrod's, the trial judge must consider the “particular proffer made” in the “concrete setting of [the particular] case,” in light of each of the three Dyas factors.

FN6

FN6. In Dyas, we identified criteria for the admissibility of expert testimony

(1) the subject matter “must be so distinctively related to some science, profession, business or occupation as to be beyond the ken of the average layman ”; (2) “the witness must have sufficient skill, knowledge, or experience in that field or calling as to make it appear that his opinion or inference will probably aid the trier in his search for truth ”; and (3) expert testimony is inadmissible if “the state of the pertinent art or scientific knowledge does not permit a reasonable opinion to be asserted even by an expert.”

376 A.2d at 832 (quoting MCCORMICK ON EVIDENCE, § 13, at 29-31 (E. Cleary 2d ed. 1972)).

In this case, the trial judge's inquiry regarding the “score” among Superior Court judges suggests that he may initially have been leaning towards the inflexible view favored by the government, namely, that expert testimony is never admissible in an eyewitness identification case. Later in the hearing, however, the judge took a more nuanced position, and he sensibly declined to adopt a per se rule. The judge stated that in his experience “the worst kind of eyewitness cases are one-witness identification cases,” but that “when we have five eyewitness[es] ... who positively or almost positively identify somebody, you feel much more confident about the accuracy of the overall identification process than you do if it's only one witness.” He added:

“I don't think this is one of those cases that Green ... talks about where this kind of testimony would be helpful ... I don't want to be construed as saying I would never allow it. But I don't think this is the right case. I just don't.”

Because the judge thus ultimately disclaimed adherence to any per se rule excluding expert testimony in all eyewitness identification cases, it cannot fairly be said that he failed to exercise discretion.

The judge did not, however, allude at all to the specifics of the defense proffer or to the proposed content of Dr.

Penrod's testimony. According to Benn's counsel, Dr. Penrod was prepared to testify that, according to his empirical research, (1) there exists only a moderate correlation between a witness' confidence or certainty in an identification and its actual accuracy; (2) over time, witnesses may grow increasingly confident in the accuracy of their identification, on account of influences that have no bearing on reliability; (3) witnesses are highly susceptible to unconscious influences during identification procedures; (4) stress and the presence of a weapon reduce, rather than enhance, accurate recollection and perception; and (5) the accuracy of an identification diminishes when the *1289 witness has only a short time to observe the assailant, especially when more than one person participated in the criminal activity. The gravamen of Dr. Penrod's evidence would have been that many of the conclusions supported by the research are unknown to lay jurors, and that some of these conclusions are counter-intuitive. The judge did not analyze, or even mention, any of the specific subjects regarding which Dr. Penrod was prepared to testify, nor did he focus on how such specific testimony would bear on the three Dyas factors in the context of the identification testimony in this case.

In my view, it is fair to say the judge started with the conception that exclusion of expert testimony regarding the reliability of eyewitness identification of strangers was the norm, and that at least in most cases, such testimony would not be helpful. Further, although, as the hearing proceeded, the judge wisely disclaimed adherence to a per se rule of exclusion, and although he appropriately differentiated between a single positive identification and five positive identifications, he did not focus “upon the particular proffer made” in “the concrete setting of [this] case” to determine whether Dr. Penrod's testimony would assist the jury rather than distract it. Green, 718 A.2d at 1051.

IV.

“The vagaries of eyewitness identification, and the potential for wrongful convictions or adjudications based upon such evidence, have long been recognized in the District of Columbia.” In re As.H., 851 A.2d at 459-60 (citing

United States v. Telfaire, 152 U.S.App.D.C. 146, 149-51, 469 F.2d 552, 555-57 (1972) (per curiam)); Crawley v.

United States, 320 A.2d 309, 311-12 (D.C.1974). In deciding Benn's first appeal, we also took note of the dangers posed by eyewitness identification of strangers:

The identification of strangers is proverbially untrustworthy. The hazards of such testimony are established by a formidable number of instances in the records of English and American trials. Webster v. United States, 623 A.2d

1198, 1204 n. 15 (D.C.1993) (quoting FELIX FRANKFURTER, THE CASE OF SACCO AND VANZETTI

(1927)). This passage by Professor (later Justice) Frankfurter was also quoted in United States v. Wade, 388 U.S.

218, 228, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). See also Wehrle v. Brooks, 269 F.Supp. 785, 792

(W.D.N.C.1966), aff'd, 379 F.2d 288 (4th Cir.1967) (“[p]ositive identification of a person not previously known to the witness is perhaps the most fearful testimony known to the law of evidence”); accord Webster, supra, 623 A.2d at 1204 (quoting Wehrle ); Jackson v. Fogg, 589 F.2d 108, 112 (2d Cir.1978) (“convictions based solely on testimony that identifies a defendant previously unknown to the witness are highly suspect”) (internal brackets omitted).

Benn I, 801 A.2d at 145 n. 11.

In light of “the possibility that a mistaken identification may send an innocent person to prison,” As.H., 851 A.2d at

460 n. 7, appellate judges have an obligation to draw upon their own experience and common sense to ensure that a verdict of “guilty” based on eyewitness identifications by strangers is in keeping with the facts. See Crawley, 320

A.2d at 313. The increasing judicial acceptance of expert testimony on this subject is grounded in the concern that an innocent defendant may be found guilty. In this case, however, the trial judge indicated that he found such concerns groundless. When Benn's attorney cited this court's statement in Benn I that the testimony of stranger eyewitnesses is “proverbially untrustworthy,” the judge, remarked:

*1290 THE COURT: That seems one of the-to be one of these revealed truths in the law that somebody said about

100 years ago and it's picked up in opinion after opinion after opinion. And we don't know that that's so. I don't know that's so. And I don't know that Penrod knows that it's so either.

Subsequently, the judge reiterated the same theme:

But I don't-I'm not convinced in any way when an appellate court says stranger-to-stranger identification has some danger of misidentification. I think, you know, it just doesn't-I don't know why they are in any position to make that statement case after case, year after year, century after century, if you will.

The hazards of wrongful convictions resulting from mistaken identifications of strangers are not imaginary. As I have noted, Professor (later Justice) Felix Frankfurter wrote more than eighty years ago that these dangers had been established “by a formidable number of instances in the records of English and American trials.” FRANKFURTER,

THE CASE OF SACCO AND VANZETTI (1927). Justice Frankfurter's thesis remained valid forty years later, when the Supreme Court quoted his work in Wade, 388 U.S. at 228, 87 S.Ct. 1926, and the number of miscarriages of justice resulting from faulty identifications had grown even more “formidable.” The problem remains with us today; indeed, the availability in recent years of DNA evidence has demonstrated the extent and pervasiveness of the problem:

Every major study of wrongful convictions in the last decade has concluded that eyewitness misidentification is the most common cause of wrongful convictions in America. Of the first 200 DNA-based exonerations, 79% of the cases involved an eyewitness misidentification.

Professor Cynthia E. Jones, The Right Remedy for the Wrongly Convicted: Judicial Sanctions for the Destruction of

DNA Evidence, 77 Fordham L.Rev. 2893, 2929 (May 2009) (footnote omitted); see JENNIFER THOMPSON-

CANNINO and RONALD COTTON, PICKING COTTON: OUR MEMOIR OF INJUSTICE AND REDEMPTION

(St. Martin's Press 2009).

The decisions of the Supreme Court and of this court recognizing the potential for misidentification when the accused is a stranger to the witness are grounded in reality. They provide the legal context in which judicial discretion must be exercised at the trial court level. Given the fact that at the time of the hearing, expert testimony regarding eyewitness identification had seldom, if ever, been admitted in the Superior Court, and considering that no decision excluding such testimony had ever been reversed by this court, the trial judge's unwillingness to admit such evidence in this case is certainly understandable. Nevertheless, in rejecting the appellate precedents which defined the legal context under which the issue arose, FN7 the trial judge did not exercise his discretion in conformity with the applicable legal standards.

FN7. It is true that the opinions which the trial judge questioned did not deal with the admissibility vel non of expert testimony. However, a major factor in determining whether such testimony should be admitted is the strength of the government's case, for the less corroboration that there is for an identification by a stranger, the stronger the argument is for receiving expert evidence. See, e.g., Hager v. United States, 856

A.2d 1143, 1149 (D.C.2004). The authorities which were the subject of the judge's skepticism were thus indisputably relevant to the issue, before us.

V.

Towards the conclusion of the hearing regarding Professor Penrod's proposed *1291 testimony, the trial judge, having previously indicated that he disagreed with the concerns of this court and of other appellate courts regarding the reliability (or lack thereof) of stranger eyewitness testimony generally, disclosed that he was likewise unpersuaded by this court's evaluation of the strength of the specific eyewitness testimony at Benn's first trial. The judge stated:

I'm not impressed by [the court's] analysis from-as far as the quality of the eyewitness identifications in this case either. That does not impress me at all one way or the other.

In volunteering this comment, the judge was obviously referring to the passage in Benn I, quoted in Part II of this opinion, in which this court stated, that “closer scrutiny places the strength of the [prosecution's] case in substantial doubt.” 801 A.2d at 145.

As I have previously noted, the court's assessment of the government's case was a part of its holding that the judge's erroneous evidentiary ruling at Benn's first trial was not harmless. Further, the decision whether to admit expert testimony on behalf of the defendant depends in substantial part on the strength of the government's evidence. “The opinions that rule that the exclusion of the expert testimony was or may have been error are typically those where there was little or no evidence to corroborate the eyewitness identification.” Hager, 856 A.2d at 1149 (quoting

Commonwealth v. Santoli, 424 Mass. 837, 680 N.E.2d 1116, 1119 (1997)).

At the time that the judge ruled on the admissibility of Dr. Penrod's proposed testimony, the evidence at Benn's first trial constituted the only material available to him regarding the strength of the government's evidence. The Benn I trial was before a different judge, and the trial judge in the present case had no more information regarding the demeanor of the witnesses than this court had when it decided Benn I.

If the judge believed, as he plainly did, that the identification testimony was more compelling than this court thought it was, then that belief necessarily encouraged him to exclude the expert evidence more readily than he would have done if he had believed the evidence to be weaker. It therefore follows that, having declared that he disagreed with this court's evaluation of the strength of the identifications, the judge excluded the proposed expert testimony on the basis of a view of the relevant facts and law which was at variance with an important part of the reasoning of the appellate court in Benn I.

In other words, on the narrow point at issue, the judge applied his own legal standard, rather than the standard articulated by this court.

As we noted in Benn I, 801 A.2d at 145, it is often difficult to make an accurate assessment of the strength of a case when the judge making the assessment has not seen or heard the witnesses. This difficulty confronts a successor trial judge just as it does an appellate court. To be sure, reasonable people can read the same transcript and come to

different conclusions as to the persuasiveness of the government's evidence. In this case, however, the appellate court had addressed the point in some detail and, for reasons set forth in some detail in its opinion, it had concluded that the eyewitness testimony was less than overwhelming. Indeed, this was an important reason for reversal in Benn

I.

Under these circumstances, I do not believe that the trial judge, who had already revealed that he did not share the concerns of appellate courts generally regarding the reliability of eyewitness identifications of strangers, was free, in exercising his discretion, simply to reject this court's reasoning in Benn I.

*1292 VI.

This is not an easy case. At the time the judge made his decision, a ruling admitting expert testimony such as that proffered here by the defense would have been a rarity, and certainly a departure from the norm in the Superior

Court. Moreover, notwithstanding the problems with the particular eyewitness testimony enumerated in Benn I, the government presented five witnesses, all members of the same family, none of whom had any apparent reason to lie, and all of whom ultimately made positive identifications of Benn. The mutual corroboration provided by the five identifications did not necessarily make this an overwhelming prosecution case, but their collective weight also should not be minimized. Nevertheless, with the record as it stands, I cannot be confident that the judge exercised his discretion in conformity with correct legal principles. Accordingly, I join my colleagues in remanding the case.

D.C.,2009.

Benn v. U.S.

978 A.2d 1257

END OF DOCUMENT

A very good opinion was issued in the middle district here in Alabama last

May where the government appealed the admission of the expert’s testimony.

United States District Court,

M.D. Alabama,

Northern Division.

UNITED STATES of America v.

Andreas Jejuan SMITH.

Criminal Action No. 07cr165.

May 26, 2009.

Background: Defendant was indicted on charges including bank robbery and possession of handgun by prohibited person. Government moved to exclude defendant's proffered expert testimony concerning eyewitness identifications.

Holdings: The District Court, Myron H. Thompson, J., held that:

(1) reliability prong for admission of expert testimony was satisfied;

(2) proffered expert testimony would be helpful to jury; and

(3) probative value of proffered testimony was not outweighed by danger of unfair prejudice.

Motion granted in part and denied in part.

West Headnotes


110 Criminal Law

110XVII Evidence

488


110k482 Examination of Experts

110k488 k. Experiments and Results Thereof. Most Cited Cases

In determining whether to admit expert testimony, focus is solely on principles and methodology, not on conclusions that experts generate. Fed.Rules Evid.Rule 702, 28 U.S.C.A.


110 Criminal Law

474.3(2)

110XVII Evidence





Reliability prong was satisfied as to defendant's proffered expert testimony concerning eyewitness identifications, in prosecution for bank robbery; theories underlying expert's testimony had been well tested in peer-reviewed publications, methods that expert relied upon were generally accepted, and expert held Ph.D in psychology, taught psychology at university level, had demonstrated extensive knowledge of ongoing developments in field of eyewitness identification, and had authored many publications addressing how psychological factors affect administration of criminal justice. Fed.Rules Evid.Rule 702, 28 U.S.C.A.

[3] Criminal Law 110 474.3(2)

110 Criminal Law

110XVII Evidence





Defendant's proffered expert testimony concerning eyewitness identifications, in prosecution for bank robbery, would be helpful to jury, as required for admissibility; strongest evidence against defendant was two eyewitness identifications by individuals who had had little contact with him, expert would not be permitted to testify about weight that jury should give specific eyewitnesses' testimony, and research concerning reliability of cross-racial eyewitness identifications, identifications made under stress, and effect of post-event information was not likely well known to jurors. Fed.Rules Evid.Rule 702, 28 U.S.C.A.


110 Criminal Law

474.3(2)

110XVII Evidence





Probative value of defendant's proffered expert testimony concerning eyewitness identifications, in prosecution for bank robbery, was not outweighed by danger of unfair prejudice from jurors' resulting confusion as to whether they retained role as ultimate arbiters of eyewitnesses' credibility; proffered testimony could be helpful, even essential, to assisting jury in its exercise of its exclusive power to determine witness credibility, and expert would not be

permitted to testify about weight that jury should give specific eyewitnesses' testimony, significantly allaying concerns about prejudice. Fed.Rules Evid.Rule 403, 28 U.S.C.A.

[5] Criminal Law 110 693

110 Criminal Law

110XX Trial

110XX(D) Procedures for Excluding Evidence

110k693 k. Time for Objection. Most Cited Cases

Consideration of government's motion to exclude defendant's proffered expert testimony concerning eyewitness identifications, in prosecution for bank robbery, was warranted even assuming that government's motion had been untimely; issue presented was important, and defendant was not prejudiced by court's consideration because, first, court denied motion, and second, even without government's motion court would have undertaken Daubert inquiry sua sponte. Fed.Rules Evid.Rule 702, 28 U.S.C.A.; Fed.Rules Civ.Proc.Rules 16(f), 37(b)(2), 28 U.S.C.App.(2006

Ed.)

*1208 Kevin L. Butler, Christine Ann Freeman, Aylia McKee, Federal Defenders, Middle District of Alabama,

Richard Kelly Keith, Keith & Dubin, P.C., Montgomery, AL, for Andreas JeJuan Smith.

Jerusha Tatiana Adams, Louis V. Franklin, Sr., Tommie Brown Hardwick, U.S. Attorney's Office, Montgomery, AL, for United States of America.

OPINION

MYRON H. THOMPSON, District Judge.

At trial, the United States moved to exclude the testimony of Dr. Sol Fulero, whom defendant Andreas JeJuan Smith offered as an expert on eyewitness identifications *1209 generally and cross-racial identifications in particular. The government relied on two evidentiary rules to exclude this testimony. First, it asserted that the testimony violated

Fed.R.Evid. 702. Second, it argued that this testimony violated Fed.R.Evid. 403 because its prejudicial value substantially outweighed its probative value. The government's motion was denied in part (allowing Fulero to give his opinion about the science of eyewitness-identifications) and granted in part (not permitting Fulero to testify about specific witnesses in this case). The court promised that a written opinion setting forth its reasoning in more detail would follow, and this is that opinion.

I. BACKGROUND

On June 22, 2007, Montgomery Police responded to a report of a bank robbery at Compass Bank. After several weeks, police identified the robber as Smith and a warrant was issued for his arrest. When a United States Marshal

Service task force went to arrest Smith at a friend's home, two shots were fired at arresting officers from inside.

Fortunately, neither officer at the door was harmed.

Based on the above events, Smith was charged with armed robbery; assault of a federal officer; carrying a firearm during a crime of violence (the assault of a federal officer); and being a felon in possession of a firearm. A jury found Smith guilty of bank robbery and illegally possessing a firearm, but acquitted him of assaulting a federal officer and carrying a firearm during a crime of violence.

Dr. Fulero's expert testimony went principally to the reliability of witness identifications of Smith as the bank robber. While Smith was found guilty of the robbery after the court allowed Fulero's expert testimony, the court believes that an opinion setting forth its reasoning for allowing the testimony is still warranted.

II. DISCUSSION

The issue before the court is a pressing one. Eyewitness testimony has long been recognized as one of the most persuasive forms of evidence in criminal cases. “[T]here is almost nothing more convincing than a live human being who takes the stand, points a finger at the defendant, and says ‘That's the one!’ ” Watkins v. Sowders, 449 U.S. 341,

352, 101 S.Ct. 654, 66 L.Ed.2d 549 (1981) (Brennan, J., dissenting) (internal citation and emphasis omitted); Henry

F. Fradella, Why Judges Should Admit Expert Testimony on the Unreliability of Eyewitness Testimony, 2 Fed. Cts.

L.Rev. 2 (2007) (“ ‘[S]eeing is believing’ is not only ubiquitous common parlance but also appears to be gospel to jurors.”); see also Manson v. Brathwaite, 432 U.S. 98, 120, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977) (Marshall, J., dissenting) (stating that “juries unfortunately are often unduly receptive to [identification] evidence”).

Despite eyewitness testimony's persuasive nature, mounting evidence has suggested that it is not as reliable as has often been assumed. See Hon. D. Duff McKee, Challenge to Eyewitness Identification Through Expert Testimony, 35

Am.Jur. Proof of Facts 3d 1, § 1 (1996) (“Eyewitness testimony may be the least reliable, and yet the most compelling.”) By some estimates, roughly 84% of convicts who have been exonerated by DNA testing were convicted on the basis of mistaken eyewitness testimony. Barry Scheck, et al., Actual Innocence Five Days To

Execution, and Other Dispatches From the Wrongly Convicted (2000) (finding mistaken eyewitnesses as a factor in

84% of 67 wrongful convictions), as cited in Fradella, 2 Fed. Cts. L.Rev. at 2 n. 2; see also *1210 Edward Connors, et al., Convicted by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence after Trial (Dept. of Justice 1996) (examining 28 cases in which DNA evidence exonerated a defendant and stating that, “In all 28 cases, without the benefit of DNA evidence, the triers of fact had to rely on eyewitness testimony, which turned out to be inaccurate”), available at http:// www. ncjrs. gov/ txtfiles/ dnaevid. txt (last visited May 21,

2009). There is, then, a vast lacuna between jurors' perceptions of the power of eyewitness testimony and this testimony's accuracy.

Still, despite this gap, courts have sometimes looked askance at expert testimony on the factors that can influence eyewitnesses' perceptions. In United States v. Amaral, 488 F.2d 1148, 1152-54 (9th Cir.1973), the Ninth Circuit

Court of Appeals upheld a district court's decision to exclude eyewitness-identification expert testimony, reasoning that cross-examination would unveil any weaknesses in identifications. A number of other older cases, including from Eleventh Circuit Court of Appeals, also have upheld rejections of similar evidence. See, e.g., United States v.

Holloway, 971 F.2d 675, 679 (11th Cir.1992) (relying on Thevis, infra ); United States v. Purham, 725 F.2d 450, 454

(8th Cir.1984) (concluding that the issue was within the province of the jury); United States v. Thevis, 665 F.2d 616,

641-42 (5th Cir.1982) (reasoning that problems with this testimony could be revealed through cross-examination and citing a then-“uniform disapproval” of similar testimony in other circuits); United States v. Fosher, 590 F.2d 381,

382-84 (1st Cir.1979) (ruling that the testimony would be prejudicial).

Yet, as the body of evidence has grown showing the unreliability of some eyewitness testimony, courts have gradually recognized the potential value of expert testimony on this subject. United States v. Mathis, 264 F.3d 321,

339-40 (3rd Cir.2001) (examining an eyewitness expert's methods and “welcom [ing]” such testimony); United

States v. Smithers, 212 F.3d 306, 311-18 (6th Cir.2000) (finding that a district court erred in not admitting eyewitness-identification expert testimony from Dr. Sol Fulero); United States v. Moore, 786 F.2d 1308, 1313 (5th

Cir.1986) (finding that, under some circumstances, eyewitness-identification expert testimony “properly may be encouraged”); United States v. Downing, 753 F.2d 1224, 1232 (3d Cir.1985) (reasoning that “expert testimony on eyewitness perception and memory [should] be admitted at least in some circumstances”); United States v. Smith,

736 F.2d 1103, 1107 (6th Cir.1984) (“The day may have arrived, therefore, when Dr. Fulero's testimony can be said to conform to a generally accepted explanatory theory.”).

It has been over a decade since the Eleventh Circuit last addressed the admissibility of eyewitness-identification expert testimony in a published opinion. In United States v. Smith, 122 F.3d 1355, 1358 (11th Cir.1997), the Eleventh

Circuit held that “a district court does not abuse its discretion when it excludes expert testimony on eyewitness identification.” Before that decision, the “established rule” of the Eleventh Circuit was apparently that such testimony was not admissible. Holloway, 971 F.2d at 679; see also United States v. Benitez, 741 F.2d 1312, 1315

(11th Cir.1984) ( “[Defendant's] contention that the district court incorrectly excluded expert testimony concerning identification also lacks merit because such testimony is not admissible in this circuit.”).

While Smith acknowledged that eyewitness-identification expert testimony has been looked upon “unfavorably” in the Eleventh Circuit, 122 F.3d at 1357, the *1211 court explicitly declined to decide at that time whether the “per se

inadmissibility rule” remained in effect.

Id.

at 1358. The court also emphasized that the decision whether to admit expert testimony rests within the discretion of the trial court. Id.

at 1359.

[1] A per se proscription against all eyewitness-identification expert testimony is irreconcilable with the United

States Supreme Court's decision in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125

L.Ed.2d 469 (1993). There, the Court eschewed such categorical prohibitions of entire classes of expert conclusions ; in determining whether to admit testimony, the Court stated, the focus “must be solely on principles and methodology, not on the conclusions that they generate.” Daubert, 509 U.S. at 595, 113 S.Ct. 2786. The Court emphasized that this inquiry is “a flexible one,” id.

at 594, 113 S.Ct. 2786, and provided a non-exhaustive list of factors for lower courts to consider when determining whether to admit proposed expert testimony as reliable and helpful under Fed.R.Evid. 702. Id.

at 593-94, 113 S.Ct. 2786.

Heeding the Supreme Court's command, this court at trial examined whether the proposed expert testimony complied with the strictures outlined in Daubert.

See United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir.2004)

(“[T]he Supreme Court made abundantly clear in Daubert [that] Rule 702 compels the district courts to perform the critical ‘gatekeeping’ function concerning the admissibility of expert scientific evidence.”) (citing Daubert, 509 U.S. at 589 n. 7, 113 S.Ct. 2786).

A. Rule 702

Fed.R.Evid. 702 provides:

“If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.”

In Daubert, the Supreme Court urged lower courts, first, to examine whether reliable methodology undergirds proposed expert testimony. That is, courts are to consider: whether the theory or technique “can be (and has been tested),” “whether the theory or technique has been subjected to peer review and publication,” whether there is a known or potential error rate in the scientific technique, and whether the theory or technique has achieved general acceptance in the particular scientific community. 509 U.S. at 593-94, 113 S.Ct. 2786. Second, if the opinion testimony is reliable, the court must determine whether the testimony would aid the trier of fact. Id.

at 589, 113 S.Ct.

2786. This, essentially, is nothing more than a restatement of the general rule that the trial judge ensure the evidence is “relevant to the task at hand.” Id.

at 597, 113 S.Ct. 2786. To answer this second question, courts should look to whether the reliable scientific methods “fit” the case before a court, id.

at 591, 113 S.Ct. 2786, an inquiry that typically involves scrutinizing the particular testimony offered and matching that testimony to the specific factual context of a case. The government challenges the admission of Fulero's testimony at each of these stages.

FN1

FN1. In Smith, 122 F.3d 1355 (11th Cir.1997), because the parties did not dispute the issue, the court did not address the district court's ruling, based on the first prong of Daubert 's analysis, that the eyewitnessidentification expert testimony was valid scientific knowledge. 122 F.3d at 1358. The court addressed only whether the prior holding in Thevis bound it to conclude, under the second prong of the Daubert test, that the district court did not abuse its discretion by denying admission of the evidence on the ground that the expert testimony would not assist the jury.

*1212 1. Reliability

[2] The government argues that Dr. Fulero's opinion does not constitute reliable scientific or technical knowledge. In support of this position, the government cites a host of cases from other circuits in which eyewitness-identification expert testimony has been rejected as unscientific. However, the purported experts in those cases failed to provide sufficient articles or data demonstrating the reliability of the methods employed by those experts. E.g., United States v. Kime, 99 F.3d 870, 883 (8th Cir.1996) (finding that two articles on the topic of eyewitness identification in lineups

were “utterly deficient in regard to determining whether [the expert's] views constitute ‘scientific knowledge’ within the meaning of Daubert ”); United States v. Rincon, 28 F.3d 921, 923-25 (9th Cir.1994) (affirming the district court's exclusion of proffered eyewitness-identification expert testimony under Daubert and noting that, “while the article identified the research on some of the topics, it did not discuss the research in sufficient detail that the district court could determine if the research was scientifically valid”);

United States v. Brien, 59 F.3d 274, 277 (1st Cir.1995)

(affirming the inadmissibility of expert testimony on the reliability of eyewitness identification, noting that the defendant failed to provide “data or literature underlying” the expert's opinion).

On the other hand, other courts have specifically reviewed Dr. Fulero's methods and found that they “easily” satisfy the first Daubert inquiry. United States v. Moonda, No. 1:06CR0395, 2007 WL 1875861 (N.D.Ohio June 28, 2007)

(Dowd, J.). Indeed, in United States v. Langan, 263 F.3d 613 (6th Cir.2001), the Sixth Circuit Court of Appeals refers to Fulero as the expert “whose ‘qualifications and scientific methods' [have] already been ‘praised’ by the

Sixth Circuit.” Id.

at 623 (citing Smithers, 212 F.3d at 315).

This court concurred at trial with the cases and thus concluded that Fulero's methods satisfied the reliability prong of

Daubert.

In compliance with Daubert, the theories underlying Fulero's testimony have been well-tested in peerreviewed publications, including in articles authored by Fulero. See, e.g., Nancy Steblay, Jennifer Dysart, Sol Fulero,

& R.C.L. Lindsay, A Meta-Analytic Comparison of Showup and Lineup Identification Accuracy, 27 Law & Hum.

Behav. 523 (2003); Nancy Steblay, R.C.L. Lindsay, Sol Fulero, & Jennifer Dysart, Eyewitness Accuracy Rates in

Sequential and Simultaneous Lineup Presentations: A Meta-analytic Review, 25 Law & Hum. Behav. 459-474

(2001); see also R.C.L. Lindsay & Gary L. Wells, Improving Eyewitness Identification from Lineups: Simultaneous

Versus Sequential Lineup Presentations, 70 J. Applied Psychol. 556 (1985).

Furthermore, Fulero testified that the methods he relies upon are generally accepted, and this representation accords with this court's own findings. See Frazier, 387 F.3d at 1261 (“[T]he trial court's gatekeeping function requires more than simply taking the expert's word for it.”) (internal quotations omitted). Numerous studies have been done under controlled conditions assessing the factors that influence eyewitnesses “in accordance with generally accepted practice in the behavioral *1213 science community” done independent of any litigation. Hon. Robert P. Murrian,

The Admissibility of Expert Eyewitness Testimony Under the Federal Rules, 29 Cumb. L.Rev. 379, 384-85 (1999)

(collecting studies). As the Department of Justice recognized in a 1999 guide, “research psychologists have produced a substantial body of findings regarding eyewitness evidence. These findings offer the legal system a valuable body of empirical knowledge in the area of eyewitness evidence.” U.S. Dept. of Justice, Eyewitness

Evidence: A Guide for Law Enforcement 1 (1999), available at http:// www. ncjrs. gov/ pdffiles 1/ nij/ 178240. pdf

(last visited Mar. 28, 2008); cf. Illinois v. Lidster, 540 U.S. 419, 425, 124 S.Ct. 885, 157 L.Ed.2d 843 (2004) (citing the Department of Justice guide). The Department of Justice guide relied in part on an article co-authored by the proffered expert in this case. U.S. Dept. of Justice, 42 (citing Gary L. Wells, Mark Small, Steven D. Penrod, Roy S.

Malpass, Sol M. Fulero, & Elizabeth Brimacombe, Eyewitness Identification Procedures: Recommendations for

Lineups and Photospreads, 22 Law and Human Behavior 603 (1998)).

Also of note is that Fulero holds a Ph.D. in psychology and now teaches the subject at the university-level. He has additionally demonstrated extensive knowledge of the ongoing, most recent developments in the field of eyewitness identification. Indeed, Fulero has authored or co-authored roughly 60 publications, primarily addressing how psychological factors affect the administration of criminal justice. Further, he is a reviewer for several major journals, including, among others, Law & Hum. Behav., J. of Forensic Psychol. & Prac., and Psychol. Pub. Pol'y &

Law. See generally City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 562 (11th Cir.1998) (requiring that experts be “qualified to testify competently” on a given subject matter); see also Michael R. Leippe, The Case for

Expert Testimony about Eyewitness Memory, 1 Psychol. Pub. Pol'y & L. 909, 951 (1995) (encouraging courts to consider, prior to admitting an eyewitness-identification expert, whether he or she has: “(a) a PhD degree in psychology; (b) documentable extensive graduate-level training in cognitive, social, and other areas of experimental psychology; and (c) evidence of recent and ongoing comprehensive, cutting-edge contact with the eyewitness literature (e.g., research and publication, university-level teaching, reviewing for major journals).”) These facts satisfied the court that Fulero is qualified in the field and equipped to provide the jury with reliable expert testimony on eyewitness identifications.

2. Assistance to the Jury

[3] The United States contended that Fulero's proposed testimony would not aid the jury because Fulero's proffered testimony presented no analysis from Fulero tailored to this case. See Daubert, 509 U.S. at 591, 113 S.Ct. 2786

(stating that testimony must “fit” the facts of a case to satisfy Fed.R.Evid. 702). Instead, Fulero's testimony would discuss only general problems associated with eyewitness identifications. Such testimony, the government argued, would not aid the jury because problems with eyewitness identification are within the “ordinary knowledge of most lay jurors.”

See Langan, 263 F.3d at 624. In addition to the lack of support for the proposition that juries commonly understand the unnamed (but likely myriad) problems with eyewitness testimony or the ways in which those problems interact with each other and in different factual settings, a further problem with the government's argument was that Fulero's expert testimony actually fitted quite well to Smith's case.

*1214 The government's more categorical position, though, finds some support in Eleventh Circuit precedent. In

United States v. Thevis, 665 F.2d 616, 641 (5th Cir.1982) (Unit B), FN2 the appellate court held that a district court did not abuse its discretion in refusing to admit expert testimony regarding eyewitness reliability. The court in Thevis expressed concern about opening the floodgates of psychological evidence and concluded that “the problems of perception and memory can be adequately addressed in cross-examination and that the jury can adequately weigh these problems through common-sense evaluation.” Id.

; see also United States v. Smith, 122 F.3d 1355, 1357 (11th

Cir.1997) (explaining Thevis ). As noted earlier, the per se rule apparently adopted after Thevis that such testimony is categorically inadmissible cannot survive (at the very least) the first prong of analysis mandated by the Supreme

Court's decision in Daubert.

Smith, however, while declining to address whether the first prong of Daubert 's analysis invalidated the per se rule, held that Thevis controlled its decision because the decision to exclude the expert testimony was consistent with Daubert 's second prong; that is, Daubert did not make it an abuse of discretion to find that eyewitness-identification expert testimony would not have assisted the juries in Thevis or Smith.

Thus,

Smith held that circuit precedent mandated the conclusion “that a district court does not abuse its discretion in excluding such testimony.” Id.

at 1359.

FN2. In Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir.1982), the Eleventh Circuit adopted as binding precedent all decisions of Unit B of the former Fifth Circuit handed down after September 30,

1981.

This result was confirmed by the recent unpublished opinion in United States v. Smith, 148 Fed.Appx. 867 (11th

Cir.2005). In that case, the panel indicated that the defendant had produced evidence that undermined the rationale of Thevis, but wrote that the court felt limited by the prior panel precedent rule to uphold the rule that a district judge did not abuse her discretion by excluding such evidence.

Neither Smith nor Thevis addressed, however, whether a district court abuses its discretion by admitting this evidence pursuant to the analysis required by Rule 702 and Daubert.

FN3 This court concludes, after significant deliberation, that it does not. A contrary conclusion would be nothing short of untenable in light of the discretion of courts to admit expert testimony that would help factfinders reach more accurate results, recent developments in our understanding of the human mind in the 23 years since Thevis, and the unlikely salience of that new but robust scientific knowledge among factfinders. As a result, the court will explain in detail why, in the context of this case, it admitted the reliable and relevant expert testimony.

FN3. The holding in Thevis, which bound the court in Smith, is not similarly binding here. See Anders v.

Hometown Mortg. Servs., 346 F.3d 1024, 1031 (11th Cir.2003) (citing Watts v. BellSouth Telcomms., Inc.,

316 F.3d 1203, 1207 (11th Cir.2003) (“Judicial decisions cannot make law beyond the facts of the cases in which those decisions are announced.”), and explaining that, while Smith confirmed that the prior panel precedent rule obligates the court to follow the holdings of an earlier decision, 122 F.3d at 1359, “the holdings of a prior decision can reach only as far as the facts and circumstances presented to the court in the case which produced that decision,” United States v. Aguillard, 217 F.3d 1319, 1321 (11th Cir.2000)

(citation and internal quotation marks omitted)).

This is precisely the type of case in which eyewitness-identification expert testimony would be of particular use. The strongest evidence that Smith committed the armed bank robbery was two eyewitness *1215 identifications by

individuals who had had little contact with him. The videotape evidence in this case was, at best, inconclusive. See

United States v. Smithers, 212 F.3d 306, 317 (6th Cir.2000)(“[ E]xpert testimony should be admitted ... when there is no other inculpatory evidence presented against the Defendant with the exception of a small number of eyewitness identifications.”); United States v. Moore, 786 F.2d 1308, 1313 (5th Cir.1986) (“[I]n a case in which the sole testimony is casual eyewitness identification, expert testimony regarding the accuracy of that identification is admissible and properly may be encouraged ...”).

Importantly, Fulero was not permitted to testify about what weight the jury should give the testimony in this case.

Rather, he was allowed to supply jurors with information about some specific factors that, according to wellestablished social science-research, impact witness accuracy and, as a result, might assist them in their own determination of the facts. Chief among these factors is the information concerning cross-racial eyewitness identifications; the evidence concerning the reliability of such identification is stunning and robust and, of crucial importance here, not likely well understood by juries. In addition, the expert evidence also indicates that the accuracy of identifications, including cross-racial identifications, is impacted by whether the witness perceived the event in a high-stress environment and whether the witness has subsequently been exposed to facts that potentially altered his or her memory of an event.

The jury's decision-making process can be enhanced by learning how these factors combine to impact perception and memory. For example, here, one of the government's eyewitnesses is white, and the defendant is black. Research shows that cross-racial identifications are less accurate than same-race identifications.

FN4 Brandon L. Garrett,

Judging Innocence, 108 Colum. L.Rev. 55, 79 (2008) (“Social science studies have long shown that cross-racial identifications are particularly error prone.”); Gary L. Wells & Elizabeth A. Olson, The Other-Race Effect in

Eyewitness Identification: What Do We Do About It?, 7 Psychol. Pub. Pol'y & L. 230, 231 (2001) (“[A] Black innocent suspect has a 56% greater chance of being misidentified by a White eyewitness than by a Black eyewitness.”); Christian A. Meissner & John C. Brigham, Thirty Years of Investigating the Own-Race Bias in

Memory for Faces: A Meta-Analytic Review, 7 Psychol. Pub. Pol'y & L. 3, 5-13 (2001) (reviewing literature showing that the chances of a mistaken identification is 1.56 times greater in the cross-race context than the same-race context); Heather M. Kleider & Stephen D. Goldinger, Stereotyping Ricochet: Complex Effects of Racial

Distinctiveness on Identification Accuracy, 25 Law & Hum. Behav. 605 (2001) (finding that cross-racial identifications are generally less accurate than same-race identifications); Frederic Woocher, Note, Did Your Eyes

Deceive You? Expert Psychological Testimony on the Unreliability of Eyewitness Identification, 29 Stan. L.Rev. 969,

982 (1977) (“considerable evidence indicates that people are poorer at identifying members of another race than of their own”). Recent evidence also shows that cross-racial identifications are even more error-prone when, as was true here, one of the eyewitnesses is white and *1216 the suspect is black. Fradella, 2 Fed. Cts. at 14 (“The result of cross-racial bias is a higher rate of false positive identifications, especially when a Caucasian eyewitness identifies an African-American suspect.”); see also Sheri Lynn Johnson, Cross-Racial Identification Errors in Criminal Cases,

69 Cornell L.Rev. 934, 938-40 (1984) (noting that research has repeatedly found that whites are more accurate in identifying white faces than black faces).

FN4. Indeed, “48% of exonerees convicted based on eyewitness testimony [are] identified cross-racially.”

Garrett, 108 Colum. L.Rev. at 79 (citing Innocence Project, 200 Exonerated: Too Many Wrongfully

Convicted 20-21, available at http:// www. innocence project. org/ 200/ ip_ 200. pdf (last visited May. 21,

2009)).

The potential inaccuracies of cross-racial identifications are not necessarily within the common knowledge of the average juror or, for that matter, the average judge. See Commonwealth v. Zimmerman, 441 Mass. 146, 804 N.E.2d

336, 344 (2004) (Cordy, J., concurring) (the unreliability of cross-racial identification is a subject “beyond the ordinary experience and knowledge of the average juror”) (internal quotations omitted). The Supreme Court of New

Jersey, in fact, requires jury instructions on the potential unreliability of cross-racial identifications for that reason.

State v. Cromedy, 158 N.J. 112, 128, 727 A.2d 457 (1999).

Fulero also testified about how stress can impair a witness's perceptions and memories. One of the government's eyewitnesses testified that the bank robbery was the most traumatic experience of her life. Particularly in combination with the evidence about cross-racial identification, the jurors' judgment could be enhanced by learning that trauma and fear can cause a sincere person to wrongly recall an event. C. Neil Macrae et al., Creating Memory

Illusions: Expectancy-Based Processing and the Generation of False Memories, 10 Memory 63, 72, 76-77 (2002)

(finding that stress impairs an individuals perception and ability to accurately recall an event), as cited in Justin D.

Levinson, Forgotten Racial Equality: Implicit Bias, Decisionmaking, and Misremembering, 57 Duke L.J. 345, 379 n. 178 (2007); Elizabeth Loftus & James M. Doyle, Eyewitness Testimony: Civil and Criminal 11 (2d ed. 1992)

(explaining that fear and stress impair perceptions) as cited in Peter J. Cohen, How Shall They Be Known? Daubert v. Merrell Dow Pharmaceuticals and Eyewitness Identification, 16 Pace L.Rev. 237, 242 n. 45 (1996). This court will not assume that this psychological phenomenon is within the common knowledge of jurors. See generally D.S.

Greer, Anything But the Truth? The Reliability of Testimony in Criminal Trials, 11 Brit. J. Criminology 131, 133-35

(1971) (observing the high faith jurors place in eye witness testimony, including when such testimony is unreliable), as cited in Steven I. Friedland, On Common Sense and the Evaluation of Witness Credibility, 40 Case W. Res. L.Rev.

165, 166 n. 14 (1990).

Also of assistance to the jury was Fulero's expert testimony regarding how “post-event information” can influence an eyewitness. Research regarding post-event information shows that access to facts after an occurrence can, under some circumstances, “change a witness's memory and even cause nonexistent details to become incorporated into a previously acquired memory.” Cohen, 16 Pace L.Rev. at 246. See Ferensic v. Birkett, 501 F.3d 469, 472-83 (6th

Cir.2007) (finding that defendant should have been permitted to provide testimony on post-event information and that, under the narrow circumstances of that case, the error was not harmless); People v. LeGrand, 8 N.Y.3d 449,

458, 835 N.Y.S.2d 523, 867 N.E.2d 374 (2007) (permitting testimony regarding post-event information); but see

United States v. Rodriguez-Berrios, 445 F.Supp.2d 190, 194 (D.P.R.2006) (Perez-Gimenez, J.) (finding that understanding post-event information “is not the kind of issue that the jurors would be unqualified or unable to determine ‘without enlightenment from those *1217 having specialized understanding of the subject involved in the dispute’ ”) (quoting Fed.R.Evid. 702 (Advisory Committee Notes)).

In this case, the two eyewitnesses to the bank robbery conversed with each other prior to providing testimony, and they acknowledged that they may have discussed what the robber looked like. Under such circumstances, testimony about post-event information could be of use to the jury. See Fiona Gabbert, et al., Memory Conformity: Can

Eyewitnesses Influence Each Other's Memories For An Event?, 17 Applied Cogn. Psychol. 533 (2003) (finding that when witnesses discuss events with one another, shared false recollections sometimes result); see also Gary L. Wells

& Amy L. Bradfield, “Good, You Identified the Suspect”: Feedback to Eyewitnesses Distorts Their Reports of the

Witnessing Experience, 83 J. Applied Psychol. 360, 361 (1998) (“Eyewitness testimony about an event reflects not only what they actually saw but information they obtained later on.”), as quoted in Richard A. Wise, et al., A

Triparite Solution to Eyewitness Error, 97 J.Crim. L. & Criminology 807, 871 (2007); cf.

Ralph Norman Haber &

Lyn Haber, Experiencing, Remembering and Reporting Events, 6 Psychol. Pub. Pol'y & L. 1057, 1091-92 (2000)

(recommending that eyewitness testimony be excluded if: (1) there is no corroborating testimony, unless the circumstances suggest a greater likelihood of reliability; (2) the witness's account was possibly tainted by suggestive procedures; (3) the witness was exposed to post-event information; or (4) the testimony is the product of a “fleeting glance”). And because “jurors tend to be unduly receptive to, rather than skeptical of, eyewitness testimony,”

Smithers, 212 F.3d at 315, the jury's factfinding ability's will be enhanced by learning about the effects of post-event information.

Another useful aspect of Fulero's testimony was his discussion of the factors that impact the reliability of a photograph identifications. For example, research shows that a photo identification works best when neither the person conducting the photo array, nor the eyewitness, knows who the targeted suspect is. See Fradella, 2 Fed. Cts.

L.Rev. at 17. Further, eyewitnesses exhibit greater accuracy when they are explicitly informed that “a suspect may or may not be” in a photo array. Id.

Yet another factor that affects accuracy is whether an eyewitness is shown photographs one after another, rather than being shown multiple photographs at the same time; eyewitnesses who are shown photographs sequentially show greater reliability than those who view photographs simultaneously. Id.

The evidence was that, in this case, the eyewitnesses were shown photographs simultaneously; and there was no evidence that these witnesses were told that the suspect “may or may not be” present in the photo array. The research revealing the potential consequences of these facts is likely not within the ken of the average juror. Indeed, exposure to this research proved of great assistance to this court during an earlier phase of this case, as it considered a motion to exclude the photo identifications as unduly suggestive under Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34

L.Ed.2d 401 (1972); this court ultimately concluded that the photo identifications should not be excluded. If social-

science research regarding eyewitness identifications aided this court's ability to understand the evidence as it considered this motion, it would be curious to assume that this same research would be of no aid to the jury.

Finally, Fulero testified to the highly counter-intuitive, but well-founded, theory that the amount of confidence a person has *1218 in a recollection does not correlate well with the accuracy of that recollection. In other words, just because a witness says she is 100% sure of an identification does not mean that the witness's identification is correct.

As the Seventh Circuit Court of Appeals has observed, “Sometimes the witness zeroes in on the correct person, sometimes not; there is an element of chance and an opportunity for manipulation. Once the witness decides that ‘X is it’ the view may be unshakable.” Newsome v. McCabe, 319 F.3d 301, 305 (7th Cir.2003). Social-science research

“has established that the witness's faith is equally strong whether or not the identification is correct.” Id.

The appellate court in Newsome collected an array of publications documenting this phenomenon, id.

: Daniel L.

Schacter, The Seven Sins of Memory: How the Mind Forgets and Remembers 112-37 (2001); Elizabeth F. Loftus &

James M. Doyle, Eyewitness Testimony: Civil and Criminal (3d ed. 1997); Elizabeth F. Loftus, Eyewitness

Testimony (1979; rev. ed. 1996).

In the present case, one witness testified that he was 70% to 80% sure of his identification of the defendant. Another testified on the stand without equivocation that the defendant committed the bank robbery. Jurors often believe that a witness who testifies with such confidence should be accorded stronger weight than a witness who does not. See

Watkins v. Sowders, 449 U.S. 341, 352, 101 S.Ct. 654, 66 L.Ed.2d 549 (1981) (Brennan, J., dissenting) (“Eyewitness testimony is likely to be believed by jurors, especially when it is offered with a high level of confidence, even though the accuracy of an eyewitness and the confidence of that witness may not be related to one another at all.”)

(internal citation omitted). In an instance such as this, where intuition is belied by scientific research, testimony from an expert may be of great assistance to a jury. Particularly in light of the implications of cross-racial identification, all of this information, particularly to the extent it is not common knowledge or intuition, could assist the jury in reaching a fair and accurate determination of the factual issues before it.

It bears reiterating that the expert was not permitted to testify about the credibility and believability of the witnesses in this case. Fulero was not permitted to discuss witnesses in this case at all; nor was Smith allowed to ask Fulero about the credibility or believability of witnesses in this case. Fulero was instead allowed to educate the jury about the psychological literature regarding: cross-racial identifications; how stress impacts identifications; post-event information; and the weak correlation between a witness's confidence and his or her accuracy because these issues are specifically implicated by the factual context of this case. The advisory committee notes to Fed.R.Evid. 702 expressly contemplate that sometimes experts will have this limited role. The notes explain that it is wrong to conclude “that experts testify only in the form of opinions.” Id.

Rather, “an expert on the stand may give a dissertation or exposition of scientific or other principles relevant to the case, leaving the trier of fact to apply them to the facts.” Id.

The court was convinced at trial that the psychological research supporting the above four subjects is both reliable and helpful and that the constantly increasing knowledge social scientists are obtaining about the inner workings of the human animal are likely not commonly understood or obviously apparent to jurors (or, for that matter, judges).

Therefore, educating the jury about this research does not (and, in this case, did not) run afoul of Rule 702, and, indeed, it is an important step along the road to using improved scientific knowledge to create more accurate *1219 and fair legal proceedings. It would be anachronistic to categorically bar courts from employing the latest reliable scientific evidence in their effort to make sure that the trials that they administer resemble as closely as possible a search for truth; such a search requires diligently pursuing better understandings of human decisionmaking, including the flaws, weaknesses, and biases that characterize human life. Particularly for cases like this one, in which the reliability of eyewitness testimony is so important and so linked to well-established flaws in human perception and memory, such testimony may be crucial to fair, thorough, informed, and rigorous decisionmaking. It can only help to make factfinders more informed. Applying this research to the facts of this case, however, is within the sole province of the jury.

B. Rule 403

[4] The United States argued that Dr. Fulero's testimony transgressed Fed.R.Evid. 403, which provides that:

“Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”

According the government, admitting Fulero's testimony would incite unfair prejudice because his assertions would confuse and mislead jurors about their role as the ultimate arbiters of eyewitnesses' credibility.

The Eleventh Circuit has not had occasion to address whether eyewitness-identification expert testimony would violate Rule 403, and other circuits have split on this question. The Second, Seventh, and Eighth Circuits have reasoned that eyewitness-identification expert testimony might usurp the jury's role of determining witness credibility, thus causing jurors to be confused and misled regarding their role as the trier of fact. United States v.

Lumpkin, 192 F.3d 280, 289 (2d Cir.1999) (holding a district court was within its discretion to exclude an expert who “would effectively have inserted his own view of the officers' credibility for that of the jurors, thereby usurping their role”); United States v. Kime, 99 F.3d 870, 884 (8th Cir.1996) (applying a deferential standard to conclude that

“the district court properly recognized the very real danger that the proffered expert testimony could either confuse the jury or cause it to substitute the expert's credibility assessment for its own”); United States v. Curry, 977 F.2d

1042, 1052 (7th Cir.1992) (“the district court's decision to exclude Dr. Loftus' testimony was a proper exercise of its discretion, whether under Rule 702 or Rule 403.”); but cf. United States v. Gallardo, 497 F.3d 727, 733 (7th

Cir.2007) (holding that expert testimony on effect of drug abuse on witness memory would “intrude upon the jury's role in assessing witness credibility” only because the defendant had not put forth any evidence to show that the witnesses actually used drugs and that, thus, there was no “factual link” between the expert's testimony and the specific witnesses).

Similarly, in United States v. Rincon, 28 F.3d 921, 923-26 (9th Cir.1994), appellate court affirmed a district court's decision to exclude an eyewitness-identification expert under Rules 403 and 702. The court cautioned, though, that the opinion represents an “individualized inquiry” that “does not preclude the admission of such testimony when the proffering party satisfies the standard established in Daubert by showing that the expert opinion is based upon

‘scientific knowledge’ which is both reliable and helpful to the jury in any given case.” Id.

at 926.

*1220 In contrast, the Third and Sixth Circuits have ruled that eyewitness-identification expert testimony comports with Rule 403. In United States v. Mathis, 264 F.3d 321, 339-40 (3rd Cir.2001), the court reversed a district court's decision to exclude eyewitness testimony based on Rules 403 and 702. Judge Pollack explained that eyewitnessidentification experts who employ “reliable scientific expertise to juridically pertinent aspects of the human mind and body should generally, absent explicable reasons to the contrary, be welcomed by federal courts, not turned away.” Id.

at 340. The Sixth Circuit has likewise concluded that a trial court erred in excluding an eyewitnessidentification expert under Rule 403, but held that the error was harmless. United States v. Smith, 736 F.2d 1103,

1107 (6th Cir.1984); see also Smithers, 212 F.3d at 316 (finding that eyewitness-identification expert testimony did not violate Rule 403's prohibition against evidence that invites unjustified “delay”).

This court appreciates the especial risk that accompanies expert testimony; despite jury instructions advising jurors not to embrace expert testimony uncritically, Eleventh Circuit Pattern Jury Instructions (Criminal Cases), Basic

Instruction 7, courts have long expressed concern that jurors may still do exactly that. United States v. Purham, 725

F.2d 450, 454 (8th Cir.1984) (observing “the aura of reliability and trustworthiness that surrounds scientific evidence”); United States v. Addison, 498 F.2d 741, 744 (D.C.Cir.1974) (“scientific proof may in some instances assume a posture of mystic infallibility in the eyes of a jury of laymen”); Huntingdon v. Crowley, 64 Cal.2d 647,

656, 51 Cal.Rptr. 254, 414 P.2d 382 (1966) (noting the need to protect “both litigants and jurors against the misleading aura of certainty which often envelops a new scientific process”). “Because of this risk, the judge in weighing possible prejudice against probative force under Rule 403 of the present rules exercises more control over experts than over lay witnesses.” Daubert, 509 U.S. at 595, 113 S.Ct. 2786 (citing Hon. Jack Weinstein, Rule 702 of the Federal Rules of Evidence is Sound; It Should Not Be Amended, 138 F.R.D. 631, 632 (1991)).

This risk was present in Smith's case because unfettered expert testimony could have been construed as direct commentary on other witnesses' credibility. It is axiomatic that “[a]ssessing the credibility of one witness is within

the jury's exclusive province.”

United States v. Wright, 392 F.3d 1269, 1274 (11th Cir.2004), cert. denied, 544 U.S.

968, 125 S.Ct. 1751, 161 L.Ed.2d 615 (2005); see also Allison v. United States, 160 U.S. 203, 207, 16 S.Ct. 252, 40

L.Ed. 395 (1895) (“[I]t was for the jury to test the credibility of the defendant as a witness, giving his testimony such weight, under all the circumstances, as they thought it entitled to, as in the instance of other witnesses ...”) But see

Fed.R.Evid. 704(b) (Advisory Committee Notes) (rejecting as “empty rhetoric” the notion that some expert testimony is inadmissible because it usurps the “province of the jury.”) (citing 7 J. Wigmore, Treatise on the Anglo-

American System of Evidence in Trials at Common Law § 1920, at 17 (3d ed. 1940)).

FN5

FN5. Fed.R.Evid. 704(a) reads that, generally, “testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.”

But the critical point here is, instead, that this kind of expert testimony can, in some specific circumstances, be helpful, and even essential, to assisting the jury in its exercise of the exclusive power to determine witness credibility. With respect to many other factual determinations *1221 which are also within the sole province of the jury, expert testimony can help the jury find the relevant facts in a more informed way. Eyewitness-identification expert testimony, as a category, is no different.

The parameters this court placed on Fulero's testimony, moreover, significantly allayed the concern that he would improperly invade the jury's role. Because he was not permitted to testify about specific witnesses in this case and instead was allowed only to educate the jury about empirical evidence regarding the previously specified areas of eyewitness-identification research, his testimony did not mislead the jury about its role as the sole factfinder in a criminal jury trial. Accordingly, he was not allowed to “effectively [ ] insert[ ] his own view of the [witnesses'] credibility for that of the jurors, thereby usurping their role.”

Lumpkin, 192 F.3d at 289.

Indeed, it is difficult to see how it could possibly be prejudicial to provide scientifically robust evidence that seeks to correct misguided intuitions and thereby prevent jurors from making common errors in judgment simply by giving them more accurate information about issues directly relevant to the case. The court's restricted approach, which presented little risk of unfair, targeted, and prejudicial attacks on specific witnesses, maximizes the important values that underlie our legal system's reliance on criminal trials, including the role the jury plays as a factfinder to be trusted and a defendant's right “to have compulsory process for obtaining witnesses in his favor.” U.S. Const.

Amend VI.

III. TIMELINESS

[5] Smith contended that the court should not reach the merits of the government's motion to exclude Dr. Fulero's testimony, because that motion was untimely under this court's order on December 7, 2007. The order addressed the government's earlier motion to exclude expert testimony and its alternative motion for a Daubert hearing. The motion to exclude expert testimony was temporarily denied. The court “further ORDERED that the alternative motion for Daubert hearing is denied with leave to either party to renew the request by no later than February 1,

2008.” Id.

Failure to comply with a court's deadlines is a serious matter, and when it happens a court has a wide range of sanctions it may issue, including refusing to consider a belated motion. See Macsenti v. Becker, 237 F.3d 1223, 1234

(10th Cir.2001) (“we find no plain error in the rejection by the trial judge of the belated

Daubert objection.”); see generally Fed.R.Civ.P. 16(f) (“If a party or party's attorney fails to obey a scheduling or pretrial order ... the judge, upon motion or the judge's own initiative, may make such orders with regard thereto as are just, and among others any of the orders provided in Rule 37(b)(2)(B), (C), (D).”)

The government countered that it is immaterial that there is the clause in this court's order stating that the alternative motion for a Daubert hearing was due on February 1 because the government did not request a Daubert hearing. It was instead seeking to exclude the expert testimony without such a hearing.

It was unnecessary to resolve whether the court should have precluded Fulero's testimony because even if the government's motion was tardy, refusing to address the motion would not have been he proper remedy in this

instance. The Eleventh Circuit has articulated three factors to consider when determining whether to strike a document: the importance of the document or testimony; the reasons the *1222 deadline was traversed; and the prejudice faced by opposing party. Bearint ex rel. Bearint v. Dorell Juvenile Group, Inc., 389 F.3d 1339, 1353 (11th

Cir.2004) (applying these factors to determine whether to exclude a witness not listed in a pretrial order). The important nature of the issue presented in the government's motion has been already been acknowledged. More importantly, Smith was not prejudiced by this court's decision to consider the government's motion because the court denied the motion.

Another reason Smith was not prejudiced is because, even if the government had not filed a motion to preclude

Fulero's testimony, this court would have undertaken a Daubert inquiry sua sponte. In City of Tuscaloosa v. Harcros

Chems., Inc., 158 F.3d 548, 563 (11th Cir.1998), the Eleventh Circuit affirmed, in part, a district court's sua sponte exclusion of expert testimony.

FN6 Here, considering the importance of the eyewitness testimony in this case and the potential danger of unrestricted or unreliable expert testimony about these witnesses, this issue called out for a

Daubert inquiry.

FN6. Other courts addressing the issue have also determined that district courts may undertake a Daubert hearing on their own motion. Miller v. Baker Implement Co., 439 F.3d 407, 413 (8th Cir.2006) (“we conclude that it did not abuse its discretion by undertaking a sua sponte Daubert analysis in dealing.”);

Kirstein v. Parks Corp., 159 F.3d 1065, 1067 (7th Cir.1998) (“We have not required that the Daubert inquiry take any specific form and have, in fact, upheld a judge's sua sponte consideration of the admissibility of expert testimony.”).

* * *

In conclusion, it should not be overlooked that, in issuing this opinion today, the court has the benefit of hindsight.

The court has now been able to see just how the admission of the eyewitness-identification expert testimony actually played out at Smith's trial.

First, the admission of the testimony did not pose any unusual or especially difficult problems for the parties or the court. Each side was able to examine the expert adequately and, using the expert's testimony, present to the jury in an orderly way a picture of the evidence that was more fully developed and reliable than it would otherwise have been. Second, the jury, in assessing the evidence and reaching its verdict, had important and practical information that it would otherwise not have been to use in the assessing the evidence and engaging in fair, thorough, informed, and rigorous decisionmaking. Finally, as a result, not only did Smith receive a fairer trial, but the jury, the court, and the entire judicial system can rest much more comfortably that Smith's robbery conviction is a reliable outcome because the conviction is much less likely to have been infected by the flaws uncovered by recent empirical studies on eyewitness-identifications. While the court cannot, and does not, say that the admission of eyewitnessidentification expert testimony is essential to a fair trial, its admission can, most certainly, be quite helpful in some cases.

M.D.Ala.,2009.

U.S. v. Smith

621 F.Supp.2d 1207, 79 Fed. R. Evid. Serv. 921

END OF DOCUMENT

3. USING AN EXPERT

Initially your expert will review the facts of your case and advise you as what your eyewitness issues are and the memory issues that are involved in your defense.

There are many factors your expert will consider and the common areas of evaluation include weapon focus and cross-racial identification along with any pre or post identification influence of the witness by the person presenting the photo array or lineup. The most important use of our experts involves the science around degrees of certainty and memory. Because studies consistently indicate that jurors are influenced by the ID witness’s certainty, admission of the expert testimony regarding memory and certainty is the basis for admitting an expert when the sole evidence, absent corroboration, is the ID witness.

4. YOUR CASE!

So your case falls in that category of the State’s entire case falling on eyewitness identification and you have factors that demonstrate unreliability your next steps preparing for trial. You will hire or move for funding for your expert. If your expert funding is denied or the judge sides with the state deciding your expert is not necessary, you still have lines of attack.

Pretrial: Move to suppress the ID evidence.

Move for funds for ID expert

File motions in limine to exclude the ID.

Move for the DOJ Guidelines to be admitted.

Trial:

VOIR DIRE: Knock yourself out in voir dire. If you’ve been to trial college, you know to start winning the minute you can so start picking away on ID issues during voir dire.(If you haven’t been to trial college it’s my opinion you probably shouldn’t be trying cases so look into it please. Proud alum include Lentine, Ladner and Laumer so ask them about Macon) Ask about what jurors have learned about ID issues and wrongful convictions. I’m finding my jurors are already educated so I can get them talking. My favorite example to use involves the ability to describe the last check out

clerk at the grocery store. Then talk about how stress may affect IDs under other circumstances. My usual case is robbery or murder so weapon focus is a factor and I ask the jurors about how important facial features or clothing descriptions are when a gun is aimed or shots are being fired.

Where race is a factor, I dig in about how we are folks of different races are likely to notice different traits. I get my panel talking about it and they start to make my case for me. Even when I lose, the jurors tell me I did a great job starting reasonable doubt during voir dire.

CROSS EXAMINATION:

Use the DOJ guidelines

Reiterate everything you brought up in voir dire.

JURY INSTRUCTIONS:

I don’t think we have pattern jury instructions in Alabama for ID witnesses so that leaves it wide open for us try and get in great instructions on ID witness considerations. The following is an instruction from Utah that I have used:

DEFENSE PROPOSED JURY INSTRUCTION:

One of the most important questions [The only important question] in this case is the identification of the defendant as the person who committed the crime. The prosecution has the burden of proving beyond a reasonable doubt, not only that the crime was committed, but also that the defendant was the person who committed the crime. If, after considering the evidence you have heard from both sides, you are not convinced beyond a reasonable doubt that the defendant is the person who committed the crime, you must find the defendant not guilty.

The identification testimony that you have heard was an expression of belief or impression by the witness. To find the defendant not guilty, you need not believe that the identification witness was insincere, but merely that [the witness] was mistaken in his [her] belief or impression.

Many factors affect the accuracy of identification. In considering whether the prosecution has proved beyond a reasonable doubt that the defendant is the person who committed the crime, you should consider the following:

1) Did the witness have an adequate opportunity to observe the criminal actor?

In answering this question, you should consider: a) the length of time the witnesses observed the actor; b) the distance between the witness and the actor; c) the extent to which the actor's features were visible and undisguised; d) the light or lack of light at the place and time of observation; e) the presence [or] absence of distracting noises or activity during the observation; f) any other circumstances affecting the witness' opportunity to observe the person committing the crime.

2) Did the witness have the capacity to observe the person committing the crime

In answering this question, you should consider whether the witness' capacity was impaired by: a) stress or fright at the time of observation; b) personal motivations, biases or prejudices; c) uncorrected visual defects; d) fatigue or injury; e) drugs or alcohol.

[You should also consider whether the witness is of a different race than the criminal actor.

Identification by a person of a different race may be less reliable than identification by a person of the same race.]

[3) Was the witness sufficiently attentive to the criminal actor at the time of the crime?

In answering this question, you should consider whether the witness knew that a crime was taking place during the time he [she] observed the actor. Even if the witness had adequate opportunity and capacity to observe the criminal actor, he [she] may not have done so unless he

[she] was aware that a crime was being committed.]

4) Was the witness' identification of the defendant completely the product of his [her] own memory?

In answering this question, you should consider:

a) the length of time that passed between the witness' original observation and his [her] identification of the defendant; b) the witness' [mental] capacity and state of mind at the time of the identification; c) the witness' exposure to opinions, descriptions or identifications given by other witnesses, to photographs or newspaper accounts, or to any other information or influence that may have affected the independence of his [her] identification;

[d) any instances when the witness, or any eyewitness to the crime, failed to identify the defendant;]

[e) any instances when the witness, or any eyewitness to the crime, gave a description of the actor that is inconsistent with the defendant's appearance;] f) the circumstances under which the defendant was presented to the witness for identification.

[You may take into account that an identification made by picking the defendant from a group of similar individuals is generally more reliable than an identification made from the defendant being presented alone to the witness.]

[You may also take into account that identifications made from seeing the person are generally more reliable than identifications made from a photograph.]

I again emphasize that the burden of proving that the defendant is the person who committed the crime is on the prosecution. If, after considering the evidence you have heard from the prosecution and from the defense, and after evaluating the eyewitness testimony in light of the considerations listed above, you have a reasonable doubt about whether the defendant is the person who committed the crime, you must find him not guilty.

R. Sanders, Helping the Jury Evaluate Eyewitness Testimony: The Need for Additional

Safeguards, 12 Am. J. Crim. L. 189, 222-24 (1984). (Bracketed portions of the instruction should be used when appropriate to the facts of the case.)

In conclusion, I wish to add that I have volumes and disks full of information on eye witness identification that I am more than willing to share. I have sample motions, instructions, law review articles and ongoing information that I receive through the eye witness network. I also have arguments submitted in briefs to the Alabama courts and am presently waiting for the Court of Criminal Appeals to rule on admissibility of an id expert in Sims v. State, an appeal from a capital conviction.

Kathryn L. “Sunny” Lippert

(205)426-3705 attysunny@aol.com

EYEWITNESS IDENTIFICATION-MISIDENTIFICATION PRESENTED

MISIDENTIFICATION

EYEWITNESS IDENTIFICATION-

PRESENTED BY KATHRYN L. “SUNNY” LIPPERT, January 29, 2010

SPONSORED BY: ALABAMA CRIMINAL DEFENSE LAWYERS ASSOCIATION

1. EYE WITNESS IDENTIFICATION REFORM

Manson v. Brathwaite

Manson

Manson

Manson

Ex Parte Williams

United States v. Downing

Williams

Williams

United States v. Smith

Kathryn L. “Sunny” Lippert

(205)426-3705 attysunny@aol.com

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EYEWITNESS IDENTIFICATION-MISIDENTIFICATION PRESENTED

MISIDENTIFICATION

EYEWITNESS IDENTIFICATION-

PRESENTED BY KATHRYN L. “SUNNY” LIPPERT, January 29, 2010

SPONSORED BY: ALABAMA CRIMINAL DEFENSE LAWYERS ASSOCIATION

1. EYE WITNESS IDENTIFICATION REFORM

Manson v. Brathwaite

Manson

Manson

Manson

Ex Parte Williams

United States v. Downing

Williams

Williams

United States v. Smith

Kathryn L. “Sunny” Lippert

(205)426-3705 attysunny@aol.com

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