A "20/20" Vision: Supreme Court of Missouri Revisits Admissibility of Eyewitness Expert Testimony After More Than 30 Years.

• Author: Miller, Emily

State v. Carpenter, 605 S.W.3d 355 (Mo. 2020)

1. INTRODUCTION

   Since 1989 the admissibility of expert testimony regarding eyewitness identifications has been unaddressed in Missouri's courts. (1) During this time, over 2,000 scientific studies have illustrated the fallibility of eyewitness testimony. (2) The United States Supreme Court has long recognized the "vagaries" of eyewitness identification and the real potential for erroneous identifications leading to wrongful convictions. (3) Most recently, advanced capabilities with DNA evidence have highlighted the tragic consequences of erroneous eyewitness identification. (4) Indeed, a now often-cited fact: Of the 375 exonerations since 1989, nearly seventy percent involved wrongful convictions founded at least in part on eyewitness identification. (5)

   One method used to combat erroneous eyewitness identification is expert testimony. (6) Two Supreme Court of Missouri decisions from the late 80s, however, State v. Lawhorn and State v. Whitmill, regularly allowed Missouri's appellate courts to affirm trial court decisions excluding expert testimony related to eyewitness identification. (7) In State v. Carpenter, the Supreme Court of Missouri revisited the standard of admissibility for expert testimony on eyewitness identification, holding that its earlier decisions no longer controlled. (8) The decision in State v. Carpenter is significant, as it changes a long-standing precedent and aligns Missouri's approach to eyewitness expert testimony with the majority of the country. (9)

   The Court's holding in Carpenter is a much-needed improvement for defendants seeking to admit eyewitness expert testimony. This Note argues, however, that in the larger scheme of combatting erroneous eyewitness identification and subsequent wrongful convictions, Carpenter is only one step. Part II of this Note provides Carpenter's procedural background and the Supreme Court of Missouri's holding. Then, Part III explains the fallibility of eyewitness identifications and outlines the legal framework of various safeguards that are designed to combat such fallibility. Part IV details the Carpenter majority's departure from Missouri's long-standing precedent and ultimate conclusion that the trial court erred when it excluded eyewitness expert testimony. Finally, Part V posits additional measures that Missouri should take, including providing more informative jury instructions and implementing identification procedure reform.

2. FACTS AND HOLDING

   On the evening of October 23, 2016, Jacob Williams, a young white man, walked down Capitol Avenue in Jefferson City, Missouri listening to music on his headphones. (10) In the darkness, dimly lit by a streetlight some distance away, Williams noticed two black men approaching. (11) The men wore hoodies pulled low over their faces and quickly overtook Williams. (12) Williams tried to cross the street to avoid the men, but they blocked his path, one standing in front of Williams and the other behind. (13)

   The assailant in front of Williams demanded to use Williams' s phone, but Williams said he did not have one and explained that his music was playing on an iPod. (14) The assailant lifted his shirt, revealing what Williams believed was a pistol tucked into the man's waistband, and ordered Williams to "[g]ive me what you have, or I'll shoot you." (15) He took Williams's iPhone and headphones while the other assailant grabbed Williams's e-cigarette and nicotine cartridge. (16) The two men fled. The encounter lasted less than one minute. (17)

   Williams tried to follow the men, but lost sight of them as they ran toward an alley. (18) Williams asked a nearby couple to use their phone to report the robbery. While on the phone, Williams reported to the 911 operator that two young black men, one in a red hoodie and one in a black hoodie, had accosted him in the street. (19) Five minutes elapsed between Williams first noticing his assailants and officers arriving on scene. (20) Moments later, a sergeant drove by the alley where Williams had last seen his attackers. (21) The sergeant stopped his car when he saw Carpenter and another young black man and asked to speak with them. (22) Carpenter stopped immediately, while the other young man took a few steps as if he might run, before stopping as well. (23) The sergeant found an iPhone, with headphones still attached, near to the place Carpenter was standing. (24) The sergeant asked other responding officers to bring Williams to where he had found Carpenter and the other young man to see if Williams could identify them as the robbers. (25) The officers drove Williams to the sergeant's location and informed him that he would see the potential robbers and be asked if he recognized them. (26) When Williams arrived, an officer shone a spotlight on the two young men who were now handcuffed and seated on the curb. (27) From the car, and less than ten minutes after the crime was committed, Williams confirmed that the two men were the robbers. (28) Williams specifically identified Carpenter as the man who threatened him with a pistol but noted Carpenter was not wearing the red hoodie he wore during the robbery. (29) Carpenter and his companion were placed under arrest. (30)

   Carpenter was charged with one count of first-degree robbery. (31) The prosecution's case against him was predominately, but not completely, built on Williams's "show up" identification. (32) Before trial, Carpenter's counsel gave notice that he would call an expert witness, Dr. James Lampinen, to testify about the factors that can impact eyewitness reliability. (33) The state successfully moved to exclude the expert, arguing such testimony should be inadmissible under State v. Lawhorn and its progeny. (34)

   At trial, Williams testified that he was "one hundred percent certain" Carpenter was the man who had threatened and robbed him. (35) Carpenter's counsel again sought to admit Dr. Lampinen's testimony, but the circuit court sustained the State's objection. (36) After the close of all evidence, the judge instructed the jury using Missouri Approved Instruction--Criminal ("MAI-CR") 310.02, which lists seventeen factors juries should consider when evaluating an eyewitness identification. (37) The jury found Carpenter guilty of first-degree robbery. (38) Carpenter appealed, claiming the circuit court erred in excluding Dr. Lampinen's expert testimony. (39) The Supreme Court of Missouri granted transfer, holding that the trial court abused its discretion in excluding Dr. Lampinen's testimony and, moreover, that Lawhorn and its progeny were no longer controlling precedent. It held instead that RSMo [section] 490.065.2, enacted in 2017, governed the issue. (40)

3. LEGAL BACKGROUND

   Erroneous eyewitness identification has become ubiquitously known as the leading cause of wrongful convictions. (41) As a result, over time, the criminal justice system has implemented safeguards designed to mitigate inaccurate identifications and prevent wrongful convictions when misidentifications do occur. (42) This Part briefly addresses the fallibility of eyewitness identification and discusses two safeguards--jury instructions and eyewitness expert testimony--focusing on the development of Missouri law regarding each.

   1. Memory: Malleable and Fallible

      An understanding of memory--the way in which the mind stores and recalls information--is essential to the study of eyewitness identification. (43) Elizabeth Loftus, a leading expert on false memories and eyewitness misidentification, describes memory like a "Wikipedia page," that is, "[Y]ou can go in there and change it, but so can other people." (44) This notion, however, is counterintuitive; people believe memory functions like a videotape, "accurately and thoroughly capturing and reproducing a person, scene, or event." (45) Research, however, shows otherwise, that memory is instead "a constructive, dynamic and selective process." (46)

      Specifically, the memory process is split into three stages: encoding, storage, and retrieval. (47) Encoding is the process by which an individual takes in and learns of information. (48) Next, storage describes the process of retaining encoded information in an individual's memory and the amount retained. (49) Lastly, retrieval involves accessing stored information. (50)

      In the context of eyewitness identification, various factors can impact one or multiple stages of the memory process and affect the accuracy of identification. (51) These are categorized into "estimator" variables and "system" variables. (52) Estimator variables are those beyond the control of law enforcement, (53) for example, the cross-race effect: the race of the victim compared to the race of the perpetrator; the weapon-effect: whether the perpetrator used a weapon; and the confidence of the eyewitness in his or her identification. (54) In contrast, system variables are within the control of law enforcement and involve the procedures for obtaining an eyewitness identification. (55) For example, whether police use a line-up or show-up, line-up construction, blind administration, and pre-identification instructions are all factors controlled by law-enforcement authorities that may affect the accuracy of an eyewitnesses' identification. (56)

      Although the general fallibility of eyewitness testimony is commonly known, studies continually show jurors do not understand why memory can be unreliable. (57) Without understanding the particular factors affecting eyewitness identification accuracy, jurors do not know how to assess a particular eyewitness's testimony. (58)

      1. Estimator Variables

         Some estimator variables, such as the quality of lighting at the witnessed event or the distance from which the victim viewed the perpetrator, and their potential impact are more intuitive. (59) Others are more difficult to understand and explain. (60)

         First, the cross-race effect--also known as "Other-Race Effect" or "Own-Race...