Witnessing the witness: the case for exclusion of eyewitness expert testimony.

• Author: Reedy, Matthew J.

INTRODUCTION

[A]t about 11:30 p.m. on July 24, 1966, [Casey Reynolds, a white man,] was engaged in changing a tire when three men approached from across the highway. One of them shot him from a short distance away. The three then ran up to within three or four feet. Reynolds arose from his stooped position and held on to his wife, who had left the car to watch him as he worked. One of the men put his hand on Mrs. Reynolds' shoulder. Reynolds testified that this was Coleman [who was black]. Within a few seconds a car with its lights on approached, and the three men turned and "ran across the road...." As they turned to go, Reynolds was shot a second time. He identified petitioner Stephens [also black] as the gunman, stating that he saw him "in the car lights" while "looking straight at him." (1) In the two weeks that followed, Reynolds was only able to vaguely describe his attackers and unable to identify them from a series of mugshots. Three months later, Reynolds was called to the police station, where he was presented with a lineup of six men. Reynolds suddenly remembered, immediately identifying Stephens and Coleman as his assailants.

At trial, Reynolds again identified the two men and "repeated on cross-examination his testimony on direct; he said he saw Coleman 'face to face,' 'I looked into his face,' 'got a real good look at him.'" (2) Coleman and Stephens were both convicted. (3)

At trial, Reynolds was asked to the take the stand and testify regarding the events of that tragic evening. During his testimony he indicated that, despite the short duration of the events, he could clearly identify the two shooters. He sat in the witness box and told his story to a jury of his peers entrusted with the task of determining whether or not he was telling the truth. How, though, can a jury be certain that he was right? Our criminal system requires the jury to find the accused "guilty beyond a reasonable doubt," but even such a high standard of culpability cannot ensure that the jury is right every time. When the freedom of two men is at stake, is Reynolds's accuracy not crucial? Only Casey Reynolds, his wife, and his three assailants knew exactly what happened that night, and even then each may have had a different recollection, but Reynolds was certain that he recognized the two men. It was nighttime and he had his back turned as they approached, catching a glance of them after being shot. In the course of a few seconds, his wife was threatened, and he was surely stressed. He was shot a second time. In the proceeding weeks he was unable to clearly describe his attackers. Yet, during a lineup and again at trial he picked out the two men at whom he said he "got a real good look." (4) These extreme circumstances must cast significant doubt on his ability to not only see, but also to remember, the men from that night. Situations such as this have given rise to calls for reform in the criminal justice system to ensure that innocent people are not sent to jail on the basis of inaccurate eyewitness testimony.

The Innocence Project, a "national litigation and public policy organization dedicated to exonerating wrongfully convicted people," (5) estimates that eyewitness identification was a factor in seventy-five percent of convictions overturned through DNA testing, making it the "single greatest cause of wrongful convictions" in the United States. (6) "More than 4250 Americans per year are wrongfully convicted due to sincere, yet woefully inaccurate eyewitness identifications." (7) These numbers reveal two problems with eyewitness identification. First, it demonstrates a shortcoming in the cognitive ability of the human brain to process, store, and recall memories. Second, in trial situations, juries may be unduly receptive to this mode of unreliable testimony.

Over the last thirty years, the field of cognitive psychology has made dramatic strides in understanding the way the brain encodes and stores memories. Researchers have come to realize that, for example, expressed confidence in the memory of identification is not a reliable indicator of accuracy; (8) high levels of stress impair--rather than enhance--the ability of individuals to form memories; (9) and individuals of one race are not well equipped to remember the faces of another race. (10) Many of these conclusions are counterintuitive and not generally understood by the public at large.

It is, of course, the general public that comprises juries. "[I]n general, juries are unduly receptive to identification evidence and are not sufficiently aware of its dangers." (11) This view is rhetorically shared by former Justice Brennan: "[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!'" (12)

In the face of these two difficulties, lawyers have increasingly turned to experts to explain to juries shortcomings in memory and to correct common misconceptions. However, the use of experts is often met with resistance in some courts finding that expert testimony of this nature cuts to the heart of the jury's function and usurps their role as the sole determiners of witness credibility. The vast majority of the literature on the subject focuses on the psychological studies regarding eyewitness identification. They involve analysis of studies aimed at determining whether individuals are able to accurately store and recall memories and what factors affect the reliability of those memories. Furthermore, the legal literature debates these studies in terms of their effectiveness in the courtroom, narrowing in on the way juries perceive eyewitnesses and whether or not expert testimony can alter that perception. However, these contributions, valuable as they may be in attempting to understand the human mind, beg the question of the appropriateness of their use in the American jury system. Even if expert testimony "works," it does not follow that it is appropriate. The aim of this Note is to explore the issue of expert testimony on eyewitness testimony and procedural alternatives to experts. I begin by reviewing the recent decision in United States v. Smith, (13) where the Middle District of Alabama addressed a circuit split regarding the admissibility of expert testimony under Federal Rule of Evidence 403. Part II then examines the history of the admissibility of expert testimony generally, focusing on Supreme Court mandates and the Federal Rules of Evidence. Part III looks specifically at the way courts have dealt with these mandates in the context of eyewitness-identification experts and the relevant research presented therein. Finally, Part IV details an argument against the use of experts to educate juries about the shortcomings of eyewitness testimony and examines procedural safeguards to prevent unreliable identifications.

1. UNITED STATES V. SMITH--A CASE STUDY

   The facts in Smith are not unusual. Smith was arrested in connection with a bank robbery and several eyewitnesses placed him at the scene. (14) The defense presented Dr. Solomon Fulero as an expert witness to testify on the reliability of eyewitness testimony. (15) After the jury convicted Smith, the court wrote an opinion detailing its reasons for allowing Dr. Fulero to testify, in part, because of a ten-year silence by the Eleventh Circuit on the issue. (16)

   The district court began its discussion by detailing the "vast lacuna between jurors' perceptions of the power of eyewitness testimony and this testimony's accuracy." (17) Citing a trend away from the exclusion of expert testimony aimed to bridge that "lacuna," (18) the court analyzed Dr. Fulero's proffer under the guidelines set by the

   Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc. (19) First, the court determined Dr. Fulero's methods were highly reliable and generally accepted in the scientific community. (20) Second, the court responded to the government's objection that the testimony would not "aid the jury" by noting that Eleventh Circuit precedent (21) never addressed whether or not a district court abuses its discretion by admitting the testimony. (22) Specifically, Dr. Fulero testified regarding four "specific factors that, according to well-established social science research, impact witness accuracy and, as a result, might assist [the trier of fact]" and were relevant to the facts of the case. (23) Those factors are: reduced accuracy in cross-racial identifications, ways in which stress can impair perception and memories, influences of postevent information (two witnesses conversed after the incident), and the relationship between confidence in identification and its accuracy. (24) Finally, the court had to address whether the probative value of the testimony was outweighed by other considerations. It was at this stage in the inquiry that the court discovered a split among the circuits as to whether eyewitness-identification expert testimony would violate the Federal Rule of Evidence (25) requiring exclusion of evidence that would confuse the jury, mislead the jury, or waste time. (26) Satisfied that it sufficiently limited Dr. Fulero's testimony to the areas where it would "correct misguided intuitions and thereby prevent jurors from making common errors," (27) the court determined admission would be "quite helpful in some cases." (28)

2. EVOLUTION OF STANDARDS GOVERNING THE ADMISSIBILITY OF EXPERT TESTIMONY

   The first major articulation of the standard used to judge the admissibility of expert testimony was Frye v. United States. (29) In that case, government counsel sought to introduce evidence from a "systolic blood pressure deception test" (30) that would be used to indicate the level of truthfulness of the defendant. The court upheld the exclusion of the testimony, articulating the standard that "the [scientific principle or discovery] from which the deduction is made must be sufficiently established to have gained general...