BLOG BULLETS:

• Court of appeals eyewitness identification expert opinions upholding the exclusion of such testimony merely allowexclusion; they don’t require it.
• Recent cases suggest the wiser course and trend is to allow such testimony, and a few have even reversed convictions on this ground.
• But it’s important to make a case-specific record about why the testimony is important in your specific case.

NOW THE BLOG:

In my post last week, I talked about dealing with adverse case law upholding rulings under the abuse of discretion standard of review and some reasons why that case law shouldn’t necessarily guide district courts making the initial decision. This segues into one evidentiary issue which I’d like to see us raising more often, because it can be so fundamental to an effective misidentification defense. That’s the admissibility of expert testimony on eyewitness identification.

I want to talk not about the substantive evidence that’s summarized in the psychological literature, see, e.g., Elizabeth F. Loftus and James M. Doyle, Eyewitness Testimony (3d ed. 1997),cited in United States v. Rodriguez-Felix, 450 F.3d 1117, 1123-24 (10th Cir. 2006); U.S. Dept. of Justice, Office of Justice Programs, Eyewitness Evidence: A Guide for Law Enforcement(Oct. 1999), but about the case law addressing the admissibility of the evidence. In California state courts, it’s become so accepted that case law holds a defendant has an absolute right to introduce it, at least when certain predicate circumstances exist. See People v. McDonald, 690 P.2d 709, 726 (Cal. 1984). Most of our federal courts have lagged behind, however, leaving the admission of such evidence in the discretion of the district court and upholding most denials under the abuse of discretion standard I discussed last week. See, e.g., Rodriguez-Felix, 450 F.3d at 1126-27; United States v. Carter, 410 F.3d 942, 950 (7th Cir. 2005); United States v. Stokes, 388 F.3d 21, 27 (1st Cir. 2004); United States v. Langan, 263 F.3d 613, 625 (6th Cir. 2001); United States v. Lumpkin, 192 F.3d 280, 289(2d Cir. 1999); United States v. Kime, 99 F.3d 870, 884 (8th Cir. 1996);United States v. Rincon, 28 F.3d 921, 926 (9th Cir. 1994).

I write this post for two purposes. My first purpose is to urge using the reasoning I suggested about the abuse of discretion standard of review in last week’s post to make district judges understand that the only thing these cases hold is that district courts have the discretion to exclude such testimony, not that they are required to exclude it. See, e.g., United States v. Welch, 368 F.3d 970, 975 (7th Cir. 2004) (upholding district court ruling excluding eyewitness identification expert testimony because “the usefulness of such evidence in a particular case is best decided by the district court and given great deference by this Court,” but also noting that “[t]his is not to say . . . that it would have been an abuse of discretion for the district court to allow [the] testimony”). This is also a great example of an issue where the rulings against the government wouldn’t get presented to the court of appeals; the government probably never appeals a district court ruling allowing such testimony.

My second purpose is to alert you to some appellate cases that have spoken favorably – or at least with an open mind – about such testimony, have recognized there is a trend toward admitting it, and have in a few instances actually found an abuse of discretion in excluding such testimony. This greater openness started beginning in the 1980’s and is illustrated by United States v. Moore, 786 F.2d 1308 (5th Cir. 1986). The Moore court noted that “[r]ecent decisions . . . indicate a new willingness to uphold a trial judge’s admission of such testimony and a willingness to evaluate the adequacy of reasons for justifying exclusion of such testimony in particular cases.” Id. at 1312 (citing United States v. Smith, 736 F.2d 1103, 1105 (6th Cir. 1984); United States v. Downing, 753 F.2d 1224 (3d Cir. 1985);People v. McDonald, supra; and State v. Chapple, 660 P.2d 1208 (Ariz. 1983)).

And it’s gotten even better. The First Circuit recognized in United States v. Brien, 59 F.3d 274 (1st Cir. 1995) that “trial courts have long hesitated to admit” such evidence, but recent court of appeals decisions “have suggested that such evidence warrants a more hospitable reception.” Id. at 277. The Sixth Circuit has characterized the courts’ treatment of such testimony as having “experienced a dramatic transformation in the past twenty years” and being “still in a state of flux.” United States v. Smithers, 212 F.3d 306, 311 (6th Cir. 2000). One of the most recent decisions has stated that “it is untenable to argue that expert identification evidence is always and in every situation superfluous.” United States v. Jones, 689 F.3d 12, 19 (1st Cir. 2012).

Finally, while the vast majority of cases have found that rulings excluding such testimony are not so illogical, implausible, or lacking in support that they rise to the level of an abuse of discretion (see the discussion in last week’s post of this articulation of the standard in United States v. Hinkson, 585 F.3d 1247 (9th Cir. 2009)), there are several cases where courts of appeals have found such an abuse. One was in the early 1990’s, though it was only one narrow part of the expert’s testimony that the court of appeals held should have been admitted. See United States v. Stevens, 935 F.2d 1380, 1397-1401 (3d Cir. 1991) (finding abuse of discretion in failure to allow expert to testify about lack of correlation between eyewitness confidence and accuracy but no abuse of discretion in exclusion of remainder of proffered testimony). And three more recent cases have swept more broadly. United States v. Smithers, supra, found an abuse of discretion because the district court had excluded the evidence without first conducting a Dauberthearing. See id., 212 F.3d at 314. United States v. Mathis, 264 F.3d 321 (3d Cir. 2001), after conducting its own lengthy analysis of the admissibility issue under Daubert and Rule 702 of the Federal Rules of Evidence, found an abuse of discretion, albeit one that was harmless error, because the district court “explained its ruling with little more than a series of conclusions.” Id. at 338. United States v. Brownlee, 454 F.3d 131 (3d Cir. 2006), also after conducting its own lengthy analysis of the admissibility issue, flatly ruled: “[W]e hold it was wrong to exclude expert testimony regarding the reliability of the very eyewitness identification evidence on which [the defendant] was convicted, and remand the case for a new trial.” Id. at 144.

Remember to look for district court cases as well, though in this instance there may be ensconced district court habits of excluding the evidence that haven’t kept up with the psychological studies and court of appeals’ recognition of those studies. (Caveat: I say this without having done a survey of the various district court opinions reported in the Federal Supplement reporters that cite and/or discuss the court of appeals cases, and so I may be being overly pessimistic.) It may be worth looking to state courts, where the admission of such evidence is more common and even, in some states like California, required. Our old friend in this district, the late Judge Takasugi, once allowed me to present this testimony in a trial in part because he didn’t believe it was fair for the quality of a defendant’s defense to rise or fall depending on what jurisdiction the defendant was prosecuted in.

Then one last note – on making the record. Several of the courts which have upheld district court rulings excluding this testimony have rested their decisions in part on insufficiency of the defense proffer. See, e.g., Rodriguez-Felix, 450 F.3d at 1126 (noting that expert report “fails to sufficiently reference specific and recognized scientific research” and that “[t]he requirements of Daubert are not satisfied by casual mention of a few scientific studies”); Stokes, 388 F.3d at 27 (“Without any information regarding the reliability and helpfulness of the proposed expert testimony and without any indication of the existence of a special circumstance, the district court could not conclude that the proposed testimony would ‘assist the trier of fact to understand the evidence.’” (Quoting Fed. R. Evid. 702)); Brien, 59 F.3d at 277-78 (noting that “the district judge made clear his need for some proffer of data or literature underlying the expert’s assumptions and conclusions, and the defense offered practically nothing” and that “Daubert, as well as common prudence, entitled the judge to require such underlying information”). So be sure to make as detailed a proffer of the proposed testimony as you can and tie it in to the facts of your case as much as you can. An example of a proffer that was apparently sufficient can be found in the Mathis case. See id., 244 F.3dat 333-34.

The bottom line is we need to push this issue in our misidentification cases. First, we have great psychological research out there; second, we have case law that’s trending our way; and, third, we have examples of wrongfully convicted defendants, see United States v. Smithers, 212 F.3d at 312 n.1 (noting estimates that half of all wrongful convictions result from false identifications and 4,250 Americans per year are wrongfully convicted as a result of inaccurate eyewitness identifications). This isn’t asking for a client’s release based on some technicality or lawyer trick; it’s just asking for a fair trial with full information presented to the jury.