IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
)
UNITED STATES OF AMERICA )
) CRIMINAL ACTION
v. )
) NO. xxxxxxxxxxxxxxxxxxx
xxxxxxxxxxxxxxxxxxxxxxxxxxx )
____________________________________)
DEFENDANT'S RESPONSE
TO THE GOVERNMENT'S MOTION IN LIMINE
COMES NOW the Defendant, xxxxxxxxxxxxxxxx, by and through undersigned counsel and files this Response to the Government's Motion in Limine, and respectfully shows as follows:
Defendant has been charged with two counts of bank robbery following the robberies of a First Union Bank and a Wachovia Bank, occurring on March 4, and March 15, 1994 respectively. The Government case is based in large part on the eyewitness identifications of the victim-tellers.
By letter dated November 3, 1995, Mr. xxxxx
informed the Government of his intention to offer Dr. Brian Cutler as an expert on the
reliability of eyewitness identifications. A copy of Dr. Cutler's curriculum vitae and
expert report is attached hereto as Attachment A. Dr. Cutler's testimony is inextricably
entwined with the defense's theory of the case.
ARGUMENT AND CITATION TO AUTHORITY
A. Introduction/General Principles
The United States Supreme Court recently addressed the appropriate standards for admitting expert testimony in federal cases in Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S.Ct. 2786 (1993). In Daubert, the Supreme Court did away with the old "general acceptance" test for determining the admissibility of expert testimony set forth in Frye v. United States, 293 F. 1013 (1923), holding that the Frye test was superseded by the adoption of the Federal Rules of Evidence. The Supreme Court observed that the Federal Rules of Evidence takes a broader approach to the admissibility of evidence, see Daubert at 2793-94, and a "rigid 'general acceptance' requirement would be at odds with the 'liberal thrust' of the Federal Rules and their 'general approach of relaxing the traditional barriers to opinion testimony'." Id. at 2794 (citing Beech Aircraft Corp. v. Rainey, 488 U.S., at 169, 109 S.Ct., at 450).
Under Daubert, a determination of the admissibility of expert testimony must be made with reference to the language of Fed. R. Evid. 702 which states:
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.
Fed. R. Evid. 702.
Rule 702, by its own terms, limits the admission of expert testimony in two respects:
(1) the expert's opinions must be based in science; and
(2) the expert's testimony must "assist the trier of fact."
If the Court finds that both of these prongs are met, then the testimony should be admitted. The decision on whether to admit the proffered testimony rests with the trial judge pursuant to Fed.R.Evid. 104(a).
Consistent with this approach, the first question that must be decided by a trial judge faced with a proffer of expert testimony is whether the proffered testimony concerns "scientific knowledge." According to the Supreme Court, "the adjective scientific implies a grounding in the methods and procedures of science." Knowledge according to the Supreme Court, "applies any body of known facts to any body of ideas inferred from such facts or accepted as truths on good grounds." Daubert at 2795. The Supreme Court further stated that the scientific testimony need not be 'known' to a certainty, but rather it need only be "supported by appropriate validation ... i.e., good grounds, based on what is known." Id.
The Daubert decision provides a list of four factors to be used by trial judges in considering whether proffered expert testimony is scientific: (1)
(a) Can the expert's opinions be tested? Daubert at 2796-97.
(b) Has the theory or technique been subjected to peer review and publication? Daubert at 2797.
(c) Is there a known or potential rate of error? Id.
(d) Has the theory or technique gained a degree of acceptance in the scientific community? Id.
Once it is determined that an expert's opinions or methodologies are scientific, the trial judge must turn to the second major prong of the Daubert approach, whether the expert testimony will assist the trier of fact.
The pre-Daubert rule on the admissibility of expert testimony on the reliability of eyewitness testimony was that such testimony was per se inadmissible. See United States v. Holloway, 971 F.2d 675 (11th Cir. 1992); and United States v. Benitez, 741 F.2d 1312 (11th Cir. 1984). However, the Eleventh Circuit recently remanded a case in which Judge Vining refused to admit expert eyewitness testimony. The Eleventh Circuit asked Judge Vining to "reexamine the admissibility of the testimony of the experts ... in the light of Daubert." United States v. Gates, 20 F.3d 1550, 1550 (11th Cir. 1995) (directing the district court to hold such hearings as it deems appropriate).
After the remand, Judge Vining held a hearing to determine the admissibility of the expert testimony. Dr. Cutler was one of the experts whose testimony was considered. Dr. Cutler's testimony at that hearing has been incorporated into this motion by reference and is included as Attachment B. Judge Vining's order after remand is included as Attachment C.
Pursuant to Gates, Mr. xxxxx specifically requests that this Court conduct its own hearing on this issue to determine the admissibility of the proffered testimony. The Eleventh Circuit "encourage[s] district court[s] to make specific fact findings concerning their application of Rule 702 and Daubert in each case where the question arises, because such findings will facilitate this Court's appellate review." United States v. Lee, 25 F.3d 997 (11th Cir. 1995).
It is important to note at the outset of this section that Judge Vining's order excluding expert eyewitness testimony did not do so on the ground that the testimony at issue was not scientifically based. Rather, Judge Vining relied on pre-Daubert Eleventh Circuit case law holding that the subject of the proffered expert testimony was "within the expertise of the jury." Thus, Judge Vining held that the proffered testimony did not meet the second prong of the approach set forth in Daubert, which is that the testimony must assist the trier of fact. See Attachment C at pp. 7-8. Nevertheless, since this Court is bound to make its own findings of fact on this issue, the scientific basis for the proffered testimony as it relates to the first prong of the Daubert approach is discussed below.
As noted above, Daubert provides four factors by which the Court may evaluate whether the proffered testimony is based in scientific knowledge. The first factor is whether the theory or method can be tested. Daubert at 2796-97. Dr. Cutler testified at the Gates hearing before Judge Vining about the use of the scientific method in his field, that of the psychology of eyewitness memory. See Cutler's testimony at pp. 9-12, inter alia. At xxxxx 11, Dr. Cutler explains how his theories and findings are supported by statistical studies and duplicated by other researchers. See also Dr. Cutler's testimony at xxxxx 13. Thus, it would appear that the psychology of eyewitness memory as studied by Dr. Cutler and other researchers certainly meets the first criteria listed in Daubert that it be subjected to scientific testing. In fact, Dr. Cutler testified that there were at least 40 published studies on the correlation (or lack of correlation) between witness confidence and accuracy alone as of the time of Dr. Cutler's testimony before Judge Vining. See Cutler's testimony at xxxxx 11.
Under the first prong of Daubert, the second factor to be considered by the trial judge is whether the theory or methodology has been subjected to peer review. Daubert at 2797. According to the Daubert Court, "submission to the scrutiny of the scientific community is a component of 'good science,' in part because it increases the likelihood that the substantive flaws in methodology will be detected." Id. At xxxxxs 4-7, inter alia, Dr. Cutler describes how his work and the work of others in the field is subject to peer review through a formal process of refereeing publications. Dr. Cutler had published his work in approximately 40 "refereed" (2) journals. Dr. Cutler also serves as a referee for others who seek to publish articles in the area. Id.
The Daubert opinion also suggests that trial judges take into account the known or potential rate of error of the theory or methodology. Daubert at 2797. That eyewitnesses many times identify people in error is precisely the point that the defense wishes to make to the jury with the proffered testimony. That eyewitness error rate is much higher than jurors might expect is an important factor for the jury to consider. If permitted to testify, Dr. Cutler can be more specific as to the actual errors rates found through his studies and the studies of others in his field. The defense contends that such information would certainly serve as an aid to the jurors in this case.
According to the Daubert Court, the degree of acceptance of the theory or methodology in the scientific community also should play a role in the Court's assessment of the proffered testimony. During the Gates hearing, Dr. Cutler testified about the size of his field of expertise and about how scientists have been studying eyewitness memory for over 100 years. See Dr. Cutler's testimony at p. 9. The Court may choose to consider this as it evaluates the scientific validity of Dr. Cutler's proposed testimony.
The essential issue before this Court is whether the proposed testimony will help the trier of fact to evaluate the reliability of expected eyewitness testimony from the victim tellers. Judge Vining held that the eyewitness expert testimony had to be excluded in the Gates case. Judge Vining's reasoning was that "the subjects of perception, memory, and identification ... are within the expertise of the jury." See Attachment C at xxxxx 8. However, Judge Vining's reasoning includes an unstated assumption, that jurors are good at evaluating whether an eyewitness's identification of a suspect is reliable. At first blush, this appears to be a relatively sound conclusion. However, upon examination of the studies and conclusions of Dr. Cutler's research and the research of others in the field, our trust in jurors in this regard is almost certainly misplaced in cases such as this one. If we are truly interested in accurate fact-finding, we should be willing to educate our jurors on the factors most likely or unlikely to correlate with an eyewitness's accuracy.
Indeed, in the expert report prepared by Dr. Cutler for this case, Dr. Cutler concludes that the confidence the witness exhibits, for example, is only weakly related to the accuracy of his or her identification. Nevertheless, at the Suppression Hearing held in this case FBI Special Agent Melnick testified that a witness picked the Defendant from a photo array quickly and with confidence, implying that even he believes a witnesses confidence in her choice to be determinative of accuracy. (Transcript of Suppression Hearing, p.16)(hereinafter "Tr.S.H.").
Dr. Cutler points out in his report that instructions given to a witness implying that the purpose of the photo array is to test the witnesses accuracy in identifying the perpetrator are suggestive and more likely to lead to a false identification. In this case, Agent Melnick testified that he told a witness he would be showing her some photos "to determine whether or not she could recognize the person that robbed her..." [emphasis added]. (Tr.S.H. p.11). That is precisely the type of suggestive instruction that taints the results.
Moreover, Dr. Cutler points out that a good photo array is one in which photographs are selected for a photo array based on the oral descriptions given by witness and the similarities among the varied photographs. In this case, Agent Melnick testified that he selected the photos for the array before he ever went to the scene and before talking with other agents who had interviewed the witnesses. (Tr.S.H. pp.9-10, 13, 24). The Agent even commented that one witness, upon looking at the array, stated that it was definitely not any of the five pictures accompanying the photo of the Defendant, but she was unable to say for certain whether the picture of the Defendant was the perpetrator. (Tr. S.H. p.13). The logical inference here is that the other photos were sufficiently dissimilar to the description of the robber given by the witnesses as to leave the Defendant as the only possible, viable choice. According to Dr. Cutler such a photo array is unduly suggestive and devoid of probative value. (See Attachment A).
A number of courts have admitted expert testimony on the reliability of eyewitness identifications. United States v. Stevens, 935 F.2d 1380 (3d Cir. 1991)(admitting testimony on the lack of correlation between confidence and accuracy in eyewitness identification); United States v. Moore, 786 F.2d 1308 (5th Cir. 1986)(admitting testimony on witness confidence, the feedback factor, the memory process, stress, and unconscious transference); United States v. Sebetich, 776 F.2d 412 (3d Cir. 1985)(abuse of discretion by trial court in excluding testimony from eyewitness identification expert where identification of defendant came 19 months after the offense, observation was made under stressful circumstances, and only one person made identification of defendant), cert. denied, 484 U.S. 1017 (1988); United States v. Smith, 736 F.2d 1103 (6th Cir.) (admission of expert testimony on issue of unconscious transference between a photo spread three weeks after incident, a line-up four months after the incident, observations under stressful conditions and cross-racial transference), cert. denied, 469 U.S. 868 (1984). The testimony of Dr. Cutler should be admitted in this case.
CONCLUSION
For the reasons stated above, Mr. xxxxx, through undersigned counsel, respectfully requests that this Court enter a pretrial order to allow Dr. Cutler to testify at trial. A pretrial hearing and ruling on the admissibility of the proffered expert testimony will be helpful to the defense since Dr. Cutler will be travelling from Florida to testify at trial. Moreover, a pretrial ruling on this issue will help facilitate the orderly presentation of evidence at trial.
WHEREFORE, the Defendant moves this Court to deny Government's Motion in Limine to prohibit expert testimony.
DATED: This ________ day of January, 1996.
________________________________
VIONNETTE REYES
ATTORNEY FOR REGINALD LAMONT xxxxx
STATE BAR NO. 601290
FEDERAL DEFENDER PROGRAM
Suite 3512, 101 Marietta Tower
Atlanta, Georgia 30303
404/688-7530
C:\wwwfpd\idreply.wpd
1. 0The list is not intended to be exhaustive.
2. 0Journals which require that articles be reviewed and rated by others in the relevant field of science.