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of expert testimony set forth in Frye v. United States, 293 F. 1013 (1923), holding that the Frye test was superseded by the adoption of the Federal Rules of Evidence.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).