Primary Source: BNA Criminal Practice Manual, Expert Testimony on Eyewitness Identification, 101:2018-2020 (1994). Portions are reprinted with permission.

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S OFFER OF

EYEWITNESS IDENTIFICATION EXPERT TESTIMONY

Defendant, in support of his offer of expert testimony on eyewitness identification, asserts the following:

1. The Witness is Personally Qualified

The curriculum vitae of Dr.I. Sight, which is attached (Exhibit A), amply demonstrates that he is an expert, possessing "sufficient skill, knowledge, or experience in [the field of psychology] as to make it appear that his opinion or inference will probably aid the trier in the search for truth." Strong, McCormick on Evidence §13 (4th Ed. 1992); Fed. R. Evid. 702. Dr. Sight received his Ph.D. in psychology from [university] in 1970, is on the faculty of [university] and has taught numerous courses on the psychology of perception, memory and recall. He has given numerous lectures on related subjects, and, as shown on his curriculum vitae, has published five articles as well as a textbook on the subject. [name of book] Dr. Sight has qualified as an expert on eyewitness identification in 45 civil and criminal trials.

2. Proffer of Testimony

Dr. Sight would be prepared to testify to the following:

(1) Reliable studies show that there is a weak correlation between witness confidence and reliability of identification.

(2) Contrary to average juror expectations, stress actually decreases rather than increases accuracy of perception, with subsequent distortion of recall.

(3) The presence of a gun or other weapon does not consciously assist but rather tends to distract a witness such that it could impair his or her memory, again contrary to the average juror expectations.

(4) Studies support the existence of a phenomenon called "photo bias identification" if the witness has created a composite picture, and a mental process called "blending" which can reinforce the composite if there have been subsequent photo identifications, resulting in the identification of someone who looks more like the composite than the actual perpetrator.

(5) White eyewitnesses are better at identifying other white people than they are at identifying Black people.

3. The Proffered Testimony Fits the Facts of This Case

The Court can readily find that the expression of confidence by the eyewitnesses in their identifications "fit" the proffered expert testimony regarding the correlation between witness confidence and accuracy of identification. Likewise, the presence of the gun and the witness stress "fit" the proffered testimony on the detrimental impact these elements have on eyewitness identification. The presence of identifications through composite drawing and photo line-ups "fit" the proffered testimony regarding "photo bias" and "blending." Finally, this case involves a cross-racial identification, thus making testimony on this phenomenon relevant.

4. The Subject Matter is Proper.

The prosecution argues that the subject of Dr. Sight's proffered testimony, the frailties inherent in the psychological processes of perception, memory and recall, is not a proper subject matter for expert testimony. However, cases so holding, such as United States v. Amaral, 488 F.2d 1148 (9th Cir. 1973), no longer govern the admissibility of such testimony. Noting that the "rigid Frye/Amaral test" has been supplanted by the Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2786 (1993) test, the Ninth Circuit recently described the appropriate inquiry as follows: "whether such testimony is relevant, and if so, whether the theory propounded is trustworthy and scientifically valid." United States v. Amador-Galvan, 9 F.3d 1414, 1418 (9th Cir. 1993). As noted by the Supreme Court in Daubert, the court must also assess the proposed testimony under Rule 403, which permits the exclusion of relevant testimony if its probative value is outweighed by the danger of unfair prejudice, confusing the issues, or misleading the jury.

5. The Expert Testimony Is Relevant and Highly Probative

This case involves the night-time robbery of a white victim by a black male, a stranger to the victim. The victim is the only witness to the offense. During the hearing on the pretrial motion to suppress identification testimony, the victim testified that she had been terrified at the time of the robbery. She also testified that during the process of investigation, she was shown the defendant's photograph "several" times before actually identifying him in a lineup.

This is not a case such as that described in United States v. Harris, 995 F.2d 532 (4th Cir. 1993), where the jury "could pick and choose from an evidentiary cornucopia," in that there were three eyewitnesses and that the identification resulted from three identifications on three separate occasions. Excluding the expert testimony, the court distinguished the circumstances from the more commonly encountered problem -- one witness, under stress, involving one identification.

The scientific insights which Dr. Sight can offer into the weight that should be accorded to this testimony will be crucial to the jury's appreciation of the facts. Psychological research has advanced and a growing number of courts have recognized that psychologists can make an important contribution to the jurors' evaluation of eyewitness testimony. See, e.g., United States v. Downing, 753 F.2d 1224 (3d Cir. 1985); United States v. Smith, 736 F.2d 1103 (6th Cir.), cert. denied, 469 U.S. 868 (1984). Jurors frequently are unaware that eyewitnesses do not function as videotape recorders, but rely instead on a complex process of perception, memory, and retrieval which is vulnerable at every stage. Loftus & Doyle, Eyewitness Testimony: Civil and Criminal, §11.02 (1992). Very few jurors are aware of the fact that the stress of a robbery such as the one forming the basis for this trial can actually impede perception. See State v. Chapple, 660 P.2d 1208 (Ariz. 1983). Fewer are aware of the special difficulties associated with trying to identify a person of another race. Johnson, Cross-Racial Identification Errors in Criminal Cases, 69 Cornell L. Rev. 934 (1984).

Dr. Sight is prepared to testify that identifications of a person of a different race are particularly vulnerable to error, that high levels of stress can actually impede an eyewitness's ability to perceive and that "post-event information" (such as the viewing of a photograph of a suspect numerous times) can actually modify a witness's memory of what was perceived at the time of the crime.

Each of these areas has been held to be a proper area of expert testimony. [Include citations to recent psychological literature. See, e.g., Brian L. Cutler & Steven D. Penrod, Mistaken Identification: The Eyewitness, Psychology and the Law (1995).]

Moreover, in cases, which, like the present one, involve one-witness identifications, exclusion of expert testimony has been held to be an abuse of discretion. See State v. Chapple, 660 P.2d 1208 (Ariz. 1983); United States v. Smith, 736 F.2d 1103 (6th Cir. 1984).

6. The Evidence Has No Unfair Prejudicial Effect

Despite its probative value, Dr. Sight's testimony could be excluded if its probative value was substantially outweighed by the danger of unfair prejudice or if it would consume undue amounts of time, mislead or confuse the jury, or surprise the opposing party. Fed. R. Evid. 403. None of these considerations is present here. Dr. Sight will not be offering an opinion concerning whether this victim's identification was accurate. Instead, he will outline for the jurors the general principles of psychological knowledge which illuminate the problems of eyewitness performance. See State v. Chapple.

7. The Government Has Adequate Notice

The prosecution was notified on [date] of the defense's intention to call an expert witness and has had more than an adequate period to prepare a response to his testimony. Thus, the government cannot allege the prejudice noted in United States v. Curry, 977 F.2d 1042 (7th Cir. 1992), cert. denied sub nom. Holland v. United States, 113 S. Ct. 1357 (1993) (notice of the proposed proffer of expert testimony given four days before trial was prejudicial to the government and would have justified its exclusion) and United States v. Dowling, 855 F.2d 114 (3d Cir. 1988) (notice given five days before trial considered prejudicial to government). See also United States v. Harris, 995 F.2d 532, 536 n.4 (4th Cir. 1993) ("Even if the circumstances had matched the Downing pattern, defense counsel's advice and presentation to the court on the first day of trial hardly gave the government adequate notice of his intention to use an expert witness.")

CONCLUSION

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