There is so much research on eyewitness identification expert witness admissibility testimony out there. We have all received the message: “Eyewitness identification testimony is unreliable.” Ok, now what?

The transition into practice for the everyday defense attorney has been slow in coming. Part of the reason, for this is that trial judges still actively resist any use of an eyewitness testimony expert in their courtroom. It is time to start fighting back.

People v. Lerma

A recent decision out of the First District in the Illinois Appellate Court system, does a great job of paving the way forward for defense attorneys. See People v. Lerma, 2014 IL App (1st) 121880 (September).

Lerma illustrates important steps that can help the entire legal community move forward on this issue.

• Get Your Expert Involved Early
• Expect & Plan For the Trial Court Denial
• Have a Concise Case Specific Motion In Limine
• Incorporate Expert’s Report in the Motion In Limine
• Litigate & Leave a Clear Record on the Issue
• Appellate Courts Get It

Let’s look at this case to see why I have placed so much hope in it.

Facts

Victim and a friend were on his porch. Shooter walks up to the porch and shoots victim in the chest.

Victim manages to tell his friend and his father moments before he died that “Lucky” shot him. It turns out there is an acquaintance named “Lucky” known to the victim and his friend.

Other important facts about the case include:

• Dad and Friend are African-American
• Defendant is Hispanic

The Motion for Defense Expert

Defendant sought to use an expert on memory and eyewitness identification to assist the jury with the theory of memory within the field of psychology.

The expert was to help address many misconceptions of memory and eyewitness identification held by lay people and juries.

Further, Defendant needed the expert to point out the significance of cross examination of the eyewitnesses. Defendant alleged that cross-examination of eyewitness testimony would appear insignificant to jurors due to their common misperceptions and lack of knowledge regarding memory and eyewitness identification.

The expert was prepared to address the following issues in this case –

• Confidence of the witness does not related to accuracy
• Reliability of an identification is reduced by stress or the presence of a weapon
• Other effects of divided attention
• Overestimation of time frames by an eyewitness is common
• Cross-racial identification causes problems
• The short forgetting curve and the effect of time on the reliability of an identification
• Impact of partial disguises, such as a hood, on identification
• Effects of distance on visual perception
• Effect of low lighting
• Circumstances where memory fails
• Effect of postevent information
• How expectations affect perceptions
• Problems associated with night-time identification
• Problems with multiple witness identifications
• Consequences of nonindependent identifications and
• Dying declaration identifications are not necessarily more reliable

Further, the expert was prepared to discuss how the accuracy of eyewitness identifications could be reduced by the police procedures utilized in this case. The expert would have also addressed how common misconceptions of memory are in conflict with the theory of memory as generally accepted in the field of psychology.

Specifically in regards to dying declaration, the expert was prepared to testify how problems in reliability of that testimony are raised when the victim’s physical condition itself could contribute to a mistake or even a complete fabrication by the victim.

The limited time may cause a truncated, incomplete or one-sided statement that may be misinterpreted by the witnesses.

In short, the expert was ready to educate the jury with this lesson: “the factors that affect eyewitness reliability *** are just as present at the time of an event that involves a dying witness as one who is not dying.” ¶ 8

The expert noted that –

“…the witness could use his or her prior knowledge of the acquaintance’s appearance to reconstruct his or her memory of the original events–the crime–such that the in fact poor original memory of the actual criminal is replaced with a stronger and more confidence-evoking memory of the acquaintance.” ¶ 16.

Motion Denied, But Why?

The trial court denied the motion for the expert witness because the eyewitnesses knew Defendant and the court believed that this negated the need for the expert.

The trial court gave the usual factors that are listed by judges hostile to this type of witness:

• Eyewitness Reliability is for Jury to Determine
• Expert Only Going To Give an Opinion on Witness Veracity
• Experts Not Allowed to Give Opinion on Key Issues
• Experts Are Not Helpful in Evaluating Lay Opinions
• Expert Battles Not Useful

In short, the trial court denied the motion without much analysis or consideration of the actual testimony the expert was prepared to give.

Appellate Court Gets It

The reviewing court reversed this murder conviction. The appellate court thought that the trial court did not carefully scrutinize the expert’s report and was to quick to dismiss the usefulness of the expert.

The judges reasoning for denying the use of the exper were all, contradicted in the very report created by the expert witness. In particular, the court believed that

“‘everybody knows’ that eyewitnesses are less likely to misidentify an acquaintance, describing it as “a function of human nature.” ¶ 38.

The expert directly refuted this belief.

The trial court thought the expert was going to come into court and give his opinion on the veracity of the witnesses.  The expert carefully explained that he would not do this.

Lessons on Eyewitness Identification Expert Witness Admissibility

As I discussed earlier, the lesson here for the defense bar is to get your expert involved as early as possible.

I get it. Your trial judge hates eyewitness experts and won’t in a million year every grant your motion to admit. So why spend the money to hire the expert in the first place?

Obviously, litigation costs and expense is a factor to consider in every case. There are times when that factor will influence a decision to take a plea or proceed to trial without a full arsenal.

In regards, to the use of eyewitness experts at trial we are in this holding pattern. Some trial judges hate them, while appellate courts are beginning to understand them. For those defendant’s and defense attorneys willing to structure your litigation for the reviewing courts there may be a big payoff in the end.

However, if you don’t have an expert, litigate the issue, and document the specific use of the expert in your case a reviewing court won’t give you any relief.

The lesson from Lerma is to incorporate into your motion all the specific points and factors where your expert is prepared to testify about your case. Don’t forget to include your expert’s curriculum vitae and report.

Other Resources

There are so many studies, white papers, and court filings out there that it can be overwhelming. I have gathered two documents featuring sample motions to admit eyewitness expert witness. These motions were created by

• Barbara G. Moon (Attacking The Reliability of Eyewitness Identification Testimony)
• Innocence Project