United States v. Dwight Daryl Owens, 682 F.3d 1358

Owens was convicted of armed robbery largely on eyewitness identifications from a photo lineup.
The lineup was administered by an officer involved in the investigation, not by an uninformed administrator.
The trial court excluded expert testimony about scientific issues affecting eyewitness reliability.
This court previously adhered to United States v. Thevis to bar appellate review of such exclusion.
The dissent argues that modern psychology shows eyewitness identifications are prone to error and warrant appellate review of exclusion of expert testimony.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether to grant en banc review on reviewing the exclusion of eyewitness ID expert testimony	Owens argues en banc review is warranted to change the standard of review.	The majority sticks with Thevis and denies rehearing.	En banc rehearing denied; standard remains unchanged.
Whether appellate review of eyewitness identification expert testimony exclusion is appropriate	Owens contends review is appropriate given modern science.	The court should continue to refrain from reviewing such exclusions.	Review denied; no change in practice.

United States v. Thevis, 665 F.2d 616 (5th Cir. 1982) (basis for not reviewing exclusion of expert testimony)
Perry v. New Hampshire, U.S. —, 132 S.Ct. 716 (U.S. 2012) (eyewitness reliability safeguards; limits of due process)
United States v. Moore, 786 F.2d 1308 (5th Cir. 1986) (expert eyewitness testimony may be critical)
United States v. Stevens, 935 F.2d 1380 (3d Cir. 1991) (reversing where misidentification key issue; expert testimony outside lay knowledge)
United States v. Rodriguez-Felix, 450 F.3d 1117 (10th Cir. 2006) (Daubert relevance prong for expert testimony on ID)
New Jersey v. Henderson, 208 N.J. 208, 27 A.3d 872 (N.J. 2011) (call for expert testimony on eyewitness ID procedures; reforms adopted)