Calvin Minor, appellant, was convicted for armed carjacking, armed robbery, possession of a firearm during a crime of violence (“PFCV”), and unauthorized use of a vehicle (“UUV”)-
(1) the subject matter “must be so distinctively related to some science, profession, business or occupation as to be beyond the ken of the average layman” ...; (2) “the witness must have sufficient skill, knowledge, or experience in that field or calling as to make it appear that his opinion or inference will probably aid the trier in his search for truth” ...; and (3) expert testimony is inadmissible “if the state of the pertinent art or scientific knowledge does not permit a reasonable opinion to be asserted even by an expert.”
Dyas,
On remand, the trial court again ruled that it would exclude Dr. Fisher’s testimony, finding that his testimony would not aid the trier of fact, and therefore would not satisfy the second Dyas factor, because his conclusions were “equivocal” and the underlying studies did not mirror the “real world.” In his challenge to the trial court’s ruling on remand, Mr. Minor argues that the trial court abused its discretion because the underpinnings for its exclusion of the testimony go solely to the weight of the expert testimony and not to its admissibility under Dyas. We agree. We hold that all three prongs of the Dyas test have been satisfied, that the testimony would be more probative than prejudicial, and that its exclusion was not harmless. We therefore reverse and remand for a new trial at which Mr. Minor shall be allowed to present Dr. Fisher’s expert testimony.
A.The Carjacking
On October 10, 2005, on her way home from a night club, Crystal Nunnley stopped at the 7-Eleven store located at 950 Eastern Avenue in Northeast Washington, D.C. Upon exiting the store, she heard a voice say, “Give me the keys.” When the perpetrator again demanded her keys and also money, Ms. Nunnley looked up to see a “child” pointing a gun at her. She said she had no money, threw her keys on the ground, and ran back inside the store. The perpetrator sped away in Ms. Nunnley’s car, a white Acura, followed by two cars, a burgundy Toyota Célica or Chevy Cavalier and a green car. The incident lasted only “seconds.”
Ms. Nunnley testified that she was “terrified” and “in total shock” and that she was “so frantic” she did not realize she was holding her cell phone, so she used a phone in the 7-Eleven to call 911. When asked by the 911 operator to describe the carjacker, Ms. Nunnley said, “I don’t know,” or “I don’t remember”; she testified at trial that her response merely reflected her exasperation at the operator’s questions. Metropolitan Police Department Detective Laura Aceto and Officers Thomas Caddell and Dale Vernick arrived on the scene a few minutes later. Officer Caddell testified that Ms. Nunnley was “very hysterical.” Ms. Nunnley described the carjacker to the officers as a “young [male], between 16 to 18 years old,” with dark skin, hair done in braids or dreads, and wearing jeans and a jacket with the hood “slightly pulled over his head.”
Approximately one hour later, the police located the burgundy car, and shortly thereafter Ms. Nunnley arrived and identified items scattered on the ground beside the vehicle as hers. At the same time, less than half a block away, police officers stopped a dark-complected black male, with his hair in long twists and wearing a green jacket. Ms. Nunnley did not recognize the man and the officers released him without recording his name. Later that night, Ms. Nunnley’s vehicle was located in an alley less than half a block from where the burgundy car was found.
B.Ms. Nunnley’s Identification of Mr. Minor as the Carjacker
Approximately one week later, Detective James Francis showed Ms. Nunnley three photo arrays. She pointed to Mr. Minor’s picture and said, “[t]hat looks like him.” Detective Francis thought she seemed “very confident” but acknowledged that Ms. Nunnley did not say she was “100 percent sure.” Ms. Nunnley testified that she did not express more confidence in her identification because she was “terrified” of the carjacker’s accomplices who had been driving the burgundy car and the green car. Sometime thereafter, Detective Francis called Ms. Nunnley and told her he was going to arrest the person she had identified. On February 2, 2006, Mr. Minor, who was sixteen years old at the time of the carjacking, was charged with carjacking and three associated offenses.
C.Motion to Admit Expert Testimony
On June 28, 2006, Mr. Minor filed a motion in limine to admit the expert testimony of Dr. Fisher on the reliability of eyewitness identifications. Mr. Minor proffered that “Dr. Fisher would testify about psychological studies that have consistently shown how several factors that are present in this case could have an [e]ffect on the reliability of eyewitness identifications.” Attached to the motion were the results of a 2004 telephone survey of potential jurors in the District of Columbia conducted by Peter D. Hart Research Associates, Inc. (the “Hart survey”)
The government did not file an opposition to Mr. Minor’s motion to admit the expert testimony of Dr. Fisher nor did the trial court hold an evidentiary hearing. In denying Mr. Minor’s motion, Judge Puig-Lugo looked at nothing more than statistics from the Hart survey and stated that they “squarely address[ed] ... the conclusions that the defense would like to proffer and which underline the conclusion that [six of the seven] matters are not beyond the k[e]n of the average layperson,” the first prong of the Dyas test. For example, Judge Puig-Lugo noted that 80 percent of respondents said it was “false” that “if an eyewitness was under high stress at the time of the crime, the eyewitness will have better recall for the details of the event.” The court concluded that the opportunity for cross-examination and the jury instructions would be sufficient to focus the jury on the factors it should consider in evaluating the reliability of the identification testimony to be given at trial.
D. The Trial
On February 28, 2007, the day trial was scheduled to begin before Judge Craig Is-coe, the prosecution announced that it had just learned that Mr. Kenneth Redfear, a prisoner, claimed he had observed the carjacking while he was panhandling at the 7-Eleven. The court granted a continuance to April 4, 2007, to enable defense counsel time to investigate Mr. Redfear’s story and prepare a defense that would no longer be based on the one-witness case the government had previewed pretrial.
At trial, Mr. Redfear testified that he told the detective that Mr. Minor’s photo “may not be the individual, but this is the closest one of the individuals that’s on this photo array.” He testified that he knew the carjacker because he was the same person who once robbed him and subsequently Mr. Redfear purchased drugs from him. He said the carjacker went by the name of “Snoop” or possibly “Scoop” and that he was a student at H.D. Wood-son High School. The only other evidence presented by the government was the testimony of Ms. Nunnley who said that she “will never forget the face.... I can visualize that gun. And then if I see that gun, I go back to that same moment when I looked directly into his eyes and saw his face.” Mr. Minor also took the stand and testified that at the time of the carjacking he was a student at H.D. Woodson and that “[m]ostly everybody” called him “C.J.,” he had never been known as “Snoop” or “Scoop,” and that he had never robbed or sold drugs to Mr. Redfear. On April 10, 2007, the jury returned a verdict of guilty on all counts. Judge Iscoe sentenced Mr. Minor to concurrent sentences of incarceration of 180 months for armed carjacking, 60 months for armed robbery, 60 months for PFCV, and 24 months for UUV, followed by 5 years of supervised release.
E. Motion for a New Trial
On June 11, 2007, Mr. Minor moved for a new trial based on newly discovered evidence. The defense had learned of a teenager named Kendall Snowden who went by the nickname “Snoop,” bore a striking resemblance to Mr. Minor, and had attended H.D. Woodson High School. According to Mr. Kevann Gardner, one of the defense investigators, Mr. Redfear said that he recognized Mr. Snowden’s picture and said, “had you guys gotten these pictures before trial there’s a good chance your client wouldn’t be in here [in jail] now,” but stated, “I don’t want to get involved. I don’t want to go back to court.” The government opposed Mr. Minor’s motion on the basis of a July 31,
During the hearing on the motion for a new trial, Mr. Redfear stated that both Mr. Snowden and Mr. Minor were known as “Snoop” and he knew both from the same neighborhood. He also denied telling Mr. Gardner that Mr. Minor likely would not be in jail if he had seen Mr. Snowden’s photo before trial. Judge Iscoe denied the motion, holding that “the ‘newly discovered’ evidence reveals ... nothing more than the discovery of an individual who resembles the Defendant” and noting that the defense’s pre-trial efforts to locate the person called “Snoop ... fell short of diligent.”
F. The Appeal and Remand Order
Mr. Minor appealed, contending that Judge Puig-Lugo’s ruling excluding Dr. Fisher’s expert testimony and Judge Is-coe’s denial of Mr. Minor’s motion for a new trial were each an abuse of discretion. Shortly after oral argument, this court remanded the record to the trial court to conduct a hearing to consider the admission of Dr. Fisher’s proffered testimony in light of Benn II and Russell. We directed the trial court to transmit to this court supplemental findings of fact and conclusions of law addressing the question whether Dr. Fisher’s proffered testimony satisfied the three Dyas factors and, if it concluded that the testimony should be admitted, to grant Mr. Minor a new trial. We reserved judgment on Mr. Minor’s second argument, observing that, if the trial court granted a new trial, Mr. Minor’s argument that the trial court erred in denying his motion for a new trial would be moot.
G. The Proceedings on Remand
On April 11, 2012, Judge Puig-Lugo held a Dyas hearing. Dr. Fisher testified that, among his other qualifications, he had been conducting research on eyewitness memory and identification for more than thirty years and had published more than forty articles on eyewitness identification in “major peer-review[ed] journals” and fifteen to twenty book chapters on the topic.
He then testified about four areas regarding the reliability of eyewitness testimony. First, he explained that “excessive stress impairs later identification, and it also impairs later ability to describe the event that you observed.” Second, he stated that “when a weapon is present the witness is less likely to make a correct identification than when there’s no weapon present,” a phenomenon known as the weapons-foeus effect. Third, with regard to the phenomenon of “exposure-duration,” he testified that “[generally the more time that you have to observe somebody, the more accurate will be your identification.” And finally, with regard to the relationship between a witness’s confidence in her identification and the accuracy of her identification, Dr. Fisher testified that “people tend to over-assess their accuracy.” He acknowledged that confidence is to “some degree predictive of accuracy” but only when assessed at the time of the initial identification. He explained that confidence as a predictor of accuracy generally does not hold true for identifications at trial because witness confidence can be “artificially bolstered” by “confirmatory feedback” as a result of various developments occurring after the witness’s initial identification, such as being told that the person the witness identified is going to be arrested. On cross-examination, Dr. Fisher acknowledged the limits of his testimony by stating that scientists “can never say
The government did not call an expert witness. The trial court did not prepare written supplemental findings and conclusions but issued an oral ruling on May 16, 2012. First, the court seemingly held that the proffered expert testimony was beyond the ken of the average juror, thereby satisfying the first Dyas factor.
II. DISCUSSION
Over the past several decades, this court has considered the admissibility of expert testimony on the reliability of eyewitness identifications in numerous cases. The social sciences have moved us well beyond the state of our knowledge in Dyas, where, thirty-five years ago, we held, almost as a matter of course, that the trial court did not abuse its discretion in excluding the proffered expert testimony on the reliability of eyewitness identifications. Dyas,
To the contrary, our recognition that “eyewitness error is the leading cause of wrongful conviction in the United States,” Benn II,
With these developments in mind, we turn to the “two levels of analysis” used in determining whether to admit expert testimony: the “three-fold [Dyas ] test” and the weighing of “probative value ... [versus] ... prejudicial impact.” Ibn-Tamas v. United States,
A. The Proffered Testimony Was Beyond the Ken of the Average Juror
In ruling on the first factor, the trial court opined that psychological research on eyewitness identification proffered by Dr. Fisher is “beyond the ken of the average lay person.” This is consistent with our recent observation in Benn II that “[d]espite the fact that jurors may be familiar from their own experience with factors relevant to the reliability of eyewitness observation and identification, ... it cannot be said that psychological studies regarding the accuracy of an identification are within the ken of the typical juror.” Benn II,
Moreover, in Benn II we cited studies assessing jurors’ knowledge on three of the factors affecting eyewitness identifications about which Dr. Fisher was prepared to testify: severe stress, exposure-duration, and the relationship between a witness’s confidence and accuracy. The studies concluded that “jurors believe that the more confident a witness seems, the more accurate that witness’s testimony will be,” but the correlation between a “witness’s expression of certainty in an
While finding that the studies were beyond the ken of the average juror, the trial judge also stated that it “[d]oesn’t mean that the conclusions of those articles are beyond the ken of the average lay person,” referring to the 2004 Hart survey.
B. Dr. Fisher Has Sufficient Knowledge Such That His Opinions Will Probably Aid the Trier of Fact
The second Dyas factor requires that the party proffering the expert witness establish that the witness has “sufficient skill, knowledge, or experience in that field or calling as to make it appear that his opinion or inference will probably aid the trier in his search for truth.” Dyas,
There was disagreement, however, as to whether this factor also asks the trial court to assess whether the expert testimony is likely to be helpful to the jury in evaluating the eyewitness identifications, or whether the analysis is limited to determining if the “expert’s credentials [are] sufficient for the type of [expert] testimony proffered.” Ultimately, the trial court adopted the former interpretation and held that Dr. Fisher’s testimony would not probably aid the trier of fact. In doing so, the trial court misconstrued the second Dyas factor. The scope of the second Dyas factor is narrow and assesses only whether the “proffered expert [is] qualified to give” the proposed testimony. Ibn-Tamas,
That does not, however, preclude the trial court from assessing the relevance and weighing the probative value versus the prejudicial impact of the proffered expert testimony; indeed, it is required to do so. Robinson,
First, the trial judge determined that the testimony should be excluded because the findings of the scientific studies were not absolute and because Dr. Fisher would not say that his theories will always hold true for all people. Pointing to the meta-analysis, a statistical technique for combining and contrasting the findings from independent studies, the trial judge stated, “you have some majority/minority positions” and “[n]ot everybody is on the same page.” For example, the studies found that “severe stress leads to impaired identification” but that “[sjometimes it doesn’t.” The judge was also troubled by Dr. Fisher’s conclusion that the “accuracy of the identification is less likely” when “a weapon is present” due to his use of “qualifying language” and questioned, “when you’re dealing with a lot of mights and a lot of couldn’ts, themes and patterns, where do you cross the line from extrapolation to speculation?”
While we do not reject those observations, the “trial court’s doubts about the certainty of Dr. [Fisher’s] conclusions ... [do] not ... justif[y] excluding the testimony.” Clifford v. United States,
Second, the trial court said it would refuse to let a jury hear Dr. Fisher’s testimony because Dr. Fisher had no direct knowledge of the accuracy of Ms. Nunnley’s identification but rather could describe only “themes” and “patterns” gleaned from scientific studies. In explaining his rationale, the trial court made an analogy: “[W]e might look at all sorts of climatological studies for the month of October in 2011” but that “can only give us themes, patterns”; it “does not tell us whether on October 5, 2011, as we stood outside 500 Indiana Avenue, Northwest and looked at sky, you saw the sun or a cloud.” This caused the court to declare Dr. Fisher’s studies a “mismatch ... as far as the circumstances of this case are concerned.” The analogy is fundamentally flawed because the expert testimony on the reliability of eyewitness testimony was intended to assist the jurors in evaluating Ms. Nunnley’s and Mr. Redfear’s eyewitness identification testimony, and not, as in the example about the weather, to determine conclusively whether their identifications were accurate. Moreover, admission of expert testimony is not contingent on the expert’s having personal knowledge of the witness. See Robinson,
Third, the trial judge concluded that the testimony would not aid the trier of fact because the studies upon which Dr. Fisher’s testimony relied are “different ... from the real world” and therefore “there’s no ecological validity,” which is “the degree to which the experiment captures the phenomenon that you’re trying to generalize in the real world.” Instead, according to the trial judge, in the studies “[tjhere’s all these factors ... running wild and it varies from case to case, from person to person, from circumstance to circumstance,” but, in contrast, “in the laboratory, seven [out of eight variables] are controlled.” We cannot agree with the trial court’s assessment. Indeed, Dr. Fisher testified that he had no reason to believe that the results of the studies would have been different if the conditions had more closely mirrored the facts of this case. He explained that, because the studies yielded largely “the same results” when conducted in both laboratory and real-world settings, “what you find in the laboratory would hold for the real world.” Boiled down to its essence, the trial court’s concern seems to be that the studies do not provide certainty, a factor we already have stated is within the province of the jury to assess, not the trial judge.
Fourth, in assessing whether the expert testimony would be helpful to the jury, the court repeatedly referred to the Hart survey and stated that the majority of jurors understand the concepts to which Dr. Fisher would testify. But we already have rejected the notion that jurors presumptively know the conclusions drawn from psychological studies of eyewitness identification, such that expert testimony cannot aid them. Neither the trial court nor the government has cited authority for the irrelevance of that testimony just because jurors may have a passing familiarity with the potential problems of this kind of proof.
Beyond the findings discussed above, the trial court did not make any findings regarding the relevance of the proffered expert testimony nor did the court assess the testimony’s probative value versus any prejudicial impact it might have. Nevertheless, as Mr. Minor has argued, there is a reasonable basis for concluding that Dr. Fisher’s testimony is relevant to the facts of this case. “Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.” Plummer v. United States,
Thus, it is clear that Mr. Minor’s “proffers contained sufficient detail to signify that if the jurors credited the expert’s testimony, it would assist them” in assessing the testimony of the eyewitnesses. Robinson,
C. The State of the Scientific Knowledge Permitted Dr. Fisher to Assert a Reasonable Opinion
The third Dyas factor permits a trial court to exclude expert testimony if the “state of the pertinent art or scientific knowledge does not permit a reasonable opinion to be asserted even by an expert.” Dyas,
The trial court neither determined whether a Frye hearing was necessary nor decided whether the third Dyas factor had been satisfied, stating that “even if we assume ... that [the] third prong of Dyas has been established .... the second
In Benn II we observed that it “can credibly be argued” that research on the reliability of eyewitness testimony “has reached that critical juncture” from a “theory, initially untested, unrecognized, and unsupported by evidence” to one that now “receive[s] widespread recognition and the support of experts in the ... field” and noted that “[w]hereas once we could only speculate as to the inaccuracy of an eyewitness identification, now there is published scientific research that questions its accuracy when made under certain conditions.” Benn II,
To support a determination that the methodology underlying the eyewitness identification research does not pass muster under the Frye analysis, there must be “scientists significant either in number or experience [that] public[ly] oppose” it. United States v. Jenkins,
In its opposition to Mr. Minor’s motion to admit expert testimony, the government argued that a reasonable opinion cannot be asserted by an expert because “psychologists continue to disagree on the results of studies testing eyewitness memory and perception.” (Emphasis added.) The government focused on the wrong question. The issue is not “the acceptance of a particular ... conclusion derived from [the]
D. The Exclusion of Dr. Fisher’s Testimony Was Not Harmless Error
Finding the exclusion of Dr. Fisher’s testimony was in error, we must now assess whether the error was harmless. Whether or not the “trial court[’s] evidentiary error in ... denying expert opinion testimony is harmless is governed in this case by the non-constitutional standard announced” in Kotteakos v. United States,
Here, the government’s only evidence was the identification testimony of Ms. Nunnley and Mr. Redfear. As in Russell and in Benn II, where we found that the exclusion of expert testimony on the reliability of eyewitness identifications was not harmless, “[t]here was no scientific evidence linking [Mr. Minor] to the crime[,][t]here was no evidence that [he] was apprehended with the weapon or proceeds of the crime, and he made no statements implicating himself.” Russell,
As we discussed earlier, the principles Dr. Fisher would have testified about are germane to these eyewitness identifications. Thus, Dr. Fisher’s testimony would have provided a basis for Mr. Minor to cast doubt on the reliability of Ms. Nunn-ley’s and Mr. Redfear’s identifications. The government argues that “any error was harmless because appellant fully and forcefully presented his misidentification defense.” This argument misses the point that, “[without the expert’s testimony, appellant had no factual underpinnings for the scientific theories ... that might cast doubt on the eyewitness’ testimony.” Russell,
The government further argues that any error was harmless because the identification by Ms. Nunnley, a stranger, was corroborated by an identification by a “non-stranger,” i.e., Mr. Redfear. The government analogizes this case to Heath v. United States,
First, in Heath, there were not one but two non-stranger eyewitnesses, whereas here there was only one.
The weaknesses in Mr. Redfear’s identification do not stop there. Mr. Redfear testified that he knew Mr. Minor as “Snoop,” but there is no evidence that Mr. Minor had ever been known as “Snoop.” Further, Mr. Redfear testified that he saw Mr. Minor, “the same Snoop who did the carjacking,” out after midnight during a time when Mr. Minor was at home under an electronically monitored curfew after 8 p.m., and Mr. Minor’s case manager confirmed there was no record of a curfew violation. Given all these weaknesses in Mr. Redfear’s testimony, we agree with Mr. Minor that Mr. Redfear’s identification did not provide corroborating evidence nearly as strong as the testimony of the non-stranger witnesses in Heath.
In sum, the government’s case against Mr. Minor certainly was not “strong or overwhelming,” Smith,
III. CONCLUSION
We reverse the judgment convicting Mr. Minor of the February 2, 2006, carjacking and the offenses associated therewith and remand for a new trial at which Mr. Minor shall be permitted to introduce Dr. Fish
Reversed and remanded.
Notes
. The offenses of conviction are covered under the following statutes: carjacking while aimed, D.C.Code §§ 22-2803, -4502 (2001); armed robbery, D.C.Code §§ 22-2801, -4502; PFCV, D.C.Code § 22-4504(b); and UUV, D.C.Code § 22-3215.
. We say "seemingly” because the trial court’s oral ruling is not entirely clear:
I understand that studies that are published in journals are ... beyond the ken of the average lay person unless they sit around at home reading these journals, which is probably highly unlikely. Doesn’t mean that the conclusions of those articles are beyond the ken of the average lay person.
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Ultimately, the issue is whether people know what those articles conclude. And again, the articles might not be within the k[e]n of the average lay person. The studies might be beyond the ken of the average lay person. But it's clear from [the Hart] survey that the average lay person understands the concerns regarding identification.
We understand the trial court to be acknowledging the distinction drawn in our decision in Benn II between jurors' experiential familiarity with factors relevant to the reliability of eyewitness observations, on the one hand, and psychological studies that explain the scientific bases underlying the experiential familiarity, on the other hand. Benn II,
. We leave for determination on retrial the question whether or not the so-called weapons-focus effect is beyond the ken of the average juror. At the hearing, Mr. Minor’s counsel asserted that the weapons-focus effect is “part of stress” and therefore the court should find that it is also beyond the ken of the average juror. However, Dr. Fisher could not confirm that assertion with a cite to the literature, although he believed it should be true. Accordingly, we cannot extrapolate from the findings of studies that show that the effect of highly stressful situations on identifications is beyond the ken of the average lay person to the weapons-focus effect. We note, however, that a 2001 survey of 64 "eyewitness experts,” a survey submitted to the trial court by the government, found that only thirty-four percent of the experts believed that the weapons-focus effect is a “matter of common sense” that "most jurors believe.” Saul M. Kassin, V. Anne Tubb, Harmon M. Hosch, & Amina Memon, On the “General Acceptance” of Eyewitness Testimony Research, 56 Am. Psychologist 405, 407-08, 412 (2001).
. This is the same survey on which the court based its initial decision to exclude Dr. Fisher's testimony. As we stated in our remand order, reliance on the survey alone did not constitute "the careful consideration that we now require [in light of Benn II and Russell ] before the trial court excludes expert testimony on the reliability of eyewitness identification.”
. We are not alone in holding that the topics about which Dr. Fisher would testify are beyond the ken of the average juror. See, e.g., United States v. Brownlee,
. Our holding does not, of course, preclude a trial court from determining in an appropriate case that particular expert testimony, even if it satisfies all three Dyas factors, should be excluded as more prejudicial than probative on the facts of the particular case. For example, in a non-stranger identification case a trial court could rule that the relevance of the expert's views might be too slight compared to the likelihood of distracting or confusing the jury. We hold only that no such determination could have been made in this case.
. Frye v. United States,
. We reject the government’s various positions on the third prong of the Dyas test. It first argued in opposition to Mr. Minor’s motion in limine on remand that "the state of the ... scientific knowledge does not permit a reasonable opinion to be asserted even by an expert,” a position we find untenable in light of Benn II, and later softened its position to contend only that it was willing to assume "that prong three was satisfied for the purpose of this hearing. The government is not conceding that ... [w]e’re assuming it for the purposes of this hearing." As Mr. Minor correctly explained in argument on remand, the third Dyas factor is not something that varies from case to case or courtroom to courtroom; once a particular field of science has reached a state of general acceptance, it is presumptively admissible although the "party opposing the evidence, of course, may challenge the weight the jury ought to give it.” (Ricardo) Jones,
. See supra note 3.
. The survey found that eighty-seven percent of experts agreed that it is reliable to testify that "presence of a weapon impairs an eyewitness's ability to accurately identify the perpetrator’s face”; eighty-one percent said the phenomenon that the "less time an eyewitness has to observe an event, the less well he or she will remember it” is reliable for expert testimony; and eighty-seven percent indicated that it is reliable to testify that "eyewitness’s confidence is not a good predicator of his or her identification accuracy,” and relatedly, ninety-five percent said the phenomenon that "eyewitness’s confidence can be influenced by factors that are unrelated to identification accuracy” is reliable for expert testimony. Kassin, supra note 3, at 408, 412.
. Beyond our decision in Benn II, further assurance that the underlying methodologies have gained general acceptance is that courts in numerous other jurisdictions have held that they are generally accepted or are sufficiently reliable to permit a qualified expert to testify about the reliability of eyewitness identifications. See, e.g., United States v. Moore,
. The weaknesses in Mr. Redfear's identification of Mr. Minor were apparent not only in his trial testimony but also in the evidence proffered in support of Mr. Minor’s motion for a new trial. For example, Mr. Minor offered evidence that seventeen-year-old Kendall Snowden, who looks similar to Mr. Minor and had attended the same high school as Mr. Minor, went by the name of "Snoop.” After being confronted with a photo of Mr. Snow-den, Mr. Redfear claimed that both Mr. Snowden and Mr. Minor were known as "Snoop” and he knew both from the same neighborhood, which, we agree with appellant, is a questionable coincidence at best.
. In light of our holding, we of course have no need to address Mr. Minor's argument that the trial court erred in denying his motion for a new trial.