128 Misc. 2d 608 | New York County Courts | 1985
OPINION OF THE COURT
The defendant has requested a ruling in limine as to whether expert testimony concerning the factors which affect the reliability of an eyewitness identification will be admitted into evidence at this trial. The People have cross-moved to preclude such testimony. Resolution of this issue lies within the discretion of this court (see, Rodriguez v Board of Educ., 104 AD2d 978).
The defendant is accused of the crimes of rape in the first degree and sexual abuse in the first degree. He was acquitted in the first trial of this matter of the crimes of robbery in the first degree, petit larceny, and criminal use of a firearm in the first degree. The jury was unable to reach a verdict with respect to the rape and sexual abuse counts and the case is before this court for retrial. The prosecution case rests primarily upon the
An application identical to that which is presently before the court was made in the first trial, before the Honorable Joseph K. West of this court. Judge West, in the exercise of his discretion, declined to admit the proffered testimony. Because of the discretionary nature of the ruling, and the fact that it is essentially an evidentiary matter, this court is not precluded from taking a fresh look at the request (see, People v De lorio, 45 Misc 2d 68).
The defense offer of proof indicates that Dr. Robert Buckhout, a psychologist specializing in the field of memory and perception, will testify, if permitted, to the factors which studies have shown are relevant to the reliability of an eyewitness identification. These factors include:
(1) the delay between the event and the identification;
(2) stress;
(3) the violence of the situation;
(4) assimilation of postevent information;
(5) the cross-racial aspect of the identification;
(6) the selectivity of perception;
(7) the “filling in” phenomenon;
(8) expectancy;
(9) the effect of repeated viewings;
(10) the lack of a correlation between confidence and reliability;
(11) the motivation of the victim to make a correct identification;
(12) the motivation of the police to make an arrest;
(13) the introduction of suggestiveness through photo arrays;
(14) the availability of a “zero option;” and
(15) the effect of what a witness is told after the identification is made.
He is also prepared to testify that laymen place an undue emphasis on identification testimony in general and that cross-examination is not effective to discredit a mistaken identification because the witness truly believes that his testimony is accurate, even if it is not. According to the defense memorandum of law, Dr. Buckhout will specifically not venture any
Several New York trial courts and the Appellate Division, First Department, have held the testimony of this particular witness to be inadmissible on the ground that expert testimony with respect to such matters is improper (see, People v Valentine, 53 AD2d 832; People v Brown, 124 Misc 2d 938; People v Brown, 117 Misc 2d 587). The Court of Appeals most recent explanation of the role of expert testimony (People v Cronin, 60 NY2d 430), however, has cast doubt on the authority of that First Department decision, and in several other jurisdictions the trend in favor of excluding such testimony has recently been reversed. This court is of the opinion that admission of the proffered testimony, when limited to an explication of the factors which studies have shown are relevant to making a reliable identification, is proper expert testimony and will enhance the ability of the jury to reach its decision in this case.
Courts have traditionally been reluctant to permit expert testimony as to the reliability of identification testimony. The leading case is United States v Amaral (488 F2d 1148), in which the United States Court of Appeals for the Ninth Circuit upheld, as a valid exercise of discretion, the trial court’s exclusion of such testimony. The trial court had reasoned that to allow expert opinion as to the weight or effect to be given to the testimony of an eyewitness would usurp the function of the jury. The Circuit Court, after outlining the elements necessary to any offer of expert testimony, agreed, holding that the reliability of an eyewitness identification was not a proper subject for expert testimony. The court reasoned that in our adversary system, cross-examination is the primary means of testing for truthfulness.
Similarly, in United States v Fosher (590 F2d 381), the United States Court of Appeals for the First Circuit held that the trial court had not erred in excluding such testimony. The Circuit Court reasoned that the defendant’s offer of proof had not made clear the relationship of the expert testimony to the testimony of the eyewitnesses or that the expert’s analysis was based upon generally accepted scientific standards. Further, the court held that “the proffered expert testimony would create a substantial danger of undue prejudice and confusion because of its aura of special reliability and trustworthiness” (590 F2d, at p 383). Most importantly, the court relied upon Amaral in holding that eyewitness identification was not a proper subject for expert
Recently, however, courts have begun to question this traditional analysis. In State v Chapple (135 Ariz 281,660 P2d 1208), the Supreme Court of Arizona held that at least in the circumstances presented, the trial court had erred in refusing to allow expert testimony with respect to the identification issue. In Chappie, the defense offer of proof was virtually identical to that at bar. The witness in that case was to testify to certain “variables” with respect to eyewitness identification, such as time lapse, stress, unconscious transfer phenomenon, assimilation of postevent information, and the relationship of confidence to accuracy, all of which scientific studies have shown to be relevant to the reliability of identification testimony. Finding that the existence of these factors and their effect on the reliability of identification testimony are not within the knowledge of the average juror, the court concluded that expert testimony on the subject was admissible to enlighten the jury. The court noted, however, that its holding was based upon the particular relevance of the factors to the facts before it, and refused to indorse a rule permitting such testimony in every case.
The Supreme Court of California reached the same result in People v McDonald (37 Cal 3d 351, 208 Cal Rptr 236, 690 P2d 709), overruling in the process a decade-old intermediate appellate decision which had precluded such testimony (see, People v Johnson, 38 Cal App 3d 1,112 Cal Rptr 834). Under California law, expert testimony is admissible when “[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact” (Cal Evidence Code § 801 [a]). Based upon this standard, the court held that expert testimony such as that offered in the case at bar should have been admitted. The court stated:
“We conclude that although jurors may not be totally unaware of the foregoing psychological factors bearing on eyewitness identification, the body of information now available on these matters is ‘sufficiently beyond common experience’ that in appropriate cases expert opinion thereon could at least ‘assist the trier of fact’ (Evid. Code, § 801, subd (a)).” (37 Cal 3d, at pp_-_, 690 P2d, at pp 720-721.)
The court rejected the argument that such testimony usurps the function of the jury, which had been accepted in Johnson, reasoning that as long as the testimony is limited to an explanation of the relevant factors “[t]he jurors retain both the power and the duty to judge the credibility and weight of all testimony in the case” (37 Cal 3d, at p_, 690 P2d, at p 722). The court held that expert testimony on eyewitness identification is admissible whenever “eyewitness identification of the defendant is a key element of the prosecution’s case but is not substantially corroborated by evidence giving it independent reliability” (37 Cal 3d, at p_, 690 P2d, at p 727).
The United States Court of Appeals for the Sixth Circuit recently addressed the issue in United States v Smith (736 F2d 1103, cert denied_ US _, 105 S Ct 213), concluding that although expert testimony with respect to eyewitness identification is admissible, the trial court’s refusal to permit it did not constitute reversible error. The court considered the elements necessary to an offer of expert testimony, on the basis of which the court in United States v Amaral (488 F2d 1148, supra) had rejected such testimony, but reached the opposite conclusion. The Sixth Circuit held that such testimony would have “assisted the fact finder [to] understand the facts of this case” (736 F2d, at p 1106) and was therefore a proper subject of expert testimony. The court further noted that where the testimony was offered by the defendant, its admission could not prejudice him and, therefore, his right to a fair trial, which it had previously considered to be “ ‘a strong countervailing restraint on the admission of expert testimony’ ” was not implicated (736 F2d, at p 1107).
The New York courts which have considered the issue have been less favorably disposed to the admission of expert testimony on the subject of eyewitness identification than have these other jurisdictions. In People v Brown (117 Misc 2d 587, supra), the Honorable Nicholas Colabella of this court considered Dr. Buckhout’s testimony for purposes of the Wade hearing, finding it to be “interesting and in some respects helpful” (117 Misc 2d, at p 592), but refused to permit it at the trial. Judge Colabella reasoned that although Dr. Buckhout appeared to be qualified as an expert and the subject of his testimony “may not be within the common knowledge of a jury * * * there was no showing that Dr. Buckhout’s research has reached the level of general acceptance in the field of scientific inquiry” (117 Misc 2d, at p 593). Dr. Buckhout’s testimony was also excluded in People v Brown (124 Misc 2d 938, supra). In that case, the Honorable David S. Ritter, also of this court, held that such testimony would “not assist the jury in their evaluation of the testimony by the eyewitnesses” and would infringe upon their role as the determiner of reliability (124 Misc 2d, at p 940). These decisions by respected trial court colleagues properly reflect the exercise of
There is only one appellate decision in this State on the precise issue before the court. In People v Valentine (53 AD2d 832 [1976], supra), the defendant argued that the trial court had erred in refusing to permit such expert testimony. The Appellate Division, First Department, rejected the argument, stating: “Expert opinions were not necessary to enable the jury to comprehend the potential for unreliability. Had the court permitted this witness to apply his experience to the particulars of this case it would have constituted a trespass on the jury’s domain.” (53 AD2d, at pp 832-833.)
Subsequent to the decision of the First Department in Valentine, however, the Court of Appeals held that it was erroneous as a matter of law for a court to exclude expert testimony on the basis of the ultimate issue rule, i.e., that it usurps the function of the jury. In People v Cronin (60 NY2d 430 [1983], supra), the court considered the defense offer of expert psychiatric testimony concerning the defendant’s ability to form the requisite intent, given the People’s proof that prior to the alleged burglary the defendant had ingested both alcohol and drugs. The court held that the trial court’s application of the ultimate issue rule resulted in its failure to exercise discretion, thus mandating reversal. The Court of Appeals reaffirmed the standard for the admissibility of expert testimony which it had previously enunciated: “The guiding principle is that expert opinion is proper when it would help to clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the ken of the typical juror” (DeLong v County of Erie, 60 NY2d 296, 307; People v Allweiss, 48 NY2d 40; Selkowitz v County of Nassau, 45 NY2d 97).
A proper analysis of the propriety of expert testimony therefore involves inquiry into the relationship among: (a) the subject of the expert’s testimony; (b) the issue presented to the jury; and (c) the information possessed by the average juror.
Expert testimony, however, is not all of one genre. The Court of Appeals held long ago, in Dougherty v Milliken (163 NY 527), that a distinction must be drawn between experts who state what are essentially facts, although such as to be outside the knowledge of the layman, and those who render opinions. “It may be broadly stated as a general proposition that there are two classes of cases in which expert testimony is admissible. To
This distinction has been more recently recognized in the advisory committee notes to the Federal Rules of Evidence. The committee states: “Most of the literature assumes that experts testify only in the form of opinions. The assumption is logically unfounded. [Rule 702] accordingly recognizes that an expert on the stand may give a dissertation or exposition of scientific or other principles relevant to the case, leaving the trier of fact to apply them to the facts. Since much of the criticism of expert testimony has centered upon the hypothetical question, it seems wise to recognize that opinions are not indispensable and to encourage the use of expert testimony in non-opinion form when counsel believes the trier can itself draw the requisite inference.” (Fed Rules Evidence, rule 702 [in 28 USC, Appendix], Advisory Committee Note, p 25.) The official comment to the proposed New York Code of Evidence contains a similar statement: “The section specifies that the expert ‘may testify * * * in the form of an opinion or otherwise’. The expert is thus not required to testify in opinion form. The expert can, for example, give background information or provide data that was obtained
Most expert testimony clearly falls within the second class. The expert is offered because it is the conclusion to be drawn from the facts, and not the facts themselves, which requires expertise. The expert testimony in Dougherty (supra), however, involved both. The experts were asked first to describe the design of the derrick in question and then to render an opinion as to the sufficiency of that design. The Court of Appeals held that the former was a proper question, since the manner in which the derrick was designed was not a matter of common knowledge. The latter question was impermissible, however, because given the relevant specialized facts, the jury was capable of determining the sufficiency of the design.
A similar question was presented in a criminal context in People v Parks (41 NY2d 36). In Parks, the issue was whether the trial court had improperly received the testimony of the complainant’s teacher with respect to the complainant’s mental condition and capacity to testify. Noting that the teacher was “restricted by the court to testimony of an objective nature” (41 NY2d, at p 48), the Court of Appeals refused to reverse the conviction. The court stated: “As we view the issue, independent testimony with respect to a witness’ faculties is designed to provide the jury with an objective analytical framework for evaluation of the witness’ testimony. The court may not permit the independent witnesses to stray from scientific and objective data and criteria. Thus, it would be error for the court to permit a witness to express a view as to the credibility or believability of the impaired witness. Notably, this case does not involve a situation where the independent witness attempted to express a view, scientific or otherwise, on the degree of confidence, or lack thereof, to be placed upon the complainant’s testimony. By our holding today, we do not suggest, or even intimate, that an expert may ever pass his own judgment on a witness’ credibility and impart that judgment to the jury. Such testimony would be a serious usurpation of the jury’s prerogative and responsibility. We do hold that objective data can be related to the jury to assist it in performing its proper trial function. Although this precise issue has received scant attention from the authorities (compare 2 Wigmore, Evidence [3d ed], § 497, p 589, with Richardson, Evidence [10th ed], § 389, p 368), we are convinced that sophisticated and modern techniques of physical and psychological evaluation and analysis may play an appropriate but limited
Dr. Buckhout’s testimony, when limited to a discussion of those factors which the scientific studies and reports have shown are relevant in determining the reliability of eyewitness identification testimony, is essentially akin to that which was held to be admissible in Parks. If he were permitted to offer an opinion as to the reliability of the testimony of the complainant in this case or as to the reliability of eyewitness identification testimony in general, however, he would be venturing into an area where the jury is fully capable of reaching its own result. He will, therefore, take the stand as a live learned treatise on the subject of eyewitness identification to assist the jury by bringing to their attention scientific studies with which they would not otherwise be familiar. Admittedly, Dr. Buckhout’s testimony will involve more than just a recitation of facts or description of studies which have been done. He will be called upon to draw from all of the scientific studies the conclusion that certain factors are or are not relevant to determining the reliability of eyewitness identification testimony. However, he will give no opinion with respect to the basic issue as to which his testimony is relevant, the reliability of the complainant’s testimony. On that issue, the jury will draw its own conclusion.
The expert testimony to be permitted here is essentially the same as the testimony found to be admissible by the Court of Appeals in Kulak v Nationwide Mut. Ins. Co. (40 NY2d 140). Kulak was an action against an insurer for failure to settle a liability claim within the policy limits. As part of her direct case, the plaintiff introduced the testimony of two experienced trial attorneys as experts in the field of personal injury litigation. These witnesses were asked first to describe the factors they considered relevant to settlement of a personal injury action and then to give an opinion, in response to a hypothetical question, as to the merits of the defenses and the likely verdict in the personal injury action. They were then asked whether, in their opinions, the insurer’s evaluation of the case for settlement purposes was realistic and “whether in general it was possible for an attorney retained by the insurer adequately to represent the interests of an insured sued for an amount in excess of policy limits, if the carrier does not inform that attorney what the policy limits are” (40 NY2d, at p 145). Over objection, the witnesses were permitted to answer each of these questions.
The Court of Appeals held that expert testimony such as this was admissible in part and inadmissible in other part. The court stated:
“This principle, however, would not cover the testimony elicited in response to the hypothetical questions addressed to plaintiff’s expert witnesses * * * In these instances the questions were focused precisely on this particular case, and did not seek an expression of expert opinion generally with respect to defenses based on intoxication, on contributory negligence, or on assumption of the risk. The attorney witnesses were invited and permitted to express opinions as to the significance of such considerations in this particular case and that the recovery would exceed policy limits * * * In our view in thus presuming to apply general experience to the particulars of this individual case, the witnesses trespassed on the jury’s domain. Accordingly, such testimony was inadmissible” (40 NY2d, at pp 146-147).
The court went on to state that once the jury was informed of the factors relevant to analysis of personal injury actions, it was within their competence to evaluate the worth of the personal injury action in question. The critical focus, as can be seen from the analysis in Kulak, is upon the precise issue to which the testimony of the expert is addressed. As the Court of Appeals stated in People v Cronin (60 NY2d 430, 433, supra), where the jury “would be benefited by the specialized knowledge of an expert witness” his testimony will be admissible; otherwise it will not.
While it is no doubt true that all jurors have some everyday experience which is relevant to determining the reliability of eyewitness identification testimony, this does not preclude the introduction of expert testimony on the subject. In Selkowitz v County of Nassau (45 NY2d 97), a personal injury action resulting from a high-speed police chase, the plaintiff was permitted to introduce the testimony of a former police captain as an expert on emergency traffic procedures. The Court of Appeals recognized that “the average juror is quite familiar with the everyday rules of the road” (45 NY2d, at p 102), but sustained the
This is especially true where the scientific evidence is not in accord with common perceptions. According to the offer of proof, Dr. Buckhout will testify, among other things, that there is not necessarily a correlation between the reliability of identification testimony and the confidence of the witness in that identification; that it is a myth that recall is enhanced by the violence of a situation; that recall is affected by the selectivity of the initial perception and a phenomenon which involves filling in the details through after-acquired experience. These and other items of Dr. Buckhout’s testimony will bring to the attention of the jury certain relevant factors of which they might not otherwise have been aware.
The People contend, however, that Dr. Buckhout’s testimony is not so reliable or worthy of belief that the jury will be better able to evaluate the complainant’s testimony than it would have been had it merely listened to the arguments of counsel and relied on its own experience. It is true that in the past similar testimony has been excluded because it was not generally accepted in the scientific community (see, United States v Fosher, 590 F2d 381, supra; People v Brown, 117 Misc 2d 587, supra). In so arguing, however, the People fail to perceive the distinction between the standard for admissibility and the question of the weight to be accorded to the testimony (cf. People v Yazum, 13 NY2d 302). The bulk of the studies in this field have been conducted since the early decisions excluding this testimony were made. After an exhaustive review of the scientific literature, the Supreme Court of California concluded that “[t]he consistency of the results of these studies is impressive, and the courts can no longer remain oblivious to their implications for the administration of justice” (People v McDonald, 37 Cal 3d 351,_, 690 P2d 709, 718, supra). Considering this finding, and the facts that, according to his résumé, Dr. Buckhout has testified on numerous occasions and that he and others have compiled a significant mass of scholarly material on this subject,
The fact that this type of testimony is somewhat novel should not preclude its admission into evidence. In De Long v County of Erie (60 NY2d 296, supra), the Court of Appeals affirmed the admission of expert testimony on this issue of the monetary value of a housewife’s services. The court stated: “Although it was once thought that this was not a subject which would lend itself to scientific inquiry and analysis [citation omitted], that can no longer be said today. It is now apparent, as a majority of courts have held (see Ann., 77 ALR3d 1175), that qualified experts are available and may aid the jury in evaluating the housewife’s services * * * We conclude that it was not an abuse of discretion to allow the expert testimony in this case.” (60 NY2d, at pp 307-308.)
The People argue correctly that Dr. Buckhout’s testimony will be prejudicial to their case. In a sense, however, this is true of all testimony which tends to disprove a party’s contention. It is only undue prejudice which the law prohibits. While it is true that the testimony of Dr. Buckhout will lend a certain aura of reliability to the contentions which defense counsel ordinarily makes in summation, this effect is not so substantial that a manifest injustice will result. The jury is still free to accept or reject Dr. Buckhout’s testimony, in whole or in part, and will be so instructed. In similar circumstances, the People have been allowed to introduce expert testimony on the subject of “rape trauma syndrome” (see, People v Fisher, 53 NY2d 907). Essentially, this allows the People to bolster in advance the less than certain testimony of a rape victim with scientific evidence that the psychological trauma caused by the rape prevented her from coming forward immediately. The prejudice to the People resulting from Dr. Buckhout’s testimony would be no greater than that suffered by the defendant confronted with rape trauma syndrome testimony. Furthermore, the defendant’s constitutional right to due process of law includes the right to present any relevant evidence in his behalf (see, People v Gilliam, 37 NY2d 722, revg 45 AD2d 744, on dissenting opn of Hopkins, J.; People v Scott, 104 AD2d 667); the People benefit from no such protection.
In the final analysis, it is for the jury to determine, on the basis of all of the evidence in the case, including the expert
Accordingly, this court concludes that as a matter of law expert testimony with respect to the factors affecting the reliability of an eyewitness identification may be admitted into evidence in this State, and that in the exercise of discretion it will be so admitted in this case. The People’s cross motion is denied to the extent indicated herein.
The testimony of Dr. Buckhout, the defense expert on eyewitness identification testimony, will therefore be permitted at this trial only to the extent that it is limited to a discussion of the facts which scientific research has shown are relevant to determining whether a reliable eyewitness identification has been made. He will not be permitted to venture any opinion as to the reliability of eyewitness identification testimony in general or the credibility or reliability of the testimony of any witness in this case. He will specifically be precluded from offering any testimony as to his assertion that laymen place an undue emphasis on identification testimony in general or that cross-examination is not effective to discern unreliability because the witness truly believes he is telling the truth. The defendant should consider himself forewarned that upon objection by the People, any intrusion into these prohibited areas will be prevented.
In closing, the court notes that it is not unmindful of the practical difficulties this ruling may cause or the financial burden it may impose upon criminal defense budgets.
An interesting discussion of judicial concern over the emergence of a new cottage industry of psychological experts who will be called to testify in every case involving eyewitness identification testimony is contained in footnote 27 to the court’s decision in Downing (753 F2d 1224, 1243, supra).