STATE of Tennessee v. Eddie L. COLEY, Jr.
Supreme Court of Tennessee, at Nashville.
Oct. 13, 2000.
Reconsideration Denied Nov. 22, 2000.
32 S.W.3d 831
Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, and Kathy Morante, Deputy Attorney General, Ronald L. Davis, District Attorney General, Derek Smith, Assistant District Attorney General, for the appellee, State of Tennessee.
BIRCH, J., delivered the opinion of the court, in which DROWOTA, and BARKER, JJ., joined.
This appeal arises from the trial court‘s exclusion of expert testimony concerning eyewitness identification sought to be offered by the defendant in his trial for aggravated robbery. At trial, Eddie L. Coley, Jr., the defendant, sought to introduce expert testimony concerning eyewitness identification; at the State‘s objection, the trial court refused to admit the testimony. Coley appealed to the Court of Criminal Appeals. The intermediate court affirmed his conviction and sentence. Appealing to this Court, Coley contends that the trial court abused its discretion in refusing to admit the expert testimony. We accepted review in this case to determine the admissibility of expert testimony concerning eyewitness identification. We hold that the testimony proffered here is inadmissible under
I. Facts and Procedural History
Coley does not challenge the sufficiency of the evidence upon which he was convicted; thus, only those facts necessary to this appeal are provided. On July 15, 1995, Sarah Blumberg and Jennifer McMillen were working at an ice cream shop in Brentwood. At approximately 1 p.m., a male entered the store. After placing an order, the male brandished a gun and instructed one of the employees to put the store‘s money into a bag. The male then forced both employees into the store‘s walk-in freezer where they remained until they heard a customer enter the store. After exiting the freezer, they called the police.
The police uncovered no physical evidence at the crime scene. Both employees, however, separately described the robber as an obese “Black” man around 5’ 9” tall and about twenty years old. The employees then helped the police prepare separate composite pictures of the robber. Nine days after the robbery, Blumberg observed a photographic line-up which included Coley‘s picture. She identified him as the robber. Five months after the robbery, McMillen saw the same photographic line-up. She too identified Coley.
At trial, the critical issue was identification. The State‘s case relied heavily on Blumberg‘s and McMillen‘s pre-trial and in-court identifications of Coley. Coley, on the other hand, offered an alibi defense, maintaining that another person had committed the robbery. Coley desired to adduce the testimony of Michael G. Johnson, Ph.D., J.D., an expert in the field of eye
The trial court, nevertheless, allowed Johnson to make a proffer of his testimony for the record. The proffered testimony included information covering the following topics:
- the process of eyewitness identification;
- the relationship between stress and memory of an event;
- cross-racial identification;
- the confidence the witnesses have in the accuracy of their identifications and the actual accuracy of their identifications;
- the effect of time on the accuracy of memory; and
- the suggestibility of the photographic line-up used in this case.
The jury found Coley guilty of aggravated robbery,1 and sentenced him to twelve years in the Department of Correction. Coley appealed, contending that the trial court erred in excluding the expert‘s testimony and that the sentence was excessive. The intermediate appellate court affirmed Coley‘s conviction and sentence.2 On appeal to this Court, Coley contends that the trial court abused its discretion in excluding Johnson‘s testimony and that he was prejudiced by its exclusion.3 The State, on the other hand, contends that Johnson‘s testimony was properly excluded. We accepted review in this case to determine the admissibility of the proffered expert testimony concerning eyewitness identification.
II. Standard of Review
Determinations of the admissibility of expert testimony are made within the sound discretion of the trial court. State v. Ballard, 855 S.W.2d 557, 562 (Tenn. 1993). The standard of review on appeal is whether the trial court abused its discretion in excluding the expert testimony. The abuse of discretion standard contemplates that before reversal the record must show that a judge “applied an incorrect legal standard, or reached a decision which is against logic or reasoning that caused an injustice to the party complaining.” State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999); State v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997).
III. Analysis
As a general rule, the admissibility of expert testimony in Tennessee is governed by
- whether the scientific evidence has been tested and the methodology with which it has been tested;
- whether the evidence has been subjected to peer review or publication;
- whether a potential rate of error is known;
- whether the evidence is generally accepted in the scientific community; and
- whether the expert‘s research in the field has been conducted independent of litigation.
McDaniel, 955 S.W.2d at 265. Here, the question is whether the evidence is inadmissible because expert testimony describing the general reliability of eyewitness testimony “is not reliable enough to ‘substantially assist’ a jury in an inquiry of whether” the two employees’ testimony should be believed. See e.g., State v. Ballard, 855 S.W.2d 557, 562 (Tenn. 1993).
Though the admissibility of each expert‘s testimony generally rests within the sound discretion of the trial judge, Tennessee courts have, on occasion, excluded specific categories of expert testimony. See State v. Ballard, 855 S.W.2d 557, 561-63 (Tenn. 1993); see also State v. Schimpf, 782 S.W.2d 186, 189-95 (Tenn. Crim. App. 1989). Applying
[i]n the context of the criminal trial, expert scientific testimony solicits the danger of undue prejudice or confusing the issues or misleading the jury because of its aura of special reliability and trustworthiness. This ‘special aura’ of expert scientific testimony, especially testimony concerning personality profiles of sexually abused children, may lead a jury to abandon its responsibility as a fact finder and adopt the judgment of the expert. Such evidence carries strong potential to prejudice a defendant‘s cause by encouraging a jury to conclude that because the children have been identified by an expert to exhibit behavior consistent with post-traumatic
stress syndrome, brought on by sexual abuse, then it is more likely that the defendant committed the crime. Testimony that children exhibit symptoms or characteristics of post-traumatic stress syndrome should not suffice to confirm the fact of sexual abuse. The symptoms of the syndrome are ‘not like a fingerprint in that it can clearly identify the perpetrator of a crime.’ Expert testimony of this type invades the province of the jury to decide on the credibility of witnesses.
855 S.W.2d at 561-62 (internal citations omitted).
Here, as in Ballard, we are presented with testimony of a general nature designed to affect the juror‘s decision on the credibility of witnesses. Using the Ballard rationale, expert testimony concerning eyewitness identification “solicits the danger of undue prejudice or confusing the issues or misleading the jury....” Id. at 561. As a result, it may “lead a jury to abandon its responsibility as fact finder and adopt the judgment of the expert,” rather than “assist” the jury in making its own determination of credibility. See Id.
We also note that the closest we have come, thus far, to the issue posed in the case under submission was in State v. Dyle, 899 S.W.2d 607 (Tenn. 1995). In Dyle, we were asked to approve certain jury instructions, known as the United States v. Telfaire4 instruction, given in cases where identification of the perpetrator is a material issue. Id. “[A]cknowl-edging that accuracy of eyewitness testimony is affectable by the usual universal fallibilities of human sense perception and memory,” we rejected both our own pattern jury instruction on identity approved for use in Tennessee as well as the specific instruction created by the District of Columbia Circuit Court of Appeals in Telfaire, choosing instead to promulgate our own new instruction for cases involving eyewitness identifications.5 Id. at 612. In rejecting the Telfaire instruction, we noted its inappropriateness “because it impermissibly comments on the evidence; thus invading the province of the jury.” Id. Thus, we emphasized that the assessment of witness credibility and the role of factfinder is always left to the jury, regardless of the issue present in the case. Moreover, the reassessment and revamping in Dyle of our pattern jury instructions on identification suggests, by analogy, that expert testimony on the issue of identity should be excluded.
We are of the opinion that there are too many variables involved including individual power of observation, individual reaction to stress or the threat of violence, the visual acuity of a particular witness, as well as numbers of general, common factors unamenable to charting and categorizing.
And in State v. Wooden, 658 S.W.2d 553, 556 (Tenn. Crim. App. 1983), the court found the following:
To admit such testimony in effect would permit the proponent‘s witness to comment on the weight and credibility of opponents’ witnesses and open the door to a barrage of marginally relevant psychological evidence. Moreover, we conclude, as did the trial judge, that the problems of perception and memory can be adequately addressed in cross-examination and that the jury can adequately weigh these problems through common-sense evaluation.
In other jurisdictions as well, an overwhelming majority of courts have upheld the trial court‘s finding that the testimony is inadmissible.6 These courts have provided many reasons for excluding this type of expert testimony. For example, some courts have upheld the exclusion because such testimony is unhelpful and simply offers generalities. See Brien, 59 F.3d at 277. As the Nebraska Supreme Court has noted:
the knowledge of behavioral scientists, such as psychologists, is probabilistic, couched in terms of averages, standard deviations, curves, and differences between groups. A court, however, is not concerned with the average eyewitness’ reliability but with the reliability of the specific eyewitness before it, who may vary from the average in probabilistic but ultimately unknown ways. It is not the research behavioral social scientist who is in a position to assess a specific witness’ reliability; the jury, which views the witness as an individual, is best able to collectively determine, on the basis of common human experience as yet unsurpassed by laboratory research, how to weigh what an individual witness has to say.
State v. Trevino, 230 Neb. 494, 432 N.W.2d 503, 520 (1988).
Other courts have excluded this type of testimony because “[s]uch expert testimony will not aid the jury because it addresses an issue of which the jury is already generally aware, and it will not contribute to their understanding of the particular dispute.” Hall, 165 F.3d at 1104 (quoting United States v. Hudson, 884 F.2d 1016, 1024 (7th Cir. 1989)). Thus, the “‘reliability of eyewitness identification is within the knowledge of jurors and expert testimony generally would not assist them....‘” McClendon, 730 A.2d at 1114 (citation omitted).7
Finally, courts have reasoned that this testimony invades the province of the jury by evaluating witness credibility. Campbell, 814 P.2d at 5 (citation omitted).8 Rather than permit experts to testify in such cases, usurping a function traditionally left to juries, courts have found that “juries may be made to understand psychological factors which affect the accuracy of an identification when these factors are brought to light at cross-examination and during closing argument.” State v. Percy, 156 Vt. 468, 595 A.2d 248, 252 (1990). Thus, “jurors using common sense and their faculties of observation can judge the credibility of an eyewitness identification, especially since deficiencies or inconsistencies in an eyewitness‘s testimony can be brought out with skillful examination.” Smith, 156 F.3d at 1053 (quoting Harris, 995 F.2d at 535).9 Courts have also reasoned that along with cross-examination, jury instructions specifically tailored to cases involving eyewitness identification sufficiently aid the jury in determining the credibility of the witnesses. As the Kansas Supreme Court has reasoned:
we have concluded that requiring trial courts to admit this type of expert evidence is not the answer to the [eyewitness identification] problem. We believe that the problem can be alleviated by a proper cautionary instruction to the jury which sets forth the factors to be considered in evaluating eyewitness testimony. Such instruction, coupled with vigorous cross-examination and persuasive argument by defense counsel dealing realistically with the shortcomings and trouble spots of the identification process, should protect the rights of the defendant and at the same time enable the courts to avoid problems involved in the admission of expert testimony on this subject.
State v. Gaines, 260 Kan. 752, 926 P.2d 641, 647 (1996) (quoting State v. Warren, 230 Kan. 385, 635 P.2d 1236, 1236 (1981)).10
Governed by the fundamental principles of McDaniel, and the rationale of Ballard and Dyle, we find that expert testimony concerning eyewitness identification simply offers generalities and is not specific to the witness whose testimony is in question. Moreover, we are of the opinion that the subject of the reliability of eyewitness identification is within the common understanding of reasonable persons. Therefore, such expert testimony is unnecessary. It may mislead and confuse, and it could encourage the jury to abandon its responsibility as fact-finder. Such responsibility is a task reserved for and ably
We recognize that we are in the minority of jurisdictions which find such testimony per se inadmissible, rather than leaving the determination of admissibility to the discretion of the trial court.12 Nonetheless, we are convinced that a per se rule of exclusion is appropriate. First, leaving the admissibility of this type of expert testimony to the discretion of the trial court would require us, at least implicitly, to reject the sound reasoning of Ballard. Second, the rules of evidence from those jurisdictions which leave the admissibility of expert testimony concerning eyewitness identification to the discretion of the trial court require, as does
IV. Conclusion
For the reasons articulated above, general and unparticularized expert testimony concerning eyewitness testimony, which is not specific to the witness whose testimony is in question, is inadmissible under
Costs of this appeal are assessed to the defendant, Eddie L. Coley, Jr.
HOLDER, J., filed a dissenting opinion, in which ANDERSON, C.J., joined.
JANICE M. HOLDER, J., with whom E. RILEY ANDERSON, C.J., joins, dissenting.
I respectfully dissent. The admission of expert testimony on the reliability of eye
In rejecting the expert testimony in this case, the trial court did not conduct a McDaniel hearing. This Court, therefore, is without an adequate record upon which to judge the propriety of the exclusion of the evidence under our own precedent. The effect of the majority‘s decision is to exclude from consideration under McDaniel one class of proffered scientific evidence. The majority‘s approach forecloses judicial recognition of future scientific advances in this area, a result seemingly in conflict with our rationale for adoption of the McDaniel standard. Id. at 262 (stating that formerly adopted Frye test for admissibility was criticized as “too restrictive of relevant evidence, particularly new or ‘cutting edge’ scientific theory“). The majority opinion effectively shuts the door to future legal development in this area by requiring a litigant to overturn Tennessee Supreme Court precedent before his proffered evidence could even be considered by a trial court.
I agree with the majority that our Dyle jury instruction adequately addresses those factors affecting eyewitness testimony that are within jurors’ common understanding. The Dyle factors, however, share one common characteristic not found in the testimony proffered in this case: they relate to non-scientific factors affecting eyewitness testimony. I am unconvinced that the testimony omitted in this case is within the “common understanding” of the jury.
Most, if not all, of the proffered testimony is scientific in nature and therefore falls outside the realm of common knowledge. Cf. State v. Murphy, 953 S.W.2d 200, 202-03 (Tenn. 1997) (categorizing horizontal gaze nystagmus (“HGN“) sobriety tests as “scientific” because of necessity of explanation of underlying scientific basis before test becomes meaningful to a jury). There are many scientific and legal publications regarding eyewitness identification, and the body of work, including case law, is growing. See generally Roger B. Handburg, Expert Testimony on Eyewitness Identification: A New Pair of Glasses for the Jury, 32 Am.Crim.L.Rev. 1013 (1995); Robert J. Hallisey, Experts on Eyewitness Testimony in Court—A Short Historical Perspective, 39 How. L.J. 237 (1995); Hon. D. Duff McKee, Challenge to Eyewitness Identification Through Expert Testimony, 35 Am.Jur. Proof of Facts 3d 1 (1996 & Supp.1999); Gregory D. Sarno, Annotation, Admissibility, at Criminal Prosecution, of Expert Testimony on Reliability of Eyewitness Testimony, 46 A.L.R.4th 1047 (1986 & Supp.2000). It is difficult to conclude that so much scientific study, scholarly debate, and comment have been engendered by what is simply a matter of common knowledge.
Even assuming that these matters are truly within jurors’ common understanding, there still exists the question of validity of that understanding. Authorities indicate that, in reality, many commonly-held notions regarding the reliability of eyewitness testimony are wrong. See United States v. Smithers, 212 F.3d 306, 312 n. 1 (6th Cir. 2000) (noting “many of the factors affecting eyewitness impressions are counter-intuitive“). Thus, the majority‘s per se rule may actually serve to sanction judicially and preserve for all time a common understanding that is, in fact, invalid.
Finally, the majority‘s contention that this evidence “may mislead and confuse, and it could encourage the jury to abandon
I am authorized to state that Chief Justice Anderson joins in this dissenting opinion.