United States v. James Smithers

senger side of a parked car in the parking MARBLEY, District Judge. lot. Appellant James Smithers was convicted Timothy Wilson, robbery witness, bank second violation of was 18 U.S.C. a bank 2113(a). § customer who walked into Smithers the bank appeals now various the same aspects time trial, of his as the robber. The including the district robber held the open court’s door for exclusion of him they testimony of an both entered the building. Mr. expert, Wilson the limita- saw the robber go tion of straight Smithers’s wife’s the teller testimony, and the and then leave the bank quickly. court’s response questions posed after it began deliberating. Investigators from the County Monroe For the following reasons, we REVERSE Department Sheriffs spoke to the wit- the conviction below and REMAND this nesses that day. Marino, Ms. who was case for a new pursuant trial to the law set approximately three feet from robber, forth herein. him described aas white male in his late wearing twenties jacket, Nike baseball I. cap sunglasses, tall, over 2”6’ 180-185 On the morning of 12, 1996, November a pounds, with long bushy hair, dark a mous- man walked into the Monroe Bank and tache and a thin beard. Ms. White de- Trust Terence, Michigan, and presented scribed the robber as taller than average, bank teller Teresa Marino a note. The with squinty eyes and wearing a bulky read, note “I have a gun. Give your me striped jacket. Ms. White described the * The Algendn Honorable L. Marbley, Ohio, sitting by designation. States District Judge for the Southern District Marino that she had Ms. black, Ms. told late White brown a two-toned car as from identify the robber been able Carlo, a cream colored with Monte 1970’s spread. Mr. plate. photo license and an Ohio roof landau very tall the robber as recalled

Wilson handwriting exemplars were beard, partial man, moustache with a analy- laboratory for FBI submitted sunglasses cap, dark a baseball wearing were The results inconclusive. sis. The jacket. winter and a to Michi- note was submitted demand of the Toledo day, finger- officers Laboratory next Police gan The State fitting a vehicle noticed Department produced one analysis. Police print in the rob- car used description government claims print. identifiable Toledo. complex inconclusive; bery apartment at an print Red- Thomas County print Detective Monroe that the analysis claims the showed vehicle, a to the Ms. White drove mond him. belong not to did Cutlass, she identi- which 1976 Oldsmobile spe- Smith, FBI examiner who an Peter robbery. in the car used fied as the in photo- analyzing exhibits cializes in Smithers. to James registered was car form, height a performed graphic home, to Smithers’s then went Officers video- the bank depicted in of the robber Smithers, wife, informed Josette his where rob- concluded tape. Mr. Smith parents’ his house. he was at them that 6’ 5”. Mr. approximately measured ber apart- Smithers’s searched The officers analy- comparative a conducted Smith also incriminating evidence. no found ment but photos with a in the the robber bank sis of parents’ his They located Smithers could neither He of Smithers. photograph his police to home, accompanied and he Smithers identify nor eliminate positively officers that told the Smithers apartment. robber. as the bank his from brother-in- bought vehicle he 1997, jury returned grand a On June Dallas, a set law, still retained who Steve with one charging Smithers an indictment also stated the car. Smithers keys to robbery in violation count of bank 12, 1996, of November morning that on 2113(a). § U.S.C. was plate license noticed his rear he had 18, 1997, filed a Smithers December On plate to his front he had moved missing, so motion in limine to determine ten-page have noticed He also claimed the rear. expert testimo- admissibility of certain car on other morn- missing from gas testimony. The eyewitness ny regarding a that there was later, said ings; jury commenced district court consented gas tank. Smithers hole jury After January 1998. trial on car, no produced which to a search court heard the district empaneled, was Smithers volun- incriminating evidence. limine, motion on Smithers’s argument department sheriffs to the tarily went motion, every- noting that and denied samples handwriting provided he where say about would have thing fingerprinted. photographed and was within the eyewitness him, Red- Detective photographing When court knowledge” The jury’s “common 6’ height as noted Smithers’s /£”. mond an instruction give it would stated prepared photo Redmond Detective attor- testimony. Smithers’s eyewitness pho- including a photographs, of six spread make a writ- permission ney requested 14, 1996, November On to of Smithers. allowed. the court which proffer, ten the photo showed Redmond Detective case, in- its presented government Marino, Ms. Mr. Wilson and Ms. spread to testimony from Ms. eyewitness cluding Wilson Mr. could Ms. Marino and White. Wilson. De- Marino, White Mr. Ms. photo from the identify the robber identify inability Smith- prior spite their Mr. out Smith- picked spread. Ms. White Marino and spread, Ms. identification, photo from ers Immediately her after ers. Mr. Wilson identified Smithers as the rob- The court opined also that Dr. Fulero’s ber in court. Ms. Marino and Ms. White was “not scientifically valid testified they did not notice that the “a opinion,” jury can fully understand that robber had any distinguishing features. got [sic] an obligation to be somewhat The government rested January skeptical testimony,” and 1998. “admission of Dr. Fulero’s testimony is in this case is almost tantamount Smithers filed his renewed motion in Court declaring the defendant not guilty limine and proof, offer of regarding expert aas matter of law.... eye [A]bsent the testimony, on eyewitness identification on witness testimony I don’t think there’s January proffer 1998. This described enough go here to jury.” Finally, anticipated testimony of Dr. Solomon the district remarked, “I’m also in Fulero, a proposed expert on eyewitness terested seeing a jury what will do identification. It noted that Dr. Fulero absent that expert testimony. It makes it “educate the general about the a more interesting I recognize case. it’s that may factors affect accura- the defendant’s stake, fate that’s at but cy,” including specific (1) the issues of: you can always argue for a new trial if he’s (the “detail salience” fact that eyewit- convicted.” nesses tend to focus on unusual character- people (2) istics they observe); the rela- After ruling, presented Smithers tionship between the time that passed has witnesses, few wife, including his who at- since observing the event and the accuracy tempted to establish an alibi defense. Ms. it; (3) of recalling the effect of post-identi- Smithers testified that Smithers was sleep- (4) fication events on memory; the fact ing their house from 3:00 a.m. to 11:30 that person when one both prepares and a.m. the morning 12, of November photo spread, administers the likelihood that as a light sleeper she would have (5) increases; misidentification of. the “con- heard her husband leave apartment. (the formity effect” fact that witnesses’ Ms. Smithers spoke also about her hus- memories are altered talking about the band’s appearance, maintaining that event with each other after it occurs); and weighed Smithers pounds 245 in Novem- (6) the relationship between a witness’s 1996, ber is 6’ 8” tall and has a four-inch confidence in her recollection and its accu- long scar on the right front side of his racy. Regarding issue detail sali- neck. ence, proffer stated that “[h]ad Mr. The case was submitted to Smithers been robber, the eyewit- 21, January 1998. The next day,

nesses the jury would have observed and been able returned a verdict of guilty. to recall The district large scar on Mr. Smithers’ court sentenced 4, Smithers on 1998, [sic] neck.” June forty-one to a month term of imprison- After hearing argument oral on the De- ment. Smithers timely filed a notice of fendant’s motion, renewed the district appeal 8, on June 1998. Smithers now court ruled that it would exclude the ex- appeals aspects various trial, of his pert testimony: one which we today: address the exclu- sion of Dr.

[primarily Fulero as eyewitness because it’s expert. late in day. It should have been much done earlier. On hand, the other I you’ve think got a II.

very good, if there’s a conviction, I think you’ve made an excellent record that Generally, a trial court’s evidentia I’ve abused my discretion in failing to ry determinations are reviewed for an it, allow and I think there’s a certain —I abuse of discretion. See United States v. prefer to see it way. that Moore, (6th 379, 954 F.2d Cir.1992). communi- general acceptance that district scientific argues Smithers Posher, introduce denial of his motion to ty); States v. 590 F.2d court’s United war testimony by an identification (1st Cir.1979) (ruling that the testimo- of his conviction. The rants reversal ny prejudicial). would be government’s case crucial element shifted with a of deci This trend series of the defen eyewitness identification was 1980’s, emerging sions in the with the view car, argues, and Dr. dant his offered, sub proper testimony may involved that be Fulero’s ject helpful that would been circumstances, subject of certain on the Smithers, evaluating issue. jury in factors influence psychological which therefore, the decision to contends See, memory process. e.g., United testimony, indulge expert’s exclude this (5th Moore, States v. in his rather eccentric judge district Cir.1986) (finding “[i]n a case which improper. experiment, courtroom testimony is the sole casual district government counters identification, testimony regarding its discre decision was well within court’s accuracy of that identification admis excluded properly tion. may properly encouraged sible and be prosecution ar testimony, Dr. ”); Downing, ... United States its lack of valid gues, upon based scientific (3d Cir.1985) (reasoning possi jury’s province, invasion of the ity, per “expert and the tardiness of bility confusion ception memory admitted [should] proffer. circumstances”); in some least expert testimony treatments of Courts’ Smith, 736 F.2d States v. has ex- eyewitness identification regarding Cir.1984) (“The arrived, day may have in the perienced a dramatic transformation therefore, testimony when Dr. can twenty is in a state of past years and still generally accepted conform to a be said to 1970’s, early Beginning in the de- flux. explanatory theory.”). State court deci bring attorneys began expert to tes- fense See, e.g., this sions also reflect trend. Then, timony the courtroom. courts into Buell, 124, 22 Ohio 489 State v. St.3d skeptical admitting uniformly about were (1986) rule (overruling per se N.E.2d 795 elaborating a of rea- testimony, such host why holding expert testimony not be and admissible eyewitness experts should sons testify. case allowed to In the first factors affect generally inform about issue, Amar- United States v. address the Indeed, ing memory process). several (9th Cir.1973), al, Ninth 488 F.2d 1148 an of have held that abuse courts that the court did not Circuit held to exclude such testimo discretion expert testimony regard- in excluding err Stevens, See, e.g., v. 935 ny. United States eyewitness because ing (3d (revers Cir.1991) 1380, F.2d 1400-01 was sufficient to reveal cross-examination Smith, trial); for ing remanding and new in Af- any the identifications. weaknesses error harmless (holding 736 F.2d 1107 decision, rejected ter that series of cases evidence); light inculpatory in of other variety for similar evidence of reasons. (holding 753 F.2d at error Downing, 1232 Purham, See, e.g., v. 725 United States light evi inculpatory in harmless other (8th Cir.1984) 450, (finding F.2d 454 281, dence); Chapple, Ariz. State v. 135 jurors); expertise question within the (1983) re (reversing 1208 660 P.2d 616, Thevis, 641 v. United States trial). jurispruden for This manding new (5th Cir.1982) (reasoning that identification of mod surprising light in tial trend is adequately through addressed cross- that, which show ern scientific studies Sims, examination); v. 617 United States (9th Cir.1980) heavily tes- 1371, rely eyewitness (finding juries no while timon'y, it can be untrustworthy under cer- fication to shed light upon eyewitness’s an tain circumstances.1 testimony. The lower court excluded the testimony, finding that it was inadmissible Recognizing dichotomy eye- between pursuant to Federal Rule of Evidence 403. jurors’ witness errors and eye- reliance on appeal, On applied Court the four witness testimony, this Circuit has held prong test for testimony articulated subject on the Green, United States v. in 548 F.2d 1261 eyewitness identification is admissible. In (6th Cir.1977): (1) witness, that the a qual- Smith, States 736 F.2d 1103 (2) expert, ified was testifying to a proper Cir.1984), Court held that a trial court (3) subject, which conformed to a generally abused its discretion excluding such an accepted (4) explanatory theory, and Smith, expert. In sought defendant probative value of the testimony out- introduce psychologist weighed prejudicial effect. Solomon Fulero —the same expert Smith- attempted ers to introduce at his standard, trial —as Applying the Court noted an expert in the field of identi- the offered testimony would have plethora 1. A of recent studies show ignorance This can devastating lead to re accuracy of an identification de study sults. One has estimated that half of all pends observed, on how the event is retained wrongful convictions result from false identi generally recalled. See Roger V. Hand Loftus, fications. See Elizabeth F. Ten Years berg, Expert Testimony Eyewitness Witness, Expert Identifi &Law Hum. Life of cation: A Pair Jury, New Glasses (1986) (citing a 1983 Ohio Behav. (1995). Am.Crim.L. Rev. 1018-22 Mem University dissertation). State doctoral And ory perception may be affected factors 4,250 has ”[i]t been estimated that more than such as: per year Americans are wrongfully convicted (1) interval, the retention which concerns sincere, yet due woefully eyewit inaccurate person’s rate at which a memory de- ness identifications.” Andre A. Moenssens et time; (2) factor, clines over the assimilation al., Scientific Civil and Evidence Criminal which concerns a incorporation witness’s 19.15, § (4th ed.1995) (cit at 1171-72 Cases gained subsequent information to an event Wade, ing United States v. 388 U.S. event; into his memory or her of that (1967)). S.Ct. 18 L.Ed.2d prin A (3) the confidence-accuracy relationship, cipal cause such convictions is "the fact which concerns correlation between a that, general, juries unduly receptive witness’s confidence in or his her memory identification evidence sufficiently and are not accuracy and the memory. of that Other dangers.” aware of its Patrick M. Eye Wall, (4) stress; (5) relevant factors include: the 19 Witness Identification in Criminal Cases situation; (6) violence of the the selectivity (1965). Many jurists agree eyewitness that (7) perception; (8) of expectancy; the effect are identifications the most devastating and repeated (9) viewings; of and the cross- persuasive See, evidence in criminal trials. aspects identification, racial of that is Sowders, e.g., 341, 352, Watkins 449 U.S. eyewitness where the and the actor in the (1981) 101 S.Ct. 66 549 (stating L.Ed.2d situation are of different groups. racial "[tjhere that is nothing almost more convinc Stetler, Alan K. Subjects Particular Expert of ing than live being a human who takes the Evidence, Opinion and 31A Am Expert Jdr. stand, points defendant, finger at the and (1989). § 371 Accordingly, "a should says ”) (Brennan, J., ‘That’sthe one!’ dissent consider several factors in judging the accura- (citations ing) omitted); Manson v. cy Brath eyewitness of an identificátion. Social sci- waite, 98, 120, 432 U.S. 97 S.Ct. ence 53 however, data suggests, jurors that are (1977) L.Ed.2d 140 (stating “juries that unaware of unfor several scientific principles affect- tunately ing unduly are eyewitness receptive often to [identi Handberg, identifications.” evidence”) (Marshall, J., supra, fact, fication] at dissenting); 1022. In many because McKee, Hon. D. Duff affecting eyewitness Challenge Eyewitness factors counter-intuitive, impressions are Through Expert many jurors’ Testimony, assumptions 35 Identification (1996) about how § 3d ("Eyewitness memories POF are actively created Am. Jur wrong. (find- testimony may reliable, See Downing, the yet F.2d least and tend, "[[¡actors ing that bearing the eyewitness compelling.”). most iden- Jurors to over tification may be jurors, known only accuracy to some estimate eyewitness the of identifica may or be imperfectly by many, they understood tions because often do not know the may or be contrary to the intuitive they beliefs factors of should analyzing consider when most”) (citations omitted). testimony. Handberg, See supra, at 1022. harmless, was deemed error trial court’s factual situ- hypothetical “a based been af- conviction was defendant’s and and the of the case facts identical” ation (1) that a witness firmed. explained: in a identify the defendant not does who proper the argues that now “unconsciously transfer” may line-up first eyewitness of the admission standard to a sec- the defendant visualization of his out in Smith. testimony is that set expert identi- incorrectly thereby line-up and ond of Smith significance disagree. The We (2) time; that the second fy the defendant testimony expert evaluating of terms unrelia- the inherent demonstrate studies of landmark decision after the questionable (3) identifications; and cross-racial bility of Pharmaceuticals, Dow v. Merrell Daubert situa- during a stressful encounter that an 2786, 125 L.Ed.2d 579, 113 S.Ct. 509 U.S. ability to eyewitness’s the decreases tion (1993). Daubert, Supreme In and decreases remember and perceive courts test that trial articulated Court identification. an accurate probability scientific determining whether must use Smith, at 1105-06. See testimony is admissible. Ac evidence testimony on that held Court Smith Daubert, must district court cording reliability of testimo all scientific any and “ensure that Rule of Federal “helpfulness” test themet is not rele admitted ny had been or evidence therefore 702 and of Evidence 589, 113 S.Ct. vant, Id. at The Court at trial. reliable.” but improperly excluded requires trial courts a 403 bal- reviewing Daubert thus “[i]n 2786. explained First, the evidence inquiry. look at two-step court must ancing, perform propo- expert’s most favorable to light in the whether determine court must value and nent, maximizing probative knowledge,” its “scientific testimony reflects effect,” id. at prejudicial minimizing prelimi “a is, must make the court testimony “[s]ueh concluded reasoning of whether nary assessment facts exact relevant been might have underlying methodology or only might have court and before and of whether scientifically valid have refuted jury, might assisted but can be methodology properly or reasoning assumptions common 592-93, their otherwise Id. at in issue.” to the facts applied eyewitness identifi- reliability about Second, must 2786. S.Ct. Further, Smith Id. 1106. cation.” proposed ensure psycho- acceptance expressed its Court at hand will the task is relevant scientifically sound and aas logical studies See id. The of fact. the trier aid serve to noting, testimony, subject of proper this second referred to Court Supreme perception has science “[t]he id. requirement. as the “fit” prong exactness, methodolo- level achieved opinion re- Justice concurring any psychological reliability Citing gy Carmichael, Tire Co. v. at 1107. in Kumho Id. search.” Scalia’s 1167, 143 L.Ed.2d S.Ct. 119 526 U.S. af- was nonetheless conviction Smith’s proclaims that (1999), Dissent the 238 by the any error that ground the firmed on prof- evaluate “holy writ” to is not Daubert excluding proffered the court While it Rule 702. experts under fered The Smith testimony was harmless. “do not con- factors that the Daubert true had not government noted Court ...,’” or test checklist a ‘definitive stitute who identi- witnesses only presented three (citing 1175 Tire, 119 S.Ct. at Kumho but perpetrator, the as defendant fied the 2786), S.Ct. Daubert, 113 509 U.S. was recov- palm print defendant’s “[a] did conclude Court Supreme crime, thus “whol- at the scene of ered specific fac- consider should trial court alibi” de- defendant’s discrediting the ly are they in Daubert where tors identified there was Because at 1107-08. Id. fense. reliability of of the measures evidence, reasonable inculpatory significant other 314

expert testimony.” Id. at Cir.1996); 1176. The Brien, United States v. (1st Court also stressed: Cir.1995); 274 United States v. Rin con, (9th Cir.1994), F.3d 921 the lesson We conclude that general Daubert’s from these cases is not that testi principles apply to the expert matters mony eyewitness identification is never described in Rule, Rule 702. The appropriate; rather, the cases indicate respect matters, to all such “establishes that courts must consider whether the tes a standard of evidentiary reliability.” timony helpful would be or confusing to ... It “requires a ... valid connection jury. The cases also discuss whether pertinent inquiry precondi- aas this type of testimony touched on the “ulti tion to admissibility.” ... And where mate in the issue” case and therefore testimony’s basis, such data, factual usurped role; jury’s whether there principles, methods, or application them was other evidence against defendant; sufficiently called into question ... and whether the jury could properly more judge the trial must determine whether evaluate reliability testi “a has reliable basis in the mony through light cross-examination. In knowledge and experience of [the rele- cases, of these we believe that the district discipline.” vant] court performed should have (citations omitted) Id. at 1175 (emphasis under Daubert, than, rule of rather added). Smithers argues, that of Smith. any In Supreme Court Kumho indicated event, the trial court did analyze set forth in Daubert, standards admissibility of testimony in depending on the “particular circum- this case under either of these cases. stances particular id., case,” should We find that the district court abused its flexibly applied. Contrary the Dis- discretion excluding Dr. Fulero’s testi- sent, Supreme Court’s reasoning does mony, without first conducting hearing not indicate that Daubert should be aban- pursuant to Daubert. There are several totally. doned This Court that in finds bases for this conclusion. As a threshold case judice, sub given the expert and the consideration, we address the district testimony that proffered, the stan- “experiment” court’s comment. The dis- dards of Daubert should have ap- been trict explained court that it was interested plied.2 in seeing what a jury would do absent the While it true that post several testimony because it would make Daubert trial cases “more interesting.” The district have found that the exclusion of the testi stated: mony was not discretion, see, an abuse of I’m also interested in seeing what e.g., Hall, United States F.3d will do absent that expert testimony. It (7th Cir.1999); Smith, United States v. makes it a 'more interesting case. I (10th F.3d Cir.1998); United States v. recognize it’s the defendant’s fate that’s Smith, (11th Cir.1997); stake, you but always can argue for a Kime, States v. 99 F.3d 870 new trial if he’s convicted. 2. The Dissent finds the Supreme steps Court’s that Smithers should have followed in Daubert decision is: making proffer his to the Court. Apparently, "holy [n]ot writ” that the district court provided Third Circuit has what Dis- must invoke pass name in order our writ,” sent “holy characterizes as notwith- scrutiny. standing the fact Downing that Steves and Instead, the suggests Dissent that the district pre-Daubert authority proffer and that the court should pre- have instead relied on a that Third these Circuit cases precedent, Daubert Third Circuit United States require does not meet Daubert's standard for Stevens, (3d Cir.1991), 935 F.2d 1380 and determining whether scientific evidence is ad- (3d United States v. Downing, 753 F.2d 1224 missible. Cir.1985), as the standard outlining Daubert fac- may have examined court at its gamesmanship is comment This this Tellingly, case. present in the disregard for tors troubling a reveals and worst Dr. Fulero’s already accredited has relegating those Court rights, this Defendant’s Smith, this In methodology. and The district science abstractions. to mere rights jurisprudential only in indulge noted it Court reasoning that could court’s admitting psychological could toward Smithers movement because experiment this experts general, trial ironically turned this appeal” studies “always scientific and qualifications where the laboratory experiment praised but a into witness, Dr. evidentiary play of this- same free to with methods judge felt addition, court Defendant’s the district In at the cost Fulero. variables testimony— on evidentiary decision this an Basing concluded rights. could have applica- curiosity rather than factors such describing psychological personal effect, conformity rules of evidence is salience, and the case law ble detail and the of discretion. patent photo abuse identifications dynamics relationships confidence-accuracy —could however, not, our deci base We do at issue to the facts applied have been “experiment” district court’s on the sion about the effects Information this case. this com Even without alone. comment on the wit- bear would detail salience in its eviden ment, court erred the district conspic- to notice failure nesses’ the Dau apply by failing tiary analysis conformity scar; about the evidence uous testimony. proposed bert test to the and Mr. Marino’s to Ms. apply would effect to admit of whether the decision Although identify ability to Wilson’s the sound testimony is left a witness’s White; the Ms. spoken with they had after court, a trial court the trial discretion cre- identifications photo suggestibility When arbitrary decision. make cannot single person administered ated and stake, in it is is liberty at a defendant’s that Detec- procedures apply to would apply trial court upon the cumbent used; explaining and Redmond tive law, appropriate deci follow correct confidence between lack correlation the bases steps articulate sion-making credibility of upon the bear Here, accuracy rests. decision which its upon Had the district eyewitnesses. all of the the ana applied have should district court of this proper evaluation Daubert, conducted court forth but set lytical principles have found may it believe testimony, we not. it did first testimony met the Dr. Fulero’s Daubert, should con- a trial court Under test. of the Daubert requirement (1) reasoning or meth- sider: whether expert’s underlying odology consid- have next should court The trial (2) valid; whether that scientifically testimo- proposed whether ered methodology properly could reasoning or task hand was relevant ny to aid the facts at issue applied to be The district fact. the trier of would aid court, neglect- The district of fact. trier extent, sec- did, discuss this to some court analysis, failed a Daubert ing to undertake (even it did not if prong ond Daubert into consideration. factors to take these so), by doing it was note explicitly Indeed, did not make the district fully understand” that “a can stating expert’s sci- as to this any determination skeptical of to be “obligation somewhat We find methodology. reasoning or entific point ad- This testimony.” given court had if the district “aid testimony would dresses whether consideration, may proper statement, issue court’s of fact.” the trier testimony scientifical- Dr. Fulero’s deemed and the however, wrong, simply valid. ly remand, reconsider court, should above, tend jurors noted As Tire, factor. 119 S.Ct. Kumho

Following to, skeptical than rather unduly receptive the district way consider the we next of, eyewitness testimony. Further, accept- Evidence 403. The Dissent concludes that ing the district court’s that all Rule permits the exclusion of relevant jurors are aware of obligation their to be evidence based on “delay.” Fed.R.Evid. skeptical would lead to absurd results: ex- 403. The misquotes Dissent and miscon pert testimony identification strues the meaning “delay” of in Rule 403. would never be admissible. As demon- Not all delay authorizes the exclusion of by law, strated abundant ease this is not relevant only “undue delay.” evidence— the conclusion that has been reached by Moreover, the term “delay” does not con courts addressing Today, this issue. there delay note in the submission of motions or is no question that many aspects per- of proffers; rather, encompasses pro ception memory are not within the longing of length trial, of the and can experience common jurors, of most and in properly conjunction read with the fact, many factors that memory affect other exclusionary time, factors: “waste of counter-intuitive. In Smith we recognized presentation or needless of cumulative evi expediency of testimony to ad- See, dence.” e.g., McShain, John Inc. v. dress complex these issues and to inform Co., (3d Cessna 563 F.2d 632 Cir. Aircraft jurors fully they issues must decide. 1977); United States v. International Bus. Mach., (S.D.N.Y.1980); 87 F.R.D. 411 Dissent counters arguing that Corp. SCM v. Xerox 77 F.R.D. experts Corp., are not (D.Conn.1977). necessary because cross-examination and jury instructions should be the tools-used “Delay” is a consideration effi in a trial to discredit and eyewit- flush-out ciency and is not distinguishable readily testimony. ness Unfortunately, the Dis- from “waste time.” 22 Charles A. sent’s to trial homage procedures does not Wright Jr., & Kenneth W. Graham Federal extend witness testimony. The Practice And Procedure: Evidence argument same can be made for the ad- § (1978); at 296 see also Christo mission of testimony: cross-exami- pher B. Mueller & Laird C. Kirkpatricx, jury nation and can be instructions used to (1995) § 4.5 (concluding that Evidence question qualifications proffered delay, “undue waste of time or needless expert, undermine the of the expert’s basis presentation of cumulative evidence” are theories, explain the limits social sci- concerns for the “concessions to the short ence’s validation pick studies apart life,” ness of “the limited resources of the research methods. given reason judicial system,” and presentation by the why Dissent for cross-examination evidence) (footnote omitted). cumulative and jury instructions can goals serve these “Delay” in Rule 403 does not mean “filed for eyewitness testimony, not for ex- but late” as the Dissent concludes. pert testimony, is that jury may take Furthermore, eases expert’s cited Dis- ir- “scientifically sent to support refutable contention that truth.” The Dissent’s selective basis for the district faith court’s exclusion collective intelligence, common Dr. sense and consideration decision-making ability of the of “delay” under Rule jury 403 do not explicitly is disheartening, and is also inconsis- cite to the Rule nor they do delay tent mention with the Dissent’s deference to the as a factor. United States v. matters, Curry, including other judging 977 F.2d Cir.1992); credibility eyewitness identifications. States Dowling, (3d Further, based on the comment Cir.1988). proffer of Dr. Fulero’s tes timony was “too day,” late the Dis The exclusion of Dr. Fulero’s tes sent crafts legal basis for the timony because present evidence was court’s exclusion based on Federal Rule of ed “late in day,” contrary to the Dis- proceedings likely would assertion, plexion of the not a basis proper was sent’s court con changed have had the district First, Ms the Defendant filed exclusion. hearing and determined ducted Daubert requesting motion in limine ten-page testimony that Dr. Fulero’s was admissi a full month before this issue ruling on And, properly points as the Dissent ble. trial, beginning At the trial. out, expert testimony should be admitted later, orally. A week his motion renewed precise presented in the situation the seven-page an additional submitted he is, there trial court in this case —that when Thus, subject. impossible it is the brief on inculpatory presented evidence is no other govern- the say that either the court or exception with the against the Defendant adequate of the not have notice ment did eyewitness of a number of identifica small Second, rel- “a criminal defendant’s issue. 1107; Smith, 736 F.2d at tions. may generally not be ex- evant evidence Moore, 1313; Downing, 786 F.2d at discovery of a sanction. cluded on the basis Here, eyewitness testimony F.2d at 1226.4 right Amendment The defendant’s Sixth crucial, if not the sole basis for was usually outweigh will an effective defense court conviction. The district Smithers’s discovery by pretrial the interest served case concluded that “[a]dmission this Collins, No. 87- States orders.” United testimony Dr. Fulero’s is this case is Jan.25, Cir. WL at *2 declaring tantamount to the almost Court 1988). eyewitness the importance Given guilty as a matter of law the defendant case, testimony in the district testimony I .... absent not have excluded Dr. Fulero’s tes- should enough go to think there’s here to don’t tardiness.3 timony supposed on its based jury.” The lower court did not seem expert testimony the trial realize that Finally, find we appropriate in such situations.5 The com- is most court’s error was not harmless. testimony specific of need argues additionally that when factors government 3. The on testi- ex- arise. Where identification rests proffer demonstrates that the jury's mony by who knew the defendant pert testimony have someone would invaded government points good position to see the province. Specifically, the well and was in a states, crime, proffer which the identification seems to the sentence in the or where robber, (like eye- strongly reasons "Had Mr. Smithers been the for other established connecting physical observed and been able defendant to witnesses would have evidence crime), large scar on Mr. Smithers's reason to admit to recall there is little agree government with testimony. identity neck.” We is a crucial Where such however, issue, wording, and poorly that no closely this was chosen contested testify may witness did or expert given by people as to what where critical heavily dependent see. In a case perpetrator did not and had who did not know identification, upon eyewitness such testimo- only him or were limited a short time to see factors, usurp jury's pro- ny could function testi- or distracted other improper comment on mony clearly duce an ultimate more warranted. seems case. The district to be decided in the issue court, however, B. Mueller Christopher Kirkpatrick, & Laird C. mention, 6.37, (1995). not even much did Evidence, § at 601 language on the in this less base its decision had, proper trying 5.Presumably, it solution the district court sentence. Even if that, inappropriate expert testimony would be express been to excise the would have portion proffer unduly prejudicial. rather than to exclude This conclusion noted, First, testimony, the of which Court "in all remainder flawed. reviewing as the Smith psychological balancing with the factors a 403 criminal [in dealt case], perception and may impacted the must look at the evidence in which the court proponent, light This memory of the witnesses in this case. most favorable to the probative maximizing both relevant and value and minimiz- evidence would have been its at 1107. helpful jury. ing prejudicial effect.” apply this standard district court did not has indicated: Second, 4. As one commentator . appears trial court here. [tjhere thought compro- nature of of a are some indications jury; is an unduly impress the favorably position be more mise that would improper upon which to exclude [eyewitness factor identification] inclined toward The have accept district court should conducted discretion not to such experts. For reasons, these I must hearing analyzed a under Daubert and the dissent. evidence to determine Dr. Fule- whether Delay I. proffered testimony ro’s reflects scientific knowledge, testimony noted, and whether the was majority As the the district relevant and would have aided of primary denying the trier court’s reason for fact. perform permit testify Based on its failure to renewed motion to Fulero to day.” was that it was made “too late in legal analysis analy- correct Daubert —the In reasoning Smithers’s initial motion “experiment” sis—as well as its rationale put in limine the Government on sufficient excluding testimony, we find that notice of testimony, majority Fulero’s the district court abused its discretion. makes no paucity mention of the of detail We therefore con- REVERSE Smithers’s which that motion contained. Further- and REMAND viction this case for pro- more, legal majori- foundation of the ceedings in accordance with this decision.6 is, view,

ty’s my reasoning erroneous. A appellate brief overview of the courts’ BATCHELDER, Judge, Circuit reception testimony on the falli dissenting. bility identifications is neces I would hold that the district court’s sary in order explain inadequacy decision to exclude Dr. testimony initial majority motion. The should be affirmed on the basis of Smith- correctly observes that for approximately delay ers’s in proffering specifics it in its the first decade or so in which such testi to the court and If Government. we submitted, mony was courts were “uni decision, however, reach the merits formly skeptical ... for a host of reasons.” nearly I am not majority so certain as the These reasons included of the distrust sci is that the court did not perform prop- ence behind the a testimony, concern that er legal analysis. Certainly we should the majority goes lengths to considerable make that decision on the a basis of review to But dispel. hardly this was the only not, of the entire record and as does the given reason for disallowing testimony, majority, largely on the basis of a handful skepticism rightly and that continues of unfortunate but irrelevant remarks appellate courts today. majority event, the district court. In any once we opinion in this acknowledges case some of decided, has, majority as the decisions, these sidesteps but the unani perform court did not proper Daubert hesitancy among mous appellate courts to analysis, response our should be to remand open the far testimony. door too to this In for a proper cases, the issue hearing. many should We testimony excluded is ei proceed ourselves, do that generic, ther a scholarly exploration of nor essentially should we issue what psychological a theory, bearing little relation blanket endorsement expert testimony case, see, to the facts of the particular e.g., subject of, a deserving best, Brien, our 274, United States v. 59 F.3d 277 (1st careful and skeptical scrutiny, Cir.1995); effectively Rincon, United States v. warning (9th 921, the district Cir.1994); courts this circuit F.3d Jordan v. that in the Ducharme, future it will be an 933, abuse of 983 F.2d Cir. test, testimony, for if this response were the no questions the district court’s testify. could ever cluding The court erred in con- posed by began deliberating. after merely testimony giv- because Because we have remanded a this case for expert, en it must be excluded. new based on trial the district court’s failure excluding conduct Daubert test before 6. appealed Smithers also his conviction on eyewitness expert’s testimony, these addition- (1) grounds: two other the district court’s al issues are moot. portion testimony exclusion of (2) relevancy grounds, Smithers’s wife on 795, 124, Blade, St.3d 489 N.E.2d 803-04 1993); v. Ohio States United (8th Cir.1987); (1986); Commomvealth, States v. 30 Va. Currie 464-65 (1st Posher, (1999). 382-83 Cir. App. 515 S.E.2d 1979), at the specifically else so directed or these have ex grounds on which courts validity particular witness’s rulings vary their plained —the determining jury’s role in usurp as to unhelpful, subject was within the was see, credibility, e.g., United States v. knowledge, subject jury’s common (2d 280, Cir.1999); 289 192 F.3d Lumpkin, testimony un proper expert not a one for Hall, 1095, 1107 v. 165 F.3d United States analogous der Evidence Rule 702 or some Kime, (7th Cir.1999); States v. 99 United test, prejudice substantially or the out (8th 870, Cir.1996); States F.3d 884 United weighed probative pursuant value (4th Cir.1995); 809, Dorsey, 812 v. 45 F.3d the same. Rule 403-—but results were Moore, 1308, v. 786 F.2d United States concept I will concede that the of (5th Cir.1986); v. 1311-12 United States subject eyewitness on the of (9th 1176, F.2d 1179 Cir. Langford, 802 identification, the scientific research and Gaines, 752, 1986); v. 260 Kan. 926 State testimony, gained has some behind Sabetta, (1996); 641, v. 680 645 State P.2d acceptance respect our courts since (R.I.1996). 927, In either situa A.2d 933 majority’s But own was introduced. tion, testimony may have though even subject recounting of the case law on this that the provided insight some measure of appropriateness using of reveals jury possessed, otherwise would not have testimony in court—instead of its tra such jury’s being unduly swayed of the the risk counteract the de ditional alternatives —to by testimony imprimatur of scien with eyewitness ficiencies of identifications is expertise significant deemed tific has been controversy, much in all of very still it could enough that the decision to exclude detailed above. The recent the reasons of the trial not be considered an abuse allowing towards the testi trend has been regard discretion with court’s considerable in a number of “narrow cir mony limited evidentiary especially matters.. This cumstances,” merely but this reflects light that the more tradi fact so gradual 702 and the ma liberality of Rule fallibility of exposing tional methods research, not the “dramatic turing of the eyewitness identifications' —-cross-examina judicial attitudes that transformation” tion, argu closing instruction and majority claims. See United States v. far less ment —are more efficacious and Cir.1998) (10th Smith, 1046, 1052 156 F.3d that can at risky expert testimony than and com (holding that cross-examination only marginally best be relevant out presumptively sense will suffice mon Tate, at hand. Moore v. 882 F.2d facts See [of] the “narrow circumstances cross- side (6th 1107, Cir.1989); Hall, 165 1110-11 identification, after a racial identification Smith, 1107; 122 at v. F.3d United States delay, ] ... under long [ identification (11th 1355, 1358-59 Cir.1997); United F.3d stress, ... the feedback factor and [ ] (9th 837, Hicks, v. 103 F.3d 847 States transference”); unconscious United States Kime, 884; Cir.1996); 99 F.3d at (4th 532, Harris, Cir. v. 995 F.2d 535-36 (9th Ginn, 367, v. 87 F.3d 370 Cir. States 1993) Currie, (same); at 338 515 S.E.2d Jordan, 1996); 925-26; Rincon, at 28 F.3d (“a Brien, (same); at 277 door 59 F.3d 938-39; at United States v. Cur 983 F.2d ajar”). now largely once shut is somewhat 1042, Cir.1992); F.2d 1051 ry, 977 retain expressly of our circuits Blade, 464-65; Moore, Some sister F.2d at jaundiced type of this of testi Fosher, 382; their view 1311-12; 590 F.2d at (“This Hall, mony. McClendon, v. Conn. State reflect long line of cases which (1999); Court has McMullen v. A.2d 1115-16 (Fla.1998); testimony on State, our disfavor 714 So.2d identification”); 642-43; Buell, reliability eyewitness Gaines, 926 P.2d at State (“This Smith, 122 F.3d at 1357 Court has ens this case to Fosher far more than to consistently unfavorably distinction, looked Apart on such Smith. from this Every testimony”). majority opinion’s court to address the characterization most, admissibility holding troubling. issue has left the of the testi- Smith’s At mony to the court said that Dr. sound discretion of the district Smith Fulero’s testi basis, mony reliability case-by-case eyewitness court on a testi either on the Daubert, mony might criteria, authority of meet the Green Rule or an anal- might improperly have been ogous state rule. No excluded. appellate court has not, did majority claims, We as the opinion adopted presumption or se rule in per express “acceptance our psychological favor of admitting studies a scientifically sound proper testimony, something majority’s subject of expert testimony, noting, opinion ‘[the] dangerously comes close to doing. science of perception has Many courts have expressly disavowed exactness, the level of achieved methodolo Smith, 1359; a such rule. See 122 F.3d at gy and reliability any of psychological re Alexander, 164, States 816 F.2d ” search.’ What we noted is that Cir.1987); Blade, Dr. Fule- 465; 169 811 F.2d at effect, id., and, ro had testified to that see 1179; Sabetta, Langford, 802 F.2d at in the final analysis, held that “even it at 933. A.2d if were error to expert’s exclude the testimo Moreover, federal appellate de ” ny, such error was ‘harmless.’ Id. at finding cisions type exclusion of this of added). 1106-07 (emphasis is also It expert testimony to be an abuse of discre noting worth in Smith readily tion are distinguishable from the unanimous; was not the concurring judge Stevens, In instant case. United States v. did not find an abuse of discretion. Since (3d Cir.1991), case, the Smith no Sixth Circuit decision Third Circuit reviewed a district court’s has a reversed district court’s exclusion of expert’s to admit the decision as expert testimony eyewitness identifica psychological some theories but not oth tions as abuse of an discretion. dangers ers. The of the expert’s testimo I will segment address in a later of this ny then, general, were not at issue. my dissent view of this utility, testimony’s panel The reversed it found no because but now say suffices to that because why reason the excluded theories did not of range circumstances which this “fit” the facts of the ease as much as those narrow, should be admitted is so that were In admitted. United States v. the party offering it should required be as (3d Downing, 753 F.2d Cir. a matter to threshold make 1985), the district court erroneously ex an proffer on-the-record detailed cluded the testimony per instead se of court, including explanation of pre- performing its gatekeeping function. In cisely expert’s how the testimony is rele- this decision, circuit’s Smith the Govern vant eyewitness un- identifications ment conceded Dr. Fulero’s expertise, see der proof consideration. The offer of 736 F.2d at and the proffer there should presence establish the of factors specifically tied the theories transfer stress, (e.g., or differences in age or race ence and cross-racial identification to the as between the de- and of that facts ease. See id. 1106. We fendant) which have been re- found specificity Fosher, used to distinguish impair searchers to accuracy eye- which representative was of the cases find witness identifications. ing expert testimony too removed from the particular facts to helpful. Stevens, See id. The 935 F.2d at (quoting Down- lack of specificity in 1242).1 proffer lik ing, 753 F.2d at The Downing 1. Contrary to the majority’s "holy characterization rigid writ” or "test” that the district citation, of this quotation to, I do not offer this court should have adhered but as a rather - theories on psychological which- proper Rule or case for a its remanded court curve,” stress, “forgetting memory3 (e.g., testi proposed hearing on etc.) may relationship, accuracy-confidence had mere court the district mony, because situation at hand. applicable in the issue on the -be on the sidebar held a brief ly vita of the memorandum’s attachments —Fulero’s a voir dire without of trial day tenth journal on the a selection articles and party either any time for or witness nothing provide topic plainly did Downing, its view. present — The Government made specificity. needed however, court Here, the district 1228.2 response memo- point precisely hearing on various pretrial held a properly randum,4 number of authorities one, and cited a limine, but including this motions in jury- suggesting cross-examination supporting mem of Smithers’s the content At were better alternatives. to en instructions inadequate woefully orandum began hearing, discussion to exercise its discretion the court able government writes by opining that “the 10-page sup manner. an informed argue to brief. You can pretty persuasive applica recited memorandum porting all make people mistakes Rules 702 the of Daubert ble standards discrepancies can out the bring Dr. You time. legitimacy defended jury in- [through' cross-examination quali academic study and field responded de- paragraphs struction].” fications, a few and included validity of the testi- fending the scientific iden reliability indicting asked, expert] “Has mony. [the The court abso It contained general. tifications negative Receiving a report?” a the testi rendered attempt explain to how lutely no “I would response, the court continued: of the case the mony would relate to facts examining this tech- ñique. One method explanation bur- of Smithers’s common-sense ask often it proffered nique’s reliability was to how his the relevance of den to establish Here, reason, pro- the produced result. the an erroneous testimony to case. For this the matter, exactly opposite "technique” reasoning or, posed for that is of the court's Stevens — identification, emphasis specificity in our an type; on to make the identical it seeks not by the why less valid explain made no reasons an identifica- Smith decision—is but to the Hence, pre-dates proper Daubert. a anal- may fact that it tion be incorrect. might be to ogy observation to this Daubert again on Tellingly, district court remand correctly 2. technique ascer- ask how often this unhelp- testimony, this time dismissed wrong. is tains that an identification prejudicial jury and more to ful to the Nevertheless, "[T]he continued: Smithers probative the de- it was to prosecution than error is addressed question of known rate of (E.D.Pa.1985). F.Supp. See fense. included as Attach- by [Handberg] article opinion. judgment without was affirmed The analyzes detail the ment C.... article This 85-1359, Downing, No. See United States likely to have variables effect that certain Nov.25, 1985) (table). (3d Cir. 780 F.2d 1017 correctly eyewitnesses ability to on the seen, they previously identify persons only in this memoran- 3. assertion made making iden- of error in pointing out the rate "spe- arguably be considered dum could parts of scientific [This] tifications. forms testimony case is the in this cific” to Fulero’s pass- testimony.” This of Dr. basis This "known rate error.” reference treatment ing Smithers’s entire reference was actually originated from discussion brief issue, not does of error” of the "rate analysis. of the Daubert Smithers’s recitation specificity. provide the needed step in "unclear how third Smithers was analysis, reviewing the rate of Daubert testi- noted "Fulero’s Government 4.The error, apply form of to this known assis- be of dubious mony ... would likewise rate-of- testimony.” Not scientific not jury. testimony does His tance to the by Dau- inquiry "step” mandated error case, such as specific in this to a fact relate "general simply observa- one of its bert but tions,” Instead, spread. efficacy photo Daubert, 593-94, S.Ct. U.S. testimony regarding his defendant will offer 2786, clearly inapplicable in this it is also arising problems from general example of scienti- cited as case. Daubert identification, specific issues to the in contrast treatment Seventh Circuit’s fic presented in the Smith case.” were tech- spectrographic voice identification motion, go through long have to dire ahead held hearing voir another you’re going of time. I think if remarked, have an finally “you got your togeth- act expert you’ve got to have a report. You’ve with filing_ er this latest Much differ- given curriculum me his vitae.... I’d be filing,” ent from the first to which Smith- happy to entertain [an It instruction.]” responded, “Admittedly, ers Your Honor.” exchange was after this that Smithers as- A lengthier conversation on the merits of serted for the first time that Fulero would ensued, followed “testify the specifics of the case and court’s decision to continue to exclude the explain that there are scientific testimony, primarily delay. because of the studies that have shown Rule permits Federal of Evidence 403 identification is flawed.” did Smithers still relevant evidence to be excluded “if its not, however, specific theory cite a or fact probative value substantially outweighed in the case to which these “scientific stud- danger of unfair prejudice, confu- ies” would relate. The court then conclud- issues, time, sion of the delay, waste of or ed that ... “[none cited to me cases] presentation needless of cumulative evi- suggests that this is admissible evidence. added). (emphasis dence.” A district court government’s very persuasive, brief is “very has making broad” discretion in report and I don’t have expert. from determination. See United States v. Haw- No, I think ... you’re asking him com- kins, Cir.1992). 969 F.2d A (em- upon ment credibility.” Debra White’s Daubert includes a consideration added). phasis Smithers conceded the mo- Daubert, of Rule see U.S. permission tion and asked proffer 2786; Rincon, 113 S.Ct. 28 F.3d at agreed, evidence. The court although and several courts have held that Rule it offered several accept times to an oral “helpfulness” 702’s inquiry incorporates time, proffer at that insisted Rule prejudice. 403’s concern for undue delivering it in writing. Hall, 1104; Kime, 165 F.3d at It proffer, the written which was 884; Curry, 977 F.2d at 1051. The not until filed after the Government had district court was well within its discretion immediately rested its case and before to to require refuse the Government to his, Smithers rested that Smithers first a prepare response to an witness any made attempt colorable to tie Dr. when inkling the first of what the witness Fulero’s to the facts of the case. testify given was not to the Gov- Smithers identified the stress of the rob- trial, ernment until the middle of the after bery, relating “detail salience” to Smith- the Government had rested its own case. scar, ers’s the length of time between the There is no for majority’s holding basis trial, robbery and the “conformity ef- that Smithers’s initial motion—which did subsequently information, fect” of received little more than introduce Dr. Fulero and photo spread methodology,5 and the study his field of his renewed motion relationship between the witnesses’ confi- —or trial, brief, at the start of or his mid-trial accuracy dence and subjects as relevant put the Government on sufficient notice of for testimony. Fulero’s Smithers also took the substance or foundation issue with adequacy of a jury instruc- permit so as to tion in Government counteracting fallibility eye- rebuttal, prepare either to the witness identifications. motions Smithers had made or the arguments testimony. consequences none of these before this point in the proceedings, orally procrastination either or in Smithers’s should rest on him, writing, despite opportunities several to do not on the Government. Other courts so. It inwas this context that the court have held that initial notice of the intent to proposed 5. Smithers now prior to have Ftilero testi- servation in its brief that Smithers had fy efficacy photo spread, despite proposed thing. thus far no such having response no to the Government’s ob- perception in made gaps expert wit- call an See the case unreliable. identifications days before trial a few only ness **1. The district court excluded the 45 id. at Dorsey, for exclusion. grounds had not for one reason —he is witness “the law (remarking at 816 F.3d case aby a witness as instructed been listed as of discretion not an abuse it is clear that admissibility order. No determi- pretrial testimony where ... disallow The witness any nation of kind was made. defense of evidence proffer late solely punish in was therefore excluded government substantially prejudices awith noncompliance con- the defendant for expert and find its own ability to It in this context discovery exclu- order. testing” upholding duct similar quoted made the statement day of that the court on first given sion when notice criminal defen- majority here: “a trial); (upholding F.2d at 1052 Curry, 977 may generally not Unit- relevant evidence days given); notice dant’s when exclusion (3d discovery excluded on the basis Dowling, 855 ed States v. Cir.1988) days expressly when 5 The Collins court (upholding exclusion sanction.” Virgin in the the case from one determin- given distinguished in trial held notice Murrian, P. Islands); also Hon. Robert evidence was admissible ing see whether such Eyewitness Expert deci- Admissibility to our then-recent Smith pursuant Rules, 29 fact, Federal followed Testimony Under In the Collins court sion. (in- (1998-99) 395-96 declining Cumb. L. to rule the testimo- Smith Rev. “The offer of law, structing practitioners matter as a ny was admissible in the the factors should establish proof error harmless to find the proceeded for testi- call case which particular id. at **2. light of other evidence. See stress of as the extreme mony, Collins, such then, inapposite completely witness, age or race of the differences case, admissibility which involves sugges- eyewitness, and and the defendant discovery sanc- and not a determination If factors techniques. up line tive Moreover, unpublished tion. reliance testimony are es- necessitating expert opinion written subsequent in a cases ex- tablished, excludes the and the court establishing preclu- other than purposes likely be the decision will testimony, pert case, prior unless the or law of sion These decisions upheld appeal”). precedential value truly of such case is majority’s commentary contradict publish- have been probably that it should delay is “not a blanket statement ed, policy we does violence to for exclusion.”6 proper basis 28(g). This dubi- in 6. Cir. R. promulgated only have the unfor- will ous use of Collins majority that the important It to note is encouraging lawyers tunate side effect Collins, on United States solely relies us in decisions to unpublished to cite other 87-5077, 4434 Cir. 1988 WL No. future, intent of the despite the clear curiam) 1988) Jan.25, (unpublished), (per rule. not a is that tardiness proposition for the expert testi- for exclusion of

proper basis Application II. District Court’s The is both mislead- mony. This of Collins use of Daubert Collins, In which inappropriate. ing and court majority finds that The pre-Daubert, is only unpublished but is not by failing apply its discretion psychologist who abused proffered a the defendant Dau- principles evidentiary gatekeeping fill in tendency testify that clear, immediately Smithers rested before was made my here makes discussion 6. As I believe case, "delay” “prolonging granting the motion would have to mean I understand his not, trial,” dire,” majori- prepara- as the length “lengthy voir more required a mean, merely Government, This ty suggests I “filed late.” and the direct and tion'by the certainly appears been the district to have of Dr. Fulero. cross-examination well, ruling understanding since court's I am not that grants judge bert. convinced the law the trial broad error, committed this or remand latitude to determine. And Elev- necessary if would be even it did. enth Circuit erred insofar as it held to contrary. majority pays passing The obeisance to (internal Tire, Kumho 119 S.Ct. the abuse of discretion standard which citations, quotations and alterations omit- we review a district court’s decision ted). specifically The court’s failure to cite testimony, wholly exclude fails but excluding Daubert as its basis for Dr. apply in case the deference Fulero does not itself mandate remand. in requires. standard The factors listed Boatwright, Greenwell v. suggest Daubert were meant to to federal (6th Cir.1999) (“Although the trial subjects courts relevant court is required not to hold an actual evaluating proffered experts when under hearing Daubert, comply with the court they holy Rule but “not writ” required to make an initial assessment the district court must invoke name reliability of the relevance the ex- scrutiny. pass order to our Kumho Tire pert testimony. Because the district court Carmichael, Co. Ltd. v. 526 U.S. (1999) hearing did hold a Daubert we must 1167, 1179, S.Ct. 143 L.Ed.2d 238 review the record to determine (Scalia, whether J., concurring). Supreme the district court erred in its assessment of recently has Court instructed that reliability the relevance and trial court must have the same kind testimony”); Hall, see also 165 F.3d at deciding of latitude in how to test an (approving of the district court’s eval- expert’s reliability, and to wheth- decide uation the testimony hearing in a special briefing er or when or other did not explicitly cite the two Daubert proceedings are to investigate needed prongs frequently but referenced the deci- reliability, enjoys as it when decides sion). Instead, our task is to review whether or not that expert’s relevant performance gatek- district court’s of its opinion is reliable. Our eeping light function of “the facts of ap- Joiner makes clear that a court of case,” Tire, particular [the] Kumho peals is to apply abuse-of-discretion (internal omitted), quotations S.Ct. at 1175 standard when it reviews a trial court’s granting “the trial judge [ ] considerable decision to admit or exclude testi- leeway in deciding in particular [this] case mony. applies That standard as much go determining how to about whether to the trial court’s decisions about how particular expert testimony [this] reli- reliability to determine as to its ultimate able.” Id. at 1176. In doing, so we must Otherwise, conclusion. trial judge principles be mindful of the behind Dau- discretionary would lack the authority bert, but “the factors it mentions do not unnecessary needed both to avoid “relia- constitute a definitive checklist or test.” bility” proceedings ordinary cases (internal omitted). Id. at quotations reliability where the expert’s of an meth- ods is taken properly granted, and to I way would hold that the in which the require appropriate in proceedings the district court conducted its complex less usual or more cases admissibility where of Dr. testimony Fulero’s cause for questioning expert’s the relia- was not abusive of the court’s discretion. Indeed, bility arises. the Rules seek to holding The core of the Daubert decision unjustifiable expense avoid delay and as was that admission of testimony is part of their search for truth governed by and the the Federal Rules of Evi just proceedings. determination dence and not the majority theretofore Thus, whether Daubert’s specific “general factors rule of acceptance” the scien are, not, or Daubert, community. reasonable measures tific See at U.S. in reliability particular case is a matter 113 S.Ct. 2786. The primary “locus” testimony would re how on Fulero’s experts tails to power evaluate of the court’s case, facts of but no.such the at late 702. See id. in Rule rests the forthcoming. the This left details were requires Rule 702 2786. S.Ct. relevant to be to con upon and court with little basis which testimony be reliable has the in error in Because that -the Government was admitted. Government clude qualifi Dr. testimony to contest chosen not the its contention the abstract psychologist or prov and its jury cations the invade confuse propos validity of the studies he directly the by commenting scientific credi ince from, at trial or on either testify es Whether Smithers bility of the witnesses. has Smithers may assume that appeal, we to demonstrate the relevance was unable reliability requirement. satisfied hearing on the at this Instead, the Greenwell, 184 F.3d 498. simply procrastinating, day of trial or was first its consistently focused has Government him; onus fall on he should t of Rule aspect on the relevance challenge with infor appropriately court dealt that the evi “further requires which to it. arguments presented mation and' fact trier of testimony assist the dence or acted once properly The court also or determine understand the evidence his defense— the close of Smithers —at consideration ] ... The [ fact issue. details of Fulero’s finally proffered the ... as one aptly described has been point during At one hear- testimony. ” “ obvious, always and ‘Fit’ not ‘fit.’ is Fule- permit renewed ing on the motion is validity purpose for one scientific addressing testify, ro court— other, validity for un necessarily scientific its reliance Rin- prosecutor. explained — Daubert, 509 U.S. purposes.” related con, noted, the “relia- with consistent (internal quotations 113 S.Ct. Daubert, good that “the bility” element omitted). here exam district court and in his back- in his affidavit professor both sides from briefs on issue ined was in the literature that cited ground and on Smithers’s hearing for the preparation ... of fragility suggests me Both briefs recited motion. limine testimony has been established and Rules from factors Daubert applicable an exper- he scientifically and that brings leading 403. Both examined 702 and How the jury.” may assist tise testimony, both be type on this cases hold, of this light state- majority can Daubert, especially focusing fore and after not to decision and the Government’s ment Rincon, 28 F.3d 921 v. States on United competence, that “the challenge Fulero’s Cir.1994) (9th and our decision any make determina- did not district court Smith, Cir. States reasoning expert’s scientific as to tion curiam). 1984) The Government’s (per And because methodology” puzzling. or why the tes explain further to went brief issue, any further never at reliability was prejudicial unhelpful timony would reliability of the inquiry into the case, why cross-examination in this and, indeed, precisely unnecessary address better instructions would that Kumho Tire proceeding kind of demon concerns. The courts dis- expressly gives it briefs when reliance on these strated to avoid. cretion the motion portion of began relevant that al- acknowledges majority that the Gov by noting its belief hearing explicitly did not district court though in persuasive, arguments were ernment’s so, did conduct doing that it was explain discredit that he could forming when it decid- into relevance inquiry through some identifications obligation its jury aware of was cross-examination, ed asking for Smith- testimony. skeptical of to be appropriate in choosing ers’s assistance hearing, howev- above, record of second the The recounted As instruction. court fact er, that the district reveals de for additional pressed Smithers carefully presents looked at the issue of relevance. This case very few of the “nar- point, Even at this Smithers did not make by row circumstances” identified other Dr. Fulero available for voir dire courts which kind of testimo- Government, but the court initiated a ny Smith, can be relevant. See 156 F.3d lengthy discussion with Smithers’s counsel 1046, 1052; Harris, 995 F.2d at 535-36. familiarity on Fulero’s with the facts of problem There was no of cross-racial iden- case, scar, including photo Smithers’s passage tification. The of time has been lineup procedure, and the stress to be a found relevant factor when the robbery. precisely ques- These are forty years prior, recalled event occurred tions the district court needed to ask Co., see Krist v. Lilly Eli 897 F.2d determine the relevance and “fit” of Fule- Cir.1990), 297-98 but not when particular ro’s to the facts of the lapse the time was a “routine” one of answers, After hearing case. “merely” years. Curry, six the court concluded that Fulero would Here, at 1052. the time between the rob- have acted this case as more of an bery and Ms. positive White’s identifica- neutral, than expert— advocate scientific tion array of Smithers in photo was a characterization borrowed from Rincon. days; two the time robbery between the majority See 28 F.3d 923. The fails to and the trial years. one and half suggest any means whatever which the Moreover, although alleges Smithers court could inqui- have conducted a better there was an unconscious transference of ry under the circumstances. it Instead mistaken identifications among the wit- flatly pronounces that the court’s conclu- nesses, the court explicitly found that all “simply wrong” sion was because it would presented the evidence hearing at the ap- lead to the “absurd” result of never allow- peared suggest otherwise. ing such testimony. I suspect that the Seventh and Eleventh Furthermore, majority identifies might major- take umbrage Circuits at the primary for finding basis an abuse of dis

ity’s “absurd,” characterizing as their cretion as the court’s “experiment” com strong presumptions against expert testi- ment, explaining that “[b]asing an eviden- mony regarding eyewitness identifications, tiary personal decision on curiosity rather Hall, 1103; Smith, see 165 F.3d at applicable than case law and the rules of F.3d at 1357. More importantly, I think it patent evidence is a abuse of discretion.” majority’s is the simply conclusion that is The fact that these offhand statements wrong. majority explain fails to how were made is unfortunate. We review this extreme result would follow from the record, them on the cold separated them Indeed, district court’s observation. if the texture, from their context including district court meant flatly to disallow ex- the voice inflection and facial expressions pert concerning delivery. of their But proceedings de identifications, it would not gone out scribed make it above clear that the dis way of its hearing to replace sua trict court did not base its exclusion of sponte pattern jury eye- instruction on Fulero on the whimsy sinister witness identifications to which Smithers majority imputes to it. The statements already had agreed with what it saw as “a were made at the close of the second hear much stronger instruction” order to al- ing, again after the court had denied the genuine leviate the concerns that Smithers motion and instead awarded Smithers a had raised. The majority is resolute in its strongly worded instruction. The court’s conviction that the district court failed to comment to “apply Daubert,” Smithers’s counsel that she explain but fails to how had “made an court could have excellent record that I’ve any done better with my no more information than abused discretion” was not provid- indifference law, ed. but an assurance that she had the court the would about of her facts record in a preserving done well Instead, hearing. in- a we that have discovered The appeal. observation objection for circuits lead of our sister follow the have should testimony would admitting Fulero’s which, the finding a that district upon declaring to Court “tantamount been iden- not court has assessed a matter as guilty the defendant in a manner expert’s testi- tification relevance that “absent law” and 702, have remanded consistent with Rule enough here to think there’s mony I don’t further discussion. matter without correctly describes jury” to the go 1102; See, Hall, e.g., that Fulero’s effect severely prejudicial Amador-Galvan, F.3d the States v. had on likely would have (9th Cir.1993); Downing, 753 1417-18 Finally, the court’s case. Government’s I comfort the fact remark, inap- at 1226. take some perhaps while “experiment” sponte application majority’s motion sua well that was made after propriate, eyewit- glowing praise the last of Daubert and and was twice been denied had testimony are record made on the before ness identification statement dicta, holding form the actual they It did not rested his case. .since exceed Smithers of Fule- discretion. To court’s exclusion the court abused its for the that the basis any extent, however, a opinion that the as ro, prejudice it nor did single that agree authority ce- way. persuasive I do not as other is seen whole finding majority’s justify already-extant impression can menting comment recep- of discretion. patent among of a abuse circuit is most our that Murrian, testimony, see type to tive ultimately concludes majority a jurisprudence it does our supra, for a trial new must be remanded this case disservice. Daubert that, include “a will presumably, test,”7 may be. Were whatever Testimony Expert Merit of III. The my difference holding, of our the extent Eyewitness Identifications majority simply opinion with nearly all which trepidation with re- about what Daubert disagreement subject have treated this appellate courts court should how the district quires and reluctance, representative of broader majority is proceeded here. But share, testimo- Instead, I to admit proceeds which stop there. does not with the same defer- ny of social scientists explanation what lengthy into a testimony of those to the given applied had it ence might have found court seek to dis- I do not This, physical sciences. liking. majority’s Daubert these researchers’ the value view, only credit wholly improper. Not my work; psychological the ever-expanding an appel- as this exceed our function does past much in the have done disciplines court, to the law but it is anathema late commonly held out; explode to decades laid several majority had theretofore our understand- misconceptions in the enrich truly function if the gatekeeping As even those human ing behaviors. requires court’s discretion district admitting the testi- to opposed most courts hearing, and the district court fact-finding acknowledged, those mony in court have failed exercise that in this case has insight an enhanced into include majority con- utterly as the benefits discretion eyewitness identification fallibility of us is cludes, the record before surely then See, procedures. trial can inform our what to announce permit us inadequate appear to majority’s opinion would course, nately, the perform de- a more in order to 7. Of if, time, considerably, in- court inquiry next curtain that discretion deed, tailed require any Smith- room opinion the discretion leaves majority's should have dire, or at present voir any his witness for perform ers further for the district sufficiently present a make an effort to least to inquiry at all. timely Unfortu- proffer in a fashion. detailed Hall, e.g., 165 F.3d at 1104. The difficulty limits social apt of science were in treating psychological arises theories as ly expressed Welborn, in Gacy v. if they were as demonstrably reliable as 305, Cir.1993): 313-14 physics. laws of Conclusions reached Social challenged many science has by applying the laws of all but the most premises jury system. of the Students physical theoretical of partic- sciences to a subject believe, of the for example, that ular set of facts are through verifiable jurors give weight too much eyewit- replication; disagreements between duel- ness evidence and not enough weight to ing experts in physical (e.g., sciences Still, other kinds. ability jurors of accident reconstructionists or DNA ex- good to sift evidence from bad is an perts) typically focus on the data to which system, axiom of the so courts not the scientific method applied, which is permit juries to decide these cases but subject objective analysis. The certain- bypass also the sort of empirical findings ty scientists, of social might jurors help reach better deci- however, by is limited the nature of their sions. Juries have a hard time distin- They field. typically base their opinions guishing “junk science” from the real groups on studies of small people under thing, but aside from tinkering some conditions; laboratory those studies are with the expert testimony admitted at then interpreted extrapolated pre- trial, this shortcoming has been tolerat- dict the likelihood that person another un- ed. reach compromise verdicts, Jurors der similar but non-controlled conditions although they supposed aren’t to. Ju- will manifest similar behavior. step Each ries return verdicts, inconsistent repre- of this sample choice of —the senting irrational behavior or disobedi- control groups, the conditions under which ence to their instructions. Juries act in they observed, the cause and nature of ways no person reasonable would act. behavior, the observed and the likelihood This is the standard for granting judg- that the observed behavior replicat- will be ment notwithstanding the verdict in a by ed person different in a non-con- case, civil acquittal or after verdict in a setting trolled by influenced per- —is case, criminal reducing or an award of opinion sonal of the expert. individual damages, and there are plenty of occa- Nor will there much similarity between sions for post-verdict these correctives. persons typically studied social sci- this, Yet for all of courts do not discard entists and the in any given witnesses premises jury of the system, postu- criminal trial. The studies are virtually lates embedded in the Constitution and always based on college students or other thus, within legal system, our unassaila- readily subjects available test in a con- ble. up This shows striking fact (which trolled environment are the most about the Supreme Court’s treatment of measurable), easily not individuals involved social science: of the 92 cases between in real world incidents such as actual rob- 1970 and 1988 addressing issues of evi- See, bery victims. e.g., United States v. dence and trial procedure, not one relied Hines, (D.Mass.1999) 55 F.Supp.2d on the body extensive of evidence about (assessing relevance .of college studies of jurors’ conduct. students); Brian L. Cutler and Steven D. (citations omitted). Penrod, Assessing Accuracy Eye- Identifications, Witness No psychological study in Handbook will ever bear Psychology Legal (R. directly specific persons Contexts Bull making an 1995) (Attachment and D. Carson court; ed. E identification in psycho- Limine) (“Most to Smithers’s Motion logical experts will always be forced to what is known about the psychology extrapolate from studies done on other eye-witness memory acquired people has opine been on the relevance such through laboratory experiments”). The data might have to the facts at hand. utility wit- of cross-examination identifying Cross-examination combined, hand, always pro- it is little wonder nesses, other will instructions on the testimony, majority because appellate the vast cases more relevant vide to the is limited what inquiry the have found the choice of these mechanisms definition experi- and saw testimony, expert themselves even if the eyewitnesses expert over (“de- Smith, at 1359 particular insight enced. See that may have some reliability the to attack revealed, who want fendants to otherwise not be would not be use are free to eyewitness recollection of of district court’s dis an abuse broad to cross-examination tool of powerful Tire, Daubert, Kumho and under cretion extent, so”). Indeed, law- to a certain do Moore, F.2d at 1110- 702. See 882 Rule when own roles abdicating their yers Smith, 1107; 11; Hall, 122 165 F.3d at instead of rely experts to seek they Hicks, 847; 1358-59; at 103 F.3d F.3d at eyewit- an to discredit cross-examination Ginn, Kime, 884; 87 F.3d at 99 F.3d at Amaral, 488 See ness identification. Jordan, 370; Rincon, 925-26; 28 F.3d at (“Our places primary legal system at 1153 938-39; F.2d at Curry, F.2d at truth on for the ascertainment rebanee Blade, 464-65; Moore, 1051; 811 F.2d at ... [ ] It is of cross-examination. test 1311-12; Fosher, F.2d at F.2d at during cross- responsibility of counsel 1115-16; 382; McClendon, 730 A.2d at inquire to into the witness’ examination Gaines, McMullen, 370; 714 So.2d at observation, capacity his for opportunity 642-43; Buell, at 489 N.E.2d at 803- P.2d observation, interest attention and his Currie, 04; at 339. 515 S.E.2d or division of attention” his distraction and an of a labeled presence person (internal citations omit- quotations and court in the witness stand “expert” ted)). cross-examination The witness’s jurors’ accept inevitably carries risk the de- then be testimony can framed scientifically testimony as ing person’s closing argument to chooses in fendant fact under simple truth. irrefutable This undermine the its to potential maximize given to the special importance lies Currie, 515 S.E.2d identification. expert with gatekeeping function court’s is unable the defendant 339. What majority’s flat testimony, and it is in e.g., the coun- by these establish means — reasoning that its rejection concept of this by psycho- concept suggested ter-intuitive footnote, the In fifth the shakiest. in one’s that confidence logical research appears the trial majority observes: “it necessarily ac- reflect recollection does nature of the thought expert court by the ably communicated curacy—can jury; unduly impress testimony would jury Instructions in its instructions. court upon which improper is an factor in that advantage experts over have an for if this were testimony, expert exclude by advances social they can be informed testify.” test, ever expert no could only communicating research while science hypothetical as a may be correct While that are relevant those theories solely of a witness that exclusion matter case, extra avoiding and facts be an expert because he was producing and rebut- delay expense discretion, simply not what abuse without the im- testimony, all ting Rather, the court reasoned here. occurred that ac- rehability of scientific primatur jury instruc cross-examination Certainly testimony. companies jury permitting preferable tion were in these utility instructions only marginally testimony that was hear in this aptly demonstrated situations demonstrably prejudicial relevant case, skillfully ad- the district where good court was the Government. by adopting concerns dressed Smithers’s itself Daubert company in this conclusion. to ex- specifically tailored an instruction testimony can be “[e]xpert observed of the identi- plain possible deficiencies misleading be- event, quite powerful any given both in this case. In fications difficulty evaluating cause of the it. Be Nor is this one sentence example risk, judge cause in weighing of how would have possible prejudice against probative force stepped over the line. Smithers argued under Rule 403 ... exercises more control his renewed motion that “Fulero would experts lay over than over witnesses.” 509 testify regarding perception of the U.S. S.Ct. 2786. A number of bank [the robber witnesses] and how addressing eyewitness other courts identi directly [various factors] are related to the fication explicitly accuracy their testimo- cited the expert’s “aura of reliability” as a added). ny.” (emphasis Again: “Fulero prejudicial factor weighing against its ad testify would thus photo spread missibility. Lumpkin, See 192 F.3d at procedures, and the witness’ numerous 289; Brien, 276-77; Blade, 59 F.3d at 811 meetings FBI, with police, the and each 465; Purham, F.2d at United States v. 725 other, would directly the influenced Cir.1984); Fosher, F.2d 454 ability witness’ particular recall the F.2d at (collecting 383-84 cases referenc characteristics of the any bank robber with ing the “aura of reliability”); Downing, added). degree accuracy.” of (emphasis 784; F.Supp. Collins, United States portions Other of the phrased motion are (M.D.Pa.1976). 395 F.Supp. 636-37 form, in a more appropriate indicating that The majority’s citation-free asseveration Fulero testify would to research data as it subject on simply this is untenable. particular relates to experienced conditions Expert on testimony eyewitness identifi witnesses, the leaving application the of cations can unduly prejudicial also be when that information to jury. counsel and the phrased it is so as to directly comment on examples But these more than adequately credibility the eyewitness. of the No court justify the district court’s conclusion that in any context allow one would witness to (who, Fulero incidentally, is also attor- testify another, to the credibility of be ney) would have acted as more of an advo- cause of credibility assessment of wit cate than a scientific in this case. legal system nesses our is the sole prov majority’s merely decision to excise jury. Greenwell, ince of the See 184 F.3d the offending portions of the testimony not 496; at Gacy, 313-14; 994 F.2d at Murri only leaves very testimony little is an, supra, above, at 380. As illustrated a relevant, even arguably but relieves Smith- number of courts have cited this tenet as a ers of his burden of proving that the testi- basis for excluding identifica mony he proffered is admissible. Once experts. tion That threat present was also again, the blame for Fulero’s exclusion lies case, in this as majority out, points not with the district legal court’s analysis Dr. proposed because Fulero testify, but with inadequate production. among things, other eyewitnesses The cases holding testimony “would have observed and been able to regarding eyewitness identification recall is too large scar on Mr. Smithers’ general and finding neck. those that it deformity That comments would have been directly more too on credibility memorable to the witness witnesses.” The delimit majority narrow opinion says range of the solution to circumstances in which admittedly testimony this this properly inadmissible testimony is admissi- simply very to excise ble. Unless a offending small eye- number of language. ignores This the fact that at witness identifications form the second evi- hearing, dentiary conviction, Smithers identified the scar basis a for and the key “the issue proffered testimony directly [Fulero] would ad relates dress.” Removing aspect this facts of the without Fulero’s case commenting testimony gut would eyewitnesses’ remainder of credibility, the need for majority’s reasoning why as to simply will great be so testimony should have been admitted. that alternative means of cautioning the See, open ... province vade subject will not suffice. jury on this whereby experts testify floodgate The exis a Rincon, 28 F.3d at 923-26. e.g, aspect will every evidence conceivable witness’s inculpatory other tence of excluding the of to- any credibility”). logical error in conclusion render usually Smith, intent —is holdings implicit not its day’s harmless. —if 1107; Hall, at 1107- F.3d precisely type at of snowball likely to be Blade, 1053-54; Smith, 08; F.3d at circuit. our effect 465; Moore, 1313. F.2d at dangers permit- Acutely aware identi Here, fact that three witnesses rigorous expert testimony without ting probability adds to fied function, performance gatekeeping Moreover, the Govern accuracy. their observed: Daubert of Smith- presented ment the'bank, photo ers’s car is an essen- open It true that debate the robber showing that Smithers scientific anal- legal of both part tial being the rare characteristic shared important Yet there are differ- yses. tall, of lies Smithers and series over 6’5” truth in the quest ences between regarding his whereabouts. police told for truth quest and the courtroom evidence, it overwhelming is not this While conclusions are laboratory. Scientific considerably any concern does alleviate Law, on perpetual revision. subject to solely on the that convicted hand, disputes must resolve the other testimony. eyewitness erroneous basis of pro- The scientific finally quickly. and failings proposed various and ject is advanced broad wide- jurisprudential testimony accentuate multitude of a ranging consideration of opinion. majority’s danger posed for that incorrect hypotheses, those find that eagerness to tangible Its so, eventually shown to be will in ex- its discretion court abused Conjectures in itself is an advance. that likely set a testimony is to cluding use, wrong are of little probably that are of evidence requiring admission precedent however, reaching a of project in the jury’s respon- further the to erode tending final, binding legal judg- quick, credibility determina- making sibility for consequence' great of ment —often —(cid:127) recognized this courts have tions. Other events in the particular set of about See, e.g., it. clear of danger and steered that, in practice, recognize We past. Alexander, (“Requiring F.2d at 169 judge, no role mat- gatekeeping the admission flexible, occasion inevitably ter how would have established Moore proffered learning jury from prevent will as testifying generally experts a rule insights and innovations. authentic testimony would eyewitness value nevertheless, That, that is is the balance testify every case have be allowed designed Evidence by Rules of struck testimony is relevant. eyewitness in which for cosmic search not for the exhaustive gross overburden- This constitute would particularized understanding but for testimony about process by ing of the trial legal disputes. resolution always been juries matters which have I 596-97, 113 S.Ct. 2786. 509 U.S. evaluate”); United competent to deemed opinion here will majority’s fear Thevis, States v. the balance between only undermine 1982) (“To testimo- B admit such Cir. Unit and fairness Rules truth-seeking proponent’s permit ny in effect crafted, adding carefully without so weight and comment on the witness efficacy least in at all to- much opponents’ witnesses credibility —at Indeed, justice. criminal circuit—of marginally to a open barrage the door tes- “Expert Sabetta, majority here evidence”); holds psychological relevant (“it would, regarding eyewitness timony in- effectively 680 A.2d at 933 recognized scientifically must be com-

mensurate with all psychological other

studies, may often abe valid source jurors help information to understand factors effect [sic] majori-

identifications.” The effect of the

ty’s opinion is to establish the district gatekeeper as the with discretion admit, exclude, but not to relative to identifi-

cation. reasons,

For all foregoing I re-

spectfully dissent. Footnotes BILLING, INC.,

MEDICAL

Plaintiff-Appellee,

Reich, Janicki, Seidelmann & Plaintiff-

Appellee/Cross-Appellant,

MEDICAL MANAGEMENT SCI-

ENCES, INC.; Thacker; James F. DeZonia, Jr.,

William J. Defendants-

Appellants/Cross-Appellees. 98-3561,

Nos. 98-3564.

United States Court of Appeals,

Sixth Circuit.

Argued: Dec. 8,May

Decided and Filed:

Case Details

Case Name: United States v. James Smithers

Court Name: Court of Appeals for the Sixth Circuit

Date Published: May 8, 2000

Citation: 212 F.3d 306

Docket Number: 98-1722

Court Abbreviation: 6th Cir.