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Univ. of South Carolina School of Law

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Thursday, November 29, 2007

Do We All Look Alike to You?: African-American Man Convicted Despite Misidentifications

On Tuesday, a Knox County Criminal Court jury found Doug Glenn Flack guilty of assaulting Tenisha Bright by punching her in the face in the parking garage outside a movie theater at a Tennessee mall.  This verdict came despite the caucasian Bright having apparent difficulty identifying the african-american Bright as her assailant. 

Specifically, a month after she was assaulted in 2004, Bright picked out someone other than Flack at a police lineup.  At a subsequent police lineup, however, Bright did pick out Flack as her assailant.  At trial, though, even with Flack sitting right in front of her in the courtroom, when presented with an assortment of mugshots, Bright picked out the mugshot of another man as her assailant.  When asked to point to her assailant, however, Bright was able to identify Flack, the only African-American man sitting at the defense table.  During trial, Flack's attorney attempted to question a detective about the problems with an eyewitness of one race identifying a person of another race, but Judge Kenneth F. Irvine Jr. precluded this line of questioning.

Judge Irvine's decision makes sense because I doubt that the detective had the qualifications to be able to render an expert opinion on the issue of the unreliability of cross-racial identifications.  However, while the detective could thus not have been questioned about the unreliability of cross-racial identifications, I know that most courts have found that such testimony is admissible when presented by an expert witness. See United States v. Angleton, 269 F.Supp.2d 868, 873 (S.D. Tex. 2003). 

But as I noted last week, Tennessee has a higher burden for the admissibility of expert evidence than other courts, which led me to wonder whether it has addressed this issue.  As it turns out, the Supreme Court of Tennessee recently reversed Tennessee precedent that had stood for 24 years and held that properly qualified expert witnesses can testify about the unreliability of cross-racial identifications.

In State v. Wooden, 658 S.W.2d 553 (Tenn.Crim.App. 1983), the Tennessee Court of Criminal Appeals had found that a university professor of psychology could not testify about the unreliability of cross-racial identifications, holding that "[w]hether an eyewitness's testimony is reliable is a matter which the jury can determine from hearing the witness's testimony on direct and cross-examination and which does not require expert testimony."  In 2000, the Supreme Court of Tennessee later extended the holding in Wooden and found that no testimony whatsoever could be given by expert witnesses concerning the unreliability of eyewitness testimony. See State v. Coley, 32 S.W.3d 831 (Tenn. 2000).

This May, however, in State v. Copeland, 226 S.W.3d 287 (Tenn. 2007), the Supreme Court of Tennessee found that its "decision in Coley [wa]s contrary to the modern trend" and noted that "[t]imes have changed."  The court pointed to the "extensive amount of behavorial science research" on the unreliability of eyewitness testiony and thus allowed expert testimony on the issue of the unreliability of cross-racial identifications.  Of course, none of this helps Flack, who for whatever reason, such as lack of adequate resources, apparently did not call an expert witness to provide such testimony and merely had his attorney attempt to question a detective. 

-CM

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