The Areas Of My Expertise: Alabama Federal Court Allows Expert Eyewitness Testimony Despite Eleventh Circuit Precedent

Should expert witnesses be able to testify regarding the unreliability of eyewitness identifications (and cross-racial eyewitness identifications)? It is a question that has led to contradictory conclusions across the country, and the latest court to address it was the United States District Court for the Middle District of Alabama in its recent opinion in United States v. Smith, 2009 WL 1444446 (M.D. Ala. 2009). 

In Smith,

Montgomery Police responded to a report of a bank robbery at Compass Bank. After several weeks, police identified the robber as Smith and a warrant was issued for his arrest. When a United States Marshal Service task force went to arrest Smith at a friend's home, two shots were fired at arresting officers from inside....Based on the[se]...events, Smith was charged with armed robbery; assault of a federal officer; carrying a firearm during a crime of violence (the assault of a federal officer); and being a felon in possession of a firearm. A jury found Smith guilty of bank robbery and illegally possessing a firearm, but acquitted him of assaulting a federal officer and carrying a firearm during a crime of violence.

The opinion in Smith, however, was not really concerned with the facts of the case. Instead, the opinion only dealt with one issue. You see, during trial, Smith sought to have an expert witness testify regarding the unreliability of eyewitness identifications, and the court decided the issue partially in favor of Smith and partially in favor of the State. At the time, the court promised to issue a written opinion setting forth its reasoning in more detail, and that was the opinion in Smith.

Smith is African-American, and one of the State's eyewitness to the bank robbery was Caucasian. The expert witness at issue was Dr. Sol Fulero, who

holds a Ph.D. in psychology and now teaches the subject at the university-level. He has additionally demonstrated extensive knowledge of the ongoing, most recent developments in the field of eyewitness identification. Indeed, Fulero has authored or co-authored roughly 60 publications, primarily addressing how psychological factors affect the administration of criminal justice. Further, he is a reviewer for several major journals.

Based upon these credentials, the court found under Federal Rule of Evidence 702 that Dr. Fulero was qualified in the field and equipped to provide the jury with expert testimony on eyewitness identifications. But what type of testimony could he provide? 

Dr. Fulero's expert testimony went principally to the reliability of witness identifications of Smith as the bank robber. While Smith was found guilty of the robbery after the court allowed Fulero's expert testimony, the court believes that an opinion setting forth its reasoning for allowing the testimony is still warranted. According to the court, Dr. Fulero could testify generally about the science of eyewitness identifications. Specifically, 

he was allowed to supply jurors with information about some specific factors that, according to well-established social science-research, impact witness accuracy and, as a result, might assist them in their own determination of the facts. Chief among these factors is the information concerning cross-racial eyewitness identifications; the evidence concerning the reliability of such identification is stunning and robust and, of crucial importance here, not likely well understood by juries. In addition, the expert evidence also indicates that the accuracy of identifications, including cross-racial identifications, is impacted by whether the witness perceived the event in a high-stress environment and whether the witness has subsequently been exposed to facts that potentially altered his or her memory of an event.

Conversely, the court did not allow Dr. Fulero to testify about the specific (un) reliability of the prosecution's eyewitnesses in the prosecution's case. This ruling was consistent with rulings from some other courts from around the country, which have applied a similar dichotomy. And it did so only after finding (1) under Federal Rule of Evidence 702 that Dr. Fulero's testimony was reliable (the theories underlying his testimony had been well-tested in peer-reviewed publications, he testified that his methods were generally accepted, etc.) and that his testimony would aid the jury (whose "decision-making process can be enhanced by learning how [certain] factors combine to impact perception and memory); and (2) under sufficiently probative to pass the Federal Rule of Evidence 403 balancing test.

And it did so despite some courts, including the Eleventh Circuit, not being very receptive to such testimony. How did it do so? Well, in United States v. Smith, 122 F.3d 1355, 1358 (11th Cir. 1997), the Eleventh Circuit held that "a district court does not abuse its discretion when it excludes expert testimony on eyewitness identification." The court in Smith importantly noted, however, that the Eleventh Circuit did not say that a district court would abuse its discretion by admitting such testimony. Indeed, the Eleventh Circuit noted that district courts have broad discretion in deciding whether to admit or exclude expert testimony and thus felt secure in allowing Dr. Fulero to render his expert eyewitness testimony.

-CM