Mistaken Identification: Supreme Court Of Utah Reverses Past Precedent, Allows Expert Testimony On Inaccuracy Of Eyewitness Identifications

I have done several posts on this blog (here, here, here, here, and here) about the inaccuracy of regular and cross-racial eyewitness identifications and whether expert testimony about this inaccuracy should be allowed. My general sense is that most courts allow such expert testimony although a decent number of courts, such as the Eleventh Circuit and Minnesota courts, preclude it. Now, based upon the recent opinion of the Supreme Court of Utah in State v. Clopten, 2009 WL 4877404 (Utah 2009), we can add Utah courts to the list of courts that allow such expert testimony.

In Clopten, Deon Lomax Clopten, an African-American man,

was convicted of first-degree murder for the shooting of Tony Fuailemaa outside a Salt Lake City nightclub. At trial, Clopten maintained that someone else-a man named Freddie White-was responsible for the shooting. The testimony of several individuals who witnessed the murder and who identified Clopten as the perpetrator countered this assertion. In the absence of strong physical or forensic evidence against Clopten, the State leaned heavily on the eyewitness testimony to secure the conviction.

While the trial court admitted this eyewitness identification testimony, it precluded Clopten from presenting the testimony of

Dr. David Dodd, an expert on eyewitness identification. Clopten intended to elicit testimony from Dr. Dodd regarding various factors that can affect the accuracy of eyewitness identifications, including cross-racial identification, the impact of violence and stress during an event, the tendency to focus on a weapon rather than an individual's facial features, and the suggestive nature of certain identification procedures used by police.

On Clopten's subsequent appeal, the Supreme Court of Utah noted that prior Utah precedent had created a de facto presumption against the admission of expert testimony on eyewitness (mis)identification. In State v. Long, 721 P.2d 483, 490 (Utah 1986), the Utah Supremes did acknowledge that “[a]lthough research has convincingly demonstrated the weaknesses inherent in eyewitness identification, jurors are, for the most part, unaware of these problems.” Nonetheless, despite recognizing that "a cautionary instruction regarding the accuracy of the identification" was plainly not a panacea, the court "left undisturbed previous holdings that discouraged the use of expert testimony as an alternative to jury instructions."  

In Clopten, the Utah Supremes determined that this presumption had to end. According to the court,

"'[T]he vagaries of eyewitness identification are well known; the annals of criminal law are rife with instances of mistaken identification.'"...Decades of study, both before and particularly after Long, have established that eyewitnesses are prone to identifying the wrong person as the perpetrator of a crime, particularly when certain factors are present....For example, people identify members of their own race with greater accuracy than they do members of a different race....In addition, accuracy is significantly affected by factors such as the amount of time the culprit was in view, lighting conditions, use of a disguise, distinctiveness of the culprit's appearance, and the presence of a weapon or other distractions....Moreover, there is little doubt that juries are generally unaware of these deficiencies in human perception and memory and thus give great weight to eyewitness identifications....Indeed, juries seemed to be swayed the most by the confidence of an eyewitness, even though such confidence correlates only weakly with accuracy....That the empirical data is conclusive on these matters is not disputed by either party in this case and has not been questioned by this court in the decisions that followed Long.  (emphasis added).

That left the court with the question of "whether expert testimony is generally necessary to adequately educate a jury regarding these inherent deficiencies" or whether the existing methods -- cross-examination of eyewitnesses and cautionary instructions -- are sufficient. According to the court, expert testimony is generally necessary and 

performs two beneficial functions. First, it teaches jurors about certain factors-such as “weapon focus” and the weak correlation between confidence and accuracy-that have a strong but counterintuitive impact on the reliability of an eyewitness. In other words, the testimony enables jurors to avoid certain common pitfalls, such as believing that a witness's statement of certainty is a reliable indicator of accuracy. Second, it assists jurors by quantifying what most people already know. An expert may discuss, for example, the degree to which accuracy is affected by a disguise or a long lapse between the crime and the identification. Importantly, expert testimony does not unfairly favor the defendant by making the jury skeptical of all eyewitnesses. In fact, when a witness sees the perpetrator under favorable conditions, expert testimony actually makes jurors more likely to convict. When expert testimony is used correctly, the end result is a jury that is better able to reach a just decision.

The court found that these functions were essential because (a) cross-examination may be ineffective when the eyewitness has made a mistaken identification in good faith, and (b) "research...has shown that a cautionary instruction does little to help a jury spot a mistaken identification." The court also found that the majority of other courts at the state and federal levels had recognized that eyewitness expert testimony is both reliable and helpful to the jury. This finding thus allowed the court to conclude that eyewitness testimony by a qualified expert is in accord with Utah Rule of Evidence 702.

Applying this conclusion to the case before it, the Supreme Court of Utah found that the trial court abused its discretion by precluding Dr. Dodd from testifying, holding that

the circumstances found in the Clopten trial are exactly those under which the testimony of an eyewitness expert is most helpful to a jury. Dr. Dodd, the proffered expert in this case, could have testified about research into how eyewitness identification of a stranger is affected by stress, disguises, darkness and length of exposure. He could have quantified the impact of factors such as weapon focus and cross-racial identification. Dr. Dodd could also have testified as to the impact that comments made by police officers may have on an eyewitness making an identification. Additionally, he could have discussed a common phenomenon in which witnesses fill gaps in their memory with information obtained later and thus, over time, become more and more certain of identifications that may be inaccurate. All of these factors were present here, and thorough testimony by a qualified expert as to their nature would have significantly assisted the jury in evaluating the accuracy of the State's most important witnesses. In addition, the critical importance of the eyewitnesses here forces the conclusion that the proffered testimony might have had a "substantial influence in bringing about a different verdict." It was therefore unreasonable for the trial court to rule that such expert testimony would be superfluous. While we acknowledge that the trial court followed established precedent, we hold that the court of appeals erred in concluding that the exclusion of Dr. Dodd's testimony was not an abuse of discretion.

-CM