People v. Drake

850 N.E.2d 630, 7 N.Y.3d 28, 817 N.Y.S.2d 583

Opinions

OPINION OF THE COURT

Chief Judge Kaye.

On the afternoon of November 16, 1999, Nicole Barrett was seriously injured when, suddenly and without warning, a man struck her in the head with a brick while she was waiting at a busy intersection in midtown Manhattan. Although Barrett did not see her assailant, there were several eyewitnesses to the at tack. Bystanders chased the fleeing suspect, but were unable to apprehend him. Nearly two weeks later, after an intensive investigation, defendant was arrested and charged in the assault.

The issue of identification was hotly contested at defendant’s trial. Two eyewitnesses testified that defendant was the man they had seen either throw the brick or flee the scene, three testified that he was not that man, and several were unable to say.* Concluding that “this case is one in which expert testimony will benefit the jury by providing the framework for it to evaluate the accuracy and reliability of the eyewitness testimony” (People v Drake, 188 Misc 2d 210, 215 [Sup Ct, NY County 2001]), Supreme Court granted defendant’s pretrial motion to admit the testimony of Dr. Elizabeth Loftus, an expert in the reliability of eyewitness identification testimony, as courts are encouraged to do in appropriate cases (see People v Young, 7 NY3d 40 [2006] [decided today]). The court ruled that the expert would be permitted to testify as to certain psychological factors that may influence the accuracy of an eyewitness identification, but held that

“[t]o prevent any possibility that the expert testimony will infringe upon the jury’s fact-finding function, the witness will not be permitted to give opinion testimony regarding the credibility or reliability of any witness. In addition, the expert may not opine as to whether any of the specific psychological factors outlined above actually influenced the identifications. In short, the testimony of the expert is limited to setting forth the relevant psychological factors and interpreting the research data that demonstrate an effect on memory and perception” (188 Misc 2d at 215).

Since defendant raised no objection to these limitations, the propriety of the court’s ruling in this regard is not before us (cf. People v Cronin, 60 NY2d 430, 433 [1983] [error to preclude opinion testimony of an expert witness on the basis that the opinion “went to the ultimate question and would usurp the jury’s function”]; People v Lee, 96 NY2d 157, 162 [2001] [“(e)xpert opinion testimony is used in partial substitution for the jury’s otherwise exclusive province which is to draw conclusions from the facts. It is a kind of authorized encroachment in that respect” (internal quotation marks and citations omitted)]).

At the conclusion of the case, the court, over defendant’s objection, charged the jury that the testimony of Dr. Loftus “may not be used to discredit or accredit the reliability of eyewitness testimony in general, or in this case.” Although we agree with defendant that this single sentence of the charge, when read in isolation, “was improper and should not have been used” (People v Fields, 87 NY2d 821, 823 [1995] [emphasis omitted]), we conclude, as did the Appellate Division, that the court’s charge, taken as a whole, conveyed to the jury the correct standard as to the proper use of expert testimony. We therefore uphold defendant’s conviction of first-degree assault and third-degree criminal possession of a weapon.

The Sentence of the Charge in Isolation

The trial court apparently wished to communicate to the jury that it could not accept or reject the proffered eyewitness identifications based solely on expert testimony that the accuracy of such identifications may be influenced by a variety of psychological factors, but was instead required to render its own judgment. However, the words the court chose to express that thought were ill advised. Read in isolation, the sentence instructing that Dr. Loftus’s testimony could not be used “to discredit or accredit the reliability of eyewitness testimony in general or in this case” was incorrect. Indeed, it might be taken to mean that the expert testimony the court had admitted could not in the end be considered for any purpose at all.

Inasmuch as the court had specifically precluded Dr. Loftus from “giv[ing] opinion testimony regarding the credibility or reliability of any witness ... or opin[ing] as to whether any of the specific psychological factors outlined above actually influenced the identifications” (188 Misc 2d at 215), there was no real danger here thát the jurors would simply adopt the expert’s opinion as to the reliability of these particular identifications. After all, the expert had never rendered one. Rather, she had, consistent with the court’s ruling, merely “set[ ] forth the relevant psychological factors and interpret[ed] the research data that demonstrate an effect on memory and perception.” (Id.)

Of course, jurors remain always free to accept or reject expert evidence in the first instance, and the jury here was properly so instructed:

“The opinion of an expert witness is subject to the same tests concerning reliability and credibility as the testimony of any other witness. It is up to you as the triers of fact to determine whether to accept or reject an expert’s opinion.

“Given to assist you in reaching a proper conclusion, expert testimony is entitled to such weight as you find the expert’s qualifications in his or her field warrant and it may be considered by you, but it’s not controlling on your judgment.”

Where there has been expert testimony on the reliability of eyewitness identifications, jurors must, if they choose to accept that testimony, be permitted to apply the identified psychological factors to the facts of the case before them in deciding whether they are convinced beyond a reasonable doubt as to the accuracy of the proffered identifications. Indeed, that is the only conceivable purpose of such testimony. Courts should therefore instruct jurors that if they accept the expert’s testimony, they may consider it along with all the other evidence in the case in determining whether the People have proved the defendant’s guilt beyond a reasonable doubt.

The Sentence in Context

In charging a jury, the court must state “the material legal principles applicable to the particular case, and, so far as practicable, explain the application of the law to the facts” (CPL 300.10 [2]). However, a charge “may be sufficient, indeed substantially correct, even though it contains phrases which, isolated from their context, seem erroneous” (People v Ladd, 89 NY2d 893, [1996]). “The test is always whether the jury, hearing the whole charge, would gather from its language the correct rules which should be applied in arriving at decision” (People v Russell, 266 NY 147, 153 [1934]).

Here, the charge as a whole did not communicate to the jurors that they should disregard the testimony of Dr. Loftus. Rather, the court expressly instructed the jury that the testimony “was admitted for the purpose of providing the jury with various factors which scientific studies have shown are relevant to a person’s ability to perceive and remember,” while properly charging that “[y]ou, the jury, are the sole and exclusive judges of the reliability and credibility of the eyewitness testimony in this case.” No reasonable juror could have concluded from the court’s instructions that Dr. Loftus’s testimony had been effectively stricken from the case.

Defendant raises only two other contentions — first, that the court erred in precluding him from recalling a prosecution witness to the stand for purposes of impeachment and second, that the court erred in denying his requests to inspect in camera the confidential psychiatric records of another witness and to cross-examine that witness about a therapy session she had attended on the day of the crime. Neither of these evidentiary determinations constituted an abuse of discretion.

Accordingly, the order of the Appellate Division should be affirmed.

Footnotes

*

Contrary to the dissent, no eyewitness who identified defendant at trial had previously “selected Clement Tikiba in a photo array as the attacker” (dissenting op at 35). Rather, one witness noted that Tikiba “had some of the characteristics” of the perpetrator, describing him as a “seven out of ten.” Another initially selected Tikiba’s photograph as “someone I thought highly resembled the individual who threw the brick,” although it “was not a very good photograph and ... it would be very difficult to, you know, say one hundred percent as to anything as if it could be because of the quality of the photograph.” This witness later viewed a lineup in which he identified a different man (neither Tikiba nor defendant) as “look[ing] like” the perpetrator. Then, in a second lineup he stated that he “like[d] number five” — another person altogether. At trial, the witness admitted that to positively identify the assailant “would be difficult for me to do.” The jury, of course, heard all of this evidence and concluded that defendant was guilty, a verdict that was based on legally sufficient evidence, as defendant does not dispute. Whether another verdict might also have been reached is not germane to the issue before us.