IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED JUNE 1998 SESSION October 13, 1998
Cecil W. Crowson Appellate Court Clerk STATE OF TENNESSEE, ) ) C.C.A. NO. 01C01-9707-CC-00270 Appellee, ) ) WILLIAMSON COUNTY VS. ) ) HON. DONALD P. HARRIS, EDDIE L. COLEY, JR., ) JUDGE ) Appellant. ) (Aggravated Robbery)
SEPARATE CONCURRING OPINION
I agree that the proffered expert testimony regarding eyewitness testimony
should have been excluded. I am unable, however, to join with the majority in
concluding that the admission or non-admission of expert testimony should be
exercised under a judicial discretion standard on a case by case basis. Although
clearly subject to varying interpretations, I believe the current state of the law in
Tennessee on this issue forbids the introduction of expert testimony regarding
eyewitness identification.1 See State v. Wooden, 658 S.W.2d 553 (Tenn. Crim. App.
1983); see also State v. Ward, 712 S.W.2d 485 (Tenn. Crim. App. 1986). Indeed,
Judge Byers, writing on behalf of this court, concluded that the evaluation of the
credibility of eyewitness testimony is a matter within the province of the jury and does
not require expert testimony. Wooden, 658 S.W.2d at 557. Because I believe this
reasoning sound, I would adhere to the position of a per se exclusionary rule regarding
1 In McM ullen v. State , 714 So .2d 368 ( Fla. 1998 ), reh’g denied, (June 10, 1998), cited by the majority, a comprehensive review of various state and federal jurisdictional positions regarding the admissibility of eyewitness expert testimony was presented. Although the majority in the present case conclud es that T ennes see pe rmits, on a discretio nary bas is, expert e yewitness testimo ny, McMullen and other legal treatises have, in interpreting Wooden , concluded that Tennessee has adopted a per se rule of inadm issibility. See McMullen, 714 So .2d at 371 ; Annota tion, Experts on Eyewitness Testimony, 46 ALR 4th 1047, 1105 (1986). eyewitness expert testimony. 2
The introduction of expert testimony is controlled by Rule 702, Tenn. R. Evid.
This rule provides that “[i]f scientific, technical or other specialized knowledge will
substantially assist the trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert . . . may testify in the form of an opinion or
otherwise.” (Emphasis added). Whether the proffered expert testimony will
substantially assist the trier of fact is the touchstone of Rule 702 and, thus, is the
ultimate factor in determining whether such eyewitness expert testimony is admissible.3
It is conceded that expert testimony on eyewitness identification is introduced to
alert the jury to the fallibility, inaccuracies, and inconsistencies of human perception
based upon objective generalities adduced from controlled experiments.4 See
generally McMullen, 712 So. 2d at 377 (Anstead, J., concurring in part and dissenting
in part). Indeed, as noted in McMullen, one leading commentator on the subject
advances the argument “that the average juror actually knows little about factors
2 At the outset, it is prudent to note the three views on the admissibility of eyewitness expert testimony that have emerged: (1) The discretionary view, whic h hold s tha t the a dm issio n of e xpe rt test imo ny is within the dis cretion of the trial judge . Curren tly this is the m ajority view am ong bo th federal and state courts;
(2) The prohibitory view, which expressly prohibits the use of this type of expert testimo ny. See, e.g., United States v. Holloway, 971 F.2 d 675 (1 1th Cir. 19 92), cert. denied, Rudder v. United States, 507 U.S . 962, 113 S.Ct. 139 0 (1993 ); State v. Goldsby, 650 P.2d 952 (O re. Ct. App . 1982); Comm onwealth v. Simmons , 662 A.2d 621 (Pa. 199 5), cert. denied, 516 U.S. 1128, 116 S.Ct. 945 (1996); and
(3) The limited admissibility view, which co ncludes that the trial cou rt abuse s its discretion in excluding this evidence in cases where there is no substantial corrob orating ev idence. O nly two cou rts have a dopted this position. See, e.g., United States v. Downing, 753 F.2 d 1224 (3d Cir. 19 85); Peo ple v. M cDo nald , 690 P.2d 709 (Cal. 1984).
McMullen, 712 So .2d 368, 3 70 (Fla. 19 98), reh’g denied, (June 10, 1998). Again, the majority in the present case adopts the majority discretionary position. However, I find that this position is inconsistent both with prior holdings of this court and with Tenn. R. Evid. 702.
3 It should be noted that both Wooden and W ard were decided prior to the adoption of the Tennessee Rules of Evidence (effective date January 1, 1990).
4 As illustration, in the present case, the appellant’s expert was “prepared to provide testimony about the areas of the process of eyewitness identification, the relationship between stress and m emory for an event, cross-racial identification, the relationship between the confidence that a witness has in the accuracy of his or her identification and the accuracy of that identification, and the effect time has on the accura cy of rem emb ering som ething se en.”
2 affecting the accuracy of eyewitness identifications” and “[w]hile most people are
satisfied in believing they have ‘common sense,’ the memory process involves factors
that are often counterintuitive.”5 Id. at 377 (citing Cindy J. O’Hagan, When Seeing is
Not Believing: The Case for Eyewitness Expert Testimony, 81 GEO .L.J. 741, 760-61
(1993) (footnotes omitted)). Such generalizations do not apply to every witness’ ability
of perception and do not substantially assist the trier of fact as the trustworthiness of
eyewitness observations is not generally beyond the common knowledge and
experience of the average juror. Moreover, if indeed the purpose of the expert
testimony is to contradict “common sense,” the testimony would appear to be more
akin to impeachment testimony than substantial assistance. In sum, expert testimony
on eyewitness identification is not needed to explain “common sense.” The making of
judgments of identification and the awareness of the factors bearing on the reliability of
such judgments are so much a part of the day to day experiences of ordinary
laypersons that it must be concluded that the jury is capable of making an intelligent
assessment of the reliability of the identification testimony without need for expert
testimony as to the human perceptional processes. See Wooden, 658 S.W.2d at 557;
see, e.g., People v. Kelley, 631 N.Y.S.2d 926 (N.Y. App. Div. 1995), appeal denied,
664 N.E.2d 515 (N.Y. 1996). Accordingly, it is not appropriate for the trial judge to take
from the jury their own determination as to what weight or effect to give to the evidence
of the eyewitness and the identifying witnesses, and to have that determination put
before them on the basis of the expert testimony as proffered. See, e.g., United States
v. Daniels, 64 F.3d 311 (7th Cir. 1995), cert. denied, 516 U.S. 1063, 116 S.Ct. 745
(1996); State v. Coleman, 486 So.2d 995 (La. Ct. App.), cert. denied, 493 So.2d 633
(La. 1986); Simmons, 662 A.2d at 621; People v.
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED JUNE 1998 SESSION October 13, 1998
Cecil W. Crowson Appellate Court Clerk STATE OF TENNESSEE, ) ) C.C.A. NO. 01C01-9707-CC-00270 Appellee, ) ) WILLIAMSON COUNTY VS. ) ) HON. DONALD P. HARRIS, EDDIE L. COLEY, JR., ) JUDGE ) Appellant. ) (Aggravated Robbery)
SEPARATE CONCURRING OPINION
I agree that the proffered expert testimony regarding eyewitness testimony
should have been excluded. I am unable, however, to join with the majority in
concluding that the admission or non-admission of expert testimony should be
exercised under a judicial discretion standard on a case by case basis. Although
clearly subject to varying interpretations, I believe the current state of the law in
Tennessee on this issue forbids the introduction of expert testimony regarding
eyewitness identification.1 See State v. Wooden, 658 S.W.2d 553 (Tenn. Crim. App.
1983); see also State v. Ward, 712 S.W.2d 485 (Tenn. Crim. App. 1986). Indeed,
Judge Byers, writing on behalf of this court, concluded that the evaluation of the
credibility of eyewitness testimony is a matter within the province of the jury and does
not require expert testimony. Wooden, 658 S.W.2d at 557. Because I believe this
reasoning sound, I would adhere to the position of a per se exclusionary rule regarding
1 In McM ullen v. State , 714 So .2d 368 ( Fla. 1998 ), reh’g denied, (June 10, 1998), cited by the majority, a comprehensive review of various state and federal jurisdictional positions regarding the admissibility of eyewitness expert testimony was presented. Although the majority in the present case conclud es that T ennes see pe rmits, on a discretio nary bas is, expert e yewitness testimo ny, McMullen and other legal treatises have, in interpreting Wooden , concluded that Tennessee has adopted a per se rule of inadm issibility. See McMullen, 714 So .2d at 371 ; Annota tion, Experts on Eyewitness Testimony, 46 ALR 4th 1047, 1105 (1986). eyewitness expert testimony. 2
The introduction of expert testimony is controlled by Rule 702, Tenn. R. Evid.
This rule provides that “[i]f scientific, technical or other specialized knowledge will
substantially assist the trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert . . . may testify in the form of an opinion or
otherwise.” (Emphasis added). Whether the proffered expert testimony will
substantially assist the trier of fact is the touchstone of Rule 702 and, thus, is the
ultimate factor in determining whether such eyewitness expert testimony is admissible.3
It is conceded that expert testimony on eyewitness identification is introduced to
alert the jury to the fallibility, inaccuracies, and inconsistencies of human perception
based upon objective generalities adduced from controlled experiments.4 See
generally McMullen, 712 So. 2d at 377 (Anstead, J., concurring in part and dissenting
in part). Indeed, as noted in McMullen, one leading commentator on the subject
advances the argument “that the average juror actually knows little about factors
2 At the outset, it is prudent to note the three views on the admissibility of eyewitness expert testimony that have emerged: (1) The discretionary view, whic h hold s tha t the a dm issio n of e xpe rt test imo ny is within the dis cretion of the trial judge . Curren tly this is the m ajority view am ong bo th federal and state courts;
(2) The prohibitory view, which expressly prohibits the use of this type of expert testimo ny. See, e.g., United States v. Holloway, 971 F.2 d 675 (1 1th Cir. 19 92), cert. denied, Rudder v. United States, 507 U.S . 962, 113 S.Ct. 139 0 (1993 ); State v. Goldsby, 650 P.2d 952 (O re. Ct. App . 1982); Comm onwealth v. Simmons , 662 A.2d 621 (Pa. 199 5), cert. denied, 516 U.S. 1128, 116 S.Ct. 945 (1996); and
(3) The limited admissibility view, which co ncludes that the trial cou rt abuse s its discretion in excluding this evidence in cases where there is no substantial corrob orating ev idence. O nly two cou rts have a dopted this position. See, e.g., United States v. Downing, 753 F.2 d 1224 (3d Cir. 19 85); Peo ple v. M cDo nald , 690 P.2d 709 (Cal. 1984).
McMullen, 712 So .2d 368, 3 70 (Fla. 19 98), reh’g denied, (June 10, 1998). Again, the majority in the present case adopts the majority discretionary position. However, I find that this position is inconsistent both with prior holdings of this court and with Tenn. R. Evid. 702.
3 It should be noted that both Wooden and W ard were decided prior to the adoption of the Tennessee Rules of Evidence (effective date January 1, 1990).
4 As illustration, in the present case, the appellant’s expert was “prepared to provide testimony about the areas of the process of eyewitness identification, the relationship between stress and m emory for an event, cross-racial identification, the relationship between the confidence that a witness has in the accuracy of his or her identification and the accuracy of that identification, and the effect time has on the accura cy of rem emb ering som ething se en.”
2 affecting the accuracy of eyewitness identifications” and “[w]hile most people are
satisfied in believing they have ‘common sense,’ the memory process involves factors
that are often counterintuitive.”5 Id. at 377 (citing Cindy J. O’Hagan, When Seeing is
Not Believing: The Case for Eyewitness Expert Testimony, 81 GEO .L.J. 741, 760-61
(1993) (footnotes omitted)). Such generalizations do not apply to every witness’ ability
of perception and do not substantially assist the trier of fact as the trustworthiness of
eyewitness observations is not generally beyond the common knowledge and
experience of the average juror. Moreover, if indeed the purpose of the expert
testimony is to contradict “common sense,” the testimony would appear to be more
akin to impeachment testimony than substantial assistance. In sum, expert testimony
on eyewitness identification is not needed to explain “common sense.” The making of
judgments of identification and the awareness of the factors bearing on the reliability of
such judgments are so much a part of the day to day experiences of ordinary
laypersons that it must be concluded that the jury is capable of making an intelligent
assessment of the reliability of the identification testimony without need for expert
testimony as to the human perceptional processes. See Wooden, 658 S.W.2d at 557;
see, e.g., People v. Kelley, 631 N.Y.S.2d 926 (N.Y. App. Div. 1995), appeal denied,
664 N.E.2d 515 (N.Y. 1996). Accordingly, it is not appropriate for the trial judge to take
from the jury their own determination as to what weight or effect to give to the evidence
of the eyewitness and the identifying witnesses, and to have that determination put
before them on the basis of the expert testimony as proffered. See, e.g., United States
v. Daniels, 64 F.3d 311 (7th Cir. 1995), cert. denied, 516 U.S. 1063, 116 S.Ct. 745
(1996); State v. Coleman, 486 So.2d 995 (La. Ct. App.), cert. denied, 493 So.2d 633
(La. 1986); Simmons, 662 A.2d at 621; People v. Anderson, 630 N.Y.S.2d 77 (N.Y.
App. Div.), appeal denied, 661 N.E.2d 1383 (N.Y. 1995).
5 For e xam ple, s om e psyc holog ists in this fie ld arg ue th at the ir res earc h rev ealed com mo nly held misc oncep tions of the genera l public, e.g., (1) “The more confident a witness is, the more accurate the testimony is likely to be,” and (2) “Police officers mak e better witnesses than ordinary citizens.” See McMullen, 712 So .2d at 377 (citing Elizabe th F. Loftu s and J ame s M. Do yle, E YEWITNESS T E S T IM O N Y : C I V IL A N D C RIMINAL (3d ed. 19 97)).
3 The adversarial system of justice has traditionally relied upon cross-
examination as a mechanism to alert the jury as to any inaccuracies or inconsistencies
in the testimony of an eyewitness and, when coupled with proper cautionary
instructions regarding eyewitness testimony, the jury is presumed to be able to assess
the credibility and reliability of each witness. It is the responsibility of counsel, during
cross-examination, to inquire into the witness’ opportunity for observation, capacity for
observation, attention, interest, and distraction or division of attention. Accordingly, I
conclude that the problem of potentially unreliable eyewitness testimony is not resolved
by the introduction of expert testimony, but rather, the problem is alleviated by proper
cautionary instructions setting forth the factors to be considered in evaluating
eyewitness testimony and other existing safeguards such as cross-examination,
closing argument, and the trial court’s power to suppress testimony if the identification
procedure rendered it unreliable. The use of expert testimony could not only lengthen
the time and increase the cost of trials, but could also divert the jurors from the true
issues or cause them to abdicate their role as the arbiter of credibility in the court room.
As such, I adhere to the per se rule of exclusion pronounced in State v.
Wooden.
____________________________________ DAVID G. HAYES, Judge