United States v. Smithers

• Court: Court of Appeals for the Sixth Circuit
• Decided: May 8, 2000
• Docket: 98-1722
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 ELECTRONIC CITATION: 2000 FED App. 0160P (6th Cir.) File Name: 00a0160p.06

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _________________

;  UNITED STATES OF AMERICA,  Plaintiff-Appellee,   No. 98-1722 v.  > JAMES SMITHERS,  Defendant-Appellant.  1 Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 97-80248—Avern Cohn, District Judge. Argued: August 6, 1999 Decided and Filed: May 8, 2000 Before: BATCHELDER and COLE, Circuit Judges; MARBLEY, District Judge.* _________________ COUNSEL ARGUED: Andrew N. Wise, FEDERAL PUBLIC DEFENDERS OFFICE, Detroit, Michigan, for Appellant. Kathleen Moro Nesi, ASSISTANT UNITED STATES

* The Honorable Algenon L. Marbley, United States District Judge for the Southern District of Ohio, sitting by designation.

1 2 United States v. Smithers No. 98-1722

ATTORNEY, Detroit, Michigan, for Appellee. ON BRIEF: Andrew N. Wise, FEDERAL PUBLIC DEFENDERS OFFICE, Detroit, Michigan, for Appellant. Kathleen Moro Nesi, ASSISTANT UNITED STATES ATTORNEY, Detroit, Michigan, for Appellee. MARBLEY, D. J., delivered the opinion of the court, in which COLE, J., joined. BATCHELDER, J. (pp. 21-46), delivered a separate dissenting opinion. _________________ OPINION _________________ ALGENON L. MARBLEY, District Judge. Appellant James Smithers was convicted of bank robbery in violation of 18 U.S.C. § 2113(a). Smithers now appeals various aspects of his trial, including the district court’s exclusion of the testimony of an eyewitness identification expert, the limitation of Smithers’s wife’s testimony, and the district court’s response to questions posed by the jury after it began deliberating. For the following reasons, we REVERSE the conviction below and REMAND this case for a new trial pursuant to the law set forth herein. I. On the morning of November 12, 1996, a man walked into the Monroe Bank and Trust in Terence, Michigan, and presented bank teller Teresa Marino a note. The note read, “I have a gun. Give me your large bills.” Ms. Marino complied with the demand by turning over the money from her teller drawer. The robber asked for more money, and Ms. Marino unlocked her other drawer and gave him three packs of large bills totaling $3,400. When the robber repeated his demand for more money, Ms. Marino told him that was all she had, and he ran from the bank. The entire incident lasted about two minutes. 46 United States v. Smithers No. 98-1722 No. 98-1722 United States v. Smithers 3

understanding but for the particularized resolution of Two other witnesses observed the robbery. The first, Debra legal disputes. White, was also working as a teller at the bank on November 12, 1996. She was sitting at a desk behind Ms. Marino when 509 U.S. at 596-97. I fear that the majority’s opinion here she noticed an unfamiliar customer standing at Ms. Marino’s will only undermine the balance between truth-seeking and teller station. Ms. White looked away for a moment and fairness that the Rules have so carefully crafted, without when she looked back, the man grabbed the money and adding much at all to the efficacy—at least in this circuit—of walked quickly out of the bank. Ms. White asked Ms. Marino criminal justice. Indeed, the majority here holds that “Expert if she had been robbed. Learning that she had, Ms. White testimony regarding eyewitness identification must be yelled that they had been robbed and went to lock the bank recognized as scientifically commensurate with all other doors. While doing so, she observed the robber getting into psychological studies, and may often be a valid source of the passenger side of a car parked in the parking lot. information to help jurors understand the factors that effect [sic] eyewitness identifications.” The effect of the majority’s Timothy Wilson, the second witness, was a bank customer opinion is to establish the district court as the gatekeeper with who walked into the bank at the same time as the robber. The discretion only to admit, but not to exclude, expert testimony robber held the door open for him as they both entered the relative to eyewitness identification. building. Mr. Wilson saw the robber go straight to the teller and then leave the bank quickly. For all of the foregoing reasons, I respectfully dissent. Investigators from the Monroe County Sheriff’s Department spoke to the witnesses that day. Ms. Marino, who was approximately three feet from the robber, described him as a white male in his late twenties wearing a Nike jacket, baseball cap and sunglasses, over 6' 2" tall, 180-185 pounds, with long bushy dark hair, a moustache and a thin beard. Ms. White described the robber as taller than average, with squinty eyes and wearing a bulky striped jacket. Ms. White described the car as a two-toned brown and black, late 1970's Monte Carlo, with a cream colored landau roof and an Ohio license plate. Mr. Wilson recalled the robber as a very tall man, with a moustache and partial beard, wearing a baseball cap, dark sunglasses and a winter jacket. The next day, officers of the Toledo Police Department noticed a vehicle fitting the description of the car used in the robbery at an apartment complex in Toledo. Monroe County Detective Thomas Redmond drove Ms. White to the vehicle, a 1976 Oldsmobile Cutlass, which she identified as the car used in the robbery. The car was registered to James Smithers. 4 United States v. Smithers No. 98-1722 No. 98-1722 United States v. Smithers 45

Officers then went to Smithers’s home, where his wife, to be allowed to testify in every case in which eyewitness Josette Smithers, informed them that he was at his parents’ testimony is relevant. This would constitute a gross house. The officers searched Smithers’s apartment but found overburdening of the trial process by testimony about matters no incriminating evidence. They located Smithers at his which juries have always been deemed competent to parents’ home, and he accompanied the police to his evaluate”); United States v. Thevis, 665 F.2d 616, 641 (5th apartment. Smithers told the officers that he bought the Cir. Unit B 1982) (“To admit such testimony in effect would vehicle from his brother-in-law, Steve Dallas, who still permit the proponent’s witness to comment on the weight and retained a set of keys to the car. Smithers also stated that on credibility of opponents’ witnesses and open the door to a the morning of November 12, 1996, he had noticed his rear barrage of marginally relevant psychological evidence”); license plate was missing, so he had moved his front plate to Sabetta, 680 A.2d at 933 (“it would effectively invade the the rear. He also claimed to have noticed gas missing from province of the jury and . . . open a floodgate whereby experts the car on other mornings; later, Smithers said that there was would testify on every conceivable aspect of a witness’s a hole in the gas tank. Smithers consented to a search of the credibility”). The logical conclusion of today’s holding—if car, which produced no incriminating evidence. Smithers not its implicit intent—is likely to be precisely this type of voluntarily went to the sheriff’s department where he snowball effect in our circuit. provided handwriting samples and was photographed and fingerprinted. When photographing him, Detective Redmond Acutely aware of the dangers of permitting expert noted Smithers’s height as 6' 6 ½". testimony without a rigorous performance of the gatekeeping function, Daubert observed: Detective Redmond prepared a photo spread of six photographs, including a photo of Smithers. On November It is true that open debate is an essential part of both legal 14, 1996, Detective Redmond showed the photo spread to Ms. and scientific analyses. Yet there are important Marino, Mr. Wilson and Ms. White. Ms. Marino and Mr. differences between the quest for truth in the courtroom Wilson could not identify the robber from the photo spread. and the quest for truth in the laboratory. Scientific Ms. White picked out Mr. Smithers. Immediately after her conclusions are subject to perpetual revision. Law, on identification, Ms. White told Ms. Marino that she had been the other hand, must resolve disputes finally and quickly. able to identify the robber from the photo spread. The scientific project is advanced by broad and wide-ranging consideration of a multitude of hypotheses, Smithers’s handwriting exemplars were submitted to the for those that are incorrect will eventually be shown to be FBI laboratory for analysis. The results were inconclusive. so, and that in itself is an advance. Conjectures that are The demand note was submitted to the Michigan State Police probably wrong are of little use, however, in the project Laboratory for fingerprint analysis. The analysis produced of reaching a quick, final, and binding legal one identifiable print. The government claims the print was judgment--often of great consequence--about a particular inconclusive; Smithers claims the analysis showed that the set of events in the past. We recognize that, in practice, print did not belong to him. a gatekeeping role for the judge, no matter how flexible, inevitably on occasion will prevent the jury from learning Peter Smith, an FBI examiner who specializes in analyzing of authentic insights and innovations. That, nevertheless, exhibits in photographic form, performed a height analysis of is the balance that is struck by Rules of Evidence the robber depicted in the bank videotape. Mr. Smith designed not for the exhaustive search for cosmic concluded that the robber measured approximately 6' 5". Mr. 44 United States v. Smithers No. 98-1722 No. 98-1722 United States v. Smithers 5

Fulero’s exclusion lies not with the district court’s legal Smith also conducted a comparative analysis of the robber in analysis but with Smithers’s inadequate production. the bank photos with a photograph of Smithers. He could neither positively identify nor eliminate Smithers as the bank The cases holding that expert testimony regarding robber. eyewitness identification is too general and those finding that it comments too directly on witness credibility delimit the On June 16, 1997, a grand jury returned an indictment narrow range of circumstances in which this testimony is charging Smithers with one count of bank robbery in violation properly admissible. Unless a very small number of of 18 U.S.C. § 2113(a). eyewitness identifications form the only evidentiary basis for a conviction, and the proffered testimony relates directly to On December 18, 1997, Smithers filed a ten-page motion the facts of the case without commenting on the eyewitnesses’ in limine to determine the admissibility of certain expert credibility, the need for this testimony will simply not be so testimony regarding eyewitness testimony. The district court great that alternative means of cautioning the jury on this commenced Smithers’s jury trial on January 14, 1998. After subject will not suffice. See, e.g, Rincon, 28 F.3d at 923-26. the jury was empaneled, the district court heard argument on The existence of other inculpatory evidence will usually Smithers’s motion in limine, and denied the motion, noting render any error in excluding the expert testimony harmless. that everything an expert would have to say about eyewitness See Smith, 736 F.2d at 1107; Hall, 165 F.3d at 1107-08; identification was within the jury’s "common knowledge" Smith, 156 F.3d at 1053-54; Blade, 811 F.2d at 465; Moore, The court stated that it would give an instruction on 786 F.2d at 1313. Here, the fact that three witnesses eyewitness testimony. Smithers's attorney requested identified Smithers adds to the probability of their accuracy. permission to make a written proffer, which the court Moreover, the Government presented the identification of allowed. Smithers’s car at the bank, the photo analysis showing that Smithers and the robber shared the rare characteristic of being The government presented its case, including eyewitness over 6’5” tall, and a series of lies Smithers told police testimony from Ms. Marino, Ms. White and Mr. Wilson. regarding his whereabouts. While this is not overwhelming Despite their prior inability to identify Smithers from a photo evidence, it does alleviate considerably any concern that spread, Ms. Marino and Mr. Wilson identified Smithers as the Smithers was convicted solely on the basis of erroneous robber in court. Ms. Marino and Ms. White testified that they eyewitness testimony. did not notice that the robber had any distinguishing features. The government rested on January 16, 1998. The various failings in Fulero’s proposed testimony accentuate the jurisprudential danger posed by the majority’s Smithers filed his renewed motion in limine and offer of opinion. Its tangible eagerness to find that the district court proof, regarding expert testimony, on eyewitness abused its discretion in excluding this testimony is likely to identification on January 20, 1998. This proffer described the set a precedent requiring admission of evidence tending to anticipated testimony of Dr. Solomon Fulero, a proposed erode further the jury’s responsibility for making credibility expert on eyewitness identification. It noted that Dr. Fulero determinations. Other courts have recognized this danger and would “educate the jury about the general factors that may steered clear of it. See, e.g., Alexander, 816 F.2d at 169 affect eyewitness accuracy,” including the specific the issues (“Requiring the admission of the expert testimony proffered of: (1) “detail salience” (the fact that eyewitnesses tend to in Moore would have established a rule that experts testifying focus on unusual characteristics of people they observe); (2) generally as to the value of eyewitness testimony would have the relationship between the time that has passed since observing the event and the accuracy of recalling it; (3) the 6 United States v. Smithers No. 98-1722 No. 98-1722 United States v. Smithers 43

effect of post-identification events on memory; (4) the fact our legal system is the sole province of the jury. See that when one person both prepares and administers a photo Greenwell, 184 F.3d at 496; Gacy, 994 F.2d at 313-14; spread, the likelihood of misidentification increases; (5) the Murrian, supra, at 380. As illustrated above, a number of “conformity effect” (the fact that witnesses’ memories are courts have cited this tenet as a basis for excluding eyewitness altered by talking about the event with each other after it identification experts. That threat was also present in this occurs); and (6) the relationship between a witness’s case, as the majority points out, because Dr. Fulero proposed confidence in her recollection and its accuracy. Regarding the to testify, among other things, that the eyewitnesses “would issue of detail salience, the proffer stated that “[h]ad Mr. have observed and been able to recall the large scar on Mr. Smithers been the robber, the eyewitnesses would have Smithers’ neck. That deformity would have been more observed and been able to recall the large scar on Mr. memorable to the witnesses.” The majority opinion says that Smithers’ [sic] neck.” the solution to this admittedly inadmissible testimony is simply to excise the offending language. This ignores the fact After hearing oral argument on the Defendant’s renewed that at the second hearing, Smithers identified the scar as “the motion, the district court ruled that it would exclude the key issue that [Fulero] would address.” Removing this aspect expert testimony: of Fulero’s testimony would gut the remainder of the majority’s reasoning as to why Fulero’s testimony should [p]rimarily because it’s late in the day. It should have have been admitted. Nor is this one sentence the only been done much earlier. On the other hand, I think example of how Fulero’s testimony would have stepped over you’ve got a very good, if there’s a conviction, I think the line. Smithers argued in his renewed motion that “Fulero you’ve made an excellent record that I’ve abused my would testify regarding the perception of the bank robber by discretion in failing to allow it, and I think there’s a [the witnesses] and how [various factors] are directly related certain – I prefer to see it that way. to the accuracy of their identification testimony.” (emphasis added). Again: “Fulero would thus testify that the photo The court also opined that Dr. Fulero’s testimony was “not a spread procedures, and the witness’ numerous meetings with scientifically valid opinion,” “a jury can fully understand that the police, FBI, and each other, would have directly its [sic] got an obligation to be somewhat skeptical of influenced the witness’ ability to recall the particular eyewitness testimony,” and “admission of Dr. Fulero’s characteristics of the bank robber with any degree of testimony is in this case is almost tantamount to the Court accuracy.” (emphasis added). Other portions of the motion declaring the defendant not guilty as a matter of law. . . . are phrased in a more appropriate form, indicating that Fulero [A]bsent the eyewitness testimony I don’t think there’s would testify to research data as it relates to particular enough here to go to the jury.” Finally, the district court conditions experienced by the witnesses, leaving the remarked, “I’m also interested in seeing what a jury will do application of that information to counsel and the jury. But absent that expert testimony. It makes it a more interesting these examples more than adequately justify the district case. I recognize it’s the defendant’s fate that’s at stake, but court’s conclusion that Fulero (who, incidentally, is also an you can always argue for a new trial if he’s convicted.” attorney) would have acted as more of an advocate than a scientific expert in this case. The majority’s decision merely After this ruling, Smithers presented a few witnesses, to excise the offending portions of the testimony not only including his wife, who attempted to establish an alibi leaves very little testimony that is even arguably relevant, but defense. Ms. Smithers testified that Smithers was sleeping in relieves Smithers of his burden of proving that the testimony their house from 3:00 a.m. to 11:30 a.m. the morning of he proffered is admissible. Once again, the blame for November 12, and that as a light sleeper she would have 42 United States v. Smithers No. 98-1722 No. 98-1722 United States v. Smithers 7

The presence of a person labeled an “expert” by the court heard her husband leave the apartment. Ms. Smithers also in the witness stand inevitably carries the risk of jurors’ spoke about her husband’s appearance, maintaining that accepting that person’s testimony as scientifically irrefutable Smithers weighed 245 pounds in November of 1996, is 6' 8" truth. This simple fact underlies the special importance given tall and has a four-inch long scar on the right front side of his to the court’s gatekeeping function with expert testimony, and neck. it is in the majority’s flat rejection of this concept that its reasoning is the shakiest. In its fifth footnote, the majority The case was submitted to the jury on January 21, 1998. observes: “it appears the trial court thought the expert nature The next day, the jury returned a verdict of guilty. The of the testimony would unduly impress the jury; this is an district court sentenced Smithers on June 4, 1998, to a forty- improper factor upon which to exclude expert testimony, for one month term of imprisonment. Smithers timely filed a if this were the test, no expert could ever testify.” While it notice of appeal on June 8, 1998. Smithers now appeals may be correct as a hypothetical matter that exclusion of a various aspects of his trial, only one of which we address witness solely because he was an expert would be an abuse of today: the exclusion of Dr. Fulero as an eyewitness expert. discretion, that is simply not what occurred here. Rather, the court reasoned that cross-examination and a jury instruction II. were preferable to permitting the jury to hear testimony that was only marginally relevant and demonstrably prejudicial to Generally, a trial court’s evidentiary determinations are the Government. The court was in good company in this reviewed for an abuse of discretion. See United States v. conclusion. Daubert itself observed that “[e]xpert testimony Moore, 954 F.2d 379, 381 (6th Cir. 1992). can be both powerful and quite misleading because of the difficulty in evaluating it. Because of this risk, the judge in Smithers argues that the district court’s denial of his motion weighing possible prejudice against probative force under to introduce testimony by an identification expert warrants the Rule 403 . . . exercises more control over experts than over reversal of his conviction. The crucial element of the lay witnesses.” 509 U.S. at 595. A number of other courts government’s case was eyewitness identification of the addressing eyewitness identification expert testimony have defendant and his car, Smithers argues, and Dr. Fulero’s explicitly cited the expert’s “aura of reliability” as a testimony involved a proper subject that would have been prejudicial factor weighing against its admissibility. See helpful to the jury in evaluating this issue. Smithers, Lumpkin, 192 F.3d at 289; Brien, 59 F.3d at 276-77; Blade, therefore, contends that the decision to exclude this expert’s 811 F.2d at 465; United States v. Purham, 725 F.2d 450, 454 testimony, to indulge the district judge in his rather eccentric (8th Cir. 1984); Fosher, 590 F.2d at 383-84 (collecting cases courtroom experiment, was improper. The government referencing the “aura of reliability”); Downing, 609 F.Supp. counters that the district court’s decision was well within its 784; United States v. Collins, 395 F.Supp. 629, 636-37 (M.D. discretion. The district court properly excluded Dr. Fulero’s Penn. 1975). The majority’s citation-free asseveration on this testimony, the prosecution argues, based upon its lack of subject is simply untenable. scientific validity, invasion of the jury’s province, possibility of confusion and the tardiness of Smithers’s proffer. Expert testimony on eyewitness identifications can also be unduly prejudicial when it is phrased so as to comment Courts' treatments of expert testimony regarding eyewitness directly on the credibility of the eyewitness. No court in any identification has experienced a dramatic transformation in context would allow one witness to testify to the credibility of the past twenty years and is still in a state of flux. Beginning another, because assessment of the credibility of witnesses in in the early 1970's, defense attorneys began to bring expert testimony into the courtroom. Then, courts were uniformly 8 United States v. Smithers No. 98-1722 No. 98-1722 United States v. Smithers 41

skeptical about admitting such testimony, elaborating a host cross-examination to inquire into the witness’ opportunity for of reasons why eyewitness experts should not be allowed to observation, his capacity for observation, his attention and testify. In the first case to address the issue, United States v. interest and his distraction or division of attention” (internal Amaral, 488 F.2d 1148 (9th Cir. 1973), the Ninth Circuit held quotations and citations omitted)). The witness’s cross- that the district court did not err in excluding expert testimony examination testimony can then be framed as the defendant regarding eyewitness identification because cross- chooses in closing argument to maximize its potential to examination was sufficient to reveal any weaknesses in the undermine the identification. See Currie, 515 S.E.2d at 339. identifications. After that decision, a series of cases rejected What the defendant is unable to establish by these similar evidence for a variety of reasons. See, e.g., United means—e.g., the counter-intuitive concept suggested by States v. Purham, 725 F.2d 450, 454 (8th Cir. 1984) (finding psychological research that confidence in one’s recollection the question is within the expertise of jurors); United States does not necessarily reflect accuracy—can be ably v. Thevis, 665 F.2d 616, 641 (5th Cir. 1982) (reasoning that communicated by the court in its jury instructions. identification was adequately addressed through cross- Instructions have an advantage over experts in that they can examination); United States v. Sims, 617 F.2d 1371, 1375 (9th be informed by advances in social science research while Cir. 1980) (finding no general acceptance in scientific communicating only those theories that are relevant to the community); United States v. Fosher, 590 F.2d 381, 383 (1st facts of the case, and avoiding the extra delay and expense of Cir. 1979) (ruling that the testimony would be prejudicial). producing and rebutting expert testimony, all without the imprimatur of scientific reliability that accompanies expert This trend shifted with a series of decisions in the 1980's, testimony. Certainly the utility of jury instructions in these with the emerging view that expert testimony may be offered, situations was aptly demonstrated in this case, where the in certain circumstances, on the subject of the psychological district court skillfully addressed Smithers’s concerns by factors which influence the memory process. See, e.g., United adopting an instruction specifically tailored to explain the States v. Moore, 786 F.2d 1308, 1313 (5th Cir. 1986) (finding possible deficiencies of the identifications in this case. In any that “[i]n a case in which the sole testimony is casual event, given the utility of cross-examination and jury eyewitness identification, expert testimony regarding the instructions combined, it is little wonder that the vast majority accuracy of that identification is admissible and properly may of appellate cases have found the choice of these mechanisms be encouraged . . . ”); United States v. Downing, 753 F.2d over expert testimony, even if the expert may have some 1224, 1232 (3d Cir. 1985) (reasoning that “expert testimony particular insight that would not be otherwise revealed, not to on eyewitness perception and memory [should] be admitted be an abuse of the district court’s broad discretion under at least in some circumstances”); United States v. Smith, 736 Kumho Tire, Daubert, and Rule 702. See Moore, 882 F.2d at F.2d 1103, 1107 (6th Cir. 1984) (“The day may have arrived, 1110-11; Hall, 165 F.3d at 1107; Smith, 122 F.3d at 1358-59; therefore, when Dr. Fulero’s testimony can be said to conform Hicks, 103 F.3d at 847; Kime, 99 F.3d at 884; Ginn, 87 F.3d to a generally accepted explanatory theory.”). State court at 370; Rincon, 28 F.3d at 925-26; Jordan, 983 F.2d at 938- decisions also reflect this trend. See, e.g., State v. Buell, 489 39; Curry, 977 F.2d at 1051; Blade, 811 F.2d at 464-65; N.E.2d 795 (Ohio 1986) (overruling per se rule and holding Moore, 786 F.2d at 1311-12; Fosher, 590 F.2d at 382; expert testimony admissible to inform jury about factors McClendon, 730 A.2d at 1115-16; McMullen, 714 So.2d at generally affecting memory process). Indeed, several courts 370; Gaines, 926 P.2d at 662-63; Buell, 489 N.E.2d at 803- have held that it is an abuse of discretion to exclude such 04; Currie, 515 S.E.2d at 339. expert testimony. See, e.g., United States v. Stevens, 935 F.2d 1380, 1400-01 (3d Cir. 1991) (reversing and remanding for 40 United States v. Smithers No. 98-1722 No. 98-1722 United States v. Smithers 9

might help jurors reach better decisions. Juries have a new trial); Smith, 736 F.2d at 1107 (holding error harmless in hard time distinguishing "junk science" from the real light of other inculpatory evidence); Downing, 753 F.2d at thing, but aside from some tinkering with the expert 1232 (holding error harmless in light of other inculpatory testimony admitted at trial, this shortcoming has been evidence); State v. Chapple, 660 P.2d 1208 (Ariz. 1983) tolerated. Jurors reach compromise verdicts, although (reversing and remanding for new trial). This jurisprudential they aren't supposed to. Juries return inconsistent trend is not surprising in light of modern scientific studies verdicts, representing irrational behavior or disobedience which show that, while juries rely heavily on eyewitness to their instructions. Juries act in ways no reasonable testimony, it 1 can be untrustworthy under certain person would act. This is the standard for granting circumstances. judgment notwithstanding the verdict in a civil case, or acquittal after verdict in a criminal case, or reducing an 1 award of damages, and there are plenty of occasions for A plethora of recent studies show that the accuracy of an eyewitness these post-verdict correctives. Yet for all of this, courts identification depends on how the event is observed, retained and do not discard the premises of the jury system, postulates recalled. See generally Roger V. Handberg, Expert Testimony on embedded in the Constitution and thus, within our legal Eyewitness Identification: A New Pair of Glasses for the Jury, 32 AM. CRIM. L. REV. 1013, 1018-22 (1995). Memory and perception may be system, unassailable. This shows up in a striking fact affected by factors such as: about the Supreme Court's treatment of social science: (1) the retention interval, which concerns the rate at which a of the 92 cases between 1970 and 1988 addressing issues person’s memory declines over time; (2) the assimilation factor, of evidence and trial procedure, not one relied on the which concerns a witness’s incorporation of information gained extensive body of evidence about jurors' conduct. subsequent to an event into his or her memory of that event; and (3) the confidence-accuracy relationship, which concerns the correlation between a witness’s confidence in his or her memory (citations omitted). and the accuracy of that memory. Other relevant factors include: (4) stress; (5) the violence of the situation; (6) the selectivity of No psychological study will ever bear directly on the perception; (7) expectancy; (8) the effect of repeated viewings; specific persons making an eyewitness identification in court; (9) and the cross-racial aspects of identification, that is where psychological experts will always be forced to extrapolate the eyewitness and the actor in the situation are of different from studies done on other people and opine on the relevance racial groups. such data might have to the facts at hand. Cross-examination Alan K. Stetler, Particular Subjects of Expert and Opinion Evidence, 31A of the identifying witnesses, on the other hand, will always AM. JUR. Expert § 371 (1989). Accordingly, “a jury should consider provide more relevant testimony, because by definition the several factors in judging the accuracy of an eyewitness identification. inquiry is limited to what the eyewitnesses themselves saw Social science data suggests, however, that jurors are unaware of several and experienced. See Smith, 122 F.3d at 1359 (“defendants scientific principles affecting eyewitness identifications.” Handberg, supra, at 1022. In fact, because many of the factors affecting eyewitness who want to attack the reliability of eyewitness recollection impressions are counter-intuitive, many jurors’ assumptions about how are free to use the powerful tool of cross-examination to do memories are created are actively wrong. See Downing, 753 F.2d at 1231 so”). Indeed, to a certain extent, lawyers are abdicating their (finding that “[f]actors bearing on eyewitness identification may be own roles when they seek to rely on experts instead of cross- known only to some jurors, or may be imperfectly understood by many, examination to discredit an eyewitness identification. See or may be contrary to the intuitive beliefs of most”) (citations omitted). This ignorance can lead to devastating results. One study has Amaral, 488 F.2d at 1153 (“Our legal system places primary estimated that half of all wrongful convictions result from false reliance for the ascertainment of truth on the test of cross- identifications. See Elizabeth F. Loftus, Ten Years in the Life of an examination. [...] It is the responsibility of counsel during Expert Witness, 10 LAW & HUM. BEHAV. 241, 243 (1986) (citing a 1983 Ohio State University doctoral dissertation). And “[i]t has been estimated 10 United States v. Smithers No. 98-1722 No. 98-1722 United States v. Smithers 39

Recognizing the dichotomy between eyewitness errors and reconstructionists or DNA experts) typically focus on the data jurors’ reliance on eyewitness testimony, this Circuit has held to which the scientific method is applied, which is subject to that expert testimony on the subject of eyewitness objective analysis. The certainty of the testimony of social identification is admissible. In United States v. Smith, 736 scientists, however, is limited by the nature of their field. F.2d 1103 (6th Cir. 1984), this Court held that a trial court They typically base their opinions on studies of small groups abused its discretion in excluding such an expert. In Smith, of people under laboratory conditions; those studies are then the defendant sought to introduce the testimony of interpreted and extrapolated to predict the likelihood that psychologist Solomon Fulero – the same expert Smithers another person under similar but non-controlled conditions attempted to introduce at his trial – as an expert in the field of will manifest similar behavior. Each step of this eyewitness identification to shed light upon an eyewitness’s analysis—the choice of sample and control groups, the testimony. The lower court excluded the testimony, finding conditions under which they are observed, the cause and that it was inadmissible pursuant to Federal Rule of Evidence nature of the observed behavior, and the likelihood that the 403. On appeal, this Court applied the four prong test for observed behavior will be replicated by a different person in expert testimony articulated in United States v. Green, 548 a non-controlled setting—is influenced by the personal F.2d 1261 (6th Cir. 1977): (1) that the witness, a qualified opinion of the individual expert. Nor will there be much expert, (2) was testifying to a proper subject, (3) which similarity between the persons typically studied by social conformed to a generally accepted explanatory theory, and (4) scientists and the witnesses in any given criminal trial. The the probative value of the testimony outweighed its studies are virtually always based on college students or other prejudicial effect. readily available test subjects in a controlled environment (which are the most easily measurable), not individuals involved in real world incidents such as actual robbery victims. See, e.g., United States v. Hines, 55 F.Supp.2d 62, 72 (D. Mass. 1999) (assessing relevance of studies of college that more than 4,250 Americans per year are wrongfully convicted due to students); Brian L. Cutler and Steven D. Penrod, Assessing sincere, yet woefully inaccurate eyewitness identifications.” ANDRE A. the Accuracy of Eye-Witness Identifications, in HANDBOOK OF MOENSSENS ET AL., SCIENTIFIC EVIDENCE IN CIVIL AND CRIMINAL CASES PSYCHOLOGY IN LEGAL CONTEXTS 193 (R. Bull and D. § 19.15, at 1171-72 (4th ed. 1995) (citing United States v. Wade, 388 U.S. 218 (1967)). A principal cause of such convictions is “the fact that, in Carson ed. 1995) (Attachment E to Smithers’s Motion in general, juries are unduly receptive to identification evidence and are not Limine) (“Most of what is known about the psychology of sufficiently aware of its dangers.” PATRICK M. WALL, EYE-WITNESS eye-witness memory has been acquired through laboratory IDENTIFICATION IN CRIMINAL CASES 19 (1965). Many jurists agree that experiments”). The limits of social science testimony were eyewitness identifications are the most devastating and persuasive aptly expressed in Gacy v. Welborn, 994 F.2d 305, 313-14 evidence in criminal trials. See, e.g., Watkins v. Sowders, 449 U.S. 341, 352 (1981) (stating that “[t]here is almost nothing more convincing than (7th Cir. 1993): a live human being who takes the stand, points a finger at the defendant, and says ‘That’s the one!’”) (Brennan, J., dissenting) (citations omitted); Social science has challenged many premises of the jury Manson v. Brathwaite, 432 U.S. 98, 120 (1977) (stating that “juries system. Students of the subject believe, for example, that unfortunately are often unduly receptive to [identification] evidence”) jurors give too much weight to eyewitness evidence and (Marshall, J., dissenting); Hon. D. Duff McKee, Challenge to Eyewitness not enough weight to other kinds. Still, the ability of Identification Through Expert Testimony, 35 AM. JUR. POF 3d 1, § 1 (1996) (“Eyewitness testimony may be the least reliable, and yet the most jurors to sift good evidence from bad is an axiom of the compelling.”). Jurors tend to overestimate the accuracy of eyewitness system, so courts not only permit juries to decide these identifications because they often do not know the factors they should cases but also bypass the sort of empirical findings that consider when analyzing this testimony. See Handberg, supra, at 1022. 38 United States v. Smithers No. 98-1722 No. 98-1722 United States v. Smithers 11

announce what facts about the testimony the court would have Applying that standard, the Court noted that the offered discovered in a hearing. Instead, we should follow the lead of testimony would have been based on “a hypothetical factual our sister circuits which, upon a finding that the district court situation identical” to the facts of the case and would have has not assessed an eyewitness identification expert’s explained: (1) that a witness who does not identify the relevance in a manner consistent with Rule 702, have defendant in a first line-up may “unconsciously transfer” his remanded the matter without further discussion. See, e.g., visualization of the defendant to a second line-up and thereby Hall, 165 F.3d at 1102; United States v. Amador-Galvan, 9 incorrectly identify the defendant the second time; (2) that F.3d 1414, 1417-18 (9th Cir. 1993); Downing, 753 F.2d at studies demonstrate the inherent unreliability of cross-racial 1226. I take some comfort in the fact that the majority’s sua identifications; and (3) that an encounter during a stressful sponte application of Daubert and glowing praise for situation decreases the eyewitness’s ability to perceive and eyewitness identification expert testimony are dicta, since remember and decreases the probability of an accurate they exceed the actual holding that the court abused its identification. See Smith, 736 F.2d at 1105-06. The Smith discretion. To the extent, however, that the opinion as a Court held that expert testimony on the reliability of whole is seen as persuasive authority cementing the already- eyewitness identification met the “helpfulness” test of Federal extant impression that our circuit is among the most receptive Rule of Evidence 702 and therefore had been excluded to this type of testimony, see Murrian, supra, at 392, it does improperly at trial. The Court explained that "[i]n reviewing our jurisprudence a disservice. a 403 balancing, the court must look at the evidence in the light most favorable to the proponent, maximizing its III. The Merit of Expert Testimony on Eyewitness probative value and minimizing its prejudicial effect," id. at Identifications 1107, and concluded that “[s]uch testimony might have been relevant to the exact facts before the court and not only might The trepidation with which nearly all appellate courts have have assisted the jury, but might have refuted their otherwise treated this subject is representative of a broader reluctance, common assumptions about the reliability of eyewitness which I share, to admit the expert testimony of social identification.” Id. at 1106. Further, the Smith Court scientists with the same deference given to the testimony of expressed its acceptance of psychological studies as a those in the physical sciences. I do not seek to discredit the scientifically sound and proper subject of expert testimony, value of these researchers’ work; the ever-expanding noting, “[t]he science of eyewitness perception has achieved psychological disciplines have done much in the past several the level of exactness, methodology and reliability of any decades to explode commonly held misconceptions and psychological research.” Id. at 1107. enrich our understanding of human behaviors. As even those courts most opposed to admitting the testimony in court have Smith’s conviction was nonetheless affirmed on the ground acknowledged, those benefits include an enhanced insight that any error by the district court in excluding the proffered into the fallibility of eyewitness identification that can inform testimony was harmless. The Smith Court noted that the our trial procedures. See, e.g., Hall, 165 F.3d at 1104. The government had not only presented three witnesses who difficulty arises in treating psychological theories as if they identified the defendant as the perpetrator, but that the were as demonstrably reliable as the laws of physics. defendant’s palm print was recovered at the scene of the Conclusions reached by applying the laws of all but the most crime, thus “wholly discrediting the defendant’s alibi” theoretical of physical sciences to a particular set of facts are defense. Id. at 1107-08. Because there was other significant verifiable through replication; disagreements between dueling inculpatory evidence, the trial court’s error was deemed experts in the physical sciences (e.g., accident harmless, and the defendant’s conviction was affirmed. 12 United States v. Smithers No. 98-1722 No. 98-1722 United States v. Smithers 37

Smithers now argues that the proper standard for the was not indifference to the law, but an assurance that she had admission of eyewitness expert testimony is that set out in done well in preserving a record of her objection for appeal. Smith. We disagree. The significance of Smith in terms of The observation that admitting Fulero’s testimony would have evaluating expert testimony is questionable after the landmark been “tantamount to the Court declaring the defendant not decision of Daubert v. Merrell Dow Pharmaceuticals, 509 guilty as a matter of law” and that “absent the eyewitness U.S. 579 (1993). In Daubert, the Supreme Court articulated testimony I don’t think there’s enough here to go to the jury” the test that trial courts must use in determining whether correctly describes the severely prejudicial effect that Fulero’s scientific evidence and testimony is admissible. According to testimony likely would have had on the Government’s case. Daubert, a district court must “ensure that any and all Finally, the court’s “experiment” remark, while perhaps scientific testimony or evidence admitted is not only relevant, inappropriate, was made well after the motion had twice been but reliable.” Id. at 589. Daubert thus requires trial courts to denied and was the last statement made on the record before perform a two-step inquiry. First, the court must determine Smithers rested his case. It did not form the basis for the whether the expert’s testimony reflects “scientific court’s exclusion of Fulero, nor did it prejudice Smithers in knowledge,” that is, the court must make “a preliminary any other way. I do not agree that this single comment can assessment of whether the reasoning or methodology justify the majority’s finding of a patent abuse of discretion. underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the The majority ultimately concludes that this case must be facts in issue.” Id. at 592-93. Second, the court must ensure remanded for 7a new trial that, presumably, will include “a that the proposed expert testimony is relevant to the task at Daubert test,” whatever that may be. Were that the extent of hand and will serve to aid the trier of fact. See id. The our holding, my difference of opinion with the majority would Supreme Court referred to this second prong as the “fit” simply be a disagreement about what Daubert requires and requirement. See id. how the district court should have proceeded here. But the majority does not stop there. Instead, it proceeds into a Citing the concurring opinion of Justice Scalia’s in Kumho lengthy explanation of what the court might have found had Tire Co. v. Carmichael, 119 S. Ct. 1167 (1999), the Dissent it applied Daubert to the majority’s liking. This, in my view, proclaims that Daubert is not “holy writ” to evaluate is wholly improper. Not only does this exceed our function proffered experts under Rule 702. While it is true that the as an appellate court, but it is anathema to the law that the Daubert factors “do not constitute a ‘definitive checklist or majority had theretofore laid out; if the gatekeeping function test . . . ,’” Kumho Tire, 119 S. Ct. at 1175 (citing Daubert, is truly in the district court’s discretion and requires a fact- 509 U.S. at 593), the Supreme Court did conclude that “[a] finding hearing, and the district court in this case has failed to trial court should consider the specific factors identified in exercise that discretion as utterly as the majority concludes, Daubert where they are reasonable measures of the reliability then surely the record before us is inadequate to permit us to of expert testimony.” Id. at 1176. The Court also stressed: We conclude that Daubert’s general principles apply to 7 the expert matters described in Rule 702. The Rule, in Of course, in order to perform a more detailed inquiry next time, the respect to all such matters, ‘establishes a standard of district court should have the discretion to require Smithers to present his witness for voir dire, or at least to make an effort to present a sufficiently evidentiary reliability.’ . . . It ‘requires a valid . . . detailed proffer in a timely fashion. Unfortunately, the majority’s opinion connection to the pertinent inquiry as a precondition to would appear to curtain that discretion considerably, if, indeed, the admissibility.’ . . . And where such testimony’s factual majority’s opinion leaves any room for the district court to perform any further inquiry at all. 36 United States v. Smithers No. 98-1722 No. 98-1722 United States v. Smithers 13

order to alleviate the genuine concerns that Smithers had basis, data, principles, methods, or their application are raised. The majority is resolute in its conviction that the called sufficiently into question . . . the trial judge must district court failed to “apply Daubert,” but it fails to explain determine whether the testimony has ‘a reliable basis in how that court could have done any better with no more the knowledge and experience of [the relevant] information than Smithers provided. discipline.’ This case presents very few of the “narrow circumstances” Id. at 1175 (citations omitted) (emphasis added). identified by other courts in which this kind of expert testimony can be relevant. See Smith, 156 F.3d 1046, 1052; The Supreme Court in Kumho indicated that the standards Harris, 995 F.2d at 535-36. There was no problem of cross- set forth in Daubert, depending on the “particular racial identification. The passage of time has been found to circumstances of the particular case,” id., should be flexibly be a relevant factor when the recalled event occurred forty applied. Contrary to the Dissent, the Supreme Court’s years prior, see Krist v. Eli Lilly and Co., 897 F.2d 293, 297- reasoning does not indicate that Daubert should be abandoned 98 (7th Cir. 1990), but not when the time lapse was a totally. This Court finds that in the case sub judice, given the “routine” one of “merely” six years. See Curry, 977 F.2d at expert and the testimony that was proffered, the standards of 1052. Here, the time between the robbery and Ms. White’s Daubert should have been applied.2 positive identification of Smithers in the photo array was two days; the time between the robbery and the trial was only one While it is true that several post-Daubert eyewitness and a half years. Moreover, although Smithers alleges that identification cases have found that the exclusion of the there was an unconscious transference of mistaken testimony was not an abuse of discretion, see, e.g., United identifications among the witnesses, the court explicitly found States v. Hall, 165 F.3d 1095 (7th Cir. 1999); United States that all the evidence presented at the hearing appeared to v. Smith, 156 F.3d 1046 (10th Cir. 1998); United States v. suggest otherwise. Smith, 122 F.3d 1355 (11th Cir. 1997); United States v. Kime, 99 F.3d 870 (8th Cir. 1996); United States v. Brien, 59 F.3d Furthermore, the majority identifies its primary basis for 274 (1st Cir. 1995); United States v. Rincon, 28 F.3d 921 (9th finding an abuse of discretion as the court’s “experiment” Cir. 1994), the lesson from these cases is not that expert comment, explaining that “[b]asing an evidentiary decision on personal curiosity rather than applicable case law and the rules of evidence is a patent abuse of discretion.” The fact 2 The Dissent finds that the Supreme Court’s Daubert decision is: that these offhand statements were made is unfortunate. We review them on the cold record, separated them from their [n]ot 'holy writ' that the district court must invoke by context and texture, including the voice inflection and facial name in order to pass our scrutiny. expressions of their delivery. But the proceedings described Instead, the Dissent suggests that the district court should have instead above make it clear that the district court did not base its relied on a pre-Daubert Third Circuit precedent, United States v. Stevens, exclusion of Fulero on the sinister whimsy that the majority 935 F.2d 1380 (3d Cir. 1991), and United States v. Downing, 753 F.2d imputes to it. The statements were made at the close of the 1224 (3d Cir. 1985), as the standard for outlining the steps that Smithers second hearing, after the court had again denied the motion should have followed in making his proffer to the Court. Apparently, the Third Circuit has provided what the Dissent characterizes as “holy writ,” and instead awarded Smithers a strongly worded instruction. notwithstanding the fact that Stevens and Downing are pre-Daubert The court’s comment to Smithers’s counsel that she had authority and that the proffer of testimony that these Third Circuit cases “made an excellent record that I’ve abused my discretion” require does not meet Daubert's standard for determining whether scientific evidence is admissible. 14 United States v. Smithers No. 98-1722 No. 98-1722 United States v. Smithers 35

testimony on eyewitness identification is never appropriate; indeed, is precisely the kind of proceeding that Kumho Tire rather, the cases indicate that courts must consider whether expressly gives the district courts the discretion to avoid. the testimony would be helpful or confusing to the jury. The cases also discuss whether this type of testimony touched on The majority acknowledges that although the district court the “ultimate issue” in the case and therefore usurped the did not explicitly explain that it was doing so, it did conduct jury’s role; whether there was other evidence against the some inquiry into relevance when it decided that the jury was defendant; and whether the jury could more properly evaluate aware of its obligation to be skeptical of eyewitness the reliability of eyewitness testimony through cross- testimony. The record of the second hearing, however, examination. In light of these cases, we believe that the reveals that the district court in fact looked carefully at the district court should have performed its analysis under the issue of relevance. Even at this point, Smithers did not make rule of Daubert, rather than, as Smithers argues, that of Smith. Dr. Fulero available for voir dire by the Government, but the In any event, the trial court did not analyze the admissibility court initiated a lengthy discussion with Smithers’s counsel of the expert testimony in this case under either of these on Fulero’s familiarity with the facts of the case, including cases. Smithers’s scar, the photo lineup procedure, and the stress of the robbery. These are precisely the questions the district We find that the district court abused its discretion in court needed to ask to determine the relevance and “fit” of excluding Dr. Fulero’s testimony, without first conducting a Fulero’s testimony to the particular facts of the case. After hearing pursuant to Daubert. There are several bases for this hearing Smithers’s answers, the court concluded that Fulero conclusion. As a threshold consideration, we address the would have acted in this case as more of an advocate than a district court’s “experiment” comment. The district court neutral, scientific expert—a characterization borrowed from explained that it was interested in seeing what a jury would do Rincon. See 28 F.3d at 923. The majority fails to suggest any absent the expert testimony because it would make the trial means whatever by which the court could have conducted a “more interesting.” The district court stated: better inquiry under the circumstances. Instead it flatly pronounces that the court’s conclusion was “simply wrong” I’m also interested in seeing what a jury will do absent because it would lead to the “absurd” result of never allowing that expert testimony. It makes it a more interesting case. such expert testimony. I recognize it’s the defendant’s fate that’s at stake, but you can always argue for a new trial if he’s convicted. I suspect that the Seventh and Eleventh Circuits might take umbrage at the majority’s characterizing as “absurd,” their This comment is gamesmanship at its worst and reveals a strong presumptions against expert testimony regarding troubling disregard for this Defendant’s rights, relegating eyewitness identifications, see Hall, 165 F.3d at 1103; Smith, those rights to mere abstractions. The district court’s 122 F.3d at 1357. More importantly, I think it is the reasoning that it could indulge in this experiment because majority’s conclusion that is simply wrong. The majority Smithers could “always appeal” ironically turned this trial fails to explain how this extreme result would follow from the into a laboratory experiment where the judge felt free to play district court’s observation. Indeed, if the district court meant with evidentiary variables at the cost of the Defendant’s flatly to disallow expert testimony concerning eyewitness rights. Basing an evidentiary decision on personal curiosity identifications, it would not have gone out of its way at this rather than on applicable case law and the rules of evidence hearing to replace sua sponte the pattern jury instruction on is a patent abuse of discretion. eyewitness identifications to which Smithers had already agreed with what it saw as “a much stronger instruction” in 34 United States v. Smithers No. 98-1722 No. 98-1722 United States v. Smithers 15

28 F.3d 921 (9th Cir. 1994) and our decision in United States We do not, however, base our decision on the district v. Smith, 736 F.2d 1103 (6th Cir. 1984) (per curiam). The court’s “experiment” comment alone. Even without this Government’s brief went further to explain why the testimony comment, the district court erred in its evidentiary analysis by would be unhelpful and prejudicial in this case, and why failing to apply the Daubert test to the proposed expert cross-examination and jury instructions would better address testimony. Although the decision of whether to admit a Smithers’s concerns. The court demonstrated its reliance on witness’s testimony is left to the sound discretion of the trial these briefs when it began the relevant portion of the motion court, a trial court cannot make an arbitrary decision. When hearing by noting its belief that the Government’s arguments a defendant’s liberty is at stake, it is incumbent upon the trial were persuasive, informing Smithers that he could discredit court to apply the correct law, follow the appropriate the eyewitness identifications through cross-examination, and decision-making steps and articulate the bases upon which its asking for Smithers’s assistance in choosing an appropriate decision rests. Here, the district court should have applied the jury instruction. As recounted above, the court pressed analytical principles set forth in Daubert, but it did not. Smithers for additional details on how Fulero’s testimony would relate to the facts of the case, but no such details were Under Daubert, a trial court should consider: (1) whether forthcoming. This left the court with little basis upon which the reasoning or methodology underlying the expert’s to conclude that the Government was in error in its contention testimony is scientifically valid; and (2) whether that that the testimony would only confuse the jury and invade its reasoning or methodology properly could be applied to the province by commenting directly on the credibility of the facts at issue to aid the trier of fact. The district court, in witnesses. Whether Smithers was unable to demonstrate the neglecting to undertake a Daubert analysis, failed to take relevance of the testimony at this hearing on the first day of these factors into consideration. Indeed, the district court did trial or was simply procrastinating, the onus should fall on not make any determination as to this expert’s scientific him; the court dealt appropriately with the information and reasoning or methodology. We find that if the district court arguments presented to it. had given this issue proper consideration, it may have deemed Dr. Fulero’s testimony scientifically valid. The court also acted properly once Smithers—at the close of his defense—finally proffered the details of Fulero’s Following Kumho Tire, 119 S. Ct. at 1176, we next testimony. At one point during the hearing on the renewed consider the way the district court may have examined the motion to permit Fulero to testify, the court— addressing the Daubert factors in the present case. Tellingly, this Court has prosecutor—explained its reliance on Rincon, and noted, already accredited Dr. Fulero’s science and methodology. In consistent with the “reliability” element of Daubert, that “the Smith, this Court not only noted the jurisprudential movement good professor in his affidavit and in his background and in toward admitting psychological studies of eyewitness experts the literature that was cited to me suggests that the fragility . in general, but praised the qualifications and scientific . . of eyewitness testimony has been established scientifically methods of this same expert witness, Dr. Fulero. In addition, and that he brings an expertise that may assist the jury.” How the district court could have concluded that this testimony –– the majority can hold, in light of this statement and the describing psychological factors such as detail salience, the Government’s decision not to challenge Fulero’s competence, conformity effect, the dynamics of photo identifications and that “the district court did not make any determination as to the confidence-accuracy relationships –– could have been this expert’s scientific reasoning or methodology” is puzzling. applied to the facts at issue in this case. Information about the And because reliability was never at issue, any further inquiry effects of detail salience would bear on the witnesses’ failure into the reliability of the testimony was unnecessary and, to notice Smithers’s conspicuous scar; evidence about the 16 United States v. Smithers No. 98-1722 No. 98-1722 United States v. Smithers 33

conformity effect would apply to Ms. Marino’s and Mr. referenced the decision). Instead, our task is to review the Wilson’s ability to identify Smithers only after they had district court’s performance of its gatekeeping function in spoken with Ms. White; the suggestibility of photo light of “the facts of [the] particular case,” Kumho Tire, 119 identifications created and administered by a single person S.Ct. at 1175 (internal quotations omitted), granting “the trial would apply to the procedures that Detective Redmond used; judge [ ] considerable leeway in deciding in [this] particular and explaining the lack of correlation between confidence and case how to go about determining whether [this] particular accuracy would bear upon the credibility of all of the expert testimony is reliable.” Id. at 1176. In so doing, we eyewitnesses. Had the district court conducted a proper must be mindful of the principles behind Daubert, but “the evaluation of this testimony, we believe it may have found factors it mentions do not constitute a definitive checklist or that Dr. Fulero’s testimony met the first requirement of the test.” Id. at 1175 (internal quotations omitted). Daubert test. I would hold that the way in which the district court The trial court should have next considered whether the conducted its analysis of the admissibility of Dr. Fulero’s proposed expert testimony was relevant to the task at hand testimony was not abusive of the court’s discretion. The core and would aid the trier of fact. The district court did, to some holding of the Daubert decision was that admission of expert extent, discuss this second Daubert prong (even if it did not testimony is governed by the Federal Rules of Evidence and explicitly note that it was doing so), by stating that “a jury can not the theretofore majority rule of “general acceptance” by fully understand” its “obligation to be somewhat skeptical of the scientific community. See Daubert, 509 U.S. at 587. The eyewitness testimony.” This point addresses whether the primary “locus” of the court’s power to evaluate experts rests testimony would “aid the trier of fact.” The court’s statement, in Rule 702. See id. at 589. Rule 702 requires that the however, is simply wrong, and the district court, on remand, testimony be reliable and relevant to be admitted. Because should reconsider this factor. As noted above, jurors tend to the Government has chosen not to contest Dr. Fulero’s be unduly receptive to, rather than skeptical of, eyewitness qualifications as a psychologist or the abstract scientific testimony. Further, accepting the district court’s analysis that validity of the studies he proposes to testify from, either at all jurors are aware of their obligation to be skeptical would trial or on appeal, we may assume that Smithers has satisfied lead to absurd results: expert testimony on eyewitness the reliability requirement. See Greenwell, 184 F.3d at 498. identification would never be admissible. As demonstrated Instead, the Government has consistently focused its by abundant case law, this is not the conclusion that has been challenge on the relevance aspect of Rule 702, which “further reached by courts addressing this issue. Today, there is no requires that the evidence or testimony assist the trier of fact question that many aspects of perception and memory are not to understand the evidence or determine a fact in issue. [...] within the common experience of most jurors, and in fact, The consideration has been aptly described . . . as one of many factors that affect memory are counter-intuitive. In ‘fit.’” ‘Fit’ is not always obvious, and scientific validity for Smith we recognized the expediency of expert testimony to one purpose is not necessarily scientific validity for other, address these complex issues and to inform jurors fully of the unrelated purposes.” Daubert, 509 U.S. at 591 (internal issues they must decide. quotations omitted). The district court here examined briefs on the issue from both sides in preparation for the hearing on The Dissent counters by arguing that eyewitness Smithers’s limine motion. Both briefs recited the applicable identification experts are not necessary because cross- factors from Daubert and Rules 702 and 403. Both examined examination and jury instructions should be the tools used in the leading cases on this type of testimony, both before and a trial to discredit and flush-out eyewitness testimony. after Daubert, focusing especially on United States v. Rincon, 32 United States v. Smithers No. 98-1722 No. 98-1722 United States v. Smithers 17

The trial court must have the same kind of latitude in Unfortunately, the Dissent’s homage to trial procedures does deciding how to test an expert's reliability, and to decide not extend to expert witness testimony. The same argument whether or when special briefing or other proceedings are can be made for the admission of expert testimony: cross- needed to investigate reliability, as it enjoys when it examination and jury instructions can be used to question the decides whether or not that expert's relevant testimony is qualifications of the proffered expert, undermine the basis of reliable. Our opinion in Joiner makes clear that a court the expert’s theories, explain the limits of social science’s of appeals is to apply an abuse-of-discretion standard validation studies and pick apart research methods. The only when it reviews a trial court's decision to admit or reason given by the Dissent for why cross-examination and exclude expert testimony. That standard applies as much jury instructions can serve these goals for eyewitness to the trial court's decisions about how to determine testimony, but not for expert testimony, is that the jury may reliability as to its ultimate conclusion. Otherwise, the take the expert’s testimony as “scientifically irrefutable truth.” trial judge would lack the discretionary authority needed The Dissent's selective faith in the collective intelligence, both to avoid unnecessary "reliability" proceedings in common sense and decision-making ability of the jury is ordinary cases where the reliability of an expert's disheartening, and is also inconsistent with the Dissent’s methods is properly taken for granted, and to require deference to the jury on other matters, including judging the appropriate proceedings in the less usual or more credibility of eyewitness identifications. complex cases where cause for questioning the expert's reliability arises. Indeed, the Rules seek to avoid Further, based on the comment that Smithers’s proffer of unjustifiable expense and delay as part of their search for Dr. Fulero’s testimony was “too late in the day,” the Dissent truth and the just determination of proceedings. Thus, crafts a legal basis for the district court’s exclusion based on whether Daubert's specific factors are, or are not, Federal Rule of Evidence 403. The Dissent concludes that reasonable measures of reliability in a particular case is Rule 403 permits the exclusion of relevant evidence based on a matter that the law grants the trial judge broad latitude “delay.” FED. R. EVID. 403. The Dissent misquotes and to determine. And the Eleventh Circuit erred insofar as misconstrues the meaning of “delay” in Rule 403. Not all it held to the contrary. delay authorizes the exclusion of relevant evidence – only “undue delay.” Moreover, the term “delay” does not connote Kumho Tire, 119 S.Ct. at 1176 (internal citations, quotations delay in the submission of motions or proffers; rather, it and alterations omitted). The court’s failure specifically to encompasses the prolonging of the length of the trial, and can cite Daubert as its basis for excluding Dr. Fulero does not be read properly in conjunction with the other exclusionary itself mandate remand. See Greenwell v. Boatwright, 184 factors: “waste of time, or needless presentation of F.3d 492, 498 (6th Cir. 1999) (“Although the trial court is not cumulative evidence.” See, e.g., John McShain, Inc. v. required to hold an actual hearing to comply with Daubert, Cessna Aircraft Co., 563 F.2d 632 (3d Cir. 1977); the court is required to make an initial assessment of the United States v. International Bus. Mach., 87 F.R.D. 411 relevance and reliability of the expert testimony. Because the (S.D.N.Y. 1980); SCM Corp. v. Xerox Corp., 77 F.R.D. 10 district court did not hold a Daubert hearing we must review (D. Conn. 1977). the record to determine whether the district court erred in its assessment of the relevance and reliability of the expert “Delay” is a consideration of efficiency and is not readily testimony”); see also Hall, 165 F.3d at 1102 (approving of the distinguishable from “waste of time.” CHARLES ALAN district court’s evaluation of the testimony in a hearing that WRIGHT & KENNETH W. GRAHAM JR., FEDERAL PRACTICE did not explicitly cite the two Daubert prongs but frequently AND PROCEDURE: EVIDENCE § 5218 (1978); see also 18 United States v. Smithers No. 98-1722 No. 98-1722 United States v. Smithers 31

CHRISTOPHER B. MUELLER & LAIRD C. KIRKPATRICK, “a criminal defendant’s relevant evidence may generally not EVIDENCE § 4.5 (1995) (concluding that “undue delay, waste be excluded on the basis of a discovery sanction.” The of time or needless presentation of cumulative evidence” are Collins court expressly distinguished the case from one concerns for the “concessions to the shortness of life,” “the determining whether such evidence was admissible pursuant limited resources of the judicial system,” and the presentation to our then-recent Smith decision. In fact, the Collins court of cumulative evidence) (footnote omitted). “Delay” in Rule followed Smith in declining to rule that the testimony was 403 does not mean “filed late” as the Dissent concludes. admissible as a matter of law, and proceeded to find the error harmless in light of other evidence. See id. at **2. Collins, Furthermore, the cases cited by the Dissent to support the then, is completely inapposite to this case, which involves an contention that the basis for the district court’s exclusion of admissibility determination and not a discovery sanction. Dr. Fulero’s testimony was a consideration of “delay” under Moreover, reliance on unpublished cases in a subsequent Rule 403 do not explicitly cite to the Rule nor do they written opinion for purposes other than establishing mention delay as a factor. See United States v. Curry, 977 preclusion or law of the case, unless the prior case is truly of F.2d 1042, 1052 (7th Cir. 1992); United States v. Dowling, such precedential value that it probably should have been 855 F.2d 114, 118 (3d Cir. 1988). published, does violence to the policy we have promulgated in 6. Cir. R. 28(g). This dubious use of Collins will only have The exclusion of Dr. Fulero’s testimony because the the unfortunate side effect of encouraging lawyers to cite evidence was presented “late in the day,” contrary to the other unpublished decisions to us in the future, despite the Dissent’s assertion, was not a proper basis for exclusion. clear intent of the rule. First, the Defendant filed his ten-page motion in limine requesting a ruling on this issue a full month before trial. At II. The District Court’s Application of Daubert the beginning of trial, Smithers renewed his motion orally. A week later, he submitted an additional seven-page brief on the The majority finds that the district court abused its subject. Thus, it is impossible to say that either the court or discretion by failing to apply the evidentiary gatekeeping the government did not have adequate notice of the issue. principles of Daubert. I am not convinced that the court Second, “a criminal defendant’s relevant evidence may committed this error, or that remand would be necessary even generally not be excluded on the basis of a discovery sanction. if it did. The defendant’s Sixth Amendment right to an effective defense will usually outweigh the interest served by pretrial The majority pays passing obeisance to the abuse of discovery orders.” United States v. Collins, No. 87-5077, discretion standard by which we review a district court’s 1988 WL 4434, at *2 (6th Cir. Jan. 25, 1988). Given the decision to exclude expert testimony, but wholly fails to apply importance of eyewitness testimony in this case, the district in this case the deference that standard requires. The factors court should not have excluded Dr. Fulero’s testimony based listed in Daubert were meant to suggest to federal courts the on its supposed tardiness.3 relevant subjects of analysis when evaluating proffered experts under Rule 702, but they are “not holy writ” that the district court must invoke by name in order to pass our 3 scrutiny. Kumho Tire Co. Ltd. v. Carmichael, 119 S.Ct. 1167, The government argues additionally that Smithers’s proffer 1179 (1999) (Scalia, J., concurring). The Supreme Court has demonstrates that the expert testimony would have invaded the jury’s province. Specifically, the government points to the sentence in the recently instructed that proffer which states, “Had Mr. Smithers been the robber, the eyewitnesses would have observed and been able to recall the large scar on Mr. 30 United States v. Smithers No. 98-1722 No. 98-1722 United States v. Smithers 19

notice given); United States v. Dowling, 855 F.2d 114, 118 Finally, we find that the trial court’s error was not harmless. (3d Cir. 1988) (upholding exclusion when 5 days notice given The complexion of the proceedings likely would have in trial held in the Virgin Islands); see also Hon. Robert P. changed had the district court conducted a Daubert hearing Murrian, The Admissibility of Expert Eyewitness Testimony and determined that Dr. Fulero's testimony was admissible. Under the Federal Rules, 29 CUMB. L. REV. 379, 395-96 And, as the Dissent properly points out, expert testimony (1998-99) (instructing practitioners that “The offer of proof should be admitted in the precise situation presented to the should establish the factors in the particular case which call trial court in this case –– that is, when there is no other for expert testimony, such as the extreme stress of the inculpatory evidence presented against the Defendant with the witness, differences in age or race of the defendant and the exception of a small number of eyewitness identifications. eyewitness, and suggestive line up techniques. If the factors See Smith, 736 F.2d at 1107; Moore, 786 F.2d at 1313; necessitating expert testimony are not established, and the Downing, 753 F.2d at 1226.4 Here, eyewitness testimony was court excludes the expert testimony, the decision will likely the crucial, if not the sole basis for Smithers’s conviction. be upheld on appeal”). These decisions and commentary contradict the majority’s blanket statement that delay is “not a proper basis for exclusion.”6 Smithers’s neck.” We agree with the government that this was poorly chosen wording, and that no expert may testify as to what witness did or It is important to note that the majority relies solely on did not see. In a case heavily dependent upon eyewitness identification, United States v. Collins, No. 87-5077, 1988 WL 4434 (6th such testimony could usurp the jury’s function and produce an improper Cir. Jan. 25, 1988) (per curiam) (unpublished), for the comment on the ultimate issue to be decided in the case. The district court, however, did not even mention, much less base its decision on the proposition that tardiness is not a proper basis for exclusion language in this sentence. Even if it had, the proper solution would have of expert testimony. This use of Collins is both misleading been to excise the inappropriate portion of the proffer rather than to and inappropriate. In Collins, which is not only unpublished exclude all of the testimony, the remainder of which dealt only with the but is pre-Daubert, the defendant proffered a psychologist psychological factors which may have impacted the perception and who would testify that the tendency to fill in gaps in memory of the witnesses in this case. This evidence would have been both relevant and helpful to the jury. perception made the eyewitness identifications in the case unreliable. See id. at **1. The district court excluded the 4 As one commentator has indicated: witness for only one reason—he had not been listed as a witness as instructed by a pretrial order. No admissibility [t]here are some indications of a compromise position that would determination of any kind was made. The witness was be more favorably inclined toward [eyewitness identification] therefore excluded solely to punish the defendant for testimony when specific factors of need arise. Where noncompliance with a discovery order. It was in this context identification rests on testimony by someone who knew the that the court made the statement quoted by the majority here: defendant well and was in a good position to see the crime, or where the identification seems strongly established for other reasons (like physical evidence connecting defendant to the crime), there is little reason to admit such testimony. Where 6 identity is a crucial and closely contested issue, however, and As I believe my discussion here makes clear, I understand “delay” where critical testimony is given by people who did not know the to mean “prolonging of the length of the trial,” and not, as the majority perpetrator and had only a short time to see him or were limited suggests I mean, merely “filed late.” This certainly appears to have been or distracted by other factors, expert testimony seems more the district court’s understanding as well, since its ruling was made clearly warranted. immediately before Smithers rested his case, and granting the motion would have required a “lengthy voir dire,” more preparation by the CHRISTOPHER B. MUELLER & LAIRD C. KIRKPATRICK, EVIDENCE, § 6.37, Government, and the direct and cross-examination of Dr. Fulero. at 601 (1995). 20 United States v. Smithers No. 98-1722 No. 98-1722 United States v. Smithers 29

The district court in this case concluded that “[a]dmission of “Admittedly, Your Honor.” A lengthier conversation on the Dr. Fulero’s testimony is in this case is almost tantamount to merits of the testimony ensued, followed by the court’s the Court declaring the defendant not guilty as a matter of decision to continue to exclude the testimony, primarily law. . . . absent the eyewitness testimony I don’t think there’s because of the delay. enough here to go to the jury.” The lower court did not seem to realize that eyewitness expert testimony is most appropriate Federal Rule of Evidence 403 permits relevant evidence to in such situations.5 be excluded "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, The district court should have conducted a hearing under delay, waste of time, or needless presentation of cumulative Daubert and analyzed the evidence to determine whether Dr. evidence." (emphasis added). A district court has "very Fulero's proffered testimony reflects scientific knowledge, and broad" discretion in making this determination. See United whether the testimony was relevant and would have aided the States v. Hawkins, 969 F.2d 169, 174 (6th Cir.1992). A trier of fact. Based on its failure to perform the correct legal Daubert analysis includes a consideration of Rule 403, see analysis––the Daubert analysis––as well as its “experiment” Daubert, 509 U.S. at 595; Rincon, 28 F.3d at 925, and several rationale for excluding the testimony, we find that the district courts have held that Rule 702’s “helpfulness” inquiry court abused its discretion. We therefore REVERSE incorporates Rule 403’s concern for undue prejudice. See Smithers’s conviction and REMAND this case for Hall, 165 F.3d at 1104; Kime, 99 F.3d at 884; Curry, 977 F.2d proceedings in accordance with this decision.6 at 1051. The district court was well within its discretion to refuse to require the Government to prepare a response to an expert witness when the first inkling of what the witness would testify to was not given to the Government until the middle of the trial, after the Government had rested its own case. There is no basis for the majority’s holding that Smithers’s initial motion—which did little more than 5 Presumably, the district court was trying to express that the expert introduce Dr. Fulero and his field of study—or his renewed testimony would be unduly prejudicial. This conclusion is flawed. First, motion at the start of trial, or his mid-trial brief, put the as the Smith Court noted, "in reviewing a 403 balancing [in a criminal Government on sufficient notice of the substance or case], the court must look at the evidence in the light most favorable to the foundation of Fulero’s testimony so as to permit the proponent, maximizing its probative value and minimizing its prejudicial Government to prepare a rebuttal, either to the motions or the effect." 736 F.2d at 1107. The district court did not apply this standard here. Second, it appears the trial court thought the expert nature of the testimony. The consequences of Smithers’s procrastination testimony would unduly impress the jury; this is an improper factor upon should rest on him, not on the Government. Other courts which to exclude expert testimony, for if this were the test, no expert have held that initial notice of the intent to call an eyewitness could ever testify. The court erred in concluding that merely because identification expert witness only a few days before trial is testimony is given by an expert, it must be excluded. grounds for exclusion. See Dorsey, 45 F.3d at 816 (remarking 6 “the case law is clear that it is not an abuse of discretion . . . Smithers also appealed his conviction on two other grounds: (1) the to disallow expert testimony where a late proffer of evidence district court’s exclusion of a portion of the testimony of Smithers’s wife by the defense substantially prejudices the government in its on relevancy grounds, and (2) the district court’s response to questions posed by the jury after it began deliberating. Because we have remanded ability to find its own expert and conduct similar testing” and this case for a new trial based on the district court’s failure to conduct a upholding exclusion when notice given on first day of trial); Daubert test before excluding the eyewitness expert's testimony, these Curry, 977 F.2d at 1052 (upholding exclusion when 4 days additional issues are moot. 28 United States v. Smithers No. 98-1722 No. 98-1722 United States v. Smithers 21

me his curriculum vitae . . . . I’d be happy to entertain [an _______________ instruction.]” It was after this exchange that Smithers asserted for the first time that Fulero would “testify to the DISSENT specifics of the case and explain to the jury that there are _______________ scientific studies that have shown that eyewitness identification is flawed.” Smithers still did not, however, cite ALICE M. BATCHELDER, Circuit Judge, dissenting. I a specific theory or fact in the case to which these “scientific would hold that the district court’s decision to exclude Dr. studies” would relate. The court then concluded that “[none Fulero’s testimony should be affirmed on the basis of of the cases] cited to me . . . suggests that this is admissible Smithers’s delay in proffering it in its specifics to the court evidence. The government’s brief is very persuasive, and I and Government. If we are to reach the merits of the don’t have a report from the expert. No, I think . . . you’re decision, however, I am not nearly so certain as the majority asking him to comment upon Debra White’s credibility.” is that the court did not perform the proper legal analysis. (emphasis added). Smithers conceded the motion and asked Certainly we should make that decision on the basis of a permission to proffer the evidence. The court agreed, and review of the entire record and not, as does the majority, although it offered several times to accept an oral proffer at largely on the basis of a handful of unfortunate but irrelevant that time, Smithers insisted on delivering it in writing. remarks by the district court. In any event, once we have decided, as the majority has, that the court did not perform the It was in the written proffer, which was not filed until after proper Daubert analysis, our response should be to remand the Government had rested its case and immediately before the issue for a proper hearing. We should not proceed to do Smithers rested his, that Smithers first made any colorable that analysis ourselves, nor should we issue what is essentially attempt to tie Dr. Fulero’s testimony to the facts of the case. a blanket endorsement of expert testimony on a subject Smithers identified the stress of the robbery, “detail salience” deserving of, at best, our careful and skeptical scrutiny, relating to Smithers’s scar, the length of time between the effectively warning the district courts in this circuit that in the robbery and the trial, the “conformity effect” of subsequently future it will be an abuse of discretion not to accept such received information, the photo spread methodology,5 and the experts. For these reasons, I must dissent. relationship between the witnesses’ confidence and accuracy as relevant subjects for Fulero’s testimony. Smithers also I. Delay took issue with the adequacy of a jury instruction in counteracting the fallibility of eyewitness identifications. As the majority noted, the district court’s primary reason Smithers had made none of these arguments before this point for denying the renewed motion to permit Fulero to testify in the proceedings, either orally or in writing, despite several was that it was made “too late in the day.” In reasoning that opportunities to do so. It was in this context that the court Smithers’s initial motion in limine put the Government on held another hearing on the motion, and remarked, “you sufficient notice of Fulero’s testimony, the majority makes no finally got your act together with this latest filing . . . . Much mention of the paucity of detail which that motion contained. different from the first filing,” to which Smithers responded, Furthermore, the legal foundation of the majority’s reasoning is, in my view, erroneous. 5 Smithers now proposed to have Fulero testify to the efficacy of the A brief overview of the appellate courts’ reception of expert photo spread, despite having no response to the Government’s testimony on the fallibility of eyewitness identifications is observation in its prior brief that Smithers had thus far proposed no such necessary in order to explain the inadequacy of Smithers’s thing. 22 United States v. Smithers No. 98-1722 No. 98-1722 United States v. Smithers 27

initial motion. The majority correctly observes that for confidence relationship, etc.) may be applicable in the approximately the first decade or so in which such testimony situation at hand. The memorandum’s attachments—Fulero’s was submitted, courts were “uniformly skeptical . . . for a host vita and a selection of journal articles on the topic—plainly of reasons.” These reasons included distrust of the science did nothing to provide the needed specificity. The behind the testimony, a concern that the majority goes to Government made precisely this point in its response considerable lengths to dispel. But this was hardly the only memorandum,4 and cited a number of authorities suggesting reason given for disallowing the testimony, and that that cross-examination and jury instructions were better skepticism rightly continues in the appellate courts today. alternatives. At the hearing, the court began the discussion by The majority opinion in this case acknowledges some of these opining that “the government writes a pretty persuasive brief. decisions, but sidesteps the unanimous hesitancy among You can argue to the jury people make mistakes all the time. appellate courts to open the door too far to this testimony. In You can bring out the discrepancies [through cross- many cases, the excluded testimony is either a generic, examination and a jury instruction].” Smithers responded by scholarly exploration of psychological theory, bearing little defending the scientific validity of the testimony. The court relation to the facts of the particular case, see, e.g., United asked, “Has [the expert] rendered a report?” Receiving a States v. Brien, 59 F.3d 274, 277 (1st Cir. 1995); United negative response, the court continued: “I would have to go States v. Rincon, 28 F.3d 921, 925 (9th Cir. 1994); Jordan v. through a long voir dire ahead of time. I think if you’re going Ducharme, 983 F.2d 933, 939 (9th Cir. 1994); United States to have an expert you’ve got to have a report. You’ve given v. Blade, 811 F.2d 461, 464-65 (8th Cir. 1987); United States v. Fosher, 590 F.2d 381, 382-83 (1st Cir. 1979), or else so specifically directed at the validity of a particular witness’s testimony as to usurp the jury’s role in determining clearly inapplicable in this case. Daubert cited as an example of scientific credibility, see, e.g., United States v. Lumpkin, 192 F.3d 280, testimony the Seventh Circuit’s treatment of spectrographic voice 289 (2d Cir. 1999); United States v. Hall, 165 F.3d 1095, identification technique. One method of examining this technique’s reliability was to ask how often it produced an erroneous result. Here, the 1107 (7th Cir. 1999); United States v. Kime, 99 F.3d 870, 884 proposed “technique” is of the exactly opposite type; it seeks not to make (8th Cir. 1996); United States v. Dorsey, 45 F.3d 809, 812 an identification, but to explain the reasons why an identification may be (4th Cir. 1995); United States v. Moore, 786 F.2d 1308, 1311- incorrect. Hence, a proper analogy to this Daubert observation might be 12 (5th Cir. 1986); United States v. Langford, 802 F.2d 1176, to ask how often this technique correctly ascertains that an identification 1179 (9th Cir. 1986); State v. Gaines, 926 P.2d 641, 645 is wrong. (Kan. 1996); State v. Sabetta, 680 A.2d 927, 933 (R.I. 1996). Nevertheless, Smithers continued: “[T]he question of known rate of error is addressed by the [Handberg] article included as Attachment C In either situation, even though the testimony may have . . . . This article analyzes in detail the effect that certain variables are provided some measure of insight that the jury otherwise likely to have on the ability of eyewitnesses to correctly identify persons would not have possessed, the risk of the jury’s being unduly they have previously seen, pointing out the rate of error in making swayed by testimony with the imprimatur of scientific identifications. [This] forms parts of the scientific basis of Dr. Fulero’s expertise has been deemed significant enough that the testimony.” This passing reference was Smithers’s entire treatment of the “rate of error” issue, and does not provide the needed specificity. decision to exclude it could not be considered an abuse of the trial court’s considerable discretion with regard to evidentiary 4 The Government noted that “Fulero’s testimony . . . would likewise matters. This is especially so in light of the fact that the more be of dubious assistance to the jury. His testimony does not relate to a traditional methods of exposing the fallibility of eyewitness specific fact in this case, such as the efficacy of the photo spread. identifications—cross-examination, jury instruction and Instead, defendant will offer his testimony regarding the general problems closing argument—are more efficacious and far less risky arising from eyewitness identification, in contrast to the specific issues that were presented in the Smith case.” 26 United States v. Smithers No. 98-1722 No. 98-1722 United States v. Smithers 23

Stevens, 935 F.2d at 1397 (quoting Downing, 753 F.2d at than expert testimony that can at best be only marginally 1242).1 The Downing court remanded its case for a proper relevant to the facts at hand. See Moore v. Tate, 882 F.2d Rule 702 hearing on the proposed expert testimony, because 1107, 1110-11 (6th Cir. 1989); Hall, 165 F.3d at 1107; United the district court had merely held a brief sidebar on the issue States v. Smith, 122 F.3d 1355, 1358-59 (11th Cir. 1997); on the tenth day of trial without a voir dire of the witness or United States v. Hicks, 103 F.3d 837, 847 (9th Cir. 1996); any time for either party to present its view. See Downing, Kime, 99 F.3d at 884; United States v. Ginn, 87 F.3d 367, 370 753 F.2d at 1228.2 Here, however, the district court properly (9th Cir. 1996); Rincon, 28 F.3d at 925-26; Jordan, 983 F.2d held a pretrial hearing on various motions in limine, including at 938-39; United States v. Curry, 977 F.2d 1042, 1051 (7th this one, but the content of Smithers’s supporting Cir. 1992); Blade, 811 F.2d at 464-65; Moore, 786 F.2d at memorandum was woefully inadequate to enable the court to 1311-12; Fosher, 590 F.2d at 382; State v. McClendon, 730 exercise its discretion in an informed manner. The 10-page A.2d 1107, 1115-16 (Conn. 1999); McMullen v. State, 714 supporting memorandum recited the applicable standards of So.2d 368, 370 (Fla. 1998); Gaines, 926 P.2d at 662-63; State Daubert and Rules 702 and 403, defended the legitimacy of v. Buell, 489 N.E.2d 795, 803-04 (Ohio 1986); Currie v. Dr. Fulero’s field of study and academic qualifications, and Commonwealth, 515 S.E.2d 335, 339 (Ct. App. Va. 1999). included a few paragraphs indicting the reliability of The grounds on which these courts have explained their eyewitness identifications in general. It contained absolutely rulings vary—the testimony was unhelpful, the subject was no attempt to explain how the testimony would relate to the within the jury’s common knowledge, the subject was not a facts of 3the case or which of the psychological theories on proper one for expert testimony under Evidence Rule 702 or memory (e.g., stress, “forgetting curve,” accuracy- some analogous test, or the prejudice substantially outweighed the probative value pursuant to Rule 403—but the results were the same. 1 Contrary to the majority’s characterization of this citation, I do not offer this quotation as a “holy writ” or rigid “test” that the district court I will concede that the concept of expert testimony on the should have adhered to, but rather as a common-sense explanation of subject of eyewitness identification, and the scientific Smithers’s burden to establish the relevance of his proffered testimony to research behind the testimony, has gained some acceptance the case. For this reason, the Stevens court’s reasoning—or, for that and respect in our courts since it was introduced. But the matter, the identical emphasis on specificity in our Smith decision— is majority’s own recounting of the case law on this subject made no less valid by the fact that it pre-dates Daubert. reveals that the appropriateness of using such testimony in 2 court—instead of its traditional alternatives—to counteract Tellingly, the district court on remand again dismissed the testimony, this time as unhelpful to the jury and more prejudicial to the the deficiencies of eyewitness identifications is still very prosecution than it was probative to the defense. See 609 F.Supp. 784 much in controversy, for all of the reasons detailed above. (E.D. Pa. 1985). The judgment was affirmed without opinion. See No. The recent trend has been towards allowing the testimony in 85-1359, 780 F.2d 1017 (3d Cir. Nov. 25, 1985) (table). a limited number of “narrow circumstances,” but this merely 3 reflects the liberality of Rule 702 and the gradual maturing of The only assertion made in this memorandum that could arguably be the research, not the “dramatic transformation” of judicial considered “specific” to Fulero’s testimony in this case is the reference attitudes that the majority claims. See United States v. Smith, to the “known rate of error.” This brief discussion actually originated 156 F.3d 1046, 1052 (10th Cir. 1998) (holding that cross- from Smithers’s recitation of the Daubert analysis. Smithers was “unclear how the third step in the Daubert analysis, reviewing the rate of examination and common sense will presumptively suffice known error, would apply to this form of scientific testimony.” Not only outside the “narrow circumstances [of] cross-racial is this rate-of-error inquiry not a “step”mandated by Daubert but simply identification, identification after a long delay, identification one of its “general observations,” Daubert, 509 U.S. at 593-94, it is also 24 United States v. Smithers No. 98-1722 No. 98-1722 United States v. Smithers 25

[...] under stress, and [...] the feedback factor and unconscious representative of the cases finding expert testimony too transference”); United States v. Harris, 995 F.2d 532, 535-36 removed from the particular facts to be helpful. See id. The (4th Cir. 1993) (same); Currie, 515 S.E.2d at 338 (same); lack of specificity in Smithers’s proffer likens this case to Brien, 59 F.3d at 277 (“a door once largely shut is now Fosher far more than to Smith. Apart from this distinction, somewhat ajar”). Some of our sister circuits expressly retain the majority opinion’s characterization of Smith’s holding is their jaundiced view of this type of testimony. See Hall, 165 troubling. At most, this court said in Smith that Dr. Fulero’s F.3d at 1104 (“This Court has a long line of cases which testimony on the reliability of eyewitness testimony might reflect our disfavor of expert testimony on the reliability of meet the Green criteria, and might have been improperly eyewitness identification”); Smith, 122 F.3d at 1357 (“This excluded. We did not, as the majority opinion claims, express Court has consistently looked unfavorably on such our “acceptance of psychological studies as a scientifically testimony”). Every court to address the issue has left the sound and proper subject of expert testimony, noting, ‘[the] admissibility of the testimony to the sound discretion of the science of eyewitness perception has achieved the level of district court on a case-by-case basis, either on the authority exactness, methodology and reliability of any psychological of Daubert, Rule 702, or an analogous state rule. No research.’” What we noted is that Dr. Fulero had testified to appellate court has adopted a presumption or per se rule in that effect, see id., and, in the final analysis, held that “even favor of admitting eyewitness identification expert testimony, if it were error to exclude the expert’s testimony, such error something the majority’s opinion comes dangerously close to was ‘harmless.’” Id. at 1106-07 (emphasis added). It is also doing. Many courts have expressly disavowed such a rule. worth noting that the analysis in Smith was not unanimous; See Smith, 122 F.3d at 1359; United States v. Alexander, 816 the concurring judge did not find an abuse of discretion. F.2d 164, 169 (5th Cir. 1987); Blade, 811 F.2d at 465; Since the Smith case, no Sixth Circuit decision has reversed Langford, 802 F.2d at 1179; Sabetta, 680 A.2d at 933. a district court’s exclusion of expert testimony on eyewitness identifications as an abuse of discretion. Moreover, the only federal appellate decisions finding the exclusion of this type of expert testimony to be an abuse of I will address in a later segment of this dissent my view of discretion are readily distinguishable from the instant case. In this testimony’s utility, but for now it suffices to say that United States v. Stevens, 935 F.2d 1380, 1397 (3d Cir. 1991), because the range of circumstances in which this testimony the Third Circuit reviewed a district court’s decision to admit should be admitted is so narrow, the party offering it should the expert’s testimony as to some psychological theories but be required as a threshold matter to make not others. The dangers of the expert’s testimony in general, then, were not at issue. The panel reversed because it found an on-the-record detailed proffer to the court, including no reason why the excluded theories did not “fit” the facts of an explanation of precisely how the expert’s testimony is the case as much as those that were admitted. In United relevant to the eyewitness identifications under States v. Downing, 753 F.2d 1224, 1242 (3d Cir. 1985), the consideration. The offer of proof should establish the district court erroneously excluded the testimony per se presence of factors (e.g., stress, or differences in race or instead of performing its gatekeeping function. In this age as between the eyewitness and the defendant) which circuit’s Smith decision, the Government conceded Dr. have been found by researchers to impair the accuracy of Fulero’s expertise, see 736 F.2d at 1105, and the proffer there eyewitness identifications. specifically tied the theories of transference and cross-racial identification to the facts of that case. See id. at 1106. We used this specificity to distinguish Fosher, which was