United States v. Mathis

Opinions of the United

2001 Decisions States Court of Appeals

for the Third Circuit

8-30-2001

United States v. Mathis

Precedential or Non-Precedential:

Docket 99-5940

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2001

Recommended Citation

"United States v. Mathis" (2001). 2001 Decisions. Paper 200.

http://digitalcommons.law.villanova.edu/thirdcircuit_2001/200

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2001 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Filed August 30, 2001

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 99-5940

UNITED STATES OF AMERICA

Appellee

v.

KEITH MATHIS

Appellant

On Appeal from the United States District Court

for the District of New Jersey

NO. 98-cr-656-2

District Judge: Honorable Alfred J. Lechner, Jr.

Argued June 1, 2000

Before: SCIRICA and NYGAARD, Circuit Judges and

POLLAK,* District Judge

(Filed: August 30, 2001)

_________________________________________________________________

* Honorable Louis H. Pollak, United States District Judge for the

Eastern District of Pennsylvania, sitting by designation.

Robert J. Cleary, Esq.

George S. Leone, Esq.

Phillip H. Kwon, Esq. (argued)

United States Attorney

Assistant United States Attorney

970 Broad Street

Room 700

Newark, NJ 07102

Counsel for Appellee United States

of America

Mark A. Berman, Esq. (argued)

Peter J. Torcicollo, Esq.

Gibbons, Del Deo, Dolan,

Griffinger & Vecchione

One Riverfront Plaza

Newark, NJ 07102

Counsel for Appellant

OPINION OF THE COURT

POLLAK, District Judge:

This appeal concerns three challenges to Keith Mathis's

conviction for bank robbery and conspiracy to commit bank

robbery. First, Mr. Mathis claims that the District Court

wrongly admitted into evidence testimony describing his

involvement in previous, uncharged bank robberies.

Second, Mr. Mathis asserts that the District Court erred in

admitting evidence that his picture was selected from a

photographic array, because the array was

unconstitutionally suggestive. Third, Mr. Mathis argues

that the District Court wrongly excluded expert testimony

that called into question eyewitness testimony identifying

Mr. Mathis as he fled from the robbery. As described

herein, we disagree with Mr. Mathis's first and second

arguments on their merits; with respect to the third, we

hold that the District Court erred in part, but we find it

highly improbable that such error affected the jury's

decision. Thus, we affirm Mr. Mathis's conviction.

2

I. Background

On October 20, 1998, a grand jury indicted Mr. Mathis,

Steven Gantt, and Jeffrey Seaberry on one count of bank

robbery, in violation of 18 U.S.C. SS 2113(a) and 2, and one

count of conspiracy to commit bank robbery, in violation of

18 U.S.C. S 371. The indictment charged the three men

with conspiring, from October 11 to October 14, 1998, to

rob the Sun National Bank in Maple Shade, New Jersey,

and with successfully robbing that bank on October 14,

1998. Mr. Mathis pled not guilty to both counts, and his

trial commenced on January 19, 1999.

At Mr. Mathis's trial, two witnesses testified that they

saw, from an adjoining office building, three masked men

with guns run into, and then out of, Sun National Bank.

These witnesses testified that the three masked men drove

away in a dark-colored Jeep. Also, several Sun National

Bank employees testified that, when the three were inside

the bank, one stood near the door holding two guns, while

the other two jumped over the bank counter and took

money from tellers' drawers. Video footage taken by the

bank's security cameras confirmed the basic details of

these accounts.

The prosecution's primary witnesses were Sergeant Gary

Gubbei and one of Mr. Mathis's alleged co-conspirators, Mr.

Gantt. Sergeant Gubbei testified that, on the morning of

October 14, he responded to a radio dispatch describing the

robbery and the getaway vehicle. Soon thereafter, Sergeant

Gubbei spotted a black Jeep Cherokee with an African-

American driver in the opposing lane of traffic; Sergeant

Gubbei turned and gave chase. After a period of pursuit,

the Jeep left the highway and drove onto a grass median,

where the vehicle apparently stalled and coasted to a halt.

Three men exited the Jeep while it was still moving--the

driver first, then a forward passenger, then a rear

passenger--and escaped over a guardrail on the highway's

far side. The forward passenger, while stumbling over the

guardrail, dropped a black bag containing money. The rear

passenger carried a gun in his right hand as he exited the

Jeep and held the weapon near his head, pointing toward

the sky. The rear passenger momentarily looked back at

Sergeant Gubbei before running away, and Sergeant

3

Gubbei testified at trial that he was able, based on that

brief view, to identify the fleeing man as Mr. Mathis.

Sergeant Gubbei also testified that, at 1:00 p.m. on October

15, he selected Mr. Mathis's picture from an eight-picture

photographic array as depicting one of the Jeep's

occupants.

Mr. Gantt, who pled guilty in this case, testified that he

and Mr. Mathis jointly robbed a total of twelve banks,

including the Sun National Bank, and that seven of these

robberies, including that of the Sun National Bank, also

involved Mr. Seaberry. Mr. Gantt further testified that these

seven robberies shared other characteristics: The robbers

covered their faces with masks; the robbed banks were

located near Camden, New Jersey; and Mr. Mathis often

stood as an armed guard, while Mr. Gantt and Mr. Seaberry

vaulted the counters and stole cash from the drawers.

In describing the Sun National Bank robbery, Mr. Gantt

testified that Mr. Mathis, Mr. Seaberry, and he parked a

Jeep at the rear of the bank's parking lot, donned face

masks, ran alongside the bank, and entered through the

front of the building. Mr. Gantt stated that he and Mr.

Seaberry jumped over the tellers' counters and placed

money from the drawers in a bag they were carrying, while

Mr. Mathis stood guard with two pistols. The three then

returned to the Jeep. Mr. Seaberry drove, Mr. Gantt rode in

the forward passenger's seat, and Mr. Mathis rode in the

rear passenger's seat. Mr. Gantt testified that, as the Jeep

tried to evade a pursuing police cruiser (apparently driven

by Sergeant Gubbei), Mr. Seaberry tried to drive over the

highway's grass divider, causing the Jeep's engine to stall,

and the three men exited while the vehicle was still rolling

forward. Mr. Gantt stated that he and Mr. Mathis jumped

over the highway guardrail and, without Mr. Seaberry,

escaped after stealing a nearby delivery truck. At trial,

Detective Jeff Hoch testified that he arrested Mr. Seaberry

near an apartment complex beside the highway.

II. Grounds for Appeal

A. Evidence of Uncharged Robberies

At trial, the government moved in limine to admit into

evidence testimony from Mr. Gantt concerning eleven

4

robberies that he and Mr. Mathis had jointly undertaken

prior to the Sun National Bank robbery. The government

first addressed the testimony's admissibility under Federal

Rule of Evidence 404(b), which states:

Evidence of other crimes, wrongs, or acts is not

admissible to prove the character of a person in order

to show action in conformity therewith. It may,

however, be admissible for other purposes, such as

proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident

. . . .

Fed. R. Evid. 404(b). According to the government, the

disputed evidence was admissible, inter alia, to show Mr.

Mathis's familiarity with Mr. Gantt and Mr. Seaberry prior

to the charged offense and to show the group's modus

operandi for robbing banks. In response, Mr. Mathis

conceded that Rule 404(b) was satisfied, but he claimed

that Mr. Gantt's testimony presented a risk of unfair

prejudice that substantially outweighed its probative value

and was therefore barred by Rule 403, which provides:

Although relevant, evidence may be excluded if its

probative value is substantially outweighed by the

danger of unfair prejudice, confusion of the issues, or

misleading the jury, or by considerations of undue

delay, waste of time, or needless presentation of

cumulative evidence.

Fed. R. Evid. 403.

The District Court admitted Mr. Gantt's testimony into

evidence, holding, as a preliminary matter, that Rule 404(b)

was satisfied because the testimony's description of

uncharged acts was linked to charged conduct by"[t]he

same general area, the same general time period, the intent

entering into the conspiracy, the background of this, the

familiarity [of] one with the other, the agreement among

everyone and the knowledge with regard to how to carry out

bank robberies." With respect to Rule 403, the District

Court acknowledged that there was "prejudice in this

evidence," but it also found that the evidence"possess[ed]

great probative value." Mr. Mathis's defense was one of

mistaken identity, and the District Court found that"[t]his

5

evidence from a co-defendant links him directly to the

crime, directly with the evidence of the police officer who

will testify. . . . I find it is not unfairly prejudicial looking at

what the Government must prove, what is available to the

Government and who is going to be offering the testimony."

When Mr. Gantt completed his testimony regarding the

uncharged robberies, the District Court read a jury

instruction (whose substance is not challenged) limiting use

of the testimony to showing "defendant's knowledge of the

crime of bank robbery and . . . his familiarity with the other

alleged co-conspirators" and to showing "that the robbery of

Sun National Bank was part of a scheme or plan in which

the defendant participated." The District Court stressed

that the jury could consider such evidence "only for [those]

limited purposes . . . [and] to use the evidence for any other

purpose would be improper and violative of your oath."

We review a district court's decision to admit or exclude

evidence for abuse of discretion, and such discretion is

construed especially broadly in the context of Rule 403.

E.g., Hurley v. Atl. Police Dep't, 174 F.3d 95, 110 (3d Cir.

1999). On appeal, Mr. Mathis claims that Rule 403 should

have barred the contested portion of Mr. Gantt's testimony

because "evidence relating to so many other uncharged

bank robberies" inevitably prejudiced the jury"by

demonstrating that Mathis had a propensity to rob banks."

Appellant's Br. at 28. He also claims that such testimony

was not significantly probative because the government

"could establish Mathis' identity, or his association to Gantt

. . . by Sergeant Gubbei's eyewitness identification. . . and

[by] Steven Gantt's testimony that he was acquainted with

Mathis and that he . . . robbed the Sun National Bank with

the defendant." Id. at 30.

With respect to the testimony's risk of prejudice, we agree

with the District Court that the disputed testimony's

description of eleven uncharged robberies, in a case seeking

conviction on only one, entailed some risk of unfair

prejudice. That is, the jury could well have interpreted Mr.

Gantt's testimony as proving that Mr. Mathis was a person

of bad character who deserved punishment independent of

the government's particular proof regarding the Sun

National Bank robbery. But in United States v. O'Leary, 739

6

F.2d 135 (3d Cir. 1984), this court held that the number of

uncharged acts alleged, even if disproportionate to the

number of charged acts, does not alone render admission of

such evidence an abuse of discretion. The defendant in

O'Leary was charged with one count of conspiracy to

distribute cocaine and five counts of possession with intent

to distribute cocaine. Mr. O'Leary claimed that the district

court erroneously admitted testimony stating that he had

sold drugs on "[a]bout 20" occasions during the course of

"[a]bout a year." Id. at 136. We affirmed the conviction,

finding that the district court had expressly analyzed the

defendant's Rule 403 challenge and had issued an

instruction "clearly explaining to the jury the narrow way in

which to use the evidence," thereby "lessen[ing] any

possibility of prejudice." Id. Similarly, in the case at bar, the

District Court explicitly balanced the testimony's probative

value against its danger of unfair prejudice, and it

instructed the jury on the permissible uses of Mr. Gantt's

testimony.1

The chief authority on which Mr. Mathis relies is United

States v. Hans, 738 F.2d 88 (3d Cir. 1984), where we

reversed a defendant's conviction for bank robbery and

assault during the commission of a bank robbery. The

testimony in Hans was from an FBI agent, and it described

the surprising speed with which the defendant became a

suspect in the case. Such testimony was deemed extremely

prejudicial because, in context, "the only reasonable

inference that a reasonable juror could draw from the

testimony was that Hans was well-known as a bank robber

_________________________________________________________________

1. Mr. Mathis seeks to distinguish O'Leary because the witness in that

case answered relatively few, relatively cursory questions about the

defendant's previous misconduct, while "the government's examination of

Gantt regarding the details of the eleven uncharged bank robberies went

on for 34 pages, and dominated Gantt's trial testimony." Reply Br. at 26.

We cannot agree that the government's efficiency, or lack thereof, in

conducting Mr. Gantt's examination significantly determines the

resultant testimony's prejudicial effect. Here, as in O'Leary, the

government's questions were sufficient in duration and substance to

raise the defendant's prior misconduct as an issue, and this fact

alone--not any claim of "undue delay, waste of time, or needless

presentation of cumulative evidence"--is the defendant's asserted basis

for prejudice.

7

to the Detroit F.B.I." Id. at 94; id. ("[I]t is difficult to imagine

testimony more prejudicial than [the] implication that Hans

was known to the Detroit police as a professional bank

robber . . . ."). Mr. Mathis has presented no argument that

Mr. Gantt's testimony implicated the unusual risk of

prejudice discussed in Hans, and we see no reason to

believe it did so. Whereas the testimony in Hans generated

untestable inferences about what was "well-known" by the

"Detroit F.B.I.," Mr. Gantt testified directly regarding his

own experience. Thus, Mr. Gantt's testimony was properly

challengeable, and was in fact challenged, by vigorous

cross-examination, which significantly mitigated its risk of

unfair prejudice. Cf. United States v. Gonzalez-Lira, 936

F.2d 184, 191 (5th Cir. 1991) (finding the prejudicial effect

caused by evidence of past acts mitigated by the

opportunity to cross-examine and by a proper limiting

instruction); United States v. Lynn, 856 F.2d 430, 437 (1st

Cir. 1988) (finding the risk of prejudice "especially

distressing" where the defendant "could not . . . cross-

examine the agent on the reliability of the information").

With respect to the other part of Rule 403's analysis, the

District Court found that Mr. Gantt's testimony possessed

"great probative value." On appeal, the government argues

that the disputed testimony "was admissible to show the

familiarity and interrelationship of Mathis, Gantt, and

Seaberry," thereby tending to prove Mr. Mathis's conspiracy

count. Appellee's Br. at 53-55. In evaluating this position,

we take guidance from this court's holding in United States

v. Scarfo, 850 F.2d 1015 (3d Cir. 1988). The defendant in

Scarfo was convicted of conspiring to extort, and of

extorting, money from a real estate developer. The district

court admitted testimony from two of the defendant's co-

conspirators stating that, prior to the charged extortion,

they had committed two murders pursuant to the

defendant's orders. These co-conspirators also testified

about numerous details of the defendant's "crime family,"

including uncharged murders, briberies, and extortions. On

appeal, we affirmed the defendant's conviction, holding that

"[b]ecause the government's case against the defendants

rested on the testimony of unindicted co-conspirators,

evidence describing their relationship to the defendants and

providing background information to illustrate the

8

witnesses' roles in the scheme was properly admitted." Id.

at 1020. Also, in order for the jury "to realize that [the co-

conspirators] had been granted immunity for the very

murders that they asserted Scarfo had ordered" and

thereby to assess the witnesses' motive for testifying, we

concluded that such evidence was "essential in the

government's effort to establish the credibility of its

disreputable, yet indispensable witness." Id.

The charged conduct here, of course, lacks much of the

gravity and extensiveness associated with the activities

described in Scarfo, but the applicable legal principles are

not so dissimilar. Mr. Mathis was indicted for a conspiracy,

whose details the government was required to prove, and

Mr. Gantt was the government's only witness who could

describe the conspiracy directly. Mr. Gantt's testimony

regarding the eleven uncharged robberies, if believed by the

jury, explained both Mr. Gantt's role in the conspiracy and

his motive for testifying, i.e., to fulfill his plea agreement

and reduce his sentence. This testimony also tended to

show that, in addition to their previous associations, Mr.

Gantt and Mr. Mathis conspired in robbing Sun National

Bank, on the theory that co-conspirators more often trust

those with whom they are already intimate. Contrary to Mr.

Mathis's argument that the disputed testimony was

unnecessary given other evidence in the case, Mr. Gantt's

testimony was the only direct evidence offered for the

purposes listed above. Accordingly, for reasons parallel to

those in Scarfo, we deem Mr. Gantt's testimony significantly

probative of Mr. Mathis's involvement in the charged

conspiracy.2

_________________________________________________________________

2. The government also argues that Mr. Gantt's testimony demonstrates

a common modus operandi. The government's position begins with the

solid premise that "[a] jury can rationally infer from evidence that the

defendant committed a prior crime in an unusual and distinctive manner

and evidence that a second similar crime was committed in the same

unusual and distinctive manner that the defendant committed the

second crime." Gov't of Virgin Islands v. Pinney, 967 F.2d 912, 916 (3d

Cir. 1992). In order to distinguish this type of inference from

impermissible conclusions based on propensity or bad character,

however, the admissibility of such evidence critically depends on the

degree to which the "manner" employed is "unusual and distinctive." 1

9

After reviewing the District Court's explanation for its

ruling, we find no abuse of discretion in the District Court's

conclusion that the disputed testimony's danger of unfair

prejudice did not substantially outweigh its probative value.

Mr. Gantt's testimony about the uncharged robberies

provided significant background information bolstering the

charged conspiracy's plausibility, and the risk of prejudice

attending such evidence was mitigated by the opportunity

for cross-examination and by the District Court's limiting

instruction. Thus, we hold that the District Court did not

abuse its discretion by declining to exclude Mr. Gantt's

testimony.

B. Evidence of Photographic Identification

Before trial, the District Court conducted an evidentiary

hearing to determine the admissibility of testimony from

Sergeant Gubbei stating that he saw Mr. Mathis exit the

Jeep on October 14, 1998, and that he selected Mr.

Mathis's picture from a photographic array on October 15,

1998. At that hearing, Sergeant Gubbei testified that he

chose Mr. Mathis's photograph from an array of eight

photographs at the Maple Shade police department, and

Mr. Mathis moved to exclude such testimony because

Sergeant Gubbei had previously seen an identical

_________________________________________________________________

McCormick on Evidence 662-63 (John W. Strong ed., 5th ed. 1999)

("Much more is demanded than the mere repeated commission of crimes

of the same class, such as repeated murders, robberies, or rapes. The

pattern and characteristics must be so unusual and distinctive as to be

like a signature.") (footnotes omitted). On this point, Mr. Gantt's

testimony indicated only that all of the uncharged robberies at issue

occurred near Camden, New Jersey, within approximately four months of

one another, and that the robbers wore gloves and masks. Mr. Gantt

further testified that sometimes his girlfriend waited outside the target

bank in a car, other times she did not; sometimes one robber acted as

an armed guard near the bank's door, sometimes not; sometimes the

robbers would use a stolen getaway car, other times not; sometimes they

used a .45 caliber handgun, other times a .22 caliber handgun, and

sometimes they used toy guns or screwdrivers taped to look like guns.

None of the authorities cited by the government has approved modus

operandi admissibility based on such inconsistent and generally non-

distinctive characteristics, and we find the evidence in this case

insufficient to support such a theory.

10

photograph of Mr. Mathis. Specifically, a Maple Shade

detective had, roughly one month before the robbery, given

Sergeant Gubbei materials describing various bank robbery

suspects. According to Sergeant Gubbei, these materials

included between thirteen and fifteen pages with

approximately seven photographs of bank robbery suspects,

and one of these photographs--virtually identical to that

later placed in the array--depicted Mr. Mathis. 3

Mr. Mathis argued that admitting this testimony from

Sergeant Gubbei would violate the Due Process Clause's

protection against certain suggestive identification

procedures. In particular, Neil v. Biggers, 409 U.S. 188

(1972), held that, for out-of-court identifications,

"convictions based on eye-witness identification . . . will be

set aside only if the photographic identification was so

impermissibly suggestive as to give rise to a very

substantial likelihood of . . . misidentification." Id. at 196-

97 (internal quotation omitted).4 Biggers further declared

that likelihood of misidentification should be measured by

a totality of circumstances including: the witness's initial

opportunity to view the suspect at the crime scene and

degree of attention at that time, the witness's level of

certainty in the disputed identification, the length of time

between initial viewing and disputed identification, and the

accuracy of any intervening description of the suspect

occurring between those two events. Id. at 199-200.

In the present case, Mr. Mathis contended that "the very

fact of [a] previous viewing" was itself sufficient to establish

the identification procedure's suggestiveness. He further

argued that a substantial likelihood of misidentification

arose both from Sergeant Gubbei's limited opportunity to

view Mr. Mathis as he fled and from Sergeant Gubbei's

_________________________________________________________________

3. We base much of our analysis on Sergeant Gubbei's testimony

because the materials themselves, aside from the page containing Mr.

Mathis's picture, apparently were not introduced into evidence.

4. See also United States v. Emanuele, 51 F.3d 1123, 1128 (3d Cir. 1995)

(interpreting later cases as requiring only a "substantial risk of

misidentification").

11

degree of attention, which was arguably impaired by other

people and events he witnessed at that time.5

The government replied that Sergeant Gubbei's testimony

showed that he had only reviewed the materials containing

Mr. Mathis's photograph once or twice, immediately after

receiving them approximately a month before the Sun

National Bank robbery. Furthermore, Sergeant Gubbei

stated he had attended most closely to the suspects' modi

operandorum, not to their photographs. The government

also noted that Sergeant Gubbei described his view of Mr.

Mathis's face on October 14 as unobstructed and clear, and

that he exhibited both a high degree of attention in

watching the Jeep's occupants disembark and a high level

of certainty in making his subsequent photographic

identification.

In denying Mr. Mathis's motion to exclude the testimony,

the District Court followed this court's two-step process for

applying Biggers:

The first question is whether the initial identification

procedure was `unnecessarily' . . . suggestive. This

inquiry . . . contains two component parts: that

concerning the suggestiveness of the identification, and

that concerning whether there was some good reason

for the failure to resort to less suggestive procedures. If

a procedure is found . . . unnecessarily suggestive, the

next question is whether the procedure . . . gave rise to

such a `substantial likelihood of . . . misidentification'

that admitting the identification would be a denial of

due process.

United States v. Stevens, 935 F.2d 1380, 1389 (3d Cir.

1991) (internal quotation omitted). The District Court ruled

that Mr. Mathis did not "initially demonstrate[that] the

identification was impermissibly suggestive"; the District

Court then proceeded to find that Sergeant Gubbei's

identification was reliably based in fact and most likely did

_________________________________________________________________

5. Mr. Mathis conceded that Biggers's"length of time" factor weighed in

favor of admitting the evidence, since the contested identification

occurred just one day after Sergeant Gubbei viewed the Jeep's

passenger.

12

not result from impermissible suggestion. The District

Court also found that the "background of the photo of the

defendant is no darker or lighter than the other photos,"

that the cropped pictures did not reveal any difference in

the subjects' build, and that the eight men "have the same

skin tone, have the same facial features, eyes, nose, lip

shape, [and] facial hair."

We review the District Court's decision for abuse of

discretion, applying clear error review to its underlying

factual findings and plenary review to its conclusions

drawn from such facts. United States v. Emanuele , 51 F.3d

1123, 1127 (3d Cir. 1995); see also Sumner v. Mata, 455

U.S. 591, 597 (1982) (discussing the relationship between

fact and law in the context of pretrial identifications). On

appeal, both parties have primarily disputed the factual

reliability of Sergeant Gubbei's identification and whether

there existed a substantial likelihood of misidentification.

We affirm, however, based solely on the first part of the

Stevens test, i.e., the District Court's determination that

Mr. Mathis did not show the photographic identification to

be unnecessarily suggestive. See United States v. Hill, 967

F.2d 226, 230 (6th Cir. 1992) (noting the defendant's

burden of proof on this issue).

Mr. Mathis contends, as he did before the District Court,

that "a photographic array created for purposes of a bank

robbery investigation--which consists of seven photos the

witness has never seen before, and one photo the witness

has seen before in the very context of a bank robbery

investigation--is by its very nature unduly suggestive."

Appellant's Br. at 14. We disagree, finding that, without

more, this allegation speaks only to the weight of the

evidence and, thus, may properly be argued to the jury--as

Mr. Mathis did in this case. Cf. Manson v. Braithwaite, 432

U.S. 98, 116 (1977) ("[E]vidence with some element of

untrustworthiness is customary grist for the jury mill.

Juries are not so susceptible that they cannot measure

intelligently the weight of identification testimony that has

some questionable feature."). The unadorned fact that

Sergeant Gubbei briefly viewed Mr. Mathis's picture, as part

of a collection of materials distributed one month before the

robbery, does not demonstrate sufficient suggestiveness to

13

require constitutional inquiry into whether a

misidentification might have occurred in this case.

Since we have not discovered cases squarely addressing

facts like these, we are primarily guided by principles

articulated in Stevens, 935 F.2d at 1380, where the

defendant's picture was selected from a photographic array

by two witnesses who had previously identified the

defendant from a police station's wanted board. That board,

to which the witnesses were directed by a police officer as

they filed their complaint, contained eight posters."[F]ive

were composite sketches, one contained eight small

photographs, and the other two were both photographs of

[the defendant]. . . . [O]ne of his photographs was in color,

whereas the other nine photographs were in black and

white." Id. at 1388. In evaluating the suggestiveness of the

board's collection of photographs, we acknowledged that

the wanted board had "several suggestive attributes":

"Whereas the posters of Stevens each contained

photographs, most of the other posters had only composite

sketches. Stevens's picture, moreover, was the only one

that appeared twice . . . . Even more bothersome . .. are

that Stevens's photographs were significantly larger than

the others, and that Stevens was the only suspect

portrayed in color." Id. at 1390. Each of these features

"quite possibly could have drawn the victims' attention to

Stevens" independent of the witnesses' recollection. Id. But

we also noted certain considerations that counseled against

deeming such suggestiveness "unnecessary," including the

fact that the wanted board had not been "arranged with

this particular crime in mind. It was, rather, a collection of

random sketches and photographs that had been

assembled in order to facilitate chance identifications . . . ."

Id. Measured against this general law enforcement purpose,

we also noted that wanted boards often cannot be made

with photographs of uniform size. Thus, although aspects

of the particular wanted board in Stevens were

unnecessarily suggestive, we made significant efforts to

stress that such displays generally are not so. Compare id.

with id. at 1390 n.12.

Here, the materials that Sergeant Gubbei received were

apparently assembled for a law enforcement purpose whose

14

validity is not challenged. Such materials obviously were

not prepared or circulated with the Sun National Bank

robbery (which occurred thereafter) in mind, nor, it seems,

with awareness of influencing any photographic

identification procedures. Cf. Emanuele, 51 F.3d at 1129

("[W]e expressly do not require defendant to establish the

government's state of mind. On the other hand, evidence

that the government intended and arranged such [a

potentially suggestive] encounter would be a substantial

factor in the court's analysis."). We hold that, with respect

to the present facts, due process does not protect

defendants like Mr. Mathis from photographic materials

briefly viewed one month before the disputed identification,

when such materials are distributed only for purposes of

general law enforcement. The brief time that elapsed

between Sergeant Gubbei's receiving the materials and his

selecting Mr. Mathis's picture from the photographic array

significantly reduces the level of cognizable "suggestiveness"

at issue. And though it might seem preferable, or even more

effective, for police departments to use photographs in

identification arrays that are different from those used in

previously distributed suspect data, we do not find an

identification "unnecessarily suggestive" simply because the

same photograph, or a very similar photograph, is used in

both. Law enforcement agencies commonly lack an

abundance of particular suspects' photographs for use in

assembling photographic arrays. And even where various

pictures are on hand, lists are not often kept recording

which pictures have been circulated to officers who later

happen to be eyewitnesses. Given such operational

circumstances--similar to those concerning police station

wanted boards--we cannot agree that Sergeant Gubbei's

prior exposure to Mr. Mathis's photograph, in and of itself,

renders his subsequent identification unnecessarily

suggestive.

Mr. Mathis further claims that certain "additional

circumstances" aggravated the suggestiveness of Sergeant

Gubbei's photographic identification. First, Mr. Mathis

notes that Sergeant Gubbei chose Mr. Mathis's photograph

only after Mr. Gantt had already identified one of his co-

conspirators by name as "Mr. Mathis." We agree with the

government, however, that there is no evidence to connect

15

Mr. Gantt's identification of Mr. Mathis by name with

Sergeant Gubbei's identification of Mr. Mathis by image.

Since the photographic array did not list the names of its

subjects, Mr. Mathis has failed to show how Mr. Gantt's

prior identification by name increased the photographic

array's suggestiveness. Second, Mr. Mathis claims that, of

the eight photographs in the array, Mr. Mathis's picture

"quite obviously" was the only one of a "slender and slight"

build. We review for clear error the District Court's factual

finding to the contrary, and we find none. The array at

issue portrays only the subjects' heads and necks, making

their general physiques very difficult to estimate. Even from

this limited view, however, it seems that at least two other

photographs depict men of a build similar to Mr. Mathis's.

Third, Mr. Mathis claims that the background of Mr.

Mathis's photograph "was noticeably darker than the

remaining seven." Upon reviewing the array, we agree and

find the District Court's finding to the contrary clearly

erroneous; thus, we must assess the impact of this

circumstance on the alleged "unnecessary suggestiveness"

of Sergeant Gubbei's identification. Although Mr. Mathis's

picture is darker than the others in the array, there are at

least three other pictures whose backgrounds are

somewhat dark. Given the current technological state of

photographic reproduction, and the variety of backgrounds

evident in the eight pictures at issue, we hold that the

slightly darker background of Mr. Mathis's picture did not

significantly contribute to the array's unnecessary

suggestiveness. See United States v. Burdeau, 168 F.3d

352, 357 (9th Cir. 1999).

In sum, we find that Sergeant Gubbei's photographic

identification was not "unnecessarily suggestive" to the

degree required by Biggers. Due process does not mandate

the removal of testimony like Sergeant Gubbei's from the

jury's consideration, even if such evidence presents (as

much admissible evidence does) a risk of misidentification.

On the contrary, such modest levels of "suggestiveness,"

which are not deemed constitutionally "unnecessary,"

speak only to the evidence's ultimate reliability and should

therefore be argued for authoritative appraisal to the

factfinder. On the current record, we find no abuse of

16

discretion in the District Court's decision to admit Sergeant

Gubbei's testimony into evidence.

C. Expert Testimony Regarding Eyewitnesses

After the government had presented its witnesses, Mr.

Mathis sought to present testimony from Dr. Geoffrey

Loftus regarding the reliability of eyewitness identifications

such as Sergeant Gubbei's. The District Court conducted

an evidentiary hearing to determine whether such

testimony was admissible. During that hearing, Dr. Loftus

testified that he had received a doctoral degree from

Samford University in clinical psychology and had served as

a professor at the University of Washington for over twenty-

five years. His doctoral dissertation concerned humans'

ability to recall and recognize pictures from memory, and

his subsequent studies in the field of human perception

and scientific methodology were published as books and

professional journal articles. Based on these and other

academic credentials, the District Court qualified Dr. Loftus

as an expert in the field of human perception and memory.

Dr. Loftus then proffered testimony on four topics

concerning the operation of human memory: (i) the

preconditions for forming accurate memories, (ii) the

confounding impact of "double identification" or "post-event

information," (iii) the relationship between individuals'

confidence in describing memories and the accuracy of

such memories, and (iv) potential disruptions caused by

"weapons focus." With respect to memory formation, Dr.

Loftus observed that, among other circumstances, the

brevity of one's visual exposure to an object tends to cause

an incomplete memory, which might later be especially

susceptible to biasing influences. Dr. Loftus described

"double identification" as a problem in determining whether

one's memory derives from one of two or more possible

visual exposures to an object. According to Dr. Loftus, a

witness's recognizing someone, under circumstances

similar to those described by Sergeant Gubbei, could derive

either from the witness's actually having seen the

recognized person or from a previous exposure to that

person's photograph. Dr. Loftus indicated, citing scientific

studies, that when one encounters a remembered image

along with "post-event information" suggesting a particular

17

context from which the image might be remembered (such

as the Sun National Bank robbery's photographic array),

such post-event information can become incorporated with

the original memory, creating an inaccurately

"remembered" association between the image and its

source. Regarding witnesses' confidence in their

identifications, Dr. Loftus stated that "the correspondence

between confidence and accuracy is, at best, about 25

percent." He further explained that when conditions

attending the recalled memories are poor, "when, for

example, there is only a brief duration . . . [or] incorrect

post-event information introduced to the [observer], it's

under those circumstances that the relation between

confidence and [accurate] memory is zero." And on the topic

of "weapons focus," Dr. Loftus discussed studies finding

that the presence of a dangerous weapon can weaken one's

ability to recall other aspects of a remembered scene,

including individuals present therein.

In applying these principles to hypothetical questions

intended to simulate the facts of this case, Dr. Loftus stated

that "it's two to three times as likely that the identification

in the photo montage was made based on seeing the

photograph four weeks earlier than it was based on seeing

the individual" who fled on October 14, 1998. Dr. Loftus

also concluded that, if the photo array did not actually

depict the person who exited the Jeep, that array itself

would constitute incorrect post-event information. And

such misinformation might have caused Sergeant Gubbei's

identification of Mr. Mathis to reflect the man seen in the

previously viewed photograph, who was observed under

conditions favorable to memory formation, rather than the

man seen running away, who was observed under

conditions unfavorable to memory formation. Dr. Loftus

further opined that the officer's confidence in this

identification and the factual accuracy thereof would have

a probabilistic relationship of "essentially zero" under such

circumstances.

Mr. Mathis moved to admit the foregoing testimony into

evidence pursuant to Federal Rule of Evidence 702, which

provides:

18

If scientific, technical, or other specialized knowledge

will assist the trier of fact to understand the evidence

or to determine a fact in issue, a witness qualified as

an expert . . . may testify thereto in the form of an

opinion or otherwise, if (1) the testimony is based upon

sufficient facts or data, (2) the testimony is the product

of reliable principles and methods, and (3) the witness

has applied the principles and methods reliably to the

facts of the case.

Fed. R. Evid. 702. In particular, Mr. Mathis argued that Dr.

Loftus's testimony was based on generally accepted

scientific methods and data, that there was a direct relation

between the proffered testimony and the factual issues in

dispute, and that the proffered testimony would"refute

common assumptions about the reliability of eye witness

identification testimony that will assist the jury to weigh

the credibility of Sergeant Gubbei's eye witness

identification."

The District Court excluded Dr. Loftus's testimony, but it

ratified Dr. Loftus's qualifications as an expert and

dismissed all methodological challenges to the studies he

cited. The following constitutes the District Court's

explanation of its ruling:

I'm particularly concerned with [Rule] 403 and I'm

inclined not to allow this testimony. I believe this

testimony has the probability of confusing and

misleading the jury. I find no problem with his

qualifications. Obviously he is qualified in this area.

The debate over the differences in the studies is an

interesting academic debate. As [defense counsel]

points out, however, there is only one [w]ay to run the

studies. You can't run them in a live situation, they

have to be in a controlled situation. That does not give

me pause.

What does give me pause is the fact that I believe that

in point of fact, there is a probability that there will be

unfair prejudice here. The aura of reliability that's

attached to an expert witness, I believe, is significant.

Listening to this expert, it seems to me, that the

testimony itself has the potential, if not controlling

19

probability of confusing the jury. There is no issue in

this case about cross-racial identification. There is no

issue about stress. They were the two more compelling

issues about which I was concerned.

The issues concerning the focus at the time of the

chase and when the defendant exited the vehicle are

subject to the jury. The defense in this case had an

untrammeled opportunity to cross and did, in fact,

cross the police officer vigorously on that area. The

testimony is, I think clear. Whether the jury accepts it

or not, how the jury accepts it is clearly within their

province. I do not see how this evidence will do

anything, other than to confuse and mislead the jury.

I decline the invitation to admit.

1. Admissibility of Dr. Loftuss Testimony

We review the District Court's decision to exclude Dr.

Loftus's testimony for abuse of discretion. General Electric

Co. v. Joiner, 522 U.S. 136, 143 (1997); Oddi v. Ford Motor

Corp., 234 F.3d 136, 146 (3d Cir. 2000). Although the

District Court explicitly rested its decision on Rule 403's

standards for probative value and prejudice, the

government on appeal invokes only Rule 702's prescriptions

regarding expert testimony. We will address both rules,

beginning with Rule 702.

This court has construed Rule 702 as embodying "three

distinct substantive restrictions on the admission of expert

testimony: qualifications, reliability, and fit." Elcock v.

Kmart Corp., 233 F.3d 734, 741 (3d Cir. 2000). Only "fit" is

contested here; the government acknowledges that Dr.

Loftus is a properly qualified expert and that his methods,

principles, and data are of a sufficiently reliable scientific

character. See generally Daubert v. Merrell Dow Pharm.,

509 U.S. 579, 592-94 (1993) (discussing factors that may

be considered in assessing scientific reliability); In re Paoli

R.R. Yard PCB Litig., 35 F.3d 717, 742 n.8 (3d Cir. 1994)

(same).

Rule 702's fit requirement derives from the textual

provision that "scientific, technical, or other specialized

knowledge will assist the trier of fact to understand the

evidence or to determine a fact in issue." Fed. R. Evid. 702.

20

The requirement is "not intended to be a high one,"

however, Oddi, 234 F.3d at 145, and its principle is not

dissimilar to the Federal Rules' general provision that,

unless otherwise specified, "[a]ll relevant evidence is

admissible" and "[e]vidence which is not relevant is not

admissible." Fed. R. Evid. 402; Kumho Tire Co. v.

Carmichael, 526 U.S. 137 (1999) (interpreting Rule 702 as

requiring all expert testimony to be relevant and reliable).

Compare United States v. Downing, 753 F.2d 1224, 1230

(3d Cir. 1985) (noting "the liberal standard of admissibility

mandated by Rule 702"), with Daubert, 509 U.S. at 587

(noting that Rule 402's "basic standard of relevance is a

liberal one"). See generally Daubert, 509 U.S. at 592

(describing inquiry under Rule 702 as a determination "of

whether the reasoning or methodology underlying the

testimony is scientifically valid and of whether that

reasoning or methodology properly can be applied to the

facts in issue").

The clearest guide for interpreting Rule 702 in the

context of this case is United States v. Downing , 753 F.2d

at 1226, wherein this court, in 1985, first considered the

admissibility of expert testimony concerning human

memory and eyewitness testimony. In Downing, we

discussed certain of the rationales advanced by other

courts of appeals in prior years for excluding such

testimony, including notions that relevant issues could

adequately be raised through cross-examination and

common sense, that such testimony usurps the jury's

function, and that such evidence would lead to an unduly

confusing "battle" of experts. Id. at 1229-30 & n.4. In

explaining why we found those rationales unpersuasive, we

disavowed skepticism of such testimony as a matter of

principle, and we remanded for the district court to apply

Rule 702's "helpfulness test." We described this test, in

pertinent part, as follows: "[A]dmission depends upon the

`fit,' i.e., upon a specific proffer showing that scientific

research has established that particular features of the

eyewitness identifications involved may have impaired the

accuracy of those identifications." Id. at 1226.

In the case at bar, the government challenges the fit of

Dr. Loftus's testimony in three respects. First, on the

21

subject of "double identification" and "post-event

information," the government claims that Dr. Loftus's

testimony did not pertain to the present facts because,

according to Dr. Loftus's own theory, Sergeant Gubbei

viewed Mr. Mathis's face only once, as part of the suspect

materials, before selecting from the photographic array.

Thus, the government claims, this case did not involve any

"double" identification. Appellee Br. at 36. The government

also argues that there was no post-event information

"between the visual identification of Mathis on the day of

the robbery and the photo array identification." Id. at 38.

Each of these arguments misconstrues the substance of Dr.

Loftus's testimony. As explained supra, double

identification theory indicates that a person confronting an

image may have a firm memory of having previously viewed

the image, but may not have a similarly firm memory of

when that viewing occurred. Given the suboptimal

conditions for memory formation during the Jeep incident,

and given the relative calm under which Sergeant Gubbei

had previously seen a photograph of Mr. Mathis, Dr. Loftus

testified that Sergeant Gubbei might have recalled Mr.

Mathis's face from that previously viewed photograph

but--because he was searching the photographic array in

order to identify the Jeep's passenger--he might have

wrongly associated the recalled photographic image with

the fleeing robbery suspect. Contrary to the government's

misunderstanding, the two pertinent "identifications" were

the view of the suspect materials and the view of the man

who fled.

Furthermore, according to Dr. Loftus, the photographic

array constituted potentially inaccurate post-event

information, which might have influenced Sergeant Gubbei

wrongly to associate Mr. Mathis's image with the Sun

National Robbery.6 Dr. Loftus also was of the view that

_________________________________________________________________

6. The government argues that the photographic array was not distortive

post-event information if, as we have now held, the array was not

unconstitutionally suggestive. As our earlier discussion makes clear,

however, the standards of "unnecessary suggestiveness" for admissibility

under Biggers simply have no bearing on Dr. Loftus's testimony. A

photographic identification may be highly suggestive as a psychological

matter and still be deemed legally admissible as a constitutional one. A

determination that such an identification is admissible poses no greater

barrier to attack by expert testimony than it does to cross-examination.

22

Sergeant Gubbei's act of choosing Mr. Mathis's photograph

from the several photographs constituting the photo array

was itself post-event information that could have influenced

Sergeant Gubbei's face-to-face identification of Mr. Mathis

at trial. Dr. Loftus argued that these pieces of post-event

information may have distorted each of Sergeant Gubbei's

purported identifications of Mr. Mathis. Given the close

correspondence between these aspects of Dr. Loftus's

testimony and the factual issues disputed at trial, we

conclude that the proffered evidence did not lack

evidentiary fit for purposes of Rule 702.

Second, the government contends that Dr. Loftus's

observations with respect to the weak relationship between

an eyewitness's testimonial confidence and the accuracy of

such testimony did not fit because, in the government's

view, Dr. Loftus presented "nothing more than a general

thesis on the correlation between confidence and accuracy."

Id. at 44. As an initial matter, this characterization of the

evidence appears mistaken. Dr. Loftus testified about the

relationship between confidence and accuracy under

specific circumstances similar to those in this case: an

identification based on a brief view, in the presence of a

deadly weapon, and several potentially distracting events

on-going. Also, Sergeant Gubbei's testimony on direct

examination indirectly implicated his confidence as an

element supporting the credibility of his identification. In

describing how he selected Mr. Mathis's photograph,

Sergeant Gubbei was asked, "Q: Did you have any

hesitation in determining those individuals [Mr. Mathis and

Mr. Gantt]? A: No, I didn't." Later, after already having

described his choice of Mr. Mathis's photograph from the

array, Sergeant Gubbei was again asked, "Q: Sitting here

today Sergeant, was your identification of Keith Mathis

from the photo array based upon your viewing him the day

before, following the bank robbery or on the photograph

that you had been shown in the packet? A: I identified him

from the incident that took place from the Sun National on

the day before." The level of confidence underlying Sergeant

Gubbei's identification came into more explicit focus during

cross-examination:

Q: [A]s we sit here today, is it even possible that the

identification you made of Mr. Mathis in that photo

23

array was based not on seeing him exiting that Jeep

but on the previous opportunity to observe that

photograph.

A: No, I'm positive by him getting out of the vehicle

. . . .

Q: Your answer is it's not even a possibility?

A: I guess there is a remote possibility, but I'm positive

of the identification when he exited the vehicle.

Where Sergeant Gubbei testified so directly regarding his

high confidence in the disputed identification, it seems

clear that Dr. Loftus's testimony did address, for purposes

of Rule 702, pertinent factual disputes in the case. See

Stevens, 935 F.2d at 1400 (reaching an identical conclusion

where the defendant sought "[t]o rebut the natural

assumption that [the witnesses'] strong expression of

confidence indicates an unusually reliable identification").

Third, the government argues that Dr. Loftus's opinions

about "weapons focus" were not relevant to the present

case because Sergeant Gubbei was a police officer who was

quite accustomed to firearms, and because the relevant gun

was pointed into the air, not at Sergeant Gubbei. Such

arguments may be useful topics for cross-examination, but

we do not find them persuasive grounds for exclusion

under Rule 702. Dr. Loftus expressed the view that the

phenomenon of weapons focus derives both from the

infrequency with which most individuals view deadly

weapons and from a survival instinct that draws one's

attention to potentially threatening objects. He pointed out

that various studies, performed by him and by other

scientists, showed that a weapon's presence in a scene

substantially affects subjects' ability to recall individuals in

that scene. He further pointed out that close physical

proximity of a weapon to another object (e.g. , the face of the

Jeep's passenger) would not appreciably reduce the

weapon's distortive influence on a witness's memory.

With respect to Sergeant Gubbei's being a police officer,

Dr. Loftus acknowledged that one's degree of familiarity or

unfamiliarity with the weapon at issue generally would

affect the practical impact of weapons focus. But Dr. Loftus

24

also noted that the primary study on which he relied

involved a knife, which, in his view, was an adequately

familiar object for most people. Moreover, Dr. Loftus

specifically rejected any notion that police officers would be

immune to the psychological principles he described. With

respect to the particular location of the gun, Dr. Loftus

indicated that psychological studies inevitably take place in

secure environments; thus, all of the cited studies assumed

observers who were actually safe from the weapon at issue.

He observed that the "survival" impetus for weapons focus

would, in real life situations, likely be even higher than the

cited studies indicated. Thus, we cannot agree with the

government's suggestion that Dr. Loftus's expert opinions

regarding weapons focus were not relevant for purposes of

Rule 702.

Having concluded that the government's arguments for

exclusion under Rule 702 cannot succeed, we turn now to

Rule 403. As an initial matter, "[w]e are mindful that a trial

court is in a far better position than an appellate court to

strike the sensitive balance dictated by Rule 403. When a

trial court engages in such a balancing process and

articulates on the record the rationale for its conclusion, its

conclusion should rarely be disturbed." Pinney, 967 F.2d at

918; see also Downing, 753 F.2d at 1242-43 (noting Rule

403's important role in assessing whether expert

testimony's probative value is "substantially outweighed by

other dangers, e.g., confusion of the issue or waste of

time"). But when a district court does not explain its ruling,

and no adequate explanation can be gleaned from the

record, appellate courts often have little choice but to

undertake such evaluation themselves. See e.g. , United

States v. Murray, 103 F.3d 310, 319 (3d Cir. 1997) (noting

that when district courts fail to explain their rulings under

Rule 403, "we are able to perform this balancing here,

[though] other cases may require remand . . . or even . . .

a new trial"); United States v. Himelwright , 42 F.3d 777,

785 (3d Cir. 1994).

We find it difficult to accord the customary degree of

deference to the District Court's discretion in this case

because the District Court explained its ruling with little

more than a series of conclusions:

25

[T]his testimony has the probability of confusing and

misleading the jury. . . . [T]here is a probability that

there will be unfair prejudice here. The aura of

reliability that's attached to an expert witness, I

believe, is significant. Listening to this expert, it seems

to me, that the testimony itself has the potential, if not

controlling probability of confusing the jury. . . .

[Sergeant Gubbei's] testimony is, I think, clear.

Whether the jury accepts it or not, how the jury

accepts it is clearly within their province. I do not see

how this evidence will do anything, other than to

confuse and mislead the jury.

The District Court clearly expressed concern with"[t]he

aura of reliability that's attached to an expert

witness"--which is one reason for district courts'

"gatekeeping function" in assessing expert testimony under

Rule 702. See Daubert, 509 U.S. at 592, 594. There is no

suggestion, however, that such an aura of reliability was

unwarranted in this case or, to be more precise, that it was

unfairly prejudicial. From the record, it seems that Dr.

Loftus was an extremely qualified, experienced academic

presenting opinions on topics near the heart of his

expertise. Moreover, Dr. Loftus's conclusions seem closely

tied to empirical studies whose reliability is not impeached,

and he explained the bases for these studies at apparently

appropriate length. In short, we see no reason to believe

that Dr. Loftus's aura of reliability reflected anything other

than his actual reliability as an expert witness. With

respect to the District Court's concern with "confusing and

misleading the jury" and "unfair prejudice," we are unable

to discern from these references, any more than from our

own review of the record, how such problems might arise.

The government's oral argument before the District Court

also fails to reveal any valid basis for exclusion under Rule

403. The government focused on two contentions. First, it

claimed that the studies cited by Dr. Loftus did not

sufficiently match the circumstances of this case. The

District Court rejected this position, holding that such

disputes "did not give [him] pause," and the government

has conceded this issue on appeal.

Second, the government stated that:

26

[T]he problem that bothers me most, your Honor, is the

danger of overwhelming the jury. When we gave this

witness a hypothetical that was slightly--you know,

everyone in this courtroom knows the facts better than

I do, but [it] sounded to me slightly tinged toward the

defense version of the offense, the witness stated as a

fact that the sergeant would not remember accurately.

When I gave him the version that was a little bit closer

to what I believe the facts to be and the Government

version, he stated as a fact that his conclusion would

be very different under those facts. So what he's doing

is telling the jury the answer instead of allowing the

jury to determine the facts for themselves. Any

hypothetical that sets forth those facts is likely to have

a serious effect on the jury's memory of the testimony

rather than allowing the jury to decide what the jury's

going to decide.

The full significance of this language is not clear. In part,

the objection apparently derives from the fact that Dr.

Loftus's answers regarding Sergeant Gubbei's memory

changed when the hypotheses under consideration were

altered regarding, for example, the number of seconds

Sergeant Gubbei saw the fleeing man's face and the

attention Sergeant Gubbei paid to the distributed suspect

materials. Some might view such a change in an expert's

analysis as the reward of a successful cross-examination; it

seems hard to view such variation as a basis for excluding

the testimony under Rule 403. The government did not

demonstrate, and has not done so now, how this dimension

of Dr. Loftus's testimony tended to cause any articulable

degree of unfair prejudice, confusion, or delay.

Another aspect of the government's objection stems from

a concern, which the District Court seemingly shared, that

Dr. Loftus's testimony might usurp the jury's function.

Insofar as this argument constitutes a general attack on

expert testimony concerning eyewitness identifications,

such issues are largely resolved by Downing. See id. at

1229-30 & n.4. Similar to other types of expert witnesses,

who might testify about the flaws of a computerized filing

system or the proper interpretation of satellite photographs,

experts who apply reliable scientific expertise to juridically

27

pertinent aspects of the human mind and body should

generally, absent explicable reasons to the contrary, be

welcomed by federal courts, not turned away. Cf. United

States v. Smithers, 212 F.3d 306, 311-12 & n.1 (6th Cir.

2000) (describing a judicial trend toward, and an

empirically supported need for, accepting expert testimony

about eyewitness identification). In this case, Dr. Loftus

made quite clear that he did not intend to tell the jury

whether Sergeant Gubbei was lying or telling the truth. Like

more typical sorts of expert witnesses, Dr. Loftus attempted

to provide information that, if itself deemed credible, might

cause the jury to evaluate Sergeant Gubbei's testimony in

a different light.

In analyzing for ourselves whether the four components

of Dr. Loftus's testimony7 were admissible, we follow

standards set forth in United States v. Stevens , which is

also discussed supra in Part II.B. In Stevens, the defendant

proffered expert testimony on six topics: "(1) the accuracy of

cross-racial identifications; (2) the effect of weapon focus on

identifications; (3) the effect of stress on identifications; (4)

the suggestiveness of the wanted board [from which the

defendant was initially identified]; (5) the relation back of

subsequent identifications to the initial identification; and

(6) the lack of correlation between confidence and accuracy

in eyewitness identifications." 935 F.2d at 1397. The

district court permitted expert testimony on the first three,

but excluded testimony on the remainder.

On appeal, the Stevens court affirmed the exclusion of

proffered testimony regarding the wanted board's

"suggestiveness," in deference to the district court's

determination that " `[t]he fact that there are two pictures

. . . of the same person and one [is] in color, I think[,] . .

. is certainly apparent [to] the jury . . . for the jury to make

its own determination.' " Id. at 1399; cf. United States v.

Gibbs, 190 F.3d 188, 212 (3d Cir. 1999) ("We have upheld

the exclusion of expert testimony when that testimony

ventures into areas in which the jury needs no aid or

illumination."). Similarly, in this case, Dr. Loftus's

_________________________________________________________________

7. Memory formation, double identification and post-event information,

the relationship between confidence and accuracy, and weapons focus.

28

testimony--claiming that more accurate memories are

produced by objects that are viewed for longer periods of

time--is not the type of information that, in and of itself,

would warrant exposition by an expert witness; thus, we

concur in the District Court's decision to exclude such

testimony under Rule 403.8

Stevens's expert testimony regarding "relation back"

apparently explained that "once a witness makes an

identification, he or she will tend to stick with that initial

choice at subsequent photographic arrays or lineups, even

if it was erroneous." Stevens, 935 F.2d at 1399. Such

evidence closely resembles the part of Dr. Loftus's

testimony on "double identification" and "post-event

information" that explained how, after Sergeant Gubbei had

already selected Mr. Mathis's picture from the array, his in-

court identification was likely to be consistent therewith,

regardless of any actual memory of the underlying events.

In Stevens, we affirmed the exclusion of expert testimony

on this topic because we found the testimony "rather

pedestrian" and "susceptible of elucidation without

specialized knowledge." Id. at 1399-1400. We are bound to

reach a parallel conclusion here; hence, we affirm the

exclusion of Dr. Loftus's testimony on this subject.

Another portion of Dr. Loftus's discussion of "double

identification," however, was significantly more complex

than the testimony at issue in Stevens. In particular, Dr.

Loftus described studies in which subjects remembered

having seen an image, but, upon being asked to associate

that image with one of two times they might possibly have

seen it, the subjects often "remembered" inaccurately. Dr.

Loftus further explained how Sergeant Gubbei might have

clearly remembered Mr. Mathis's face from having

previously seen a photograph of Mr. Mathis, but might have

confidently and incorrectly associated that memory with the

_________________________________________________________________

8. We do not mean to bar, by this determination, the strong possibility

that parts of Dr. Loftus's account of memory formation might have been

properly admissible as a necessary precursor, or ancillary, to other

admissible testimony regarding memory. Our ruling merely indicates

that such testimony, in and of itself, does not necessarily surmount the

barrier of Rule 403.

29

previous day's fleeing suspect. Dr. Loftus indicated that

such a misidentification was peculiarly likely in

circumstances where one possible event-memory

association (the previously viewed photograph) involved

favorable conditions for memory formation and involved the

same visual medium as the image to be identified (a

photograph), whereas the other event-memory association

(the robbers' escape) involved unfavorable memory

conditions and a different visual medium (three-

dimensional observation). We believe that testimony of this

sort, with its accompanying level of scientific detail, would

not simply duplicate jurors' intuitions or common sense,

and such principles seem difficult to establish indirectly

through cross-examination. Accordingly, we find that the

District Court abused its discretion in excluding such

testimony.

The third type of testimony analyzed in Stevens

concerned the relationship between an eyewitness's

confidence and the accuracy of a resultant identification.

Dr. Loftus opined on this same topic in the present case,

stating that the correspondence between confidence and

accuracy is "at best, about 25 percent" and, under

circumstances like these, is "essentially zero." In Stevens,

we held that such information was sufficiently illuminative

and susceptible to scientific expertise that exclusion was

unacceptable under "the liberal standard of admissibility of

Rule 702" and Rule 403. Id. at 1400-01. In the present

case, the government objects that Stevens cannot "mean

that [any time] an eyewitness has confidence in his

identification, a defendant is automatically entitled to

present testimony that confidence has little or no

correlation to accuracy." Appellee's Br. at 43. We agree that

Stevens did not establish such a universally applicable rule,

and we also decline to do so here. As the government

correctly notes, analysis under Rules 702 and 403 is fact-

intensive and case-specific. That said, however, Stevens did

hold that, when expert testimony of this character satisfies

the reliability and fit requirements of Rule 702, and when

there is no countervailing rationale for excluding the

evidence under Rule 403, the evidence must be admitted.

In light of our findings regarding this evidence's probative

value and our inability to discover any offsetting prejudice,

30

confusion, or delay, we hold that the District Court abused

its discretion in failing to admit Dr. Loftus's testimony on

the relationship between eyewitness confidence and

accuracy.

The final topic discussed by Dr. Loftus was "weapons

focus." In Stevens, this issue was not before us because the

District Court had admitted expert testimony on the

subject. In light of the principles decided in Stevens, as well

as those discussed supra, we find that Dr. Loftus's

proposed testimony regarding weapons focus should have

been admitted into evidence. The government argues that a

jury does not need expert testimony to learn "the idea that

one might be distracted by a weapon." Appellee's Br. at 34.

But Dr. Loftus's testimony was not limited to such a narrow

scope. In combination, the studies he discussed indicated

that the presence of weapons weakened memories of other

aspects of an observed scene, even when such weapons

posed no immediate threat, and even when those weapons'

images might be located quite near the object later to be

identified. We find that the degree and scope of memory

distortion that, according to Dr. Loftus, a weapon typically

causes for eyewitnesses are not matters that would

necessarily be apparent to jurors. And, just as with the

other admissible aspects of Dr. Loftus's testimony, it is

difficult to comprehend how weapons' destructive effect on

memory might be elucidated through cross-examination.

Especially if Dr. Loftus is correct that witnesses

remain confident of their identifications even when those

identifications are inaccurate, eyewitnesses cannot be

expected--even under the most skilled

questioning--explicitly to recall or nonverbally to reveal the

extent to which their remembered impressions might have

been distorted or undermined. We find that, in this case,

and on this record, it was an abuse of discretion not to

admit such testimony into evidence.

D. Harmless Error

Our final step is to consider whether the District Court's

error in excluding parts of Dr. Loftus's testimony was

legally harmless. See 28 U.S.C.A. S 2111 ("In the hearing of

any appeal[,] . . . the court shall give judgment after an

examination of the record without regard to errors or

31

defects which do not affect the substantial rights of the

parties."); Fed. R. Crim. P. 52(a); Fed. R. Evid. 103(a);

Kotteakos v. United States, 328 U.S. 750 (1946). This court

has held that a non-constitutional error committed at trial

does not warrant reversal in circumstances where"it is

highly probable that the error did not contribute to the

judgment." United States v. Helbling, 209 F.3d 226, 241 (3d

Cir. 2000) (internal quotation omitted). And the applicable

standard for " `[h]igh probability' requires that we have a

sure conviction that the error did not prejudice the

defendants. We may not simply conclude that it is more

likely than not that the error was harmless. On the other

hand, we may be firmly convinced that the error was

harmless without disproving every `reasonable possibility' of

prejudice." United States v. Jannotti, 729 F.2d 213, 220 n.2

(3d Cir. 1984) (internal citations omitted). The burden of

demonstrating such high probability lies with the

government, United States v. Adams, 2001 WL 543711 at

*4 (3d Cir. May 23, 2001), but we retain our established

authority to affirm on any ground supported by the record,

Nicini v. Morra, 212 F.3d 798, 805 (3d Cir. 2000) (en banc);

Alexander Hamilton Life Ins. Co. of Am. v. Gov't of Virgin

Islands, 757 F.2d 534, 547-58 (3d Cir. 1985).

The government contends that, even if (as we now have

found) the District Court wrongly failed to admit certain

testimony from Dr. Loftus, Mr. Mathis's conviction should

be affirmed because the government presented other

evidence that constituted more "compelling evidence of

Mathis's guilt than Sergeant Gubbei's identification."

Appellee's Br. at 47. In particular, the government relies on

testimony from Mr. Gantt, who described his cooperation

with Mr. Mathis in robbing the Sun National Bank and

eleven other banks. According to the government, Mr.

Gantt's "tremendous opportunity to observe, speak to, and

identify Mathis was damning and far outweighed Sergeant

Gubbei's testimony in importance." Id. Mr. Mathis replies

by challenging Mr. Gantt's credibility, both noting that Mr.

Gantt lied to police after his arrest and arguing that Mr.

Gantt's plea agreement provided a motive to lie if doing so

might advance Mr. Mathis's prosecution. In Mr. Mathis's

view, the government wrongly urges this court to"speculate

32

that the jury would have convicted defendant . . . had it

. . . heard Dr. Loftus' testimony . . . . [T]he jury may well

have concluded that the government had failed to bear its

burden of proving beyond a reasonable doubt that . ..

[Mathis] participated in the Sun National Bank robbery."

Reply Br. at 23. In essence, the government asks this court,

apparently as a matter of first instance, to weigh the import

of Mr. Gantt's testimony against that of Sergeant Gubbei's

testimony, while Mr. Mathis asks us not to "speculate"

about what the jury would have done if Dr. Loftus had

testified.

We find that neither of these suggestions, viewed in

isolation, is well-suited to our role in this appeal. As the

Supreme Court held in Kotteakos:

[I]t is not the appellate court's function to determine

guilt or innocence. Nor is it to speculate upon probable

reconviction and decide according to how the

speculation comes out. . . . Those judgments are

exclusively for the jury . . . . But this does not mean

that the appellate court can escape altogether taking

account of the outcome. . . . In criminal causes that

outcome is . . . . guilt in law, established by the

judgment of laymen. And the question is, not were they

right in their judgment . . . . It is rather what effect the

error had or reasonably may have had upon the jury's

decision. The crucial thing is the impact of the thing

done wrong on the minds of other men, not on one's

own, in the total setting.

Kotteakos, 328 U.S. at 763-64. Our inquiry is not whether

this court's members would convict Mr. Mathis on the

evidence presented, or whether we would do so based on

that evidence plus Dr. Loftus's wrongly excluded testimony.

Rather, we begin with the guilty verdict the jury has already

rendered, and we determine only whether, "after an

examination of the record," 28 U.S.C.A. S 2111, "it is highly

probable" that the jury would have reached the same

decision absent the identified error. Helbling , 209 F.3d at

241.

Although we believe that portions of Dr. Loftus's proffered

testimony should have been admitted, we also find that, in

33

the context of the record as a whole, his testimony was

highly unlikely to have caused a different result. The matter

is not resolved simply by noting--as the government

does--that Mr. Gantt's testimony could, if believed, have

had great probative force and might have constituted more

"compelling evidence" than Sergeant Gubbei's testimony. It

is certainly possible that Mr. Mathis's jury would have

convicted on the basis of Mr. Gantt's testimony alone, but

we would hesitate before terming such a result "highly

probable." Nor is it enough to find--as Mr. Mathis

urges--that skeptical jurors might, with reasonable

justification, have disbelieved both Mr. Gantt and Sergeant

Gubbei. Reasonable doubt is the proper test for harmless

error analysis concerning constitutional rights, e.g., Neder

v. United States, 527 U.S. 1, 16 (1999), but a less stringent

standard regulates non-constitutional errors such as this

one, e.g., Kotteakos, 328 U.S. at 764-65; Jannotti, 729 F.2d

at 220 n.2.

The crux of our analysis derives, not from any piece of

testimony in isolation, but from the interlocking

correspondence of evidence throughout the record. For

example, it is not disputed that the testimony of several

eyewitnesses, located inside and outside the bank building,

confirmed Mr. Gantt's basic description of how the Sun

National Bank robbery occurred. Photographs produced

from the bank's video security cameras were similarly

corroborative of this testimony. Also, Mr. Gantt's account of

the robbers' foiled attempt to escape in the Jeep was

virtually identical to Sergeant Gubbei's description of the

same events from the perspective of his police cruiser. Mr.

Gantt's identification of Mr. Seaberry as one of the co-

conspirators was confirmed by an arresting officer's

testimony that Mr. Seaberry was apprehended near the

stalled Jeep, and the arrest of Mr. Seaberry also tended to

corroborate Mr. Gantt's account of how he and Mr. Mathis

(but not Mr. Seaberry) finally escaped.

Giving Dr. Loftus's testimony its full weight, a jury might

have had reasonable cause to doubt Sergeant Gubbei's

description of events, if such description were viewed in

isolation. But here, where the disputed eyewitness account

was repeatedly confirmed by a co-conspirator's testimony,

34

and where various aspects of that co-conspirator's

testimony were in turn confirmed by other available

evidence, we think it highly improbable that a jury that

voted to convict without the aid of Dr. Loftus's testimony,

would, had it heard that testimony, have reached a

different verdict.

III. Conclusion

For the foregoing reasons, the District Court's judgment

of conviction is affirmed.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

35