finding that “studies demonstrating] the inherent unreliability of cross-racial identifications ... not only might have assisted the jury, but might have refuted their otherwise common assumptions about the reliability of eyewitness identification”
How later courts described this case
- finding that “studies demonstrating] the inherent unreliability of cross-racial identifications ... not only might have assisted the jury, but might have refuted their otherwise common assumptions about the reliability of eyewitness identification”
- holding that in order for expert testimony on eyewitness reliability to be admissible, the proponent of the evidence must explain “precisely how the expert’s testimony is relevant to the eyewitness identifications under consideration”
- holding that “a defendant who seeks the admission of expert testimony must make an on-the-record detailed proffer to the court, including an explanation of precisely how the expert’s testimony is relevant to the [issues in dispute]”
- finding that testimony relating to the “forgetting curve,” i.e., the fact that memory does not diminish at a uniform rate, may be helpful to the jury in assessing the reliability of eyewitness testimony
Written by the judges who cited it.
The opinion
DUMBAULD, Senior District Judge,
concurring.
Rule 403 of the Federal Rules of Evidence provides that “although relevant, evidence may be excluded if its probative value is substantially outweighed ... by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”
In excluding defendant’s proffer of an expert witness regarding the unreliability of eyewitness identification testimony (a weakness known at least since Hugo Mun-sterberg’s experiments at Harvard and ordinarily presented adequately to the jury by argument of counsel), the District Judge did not invoke Rule 403 eo numero or place on the record any “extensively articulated ... extensive explication” thereunder. 1
However, under part V of Judge Becker’s opinion (which is truly a minor magnum opus of jurisprudential virtuosity) the District Court upon remand remains free to do so without preclusion by our present decision of its exercise of discretion under Rule 403. I therefore concur in the disposition made of the case.
I agree with the Court’s opinion that there can be cases where expert opinion of this type may be useful. But with respect to the case at bar it seems plain to me that any error by the District Judge was harmless. A dozen witnesses, who had spent from 5 to 45 minutes in negotiations with the defendant while he “conned” them with his fraudulent scheme, identified him. This case did not involve a momentary glimpse of a bank robber at the teller’s window or a rape perpetrated under a ski mask. It would be unfortunate if his conviction and the time spent at his trial were to go down the drain because of an academic error regarding the intellectual foundations for judicial acceptance of novel scientific disciplines.
. U.S. v. Long, 574 F.2d 761, 770 (3d Cir.1978).