State v. Galloway

REYNOLDSON, Chief Justice

(concurring specially).

Because I do not agree with the holding in division II of majority’s decision, I concur only in result.

The majority holds trial court has discretion to permit Professor Loftus to detail the incidents and results of a factually unrelated experiment conducted by another, and then base her opinion squarely on the other’s conclusions (“[Tjhat’s why I relied on Dr. Buckhout’s study for my conclusion rather than on my own studies in that specific instance.”). The majority opens an unnecessary and expensive door in approving testimony of this type. Its holding allows admission of hearsay evidence which does not fall within any previously recognized exception. Finally, the majority effectively overrules prior decisions of this court without noting this for benefit of bench and bar.

I. The first question which ought to be addressed is whether any of Professor Lof-tus’ opinion testimony should be admitted over the State’s standing objection that the accuracy of eyewitness identification is not a proper subject of expert testimony. On this point there is a sharp contrast between the theoretical concepts of academicians concerned with development of the law and the pragmatic rulings of jurists responsible for litigation management.

Distilled to its essence, Professor Loftus’ testimony was “the longer that period of time [between an incident and a witness’ recollection of the incident] * * * the less accurate and less complete is a witness’ recollection.”

The commentators urge that experts like Professor Loftus should be permitted to testify in order to demonstrate the general unreliability of the memory of identification witnesses. See, e. g., N. Sobel, EyeWitness Identification § 86.01 (1979 Supp.); Note, Did Your Eyes Deceive You? Expert Psychological Testimony on the Unreliability of Eyewitness Identification, 29 Stan.L. Rev. 969 (1977); Note, Expert Testimony on Eyewitness Perception, 82 Dick.L.Rev. 465 (1978).

*741 However, research has produced not a single appellate decision in which such expert testimony was held admissible or its exclusion held to be an abuse of discretion. Cases to the contrary are legion. See United States v. Smith, 563 F.2d 1361, 1363 (9th Cir. 1977), cert. denied, 434 U.S. 1021 , 98 S.Ct. 747 , 54 L.Ed.2d 769 (1978); United States v. Brown, 540 F.2d 1048, 1053-54 (10th Cir. 1976), cert. denied, 429 U.S. 1100 , 97 S.Ct. 1122 , 51 L.Ed.2d 549 (1977); United States v. Brown, 501 F.2d 146, 150-51 (9th Cir. 1974), rev’d on other grounds, 422 U.S. 225 , 95 S.Ct. 2160 , 45 L.Ed.2d 141 (1975); United States v. Amaral, 488 F.2d 1148, 1152-53 (9th Cir. 1973); United States v. Fosher, 449 F.Supp. 76 (D.Mass.1978); United States v. Collins, 395 F.Supp. 629, 635-37 (M.D.Pa.), aff’d mem., 523 F.2d 1051 (3d Cir. 1976); State v. Valencia, 118 Ariz. 136, 138 , 575 P.2d 335, 337 (Ct.App.1977); Criglow v. State, 183 Ark. 407, 409-10 , 36 S.W.2d 400, 401-02 (1931); People v. Brooks, 51 Cal.App.3d 602, 608-09 , 124 Cal.Rptr. 492, 495 (1975), cert. denied, 424 U.S. 970 , 96 S.Ct. 1469 , 47 L.Ed.2d 738 (1976); People v. Guzman, 47 Cal.App.3d 380, 383-86 , 121 Cal.Rptr. 69, 71-72 (1975); People v. Johnson, 38 Cal.App.3d 1, 6-7 , 112 Cal.Rptr. 834, 836-37 (1974); People v. Lawson, 37 Colo.App. 442, 444-45 , 551 P.2d 206, 208-09 (1976); Dyas v. United States, 376 A.2d 827, 831-32 (D.C.), cert. denied, 434 U.S. 973 , 98 S.Ct. 529 , 54 L.Ed.2d 464 (1977); Jones v. State, 232 Ga. 762, 763-66 , 208 S.E.2d 850, 852-54 (1974); Pankey v. Commonwealth, 485 S.W.2d 513, 522 (Ky.1972); Commonwealth v. Jones, 362 Mass. 497, 501-02 , 287 N.E.2d 599, 602-03 (1972); Commonwealth v. Middleton, - Mass.App. -, 378 N. E.2d 450 (1978); Porter v. State, - Nev., -, 576 P.2d 275, 278-79 (1978); People v. Suleski, 58 A.D.2d 1023, 1024 , 397 N.Y.S. 2d 280, 281-82 (1977); People v. Valentine, 53 A.D.2d 832, 832-33 , 385 N.Y.S.2d 545, 546 (1976).

The predominant rationale for excluding such testimony which emerges from these cases is that the subject of the opinion offered is not beyond the knowledge and experience of a juror. See Amaral, 488 F.2d at 1152-53 ; Fosher, 449 F.Supp. at 77 ; Criglow, 183 Ark. at 409-10 , 36 S.W.2d at 401 ; Lawson, 37 Colo.App. at 445 , 551 P.2d at 209 ; Dyas, 376 A.2d at 832 ; Middleton , - Mass.App. at -, 378 N.E.2d at 450 .

An unarticulated but underlying factor may be the constitutional protections relating to the use of out-of-court identifications. United States v. Wade, 388 U.S. 218 , 87 S.Ct. 1926 , 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263 , 87 S.Ct. 1951 , 18 L.Ed.2d 1178 (1967); Stovall v. Denno, 388 U.S. 293 , 87 S.Ct. 1967 , 18 L.Ed.2d 1199 (1967). The goal of the safeguards erected by the Wade-Gilbert-Stovall trilogy was exclusion of unreliable identification. The probative value of an identification which survives constitutional challenges should not be diminished by expert testimony that all eyewitness identifications are unreliable. Properly, I believe, the courts reason that further testing of reliability should be by vigorous and specific cross-examination of the eyewitness.

Expert opinion testimony is admissible if it will aid the jury on some factual issue in the case. Haumersen v. Ford Motor Co., 257 N.W.2d 7, 11 (Iowa 1977); Ganrud v. Smith, 206 N.W.2d 311, 314 (Iowa 1973); M. McCormick, Opinion Evidence in Iowa, 19 Drake L.Rev. 245, 257 (1970). I would hold trial court on retrial would be justified in sustaining an objection that Professor Loftus’ opinion is not a proper subject of expert testimony.

In the final analysis, jurors daily experience the fragility of their own memories. They know recollection fades with time and is affected by the relative significance of the incident. Probably most have experienced on several occasions their own or another’s misidentification in social or business relationships. Explanation of the scientifically identified mechanisms which bring about memory decay may be of academic interest, but it is of little aid to the jury in judging reliability of the particular eyewitness identification before them.

Pragmatically, much testimony in many types of litigation, criminal and civil, necessarily turns on witnesses’ recall of past events. The cost and time which would be expended in collateral battles of experts *742 concerning the dynamics of the memory process probably weighs heavily in trial and appellate court decisions excluding such proof:

How far should the courts go in allowing so-called scientific testimony, such as that of polygraph operators, hypnotists, “truth drug” administrants, as well as purveyors of general psychological theories, to substitute for the common sense of the jury? Surely the answer is “not in all cases, or even in the ordinary or usual cases.” The good judgment of the trial judge as to whether the particular case contains such unusual factors as to make the “expert testimony” a help to jury determination or whether the case is one where the effect of such testimony threatens to take over the jury’s function must control in the absence of a clear abuse of discretion.

People v. Guzman, 47 Cal.App.3d at 385-86 , 121 Cal.Rptr. at 72 .

This court and the public generally have been gravely concerned with the ever expanding expense and time involved in litigation. We should be slow to approve a rule which would inject another group of expensive forensic experts into an area historically reserved as the jury’s domain.

II. The majority opinion further permits introduction of hearsay evidence by failing to distinguish two separate components of the foundation requirement for opinion testimony by experts: qualifications of the expert, and factual basis for the opinion.

As a preliminary matter, no one can dispute that Professor Loftus’ relating the substance of other studies is hearsay. Her testimony contained assertions of fact offered for the truth of the matters asserted. See State v. Jones, 271 N.W.2d 761, 767 (Iowa 1978). In essence, Professor Loftus was bolstering her opinion by positing it on the studies, conclusions and opinions of others.

My dispute with the majority is over the use of factual basis cases to justify admission of this hearsay. The studies testified to may enhance the background and qualifications of the expert but they cannot provide a factual basis for the opinion.

The majority quotes from 2 Jones on Evidence § 14.21 (1972), which is a careful attempt to draw the distinction. See also J. Maguire, J. Weinstein, J. Chadboum & J. Mansfield, Cases & Materials on Evidence 381-83 (6th ed. 1973); McCormick on Evidence, supra, at 36; 2 Wigmore on Evidence § 665b (3d ed. 1940). These words demonstrate that evidence of other studies upon which Professor Loftus relied affects the first foundation requirement, her qualifications. An expert unavoidably learns through hearsay in gaining the expertise required to qualify as an expert and relies on that hearsay in expressing an opinion. The use of such hearsay does not render the opinion inadmissible, but that does not mean the hearsay itself is admissible. Neither Jones nor the other cited treatises go that far.

The majority apparently attempts to provide an independent basis for admitting this hearsay by citing cases which relate only to the second foundation requirement, a factual basis.

The expert’s opinion must be based on sufficient facts in the record. Ganrud v. Smith, 206 N.W.2d at 314 ; M. McCormick supra, at 256. The requirement of factual foundation enables the jury to properly evaluate the expert’s testimony, since “the opinion is no stronger than the facts which support it.” 2 Jones, supra, at 633.

Foundational facts must already appear in the record or be from the expert’s firsthand knowledge or observations. Albrecht v. Rausch, 193 N.W.2d 492, 495 (Iowa 1972); 2 Jones, supra at 634; McCormick on Evidence, supra at 31. It follows inadmissible hearsay cannot provide an adequate factual foundation. Ruby v. Easton, 207 N.W.2d 10, 20 (Iowa 1973); Wolf v. Murrane, 199 N.W.2d 90, 96 (Iowa 1972); 2 Jones, supra, at 639-44. And because the foundation must be factual, an opinion may not have as its basis, to any extent, the opinion of another, even if such opinion is properly in the record. 2 Jones, supra, at 634; M. McCormick, supra, at 268; McCormick on Evidence, supra, at 32-33.

*743 In the absence of statute or special circumstances, it has generally been held that the report of an independent third party as to a test or experiment made by him, or testimony as to the contents thereof, constituted inadmissible hearsay where the author of the report did not testify and was not subject to cross-examination.

Annot., 19 A.L.R.3d 1008 , 1011 (1968).

This court has recognized an exception to this rule where the hearsay is contained in routine reports generated in the course of scientific tests directly relating to the controversy before the court. In Ver Steegh v. Flaugh, 251 Iowa 1011 , 103 N.W.2d 718 (1960), results of veterinarian laboratory tests, made in the regular course of business, verified by a custodian and shown to be of a type regularly relied upon by veterinarians, were properly admitted. 251 Iowa at 1015-19 , 103 N.W.2d at 720-23 . In State v. Salter, 162 N.W.2d 427, 429-30 (Iowa 1968), a pathologist who supervised laboratory testing of a vaginal specimen was permitted to testify about the test results over hearsay and foundation objections. We affirmed. We went one step further in State v. Davis, 269 N.W.2d 434, 440-41 (Iowa 1978). The facts were similar to those in Salter except the Davis expert was the examining physician rather than a supervising pathologist. We held evidence of such test results, even though hearsay, was itself admissible as a basis for the expert’s opinion.

The majority cites Salter and Ver Steegh without distinguishing between the type of hearsay involved in those cases and the hearsay defendant sought to introduce here. There is no Iowa precedent for extending the exception created in those cases to factually unrelated hearsay statements by persons having nothing to do with any facet of the case at bar.

Instead, older Iowa cases would not permit Professor Loftus to bolster her opinion by relating the substance of other studies.

Although § 622.23, The Code, provides that “[historical works, books of science or art, and published maps or charts, when made by persons indifferent between the parties, are presumptive evidence of facts of general notoriety or interest therein stated,” this court interprets this statute to permit only “facts of general notoriety of interest” to be shown by such sources, not esoteric research and opinions. See Ingwersen v. Carr & Brannon, 180 Iowa 988, 1000-03 , 164 N.W. 217 , 221-23 (1917).

An expert medical witness cannot be cross-examined with respect to specific opinions and conclusions contained in medical treatises unless he or she has first referred to such authority in support of the opinion, Madsen v. Obermann, 237 Iowa 461, 468 , 22 N.W.2d 350, 355 (1946); Wilcox v. Crumpton, 219 Iowa 389, 394-95 , 258 N.W. 704, 706-07 (1935). Nor may counsel read from a medical work and then ask his or her own expert witness if the expert agrees with the statement. Morton v. Equitable Life Ins. Co., 218 Iowa 846, 857 , 254 N.W. 325, 330 (1934). The expert witness must formulate the opinion upon his or her experience, knowledge or training and cannot simply relate the contents of a study, book or article. Evans v. Iowa S. Util. Co., 205 Iowa 283, 290 , 218 N.W. 66, 69 (1928).

In ruling an expert witness may inject into his or her testimony factually unrelated experiments, conclusions and opinions of others, as a basis for his or her expressed opinion, the majority effectively overrules these Iowa decisions.

I find nothing in the case before us which should persuade us to change the course of our decisions in this manner. I would hold trial court should again sustain proper objections to testimony concerning the substance of other studies.

LeGRAND, REES, UHLENHOPP, ALL-BEE, McGIVERIN and LARSON, JJ., join in this special concurrence.