Appeal from the Superior Court of the District of Columbia, (F-13098-92), (Hon. Geoffrey M. Alprin, Trial Judge).
The opinion of the court was delivered by: Ruiz, Associate Judge
Before WASHINGTON, Chief Judge, RUIZ, Associate Judge, and SCHWELB, Senior Judge.*fn1
Opinion by Senior Judge SCHWELB, concurring in the judgment, at page 50.
Raymond Benn appeals his convictions, after a second jury trial, for the armed kidnapping of Charles "Sean" Williams on December 1, 1992. This appeal raises an issue we have grappled with before, the admission of expert testimony on the potential unreliability of eyewitnesses. For the first time, however, we do not affirm the trial court's exclusion of the proffered expert testimony. In excluding the expert testimony proffered by appellant, the trial court applied incorrect legal principles. It came dangerously close to employing a per se rule of exclusion and made a determination that contravened a holding of this court following the first trial. Moreover, the court did not follow the analysis established in Dyas v. United States,*fn2 which requires the trial court to consider three distinct factors in determining whether to admit expert testimony on the reliability of eyewitness identifications, and to do so in the context of the proffered expert testimony and evidence in the particular case. Because we cannot say that exclusion of the expert testimony proffered here was harmless, in a case that depended exclusively on the identification of eyewitnesses, we remand for further proceedings consistent with the analysis set forth in Dyas and this opinion.
We do not reverse appellant's convictions nor do we order a new trial. Rather, we remand and instruct the court to consider the credentials of appellant's proffered expert and the admissibility of his testimony in accordance with the three criteria established in Dyas. We note that while the trial court expressed the view that appellant's expert was qualified, and the government generally did not contest his qualifications, the trial court has not ruled on the particular scientific studies that appellant's proffered expert, Professor Steven Penrod, planned to use or their application to the government's evidence in the case.*fn3 Because such fact-intensive analysis is best conducted by the trial court, we leave the determination to its discretion in the first instance. We add that even if the trial judge decides, after considering all the relevant factors for admissibility, that the proffered expert witness is qualified and that his testimony should be admitted, the trial judge retains discretion to place reasonable limitations on the expert's testimony to avoid overwhelming the jury or unduly burdening the court, so long as these limitations are consistent with the requirements of the defense.*fn4 In particular, the trial judge may prohibit "the introduction of ultimate conclusions by an expert witness as to the truthfulness of a witness . . . and the guilt of the defendant."*fn5
The trial in this case followed our remand for a new trial in Benn v. United States (Benn I).*fn6 There, we directed the trial court to permit appellant to present evidence supporting his alibi defense, that appellant was at his mother's house celebrating her birthday on the evening of the murder.*fn7 At the first trial, appellant had been convicted of felony murder while armed*fn8 and of related kidnapping, assault, and weapons charges, in connection with the shooting death of Sean Williams. We reversed his convictions because the trial court had refused to allow appellant's mother to retake the stand after she had sat in on the trial during the testimony of her son in contravention of the trial judge's rule on witnesses. The defense proposed to call appellant's mother in order to rebut the suggestion of the prosecutor, while cross-examining appellant, that he and his mother had rehearsed his alibi. Appellant had proffered that the reason they had not talked about the case was because defense counsel had cautioned them not to do so, and he wished to assure that the jury would be informed of that fact.
At the second trial, however, appellant did not renew his alibi defense, and neither he nor his mother testified. Instead, appellant's defense centered on challenging the reliability of the identifications of the witnesses who testified that appellant was one of the men who kidnapped Sean Williams. Prior to trial, appellant sought permission to present expert testimony on the "unreliability [of] stranger-to-stranger eyewitness identifications" and certain other specific factors that, according to appellant's proffer, can affect the accuracy of an eyewitness's identification and recollection. Appellant proffered as his expert Professor Steven Penrod, a well-known scholar with many published articles in the area of eyewitness identifications. At the conclusion of the second trial, the jury, after deliberating for over a day, found appellant guilty of armed kidnapping and the related weapons offense.*fn9
Unlike in the first trial, the second jury acquitted appellant of murder.*fn10 The sole issue presented in this appeal is whether the trial court abused its discretion in rejecting the proffered expert testimony.
In the second trial, as in the first, the government's case relied exclusively on the testimony of five members of the Mahoney family, none of whom knew or had ever seen appellant before. Each of these witnesses selected appellant from a photo array and identified him in court as "the taller" of two unknown men who entered their Southeast Washington, D.C. home, on December 1, 1992, and forcibly abducted Sean Williams. The gist of the trial testimony concerning their identifications follows.
Marcelle Anthony Mahoney, then thirteen years of age, was returning home when he saw "a tall guy about -- oh 6'3", 6'5", dark-skinned, wearing glasses, standing in the middle of the street [outside a double-parked] car." This made Marcelle afraid, so he hurried inside. A few minutes later, that same tall man, and a shorter man who had a black gun, dragged Sean Williams into the apartment. Marcelle testified that he was "kind [of] frantic about seeing the gun."
The two intruders went to the bedroom of April Mahoney, who was Sean Williams's fiancée and the mother of his child. She noticed that although it was December, her fiancé was wearing only a T-Shirt, without a coat, and that he had blood all over his face and clothes. The shorter unknown man, who was wearing her child's panties on his head, ordered April to leave the room and to take her baby, along with Darren and Marcelle Mahoney, out of the bedroom. Darren Mahoney, who was twelve at the time, testified that he stayed at least long enough to see Williams "rambl[e]" around April's room as he kept asking, "April, where my stuff at?"
Willie Mae Mahoney, April's mother, testified that she was in her bedroom and became alarmed when April told her about the sudden appearance in the home of the two unknown men. When April was unable to explain why the men were there, Willie Mae "hollered" at them to not "disrespect [my] home." As the intruders walked out of April's room without responding, Willie Mae followed them and repeated her demand, leading the taller man to calmly explain that he would commit no violence toward, and intended no disrespect of, her home. When she tried to talk directly to Sean Williams, the tall man interrupted her, saying, "[Sean is] going to be all right. He . . . has to settle a debt," and the three men left. Willie Mae Mahoney testified that Sean Williams looked "scared" and "pitiful."
William "Butch" Mahoney, Willie Mae's son and April's older brother, testified that he was in the kitchen when the men entered the home. He followed the intruders as far as the front step, and from there he called out to Sean Williams, who tried to give an optimistic response, while the two men pulled him into a car and drove off.
The intrusion into the Mahoney home lasted about six minutes. That was the last time the Mahoneys saw Sean Williams alive. His bullet-ridden body was discovered nearby early the following morning on the grounds of an elementary school.*fn11
Approximately one week after Sean Williams's murder, the Mahoney family was shown a stack of nine photos from which each identified appellant as the taller of the two men who had entered their home.*fn12 Darren, Marcelle, and Willie Mae Mahoney made these identifications one after the other, while Butch viewed the photo array later the same evening, and April several days later. Detective Mayberry testified that prior to making their identifications, Darren, Marcelle, and Willie Mae were all placed in a back bedroom of the apartment. Each would then come individually to the dining room to view the photos, and then go to the living room. However, Willie Mae Mahoney testified that after her grandsons viewed the photographs, they returned to her, in the bedroom. Neither Darren nor Marcelle could remember the sequence in which they moved from one room to another.*fn13
Following the identifications, April Mahoney testified, "we never discussed pictures, we just discussed what happened," but Butch Mahoney contradicted her, admitting that he discussed his identification of appellant with his family. At the time they identified appellant from the photo array, Marcelle, Willie Mae, and April Mahoney expressed "95%" certainty that they had correctly identified appellant as one of the perpetrators. This, we said in Benn I, was a remarkable "coincidence" that "understandably troubled the judge [during the first trial] and indicates, at least, that someone probably suggested something to somebody."*fn14
At appellant's two trials, the government presented only the testimony of the five members of the Mahoney family present at the time of Sean Williams's kidnapping. There was no evidence of motive, for example, that appellant (or anyone connected to him) was owed money by Sean Williams. No relationship was established between appellant and the "shorter man" who entered the house, or with the car in which the men drove off with Sean Williams. The prosecutor presented no physical evidence linking appellant to the abduction at the Mahoneys' home or the place where Sean Williams's body was found.
All five members of the Mahoney family acknowledged that they did not know and had never before seen either of the men who entered their home and abducted Sean Williams that day, nor did they have any other knowledge of the men.*fn15 But they each positively identified appellant as the taller of the two men who had entered their home. Each witness was impeached with various inconsistencies concerning his or her initial identification from the photographs that were presented in the days after the kidnapping.*fn16 When the Mahoneys first selected appellant's photograph, several did so with some qualification: April said that appellant's photograph "looks like the guy" who abducted Mr. Williams; Willie Mae thought that appellant "looks like the guy if his face were slimmer"; and Darren thought "that looks like him." Marcelle picked out appellant's picture saying that it "looks like the person." By the time of the second trial, however, the qualifications had disappeared. Darren testified that he was "absolutely positive"; April said she was "very sure" that appellant was the "tall guy" who had come into their apartment; Marcelle testified, when asked how he could be sure, that appellant "looks just the same" as the kidnapper; Willie Mae said she was "sure" that appellant was the same "gentleman" who entered her house "[b]ased on the way he's looking at me"; and, referring to both his photo and in-court identification, Butch Mahoney said, "I'm sure then, and I'm sure now. That's him." The witnesses expressed this high level of confidence in their identifications of appellant after each was asked at the second trial to confirm that they had previously twice identified appellant, first from the photo array and, a second time, under oath at the first trial.
III. Eyewitness Identifications
Although the testimony of a single eyewitness can be sufficient to support a conviction "so long as a 'reasonable person could find the identification convincing beyond a reasonable doubt,'"*fn17 the Supreme Court has noted that "[t]he identification of strangers is proverbially untrustworthy."*fn18 "Even if the witness professes certainty, 'it is well recognized that the most positive eyewitness is not necessarily the most reliable.'"*fn19 These judicial pronouncements are supported by research studies that have concluded that "eyewitness error is the leading cause of wrongful conviction in the United States."*fn20
However, "most exonerees had no successful basis for challenging what we now know to be incorrect eyewitness identifications."*fn21
In this case, appellant proffered a study, conducted in 2001, in which experts on the subject of eyewitness testimony were asked whether certain observed "phenomena" were "reliable enough for psychologists to present in courtroom testimony."*fn22 This study sought to update one of a similar nature conducted in 1989.*fn23 In addition to identifying sixteen such phenomena,*fn24 the study revealed other important facts regarding the reliability of eyewitness testimony. First, the study identified several areas of research which experts had previously considered either unreliable or within the "common sense" knowledge of a juror. For example, in the 1989 study, the surveyed experts did not agree that the methodology of studies concluding that "[t]he presence of a weapon impairs a witness's ability to accurately identify the perpetrator's face" was sufficiently sound to qualify as expert testimony.*fn25 By 2001, however, 87% of the experts surveyed agreed that the science concerning the effect of weapon-related stress had advanced to the point that it was reliable.*fn26 34% of the experts agreed that it would be a matter of "common sense" knowledge for the average juror,*fn27 as compared to 11.4% in 1989.*fn28 Second, the 2001 study listed thirteen new areas of scientific study that were deemed reliable.*fn29 For example, 95% of the eyewitness experts surveyed in 2001 agreed that the scientific method behind the observed phenomenon that an eyewitness's confidence can be influenced by a number of factors unrelated to accuracy is sufficiently reliable to be presented to a jury.*fn30 Only 10% of the experts surveyed, however, concluded that this phenomenon is within the common knowledge of lay jurors.*fn31
Whether experts generally accept the scientific research on the reliability of eyewitness testimony is only part of the necessary inquiry on the admissibility of scientific evidence. Courts must also determine the extent to which expert testimony will provide information that is not likely to be known by lay jurors.*fn32 Trial courts, both in our jurisdiction and in others, have excluded expert testimony on eyewitness reliability because it was deemed to be within the common sense knowledge, i.e., "not . . . beyond the ken," of the average juror.*fn33 Certain factors that can influence an eyewitnesses' observation and recall are familiar to lay persons. According to a majority of the experts surveyed in the Kassin study, for example, three factors -- unreliability due to the susceptibility of young children to suggestion, alcohol intoxication, and cross-racial identifications -- are understood by lay jurors.*fn34 But "jurors, as a matter of common sense, are not fully aware of the factors that influence eyewitness testimony."*fn35 For example, the average juror is likely to believe that witnesses remember the details of violent events better than those of nonviolent ones.*fn36
Scholarship on the subject, however, reveals that the opposite is true. In general, witnesses are just as likely to underestimate the duration of an event as to overestimate it, but in the case of a violent crime, however, witnesses most often think that the incident lasted longer than it did.*fn37 Similarly, jurors believe that the more confident a witness seems, the more accurate that witness's testimony will be.*fn38 Research reveals, however, that the correlation between a witness's expression of certainty in an identification and its accuracy is, at a minimum, greatly overstated, and perhaps unwarranted.*fn39
Against this general background we discuss, first, the legal standard for admission of expert testimony on eyewitness identification, and then, the reasons for the trial judge's rejection of the defense proffer and its potential relevance to the identifications that were presented to the jury in this case.
In Dyas we identified three distinct criteria that trial judges must apply in considering whether to admit or exclude expert testimony regarding eyewitness identification:
(1) the subject matter "must be so distinctively related to some science, profession, business or occupation as to be beyond the ken of the average layman;" (2) "the witness must have sufficient skill, knowledge, or experience in that field or calling as to make it appear that his opinion or inference will probably aid the trier in his search for truth;" and (3) expert testimony is inadmissible "if the state of the pertinent art or scientific knowledge does not permit a reasonable opinion to be asserted even by an expert."*fn40
The first and third Dyas criteria reflect the standard for admissibility of expert testimony set forth by the U.S. Court of Appeals for the District of Columbia in Frye v. United States.*fn41
Dyas's requirement that the evidence be "beyond the ken of the average layman,"*fn42 derives from Frye's standard, that the subject matter of the expert testimony must be "such that inexperienced persons are unlikely to prove capable of forming a correct judgment," because the subject "does not lie within the range of common experience or common knowledge."*fn43
And the third Dyas requirement reflects Frye's standard that there be "general acceptance" of the underlying methodology in the relevant scientific community.*fn44
Although the admission of expert testimony falls within the discretion of the trial judge,*fn45 we have cautioned that because the right to confront witnesses and to present a defense are constitutionally protected, "[i]n exercising its discretion, the trial court must be guided by the principles that 'the defense should be free to introduce appropriate expert testimony.'"*fn46 Not only is the defendant entitled to present a defense, but that defense should not be put at a disadvantage in the use of scientific evidence comparable to that permitted to the government. Fairness dictates a balanced judicial approach in permitting use in criminal trials of expert testimony concerning subtle psychological factors that might affect witnesses. The defense should be permitted to present expert testimony on the unreliability of eyewitness testimony in appropriate cases, just as the government is allowed in appropriate cases to introduce expert evidence to explain the failure of government witnesses to promptly identify or accuse an attacker in order to build a case for the prosecution.*fn47
V. The Defense Proffer and the Trial Court's Ruling
Two weeks before trial,*fn48 defense counsel filed a forty-page motionproffering the expert testimony of Professor Steven D. Penrod, Ph.D., J.D., a social psychologist and lawyer with extensive credentials in the field of eyewitness identifications. Dr. Penrod's fourteen-page curriculum vitae reveals that Dr. Penrod has published widely on the subject. The motion set out the evidence presented by the government at the first trial and the prosecution's exclusive dependence on the identifications by the five Mahoneys. The motion addressed each of the three criteria for admissibility established in Dyas, requested a hearing, and offered to make Professor Penrod available for examination. With respect to the state of scientific research on the subject, the motion stated that in the last twenty-five years "psychologists have made great strides in understanding the factors that lead to accurate and inaccurate eyewitness identification." The proffer pointed to the 2001 Kassin survey discussed above, which indicates that certain findings "are generally well accepted by experts," and to the increasing acceptance of such findings by law enforcement, with specific reference to the Department of Justice's publication, Eyewitness Evidence.*fn49 In addressing whether the subject matter of the proffered expert testimony was "beyond the ken" of the average juror, the defense asserted that while many trial judges are "educated . . . in the many problems inherent in eyewitness testimony," this is "not generally understood by the average member of the public."
Appellant's motion outlined the substance of Professor Penrod's proposed testimony, which included "a description of the various research studies and experiments upon which his conclusions would be based," and stated "that controlled experiments have led him and other experts in the field to draw [a number] of general conclusions" about the reliability -- or lack thereof -- of eyewitness identification when certain specific factors are present. Eleven specific factors were set out and explained in the motion.*fn50 These included, inter alia, the unreliability of identifications from observation made under stressful circumstances, such as when a witness is focused on the presence of a weapon; the lack of correlation between witness confidence and accuracy; the influence of knowing that others have identified the same suspect;*fn51 and the use of "unreliable investigative procedures," including photo arrays, that can affect eyewitness reliability.*fn52 The motion also asserted that these ...