Witnessing the witness: The case for exclusion of eyewitness expert testimony

Notre Dame Law Review

Volumn 86, Issue 2, 2011, Pages 905-937

  Reedy, Matthew J ^a,b  

^a NOTRE DAME LAW SCHOOL   (United States)

^b NORTHWESTERN UNIVERSITY   (United States)

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EID: 79959763981     PISSN: 07453515     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (264)

1. Coleman v. Alabama, 399 U. S. 1, 4-5 (1970) (fourth alteration in original).
2. Id. at 4.
3. Id. at 11. Their conviction was vacated by the Supreme Court, but on other grounds.
4. Id. (vacating and remanding for the absence of counsel for defendants at preliminary hearings).
5. Id. at 4.
6. INNOCENCE PROJECT, http://www.innocenceproject.org (last visited Oct. 27, 2010).
7. Understand the Causes: Eyewitness Misidentification, INNOCENCE PROJECT, http://www.innocenceproject.org/understand/Eyewitness-Misidentificadon. php (last visited Oct. 27, 2010);
8. see also Elizabeth F. Loftus, Ten Years in the Life of an Expert Witness, 10 LAW & HUM. BEHAV. 241, 243 (1986) (estimating over fifty percent of wrongful convictions were due to faulty eyewitness testimony).
9. ANDRE A. MOENSSENS ET AL., SCIENTIFIC EVIDENCE IN CIVIL AND CRIMINAL CASES § 22.03, at 1373 (5th ed. 2007) (emphasis added).
10. See infra Part III. A.
11. See infra Part III. B. But see United States v. Downs, 230 F.3d 272, 275 (7th Cir. 2000) ("Although 50 seconds may not sound like much, under conditions of great stress they can pass quite slowly.").
12. See infra Part III. C.
13. PATRICK M. WALL, EYE-WITNESS IDENTIFICATION IN CRIMINAL CASES 19 (1965).
14. Watkins v. Sowders, 449 U. S. 341, 352 (1981) (Brennan, J., dissenting)
15. (quoting ELIZABETH F. LOFTUS, EYEWITNESS TESTIMONY 19 (1979)).
16. 621 F. Supp. 2d 1207 (M. D. Ala. 2009)
17. aff'd, 370 F. App'x 29 (11th Cir. 2010).
18. Id. at 1209.
19. Id.
20. Id. at 1210.
21. Id. at 1209-10. In making this conclusion, the court only cites studies of convicts exonerated by DNA testing and points out that they were convicted, at least in part, by eyewitness testimony. This line of argument is fallacious, however, as it is backward looking-it merely describes instances where identifications were wrong to prove that juries are generally wrong. The former does not necessarily imply the latter.
22. Id. at 1210-11.
23. 509 U. S. 579 (1993). For a full discussion of this case, see infra Part II.
24. Smith, 621 F. Supp. 2d at 1212-13.
25. See United States v. Smith, 122 F.3d 1355, 1357 (11th Cir. 1997);
26. United States v. Thevis, 665 F.2d 616, 641 (5th Cir. Unit B 1982).
27. Smith, 621 F. Supp. 2d at 1214.
28. Id. at 1215.
29. Id. at 1215-18.
30. FED. R. EVID. 403. For a full discussion of this Rule
31. see infra notes 55-58 and accompanying text.
32. Smith, 621 F. Supp. 2d at 1219-20.
33. Id. at 1221.
34. Id. at 1222.
35. 293 F. 1013 (D. C. Cir. 1923).
36. Id. at 1013. The theory behind this test, a crude precursor to the modern lie detector test, it was explained, is that "truth is spontaneous, and comes without conscious effort, while the utterance of a falsehood requires a conscious effort, which is reflected in the blood pressure."
37. Id. at 1014.
38. Id. at 114.
39. Daubert v. Merrell Dow Pharm. Inc., 509 U. S. 579, 586-87 (1993).
40. Id. at 582.
41. Id.
42. Id. at 583.
43. Daubert v. Merrell Dow Pharm. Inc., 951 F.2d 1128, 1129-30 (9th Cir. 1991).
44. Daubert, 509 U. S. at 589.
45. Id. at 593.
46. Id. at 592 n. 10 ("Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges." (quoting FED. R. EVID. 104 (a))).
47. While the rule applies to "scientific, technical, or other specialized knowledge", the Court limited its discussion only to the "scientific" component, leaving other areas for future litigation.
48. Id. at 589.
49. The Rule currently reads in full: 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 by knowledge, skill, experience, training, or education, 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.
50. Daubert, 509 U. S. at 594.
51. Id. at 593.
52. Id. at 593-94.
53. Id. at 594.
54. Id. The survival of the "general acceptance" test is hardly surprising as it is a very useful measure in evaluating the level of skepticism that should be accorded to a given theory. However, what is critical is that it is not the only consideration.
55. See id.
56. Id. at 593;
57. see also Kumho Tire Co. v. Carmichael, 526 U. S. 137, 149-50 (1999) (listing the factors from Daubert that a court may consider in determining admissibility).
58. Daubert, 509 U. S. at 590.
59. Id. at 591-92. The Court uses an apt analogy: while the study of the phases of the moon is useful in determining whether or not it is dark outside, it is not relevant science in establishing whether or not an individual was unusually unlikely to behave irrationally on that night.
60. Id. at 591.
61. United States v. Mathis, 264 F.3d 321, 335 (3d Cir. 2001) (third and fourth alterations in original)
62. (citing FED. R. EVID. 402;
63. Kumho Tire Co., 526 U. S. 137).
64. Daubert, 509 U. S. at 589.
65. United States v. Kime, 99 F.3d 870, 884 (8th Cir. 1996).
66. Id. (citing FED. R. EVID. 702).
67. United States v. Fosher, 590 F.2d 381, 383 (1st Cir. 1979) (referring specifically to lay jurors' "knowledge of the organic and behavioral mechanisms of perception and memory").
68. FED. R. EVID. 403.
69. See United States v. Brady, 595 F.2d 359, 361 (6th Cir. 1979).
70. See, e.g., United States v. Hankey, 203 F.3d 1160, 1172 (9th Cir. 2000) ("[Rule] 403 favors admissibility, while concomitandy providing the means of keeping distracting evidence out of the trial.");
71. United States v. Dennis, 625 F.2d 782, 797 (8th Cir. 1980) ("In weighing the probative value of evidence against the dangers and considerations enumerated in Rule 403, the general rule is that the balance should be struck in favor of admission. ");
72. United States v. McRae, 593 F.2d 700, 707 (5th Cir. 1979) ("Unless trials are to be conducted on scenarios, on unreal facts tailored and sanitized for the occasion, the applicadon of Rule 403 must be cautious and sparing. Its major function is limited to excluding matter of scant or cumulative probative force, dragged in by the heels for the sake of its prejudicial effect.").
73. Daubert v. Merrell Dow Pharm. Inc., 509 U. S. 579, 596 (1993). For a discussion of the viability of this statement
74. see infra Part rV. F.
75. 526 U. S. 137 (1999).
76. Id. at 142.
77. Id.
78. Carmichael v. Samyang Tires, Inc., 923 F. Supp. 1514, 1521-22 (S. D. Ala. 1996).
79. Carmichael v. Samyang Tires, Inc., 131 F.3d 1433, 1435-36 (11th Cir. 1997).
80. Kumho Tire Co., 526 U. S. at 146.
81. Id. at 147. This is supported by the Court's observation that "it would prove difficult, if not impossible, for judges to administer evidentiary rules under which a gatekeeping obligation depended upon a distinction between 'scientific' knowledge and 'technical' or 'odier specialized' knowledge."
82. Id. at 148.
83. Id. at 149 (quoting Learned Hand, Historical and Practical Considerations Regarding Expert Testimony, 15 HARV. L. REV. 40, 54 (1901)).
84. Id. at 148.
85. Id. at 152.
86. Id.
87. See Gen. Elec. Co. v. Joiner, 522 U. S. 136, 146 (1997) ("We hold, therefore, that abuse of discretion is the proper standard by which to review a district court's decision to admit or exclude scientific evidence."). "It is well-established that 'die trial judge has broad discretion in the matter of the admission or exclusion of expert evidence, and his action is to be sustained unless manifesdy erroneous.'"
88. Boucher v. U. S. Suzuki Motor Corp., 73 F.3d 18, 21 (2d Cir. 1996)
89. (quoting Salem v. U. S. Lines Co., 370 U. S. 31, 35 (1962)). This level of deference also applies to review of decisions grounded in Rule 403: " [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."
90. Virgin Islands v. Pinney, 967 F.2d 912, 917-18 (3d Cir. 1992) (citations omitted).
91. See Margaret A. Berger, What Has a Decade of Daubert Wrought?, 95 AM. J. PUB. HEALTH S59, S64-65 (Supp. I 2005) (noting increased scrutiny);
92. Carol Krafka et al., Judge and Attorney Experiences, Practices, and Concerns Regarding Expert Testimony in Federal Civil Trials, 8 PSYCHOL. PUB. POL'Y & L. 309, 310 (2002) (comparing results of surveys of the beliefs and practice of attorneys and judges before and after Daubert).
93. See Berger, supra note 71, at S64 (citing the need for more research).
94. See discussion supra Part I.
95. See United States v. Smithers, 212 F.3d 306, 311 (6th Cir. 2000).
96. 488 F.2d 1148 (9th Cir. 1973).
97. Id. at 1150-51.
98. Id. at 1153.
99. Id. (internal quotation marks omitted).
100. Id. at 1152.
101. Id. at 1153.
102. Id.
103. Id. But see United States v. Langford, 802 F.2d 1176, 1183 (9th Cir. 1986) (Ferguson, J., dissenting)
104. ("The key to the Amoral holding is that panel's conclusion this information may be obtained by cross-examination. However, cross-examination cannot uncover the reasons for misidentification because the witness honesdy does not believe he or she has misidendfied the defendant.");
105. People v. Smith, 743 N. Y. S.2d 246, 252 (Sup. Ct. 2002) ("Cross-examinadon, as suggested by Amoral... [is] not [a] substitute[] for expert testimony offered by the defense.").
106. Amoral, 488 F.2d at 1153.
107. Id. at 1154. These factors cited by this case would become codified two years later in the Federal Rules of Evidence. See FED. R. EVTO. 403;
108. supra notes 25-28 and accompanying text.
109. See United States v. Smithers, 212 F.3d 306, 311 (6th Cir. 2000).
110. While there are numerous "theories" advanced by cognitive psychologists, the appellate courts often deal generally with the expert's testimony, radier than dealing with the validity of each individual theory. This Note, however, will address many of them specifically. See infra Part IIIA-C.
111. See, e.g., United States v. Smith, 736 F.2d 1103, 1107 (6th Cir. 1984) ("The day may have arrived... when Dr. Fulero's testimony can be said to conform to a generally accepted explanatory theory.").
112. See, e.g., United States v. Fosher, 590 F.2d 381, 383 (1st Cir. 1979) (finding offer of proof did not make clear that "[the] testimony... would be based upon a mode of scientific analysis that meets any of the standards of reliability applicable to scientific evidence").
113. Saul M. Kassin et al., The "General Acceptance" of Psychological Research on Eyewitness Testimony: A Survey of the Experts, 44 AM. PSYCHOLOGIST 1089, 1090 (1989).
114. For a complete discussion of their methodology, see id. at 1090-92.
115. Id. at 1094 tbl.4.
116. Id. at 1095.
117. Id. at 1096. A "high degree of consensus" refers to an approval rate of seventyfive percent or higher.
118. See id. at 1095.
119. 28 F.3d 921 (9th Cir. 1994).
120. The article was submitted to buttress their original motion, which was littered with unsupported claims and phrases like "[t]here is a wealth of knowledge supporting this point" and "f[t]he research is clear."
121. Id. at 924 (quoting defendant's motion).
122. Id. at 924-25.
123. Kassin et al., supra note 89, at 1097.
124. Saul M. Kassin et al., On the "General Acceptance" of Eyewitness Testimony Research: A New Survey of the Experts, 56 AM. PSYCHOLOGIST 405, 408 (2001).
125. For a criticism of the methodology of this study, see Daniel B. Wright, Causal and Associative Hypothesis in Psychology, 12 PSYCHOL. PUB. POL'Y & L. 190, 206-08 (2006). Wright argues that many of the experts responding to the survey may not have appreciated the differences between phenomena framed in "causal" terms rather than "associative" terms, resulting in a risk of confusion. "Therefore, caution is advised before using these results to argue that each of their survey statements is generally accepted unless there is certainty that the respondents interpreted diat particular survey statement appropriately."
126. Id. at 208.
127. See Kassin et al., supra note 98, at 412 tbl.4. The last two phenomena (the cross-race bias and weapon focus) previously did not command a high degree of consensus.
128. See supra note 92 and accompanying text.
129. See United States v. Hall, 165 F.3d 1095, 1103 (7th Cir. 1999) (recognizing the Seventh Circuit's "presumption against admission of expert testimony on eyewitness identification stemmed from our concerns about whether such expert tesdmony would actually assist the trier of fact, rather than about its reliability");
130. see also, e.g., United States v. Smithers, 212 F.3d 306, 311-12 (6th Cir. 2000) ("This jurisprudential trend is not surprising in light of modern scientific studies which show that, while juries rely heavily on eyewitness testimony, it can be untrustworthy under certain circumstances.");
131. United States v. Smith, 621 F. Supp. 2d 1207, 1212 (M. D. Ala. 2009) ("[0]ther courts have specifically reviewed Dr. Fulero's methods and found that they 'easily' satisfy the first Daubert inquiry.").
132. FED. R. EVID. 702.
133. United States v. Larkin, 978 F.2d 964, 971 (7th Cir. 1992)
134. (quoting United States v. Hudson, 884 F.2d 1016, 1024 (7th Cir. 1989)).
135. Smith, 621 F. Supp. 2d at 1218-19.
136. Other phenomena have been admitted by courts: the impact of postevent phenomena, the impact of prior photographic identification, and weapon focus. The emphasis here, however, will be on the most commonly raised areas of expert testimony.
137. See Kassin et al., supra note 98, at 412 tbl.4.
138. See Steven G. Fox & H. A. Walters, The Impact of General Versus Specific Expert Testimony and Eyewitness Confidence upon Mock Juror Judgment, 10 LAW & HUM. BEHAV. 215, 224-27 (1986).
139. See Watkins v. Sowders, 449 U. S. 341, 352 (1981) (Brennan, J., dissenting) ("[T]here is almost nothing more convincing than a live human being who takes the stand, points a finger at the defendant, and says 'That's the one!'"
140. (quoting Loftus, supra note 12, at 19)).
141. 264 F.3d 321 (3d Cir. 2001).
142. United States v. Stevens, 935 F.2d 1380, 1400 (3d Cir. 1991).
143. Mathis, 264 F.3d at 335.
144. Id. at 337 (quoting Brief of Appellee at 44, Mathis, 264 F.3d 321 (No. 99-5940)).
145. The cross-examination went as follows: Q: [A]s we sit here today, is it even possible that the identification you made of Mr. Mathis in that photo 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.
146. Id. (alterations in original).
147. However, despite finding an abuse of discretion in failing to admit the testimony, the court did not remand because a variety of other types of evidence rendered the abuse harmless error.
148. Id. at 343-44.
149. See, e.g., United States v. Hall, 165 F.3d 1095, 1106 (7th Cir. 1999) ("[T]his Court has consistently affirmed district court decisions rejecting expert testimony pertaining to the reliability of eyewitness identifications on the basis that it will not 'assist the trier of fact' under Rule 702-");
150. United States v. Curry, 977 F.2d 1042, 1051 (7th Cir. 1992) (noting the same).
151. See, e.g.. Hall, 165 F.3d at 1104-05 (upholding the district court's exclusion of expert testimony even while observing its potential helpfulness);
152. Curry, 977 F.2d at 1051-52 ("The district court also apparently had no quarrel with [the expert's] competency to testify or with the reliability of her scientific testimony.").
153. See, e.g., United States v. Stevens, 935 F.2d 1380, 1397 (3d Cir. 1991) (noting the district court's decision to allow stress-related expert testimony);
154. United States v. Smith, 621 F. Supp. 2d 1207, 1216-19 (M. D. Ala. 2009) (noting the utility of expert testimony on the effect of stress on eyewitness).
155. See generally D. S. Greer, Anything but the Truth? The Reliability of Testimony in Criminal Trials, 11 BRIT. J. CRIMINOLOGV 131, 134-35 (1971) (relating simulation experiment).
156. See C. Neil Macrae et al., Creating Memory Illusions: Expectancy-Based Processing and the Generation of False Memories, 10 MEMORY 63, 72 (2002).
157. See, e.g., United States v. Hudson, 884 F.2d 1016, 1024 (7th Cir. 1989) ("Such expert testimony will not aid the jury because it addresses an issue of which the jury generally is aware.").
158. See, e.g.. Hall, 165 F.3d at 1107 ("[A]ny weakness in eyewitness identification testimony ordinarily can be exposed through careful cross-examination of the eywtinesses.").
159. See, e.g., id. ("[T]he district court properly gave the jury an instruction on the reliability of eyewitness identification to aid the jury in evaluating the eyewitness identification testimony introduced at trial.");
160. United States v. Rincon, 28 F.3d 921, 925 (9th Cir. 1994) (noting the sufficiency of the district court's limiting instruction). The decision to exclude in Rincon was based primarily on the failure of defense counsel to present robust scientific findings supporting their conclusion.
161. See id. at 924-25.
162. See supra notes 93, 99-100 and accompanying text.
163. In fact, the level of support decreased from seventy-one percent in 1989 to sixty percent in 2001. Kassin et al., supra note 98, at 413 tbl.5.
164. Id. at 412 tbl.4.
165. Id.
166. Christian A. Meissner & John C. Brigham, Thirty Years of Investigating the Own-Race Bias in Memory for Faces: A Meta-Analytic Review, 7 PSYCHOL. PUB. POL'Y & L. 3, 15 (2001).
167. See United States v. Stevens, 935 F.2d 1380, 1401 (3d Cir. 1991) (holding that the district court abused its discretion for not allowing such testimony);
168. United States v. Smith, 736 F.2d 1103, 1106 (6th Cir. 1984) (finding problems associated with crossracial identifications outside of jury's "ken", but ultimately concluding that the exclusion was harmless).
169. See, e.g., United States v. Smith, 122 F.3d 1355, 1359 (11th Cir. 1997) ("Smith... was successful in getting the district court to instruct the jury about cross-racial identification....").
170. See supra notes 101, 103 and accompanying text.
171. See, e.g., United States v. Mathis, 264 F.3d 321, 340 (3d Cir. 2001) (holding the jury needed no illumination);
172. United States v. Blade, 811 F.2d 461, 465 (8th Cir. 1987) (holding that such testimony could prejudice the jury).
173. See, e.g., United States v. Hall, 165 F.3d 1095, 1104 (7th Cir. 1999) (finding that "a district judge has broad discretion to exclude relevant evidence that is confusing or redundant").
174. See, e.g., United States v. Curry, 977 F.2d 1042, 1051-52 (7th Cir. 1992) ("The intrusion of an expert to comment on... minor [eyewitness] testimony was not necessary.").
175. See, e.g., Hall, 165 F.3d at 1104 (excluding expert testimony on the effect of viewing time on memory).
176. See supra note 38 and accompanying text.
177. See United States v. Smithers, 212 F.3d 306, 318 (6th Cir. 2000) (remanding for failure to conduct a clear Daubert analysis).
178. See Hand, supra note 66, at 54.
179. Failure to admit the expert testimony on several topics was found to be an abuse of discretion in United Slates v. Mathis, 264 F.3d 321 (3d Cir. 2001), despite evidence of a high speed chase, which ended in a passenger dropping a black bag containing money, testimony from the defendant's cohort in the bank robbery, and video footage from the bank.
180. Id. at 321, 325, 341-42.
181. See United States v. Blade, 811 F.2d 461, 465 (8th Cir. 1987).
182. People v. Plasencia, 189 Cal. Rptr. 804, 807 (Ct. App. 1983).
183. See supra notes 6-12 and accompanying text.
184. I calculated these figures using the calculator on Custom Statistic Report: League Batting, BASEBALL PROSPECTUS, http://www.baseballprospectus.com/ statistics/sortable/index.php?cid=75007 (last visited Nov. 6, 2010).
185. W. S. Robinson, Ecological Correlations and the Behavior of Individuals, 15 AM. SOC. REV. 351, 357 (1950).
186. Id.
187. Id. at 354-57.
188. See ANDREW GELMAN, RED STATE, BLUE STATE, RICH STATE, POOR STATE 25 (2008).
189. See Transcript of Oral Decision at 15-17, Borders v. King Cnty., No. 05-2-00027-3 (Wash. Sup. Ct. 2005).
190. Kevin Kaduk, Spring Snapshot: Royals Resting All of Their Hopes on Three Kings, BIG LEAGUE STEW (Mar. 21, 2010, 10:07 PM), http://sports.yahoo.com/mlb/ blog/big-league-stew/post/Spring-Snapshot-Royals-resting-all-of-their-hop?urn= mlb-229216.
191. Robinson, supra note 143, at 357.
192. Similarly, studies about the knowledge and biases of jurors say nothing about the knowledge and biases of individual jurors.
193. United States v. Smith, 621 F. Supp. 2d 1207, 1218 (M. D. Ala. 2009).
194. See PAUL BERGMAN & SARAH J. BERMAN, THE CRIMINAL LAW HANDBOOK 469-70 (Richard Stim ed., 11th ed. 2009).
195. Daubert v. Merrell Dow Pharm. Inc., 509 U. S. 579, 591-92 (1993) (requiring a "valid scientific connection to the pertinent inquiry as a precondition to admissibility").
196. United States v. Lumpkin, 192 F.3d 280, 289 (2d Cir. 1999).
197. See, e.g., People v. Wilson, 153 P.2d 720, 724 (Cal. 1944) (whether abortion was necessary to save life of patient);
198. Clifford-Jacobs Forging Co. v. Indus. Comm'n, 166 N. E.2d 582, 585 (111. 1960) (medical causation);
199. Dowling v. L. H. Shattuck, Inc., 17 A.2d 529, 532 (N. H. 1941) (proper method of shoring ditch);
200. Schweiger v. Solbeck, 230 P.2d 195, 203 (Or. 1951) (cause of landslide).
201. See FED. R. EVID. 704 (a);
202. United States v. Langford, 802 F.2d 1176, 1183 (9th Cir. 1986) (Ferguson, J., dissenting);
203. JOHN HENRY WICMORE, EVIDENCE IN TRIALS AT COMMON LAW § 1920, at 18 (James H. Chadbourn ed., rev. ed. 1978) (dismissing claim as a "mere bit of empty rhetoric").
204. Bachman v. Leapley, 953 F.2d 440, 441 (8th Cir. 1992) (citation omitted).
205. Compare Michael McCloskey & Howard E. Egeth, Eyewitness Identification: What Can a Psychologist Tell a Jury?, 38 AM. PSYCHOLOGIST 550, 550 (1983) (arguing that while jurors need help, they do not need to be made more skeptical of eyewitnesses)
206. with Edith Greene & Elizabeth Loftus, Solving the Eyewitness Problem, 2 BEHAV. SCI. & L. 395, 404 (1984) (concluding that use of experts is beneficial, if not necessary).
207. United States v. Duncan, 42 F.3d 97, 101 (2d Cir. 1994).
208. Kassin et al., supra note 98, at 412 tbl.4.
209. See Lora M. Levett & Margaret Bull Kovera, The Effectiveness of Opposing Expert Witnesses for Educating Jurors About Unreliable Expert Evidence, 32 LAW & HUM. BEHAV. 363, 370 (2008).
210. Id. (emphasis added).
211. See id. at 365 ("An opposing expert could act as a heuristic cue that makes jurors skeptical of all scientific evidence, regardless of whether the expert attempts to educate the jury about scientific concepts.").
212. See id. at 371.
213. See FED. R. EVID. 104 (a).
214. BRIAN L. CUTLER & STEVEN D. PENROD, MISTAKEN IDENTIFICATION 246 (1995).
215. This argument presents somewhat of a catch-22. On the one hand, if the opposing expert testimony is really very strong, then there may be grounds for excluding all expert tesdmony, as the science is not very reliable. On the other, if both sides present viable arguments, grounded in good science-as appears to be most often the case-the court would be obliged to allow both sets of testimony, resulting in a batde of the experts.
216. United States v. Rincon, 28 F.3d 921, 926 (9th Cir. 1994);
217. see also United States v. Mathis, 264 F.3d 321, 335 (3d Cir. 2001) ("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.");
218. United States v. Lumpkin, 192 F.3d 280, 289 (2d Cir. 1999) ("Indeed, by our estimation, the added aura of reliability that necessarily surrounds expert testimony would have placed the officers' credibility here in jeopardy.");
219. United States v. Purham, 725 F.2d 450, 454 (8th Cir. 1984) (explaining that an expert witness would not have assisted the jury in evaluating the witness's perception and identification and could result in unfair prejudice because of aura around experts).
220. Contra Mathis, 264 F.3d at 339 ("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.").
221. The population of university students in this study, and indeed most studies discussed in tins Note, is markedly different than the population at large. Students tend to be more educated and younger than the rest of the population at large. However, a comparative study reveals that differences between the general population and students acting as jurors were negligible. See Brian H. Bornstein, The Ecological Validity of Jury Simulations: Is the Jury Still out?, 23 LAW & HUM. BEHAV. 75, 78-80 (1999) (noting that most studies find little difference between student and nonstudent juries);
222. see also Harmon M. Hosch et al., Influence of Expert Testimony Regarding Eyewitness Accuracy on Jury Decisions, 4 LAW & HUM. BEHAV. 287, 294 (1980) ("[O]ne cannot conclude that college students differ significantly from more typical jurors.").
223. Fox & Walters, supra note 107, at 224-27.
224. Id. at 218-29.
225. See Harmon M. Hosch, A Comparison of Three Studies of the Influence of Expert Testimony on Jurors, 4 LAW & HUM. BEHAV. 297, 297 (1980).
226. For further discussion of these cases, see supra notes 29-37, 59-69 and accompanying text.
227. If it were, the ecological fallacy would apply.
228. See generally Elaine D. Ingulli, Trial by Jury: Reflections on Witness Credibility, Expert Testimony, and Recantation, 20 VAL. U. L. REV. 145, 152-54 (1986) (detailing judicial reluctance to introduce experts commenting on witness credibility and expressing a desire to protect the jury's role).
229. FED. R. EVID. 702.
230. Id. R. 403.
231. See supra note 85 and accompanying text. For a thorough review of the literature, see ELIZABETH F. LOFTUS ET AL., EYEWITNESS TESTIMONY 11-112 (4th ed. 2007).
232. United States v. Langford, 802 F.2d 1176, 1182 (9th Cir. 1986) (Ferguson, J., dissenting).
233. See United States v. Brien, 59 F.3d 274, 277 (1st Cir. 1995);
234. United States v. Rincon, 28 F.3d 921, 923-25 (9th Cir. 1994));
235. United States v. Smith, 621 F. Supp. 2d 1207, 1212 (M. D. Ala. 2009)
236. (citing United States v. Kime, 99 F.3d 870, 883 (8th Cir. 1996)).
237. Smith, 621 F. Supp. 2d at 1212 ("[0]ther courts have specifically reviewed Dr. Fulero's methods and found that they 'easily' satisfy the first Daubert inquiry."
238. *1 (N. D. Ohio June 28, 2007))).
239. See supra notes 19-28 and accompanying text.
240. This is the same rationale discussed by the Third Circuit in finding an abuse of discretion in the exclusion of testimony. See United States v. Stevens, 935 F.2d 1380, 1398-1401 (3d Cir. 1991).
241. See supra notes 41-42 and accompanying text.
242. FED. R. EVID. 702.
243. See supra notes 142-51 and accompanying text.
244. See United States v. Mathis, 264 F.3d 321, 340 (3d Cir. 2001)
245. (citing United States v. Gibbs, 190 F.3d 188, 212 (3d Cir. 1999)).
246. See supra Part IV. C.
247. See supra Part rV. D.
248. United States v. Smith, 621 F. Supp. 2d 1207, 1219 (M. D. Ala. 2009).
249. 399 U. S. 1 (1970);
250. see text accompanying notes 1-4.
251. * 352 ("[I]t is better that ten guilty persons escape, than that one innocent suffer.").
252. See Jennifer L. Overbeck, Note, Beyond Admissibility: A Practical Look at the Use of Eyewitness Expert Testimony in the Federal Courts, 80 N. Y. U. L. REV. 1895, 1896 (2005) (suggesting "concrete ways of harnessing psychological research to formulate effective trial strategies").
253. See, e.g., United States v. Curry, 977 F.2d 1042, 1051 (7th Cir. 1992) ("In the present controversy the jury was questioned during voir dire about recall and the ability to identify persons they had seen only briefly, or had not seen for a period of time.").
254. Defendant's Requested Voir Dire at 4, Smith, 621 F. Supp. 2d 1207 (No. 2:07crl65-MHT).
255. Curry, 977 F.2d at 1051 (alterations in original) (quoting the district court);
256. see also United States v. Kime, 99 F.3d 870, 884 (8th Cir. 1996) ("This line of testimony intrudes into the jury's domain. Bell's defense counsel was capable of exposing to the jury any potentially unreliable bases underlying Jojola's identification through cross examination, assuming they were not already apparent.").
257. United States v. Langford, 802 F.2d 1176, 1183 (9th Cir. 1986) (Ferguson, J., dissenting).
258. See, e.g., United States v. Mathis, 264 F.3d 321, 335 (3d Cir. 2001) ("Whether the jury accepts it or not, how the jury accepts it is clearly within their province.").
259. Garrett L. Berman & Brian L. Cuder, Effects of Inconsistencies in Eyewitness Testimony on Mock-Juror Decision Making, 81 J. APPLIED PSYCHOL. 170, 174 (1996).
260. See generally Stacey L. Wagner, The Right to a Jury of One's Peers: An Analytical Review of Juror Biases and Their Implications for the Legal System 25-27 (May 2009) (unpublished B. S. thesis, Depauw University) (on file with author) (detailing studies concluding juries give less weight to witnesses discredited through crossexamination).
261. The Supreme Court of New Jersey, in fact, requires jury instructions on the potential unreliability of cross-racial identifications for that reason. See State v. Cromedy, 727 A.2d 457, 458-59 (N. J. 1999).
262. See Wagner, supra note 200, at 37 (referring to expert witnesses as "hired guns").
263. 165 F.3d 1095 (7th Cir. 1999).
264. Id. at 1107 (alterations in original) (citation omitted) (quoting United States v. Anderson, 739 F.2d 1254, 1258 (7th Cir. 1984)).