Constructing evidence and educating juries: The case for modular, made-in-advance expert evidence about eyewitness identifications and false confessions

Texas Law Review

Volumn 93, Issue 7, 2015, Pages 1811-1848

  Mnookin, Jennifer L ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 84938502725     PISSN: 00404411     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (161)

1. As John Langbein wrote, "[t]he maxim of the medieval Glossators … aptly describes American law: confessio est regina probationum, confession is the queen of proof.".
2. John H. Langbein, Torture and Plea Bargaining, 46 U. Chi. L. Rev. 3, 14 (1978).
3. The psychological literature on eyewitness identification is voluminous. For a recent effort to canvas and evaluate the field.
4. Nat'l Research Council of the Nat'l Acads., Identifying the Culprit: Assessing Eyewitness Identification 108 (2014) [hereinafter Identifying the Culprit], noting that "self-reported confidence at the time of trial is not a reliable predictor of eyewitness accuracy." For other overviews of the social-science findings in the area.
5. Brian L. Cutler & Margaret Bull Kovera, EVALUATING Eyewitness Identification (2010), identifying best practices for evaluating eyewitness testimony and guidelines for interactions between attorneys and expert witnesses.
6. Brian L. Cutler & Steven D. Penrod, Mistaken Identification: The Eyewitness, Psychology, and the Law (1995), evaluating the effectiveness of mechanisms meant to safeguard defendants from faulty eyewitness testimony by reviewing empirical research, finding that official safeguards are less effective than expert psychological testimony educating jurors on the frailties of eyewitness memory.
7. James Michael Lampinen, Jeffrey S. Neuschatz & Andrew D. Cling, The Psychology of Eyewitness Identification (2012), chronicling the variables that impact the accuracy of eyewitness identifications and describing the beneficial effects of expert testimony offered to educate juries about questionable eyewitness statements.
8. Elizabeth F. Loftus, Eyewitness Testimony (1979), creating a framework that examines empirical studies relating to eyewitness testimony and explaining how eyewitness testimony has impacted the American legal system.
9. Nat'l Research Council of the Nat'l Acads., Identifying the Culprit: Assessing Eyewitness Identification 108 (2014) [hereinafter Identifying the Culprit], noting that "self-reported confidence at the time of trial is not a reliable predictor of eyewitness accuracy." For other overviews of the social-science findings in the area.
10. United States v. Brownlee, 454 F.3d 131, 138 (3d Cir. 2006) (noting the inherently suggestive nature of lineup procedures that can induce witnesses to make unreliable identifications).
11. Nat'l Research Council of the Nat'l Acads., Identifying the Culprit: Assessing Eyewitness Identification 108 (2014) [hereinafter Identifying the Culprit], noting that "self-reported confidence at the time of trial is not a reliable predictor of eyewitness accuracy." For other overviews of the social-science findings in the area.
12. Brandon L. Garrett, Convicting the Innocent: Where CRIMINAL Prosecutions Go Wrong 7-8, 14-44 (2011) (discussing expert testimony in the context of false confessions and explaining that some 16% of exonerees studied gave false confessions in response to police interrogation, often even incorporating details of the crime likely provided to them by the police).
13. G. Daniel Lassiter et al., Introduction: Police Interrogations and False Confessions-An Overview, in Police Interrogations and False Confessions: Current Research, Practice, and Policy Recommendations 3, 4-5 (G. Daniel Lassiter & Christian A. Meissner eds., 2010) (summarizing studies indicating that common procedural errors of interrogations can result in false confessions).
14. Dan Simon, In Doubt: The Psychology of the CRIMINAL Justice Process 121 (2012) (noting that false confessions "have been observed in 15-25 percent of the known exonerations").
15. Steven A. Drizin & Richard A. Leo, The Problem of False Confessions in the Post-DNA World, 82 N.C. L. Rev. 891, 933-43 (2004) (presenting a collection of examples of interrogation-induced false confessions, including an extensive list of specific, proven false confessions).
16. For one of the earliest such cases.
17. State v. Chapple, 660 P.2d 1208, 1223-24 (Ariz. 1983).
18. United States v. Brownlee, 454 F.3d 131, 138 (3d Cir. 2006) (noting the inherently suggestive nature of lineup procedures that can induce witnesses to make unreliable identifications).
19. People v. McDonald, 690 P.2d 709, 727 (Cal. 1984).
20. State v. Guilbert, 49 A.3d 705, 729 (Conn. 2012).
21. Benn v. United States, 978 A.2d. 1257, 1275 (D.C. 2009).
22. Stephenson v. State, 226 S.W.3d 622, 627 (Tex. App.-Amarillo 2007, no pet.).
23. State v. Clopten, 223 P.3d 1103, 1115 (Utah 2009).
24. State v. Henderson, 27 A.3d 872, 897-902 (N.J. 2011) (discussing various lineup procedures).
25. State v. Lawson, 291 P.3d 673, 686-88 (Or. 2012) (en banc) (same).
26. United States v. Adams, 271 F.3d 1236, 1246 (10th Cir. 2001) (holding that trial judge acted within his discretion in disallowing expert testimony).
27. Miller v. State, 770 N.E.2d 763, 773-74 (Ind. 2002) (holding exclusion of expert testimony to be reversible error).
28. Ake v. Oklahoma, 470 U.S. 68, 72, 86-87 (1985) (determining that a defendant has a due process right to the assistance of a psychiatrist for the determination of sanity but leaving open the extent to which this due process right requires courts to fund other kinds of expert assistance helpful to mounting a defense). In practice, there is a great deal of judicial discretion regarding the funding of experts for indigent defendants.
29. Paul C. Giannelli, Ake v. Oklahoma: The Right to Expert Assistance in a Post-Daubert, Post-DNA World, 89 Cornell L. Rev. 1305, 1312-13 (2004) (noting that judges have the ability to restrict or deny funding for defense experts).
30. Jennifer L. Mnookin, Repeat-Play Evidence: Jack Weinstein, "Pedagogical Devices," Technology, and Evidence, 64 DePaul L. Rev. (forthcoming 2015).
31. 509 U.S. 579 (1993).
32. Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).
33. Gen. Elec. Co. v. Joiner, 522 U.S. 136 (1997).
34. Laurens Walker & John Monahan, Social Frameworks: A New Use of Social Science in Law, 73 Va. L. Rev. 559 (1987) (describing the rise of social frameworks as an alternative to the rigid distinction between social science being used to prove legislative or adjudicative facts and proposing ways to incorporate the general findings of such research into the adjudicative process).
35. Simon A. Cole, Out of the Daubert Fire and into the Fryeing Pan? Self-Validation, Meta-Expertise and the Admissibility of Latent Print Evidence in Frye Jurisdictions, 9 Minn. J.L. Sci. & Tech. 453, 456-57 (highlighting that, when courts must evaluate the validity of claims where the appropriate reference community is not obvious, courts must turn to "meta-experts" who have evaluated the empirical and rational validity of those claims).
36. Jennifer L. Mnookin, Atomism, Holism, and the Judicial Assessment of Evidence, 60 UCLA L. Rev. 1524, 1577-78 (2013) (discussing the widespread practice of scientific experts using meta-analytic techniques to aggregate evidence and data in their own domain).
37. Samuel R. Gross & Jennifer L. Mnookin, Expert Information and Expert Evidence: A Preliminary Taxonomy, 34 Seton Hall L. Rev. 141, 163 (2003) (defining "instruction" as "general information about some common issue or phenomenon … rather than specific information about a particular problem or case").
38. Kenneth Culp Davis, Judicial Notice, 55 Colum. L. Rev. 945, 952 (1955) (explaining the general nature of legislative facts).
39. United States v. Saelee, 162 F. Supp. 2d 1097, 1101-03 (D. Alaska 2001) (describing a nonforensic practitioner's testimony regarding the lack of scientific research for handwriting identification).
40. Michael J. Saks, Banishing Ipse Dixit: The Impact of Kumho Tire on Forensic Identification Science, 57 Wash. & Lee L. Rev. 879, 897-99 (2000) (describing cases where expert testimony was offered regarding the extent of scientific research for identification evidence).
41. Saelee, 162 F. Supp. 2d at 1101-03 (experts testified before the court as to the reliability of handwriting analysis generally, rather than in reference to the specific facts of the case).
42. Castro, Nos. H036045, H034813, 2012 WL 271339, at *3 (Cal. Ct. App. 2012) (discussing defense counsel's failure to hire a handwriting expert).
43. Howard v. State, 945 So. 2d 326, 334 (Miss. 2006) (describing defense counsel's failure to obtain funds for a bite mark expert).
44. State v. Clopten, 223 P.3d 1103, 1106 (Utah 2009) (noting the trial court's refusal to allow an eyewitness expert's testimony). Note that I have on rare occasions testified about the scientific foundation (and limits to that foundation) for fingerprint evidence and in one case was excluded from court because I was not myself a fingerprint expert.
45. U.S. Courts, The Patent Process: An Overview for Jurors, YouTube (Nov. 22, 2013), https://www.youtube.com/watch?v=ax7QHQTbKQE&list=PL4bcxoLSIaXeVdyUI1500VSrfuKyI XLfJ&index=2.
46. archived at https://perma.cc/HL3Q-T357 (an effort by the Federal Judicial Center to produce a video explaining the patent process to jurors in a nonpartisan, balanced manner, for Federal District Courts to use to educate jurors during patent trials). Although this made-inadvance video presentation is not precisely an example of the kind of modular testimony that I am suggesting in this Article, it nonetheless deserves our notice, particularly because it represents an effort by a nonpartisan organization to create a fair depiction of a set of issues that are "repeat play," in the sense that they frequently arise in nearly identical form in different cases. However this patent video is, in important ways, quite different from what I am proposing because the patent video is an introductory lecture, not testimony-there is no direct or cross-examination by lawyers, nor are the topics discussed based on social science research. Notwithstanding these important differences, this patent video is an interesting example of an effort to gain efficiencies-and increased fairness-via technology. Many thanks to Joe Cecil for drawing my attention to this video.
47. 432 U.S. 98 (1977).
48. This case built on earlier jurisprudence about eyewitness evidence, police conduct, and suggestibility.
49. Neil v. Biggers, 409 U.S. 188, 195-96 (1972) (raising the issue of whether the victim's identification of the respondent in a lineup violated due process).
50. Stovall v. Denno, 388 U.S. 293, 302 (1967) (acknowledging that while "[t]he practice of showing suspects singly to persons for the purpose of identification … has been widely condemned[,]" the totality of the circumstances in the record did not suggest due process had been violated).
51. Brathwaite, 432 U.S. at 99-101.
52. Brathwaite v. Manson, 527 F.2d 363, 372 (2d Cir. 1975).
53. Brathwaite, 432 U.S. at 117.
54. Stovall v. Denno, 388 U.S. 293, 302 (1967).
55. Perry v. New Hampshire, 132 S. Ct. 716, 726 (2012) ("The due process check for reliability, Brathwaite made plain, comes into play only after the defendant establishes improper police conduct. The very purpose of the check, the Court noted, was to avoid depriving the jury of identification evidence that is reliable, notwithstanding improper police conduct.").
56. 132 S. Ct. 716 (2012).
57. Brandon L. Garrett, Eyewitnesses and Exclusion, 65 Vand. L. Rev. 451, 460 (2012).
58. Kevin Krug, The Relationship Between Confidence and Accuracy: Current Thoughts of the Literature and a New Era of Research, 3 Applied Psychol. Crim. Just. 7, 9 (2007) (concluding that the bulk of social-science research suggests "that confidence is a poor indicator of memory accuracy").
59. Gary L. Wells & R. C. L. Lindsay, Methodological Notes on the Accuracy-Confidence Relation in Eyewitness Identifications, 70 J. Applied Psychol. 413, 418 (1985) (same).
60. For a meta-analysis finding a limited but nonzero relationship between confidence and accuracy at the time of selection.
61. Siegfried Ludwig Sporer et al., Choosing, Confidence, and Accuracy: A Meta-Analysis of the Confidence-Accuracy Relation in Eyewitness Identification Studies, 118 Psychol. Bull. 315, 315-17 (1995).
62. For an example of the particular issues relating to retrospective certainty.
63. Amy L. Bradfield et al., The Damaging Effect of Confirming Feedback on the Relation Between Eyewitness Certainty and Identification Accuracy, 87 J. Applied Psychol. 112, 112-14 (2002).
64. Brandon L. Garrett, Eyewitnesses and Exclusion, 65 Vand. L. Rev. 451, 460 (2012).
65. Brandon L. Garrett, Eyewitnesses and Exclusion, 65 Vand. L. Rev. 451, 460 (2012).
66. For a description of the operation of this approach and a strong critique of it.
67. However, some states have begun to take more aggressive approaches than the federal courts to the judicial assessment of the reliability of eyewitness identification.
68. For a discussion of some recent state developments.
69. Jules Epstein, Irreparable Misidentifications and Reliability: Reassessing the Threshold for Admissibility of Eyewitness Identification, 58 Vill. L. Rev. 69, 79-81 (2013).
70. For an account of this transition and an argument to revive a focus on reliability.
71. Richard A. Leo et al., Promoting Accuracy in the Use of Confession Evidence: An Argument for Pretrial Reliability Assessments to Prevent Wrongful Convictions, 85 Temp. L. Rev. 759, 779-80 (2013) (detailing the shift in the Court's jurisprudence).
72. Steven Penney, Theories of Confession Admissibility: A Historical View, 25 Am. J. Crim. L. 309, 310 (1998) (providing a historical account of the shift in standard).
73. Richard A. Leo et al., Promoting Accuracy in the Use of Confession Evidence: An Argument for Pretrial Reliability Assessments to Prevent Wrongful Convictions, 85 Temp. L. Rev. 759, 779-80 (2013) (detailing the shift in the Court's jurisprudence).
74. Yale Kamisar, Police INTERROGATION AND Confessions: Essays in Law and Policy 10-11 (1980) (contending that the term "voluntariness" was originally a "synonym for the 'trustworthiness' or 'reliability' test").
75. 367 U.S. 568 (1961).
76. Colorado v. Connelly, 479 U.S. 157, 167 (1986) (holding that "coercive police activity is a necessary predicate to the finding that a confession is not 'voluntary' within the meaning of the Due Process Clause of the Fourteenth Amendment"). To be sure, coercion and accuracy may well be related-coercive processes may significantly increase the chance of inaccurate confessions. But sometimes coercive methods may in fact produce accurate confessions-for reasons independent of accuracy we may well deem their use unacceptable, but the reason for that is not accuracy itself. Similarly, strong evidence exists to show that even when confessions are voluntary and no illegal coercion has been applied, they are not therefore necessarily accurate.
77. Saul M. Kassin, False Confessions: Causes, Consequences, and Implications for Reform, 17 CURRENT Directions Psychol. Sci. 249, 251 (2008) (describing various characteristics and interrogation techniques that increase the likelihood of false confessions).
78. For both areas, archival or field studies raise complicated issues about knowing "ground truth." But eyewitness identification is much more easily studied in an experimental setting than false confession-it is not difficult to design an experiment to test people's ability to make a correct identification (though, to be sure, it is difficult to create experimental conditions that are as stressful and potentially traumatic as a real crime). It is more difficult to create experimental conditions that could induce false confessions in circumstances with serious consequences akin to a police interrogation.
79. Brandon Garrett, Contaminated Confessions Revisited, 101 Va. L. Rev. 408-15 (2015).
80. Richard A. Leo, False Confessions: Causes, Consequences, and Implications, 37 J. Am. Acad. Psychiatry & L., 332, 337 (2009).
81. We see precisely this situation with Daubert-that is to say the judge's gatekeeping responsibility vis-à-vis expert evidence requires a direct focus on validity and reliability-but clearly, parties ought nonetheless to be able to challenge the reliability of any given item of expert evidence, notwithstanding that the judge has already made her own assessment of reliability prior to permitting the evidence.
82. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 594-95 (1993) (holding that the inquiry into expert evidence is concentrated on scientific validity, evidentiary relevance, and reliability).
83. Rule 702 of the Federal Rules of Evidence allows expert evidence only when "the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue." Fed. R. Evid. 702(a) (emphasis added). Therefore, courts regularly exclude expert evidence if they do not believe it will assist the trier of fact.
84. Boyd v. State Farm Ins. Cos., 158 F.3d 326, 331 (5th Cir. 1998) (commenting on the trial court's "broad discretion to rule on the admissibility of the expert's evidence").
85. Brandon L. Garrett, Eyewitnesses and Exclusion, 65 Vand. L. Rev. 451, 460 (2012).
86. For similar findings from a broader examination of exonerations.
87. Samuel R. Gross & Michael Shaffer, Nat'L Registry of Exonerations, Exonerations in the United States, 1989-2012 (2012).
88. Nat'l Research Council of the Nat'l Acads., Identifying the Culprit: Assessing Eyewitness Identification 108 (2014) [hereinafter Identifying the Culprit], noting that "self-reported confidence at the time of trial is not a reliable predictor of eyewitness accuracy." For other overviews of the social-science findings in the area.
89. George Vallas, A Survey of Federal and State Standards for the Admission of Expert Testimony on the Reliability of Eyewitnesses, 39 Am. J. Crim. L. 97, 114-16 (2011) (noting that while there has been a recent trend in both federal and state courts toward the acceptance of expert eyewitness testimony, judicial approaches still vary across jurisdictions).
90. Nat'l Research Council of the Nat'l Acads., Identifying the Culprit: Assessing Eyewitness Identification 108 (2014) [hereinafter Identifying the Culprit], noting that "self-reported confidence at the time of trial is not a reliable predictor of eyewitness accuracy." For other overviews of the social-science findings in the area.
91. Nat'l Research Council of the Nat'l Acads., Identifying the Culprit: Assessing Eyewitness Identification 108 (2014) [hereinafter Identifying the Culprit], noting that "self-reported confidence at the time of trial is not a reliable predictor of eyewitness accuracy." For other overviews of the social-science findings in the area.
92. Gary L. Wells et al., Eyewitness Identification Procedures: Recommendations for Lineups and Photospreads, 22 Law & Hum. Behav. 603, 609 (1998).
93. Alvin G. Goldstein et al., Frequency of Eyewitness Identification in Criminal Cases: A Survey of Prosecutors, 27 Bull. Psychonomic Soc'y 71, 73 (1989). Specifically, they estimated about 77,313 people were arrested in cases in which the eyewitness identification was "crucial," extrapolating this figure from a survey of district attorneys.
94. Erica Goode, Stronger Hand for Judges in the 'Bazaar' of Plea Deals, N.Y. Times, Mar. 22, 2012, http://www.nytimes.com/2012/03/23/us/stronger-hand-for-judges-after-rulings-onplea-deals.html.
95. archived at http://perma.cc/BH3U-8KJ6 (stating that plea bargains end 97% of federal cases and 94% of state cases).
96. Jennifer L. Mnookin, Uncertain Bargains: The Rise of Plea Bargaining in America, 57 Stan. L. Rev. 1721, 1722 (2005).
97. Crim. Justice Section, Am. Bar Ass'n, Report to House of DELEGATES 104D, at 2-3 (2008) (finding the problem of "mistaken eyewitness identification … a serious problem in the United States" and recommending increased use of expert testimony on "crossracial identification" to combat the issue).
98. The American Bar Association recognizes this and explicitly "opposes exclusive reliance on expert witnesses" due to their cost and the fact that only a "small number of persons [are] qualified to testify as expert witnesses on cross-racial identification".
99. For arguments in favor of a reliability-based approach to the judicial assessment of eyewitness identification.
100. Jules Epstein, Irreparable Misidentifications and Reliability: Reassessing the Threshold for Admissibility of Eyewitness Identification, 58 Vill. L. Rev. 69, 79-81 (2013).
101. Sandra Guerra Thompson, Daubert Gatekeeping for Eyewitness Identifications, 65 SMU L. Rev. 593, 596 (2012), arguing that Daubert's reliability focus should apply more stringently to eyewitness identifications.
102. Sandra Guerra Thompson, Beyond a Reasonable Doubt? Reconsidering Uncorroborated Eyewitness Identification Testimony, 41 U.C. Davis L. Rev. 1487, 1495 (2008), advocating for a corroboration requirement when the state presents eye witness testimony.
103. Richard A. Leo et al., Promoting Accuracy in the Use of Confession Evidence: An Argument for Pretrial Reliability Assessments to Prevent Wrongful Convictions, 85 Temp. L. Rev. 759, 779-80 (2013) (detailing the shift in the Court's jurisprudence).
104. Richard A. Leo et al., Bringing Reliability Back in: False Confessions and Legal Safeguards in the Twenty-First Century, 2006 Wis. L. Rev. 479, 486-87, arguing that recording custodial interrogations should be a prerequisite of reliability.
105. Gary L. Wells et al., Eyewitness Identification Procedures: Recommendations for Lineups and Photospreads, 22 Law & Hum. Behav. 603, 609 (1998).
106. Jonathan M. Fawcett et al., Of Guns and Geese: A Meta-Analytic Review of the 'Weapon Focus' Literature, 19 Psychol. Crime & L. 35, 44 (2013) ("[W]eapon presence appears to be clearly detrimental to feature accuracy (e.g., recall), but only sporadically affects identification accuracy.").
107. Nancy Mehrkens Steblay, A Meta-Analytic Review of the Weapon Focus Effect, 16 Law & Hum. Behav. 413, 420-21 (1992) (concluding as a result of metaanalysis of several previous experiments that the weapon-focus effect is statistically significant, but the magnitude of the effect is not great).
108. Nat'l Research Council of the Nat'l Acads., Identifying the Culprit: Assessing Eyewitness Identification 108 (2014) [hereinafter Identifying the Culprit], noting that "self-reported confidence at the time of trial is not a reliable predictor of eyewitness accuracy." For other overviews of the social-science findings in the area.
109. The same difficulty applies to false-confession evidence. Consider contamination. There is substantial evidence that many false confessions contain examples of interrogators providing information about the crime during the course of the interrogation. When that information appears in the confession, it enhances the apparent validity. But it may also be that true confessions frequently reveal examples of contamination by interrogators as well. Until we know substantially more about the base-rate frequency of contamination in true and false confessions-along with the base rates for true and false confessions themselves-we cannot possibly know that a confession is unreliable simply because some degree of contamination can be pointed to. This inability to diagnose falseness from characteristics like contamination means that reliability hearings for false-confession evidence, while superficially appealing, are in fact unlikely to be effective.
110. Transcript of Record at 2434, State v. White, 2007 WL 5248507 (Cal. Super. Ct. L.A. Cnty. Sept. 20, 2007) (No. B204494).
111. Chelsea Moore, Is Perception Reality?: An Argument Against the Use of Rule 403 for the Exclusion of Eyewitness Identification Expert Testimony, 6 FIU L. Rev. 163, 177 (2010).
112. Nat'l Research Council of the Nat'l Acads., Identifying the Culprit: Assessing Eyewitness Identification 108 (2014) [hereinafter Identifying the Culprit], noting that "self-reported confidence at the time of trial is not a reliable predictor of eyewitness accuracy." For other overviews of the social-science findings in the area.
113. Scott Woller, Rethinking the Role of Expert Testimony Regarding the Reliability of Eyewitness Identifications in New York, 48 N.Y.L. Sch. L. Rev. 323, 325 n.15 (2003).
114. Brandon L. Garrett, Eyewitnesses and Exclusion, 65 Vand. L. Rev. 451, 460 (2012).
115. Samuel R. Gross & Michael Shaffer, Nat'L Registry of Exonerations, Exonerations in the United States, 1989-2012 (2012).
116. Goldman v. United States, 245 U.S. 474, 477 (1918) (holding that the appellate court cannot invade "the province of the jury by determining questions of credibility and weight of evidence").
117. On the jury's role as "lie detector" and credibility assessor.
118. George Fisher, The Jury's Rise as Lie Detector, 107 Yale L.J. 575 (1997).
119. Mirjan Damaška, Atomistic and Holistic Evaluation of Evidence: A Comparative View, in Comparative and Private International Law: Essays in Honor of John HENRY Merryman on his Seventieth Birthday 91, 91-98 (David S. Clark ed., 1990) (suggesting the Anglo-American adversarial system has strongly atomistic tendencies, especially as compared to the Continental civil law systems).
120. John Leubsdorf, Presuppositions of Evidence Law, 91 Iowa L. Rev. 1209, 1213 (2006) (noting an "atomic" tendency as a characteristic of evidence law).
121. Jennifer L. Mnookin, Atomism, Holism, and the Judicial Assessment of Evidence, 60 UCLA L. Rev. 1524, 1531 (2013) (describing holism as the counterpoint to the default approach to admissibility).
122. There are some limited circumstances where judges do consider corroboration in assessing admissibility-for example, in the hearsay exception for statements against interest.
123. Fed. R. Evid. 804(b)(3)(B).
124. For a discussion of corroboration in relation to the atomism and holism of judicial decision making in evidence.
125. Jennifer L. Mnookin, Atomism, Holism, and the Judicial Assessment of Evidence, 60 UCLA L. Rev. 1524, 1531 (2013) (describing holism as the counterpoint to the default approach to admissibility).
126. Manson v. Brathwaite, 432 U.S. 98, 116 (1976).
127. Simmons v. United States, 390 U.S. 377, 384 (1968).
128. Nat'l Research Council of the Nat'l Acads., Identifying the Culprit: Assessing Eyewitness Identification 108 (2014) [hereinafter Identifying the Culprit], noting that "self-reported confidence at the time of trial is not a reliable predictor of eyewitness accuracy." For other overviews of the social-science findings in the area.
129. Gary L. Wells et al., Eyewitness Identification Procedures: Recommendations for Lineups and Photospreads, 22 Law & Hum. Behav. 603, 609 (1998).
130. Steblay et al., Eyewitness Accuracy Rates in Sequential and Simultaneous Lineup Presentations: A Meta-Analytic Comparison, 25 Law & Hum. Behav. 459, 468-71 (2001) (concluding that sequential lineup procedure is generally superior to simultaneous but expressing reluctance to recommend its categorical adoption due to uncertainty in the practical application of the sequential procedure).
131. United States v. Hall, 165 F.3d 1095, 1120 (7th Cir. 1999) (citations omitted).
132. Supreme Judicial Court Study Grp. on Eyewitness Identification, REPORT AND Recommendations to the Justices 3-4 (2013).
133. State v. Lawson, 291 P.3d 673, 685-88 (Or. 2012).
134. Rebecca Brown & Stephen Saloom, The Imperative of Eyewitness Identification Reform and the Role of Police Leadership, 42 U. Balt. L. Rev. 535, 546-47, 551-52 (2013) (explaining the Oregon and New Jersey Supreme Courts' approaches to incorporating scientific findings into eyewitness identifications).
135. State v. Henderson, 27 A.3d 872, 924-25 (N.J. 2011).
136. Nat'l Research Council of the Nat'l Acads., Identifying the Culprit: Assessing Eyewitness Identification 108 (2014) [hereinafter Identifying the Culprit], noting that "self-reported confidence at the time of trial is not a reliable predictor of eyewitness accuracy." For other overviews of the social-science findings in the area.
137. Crim. Justice Section, Am. Bar Ass'n, Report to House of DELEGATES 104D, at 2-3 (2008) (finding the problem of "mistaken eyewitness identification … a serious problem in the United States" and recommending increased use of expert testimony on "crossracial identification" to combat the issue).
138. Crim. Justice Section, Am. Bar Ass'n, Report to House of DELEGATES 104D, at 2-3 (2008) (finding the problem of "mistaken eyewitness identification … a serious problem in the United States" and recommending increased use of expert testimony on "crossracial identification" to combat the issue).
139. Nat'l Research Council of the Nat'l Acads., Identifying the Culprit: Assessing Eyewitness Identification 108 (2014) [hereinafter Identifying the Culprit], noting that "self-reported confidence at the time of trial is not a reliable predictor of eyewitness accuracy." For other overviews of the social-science findings in the area.
140. There is a substantial literature on the effectiveness of jury instructions; overall, it suggests some skepticism about their effectiveness. In the eyewitness context in particular, there have been a handful of studies looking at the effectiveness of instructions on modifying juries' attitudes and beliefs.
141. For a review of these studies.
142. Richard A. Wise et al., An Examination of the Causes and Solutions to Eyewitness Error, 5 Frontiers Psychiatry, art. no. 102, at 3-5 (2014), http://www.ncbi.nlm.nih.gov/pmc/articles/PMC4131297/pdf/fpsyt-05-00102.pdf.
143. archived at http://perma.cc/L3S4-KUBR.
144. Henderson, 27 A.3d at 882-83.
145. 27 A.3d 872 (N.J. 2011).
146. New Jersey Criminal Model Jury Instructions, Identification: In-Court Identification Only (July 19, 2012), available at http://www.judiciary.state.nj.us/pressrel/2012/jury_instruc tion.pdf.
147. archived at http://perma.cc/22Y2-SMV7 (emphasis omitted) (citations omitted). The new jury instructions were made available through a link from a press release.
148. Press Release, N.J. Courts, Supreme Court Releases Eyewitness Identification Criteria for Criminal Cases (July 19, 2012), available at http://www.judiciary.state.nj.us/pressrel/2012/pr120719a.htm.
149. archived at http://perma.cc/SJJ5-C3MX.
150. Fed. R. Evid. 201(f).
151. For a tepid endorsement of instructions as a second-best solution compared to experts.
152. Nat'l Research Council of the Nat'l Acads., Identifying the Culprit: Assessing Eyewitness Identification 108 (2014) [hereinafter Identifying the Culprit], noting that "self-reported confidence at the time of trial is not a reliable predictor of eyewitness accuracy." For other overviews of the social-science findings in the area.
153. Michael R. Leippe & Donna Eisenstadt, The Influence of Eyewitness Expert Testimony on Jurors' Beliefs and Judgments, in Expert Testimony on the PSYCHOLOGY OF Eyewitness Identification 169, 184-86 (Brian L. Cutler ed., 2009) (discussing various studies conducted on whether expert testimony impacts jurors' willingness to believe eyewitnesses and determining that while expert testimony increases skepticism, such testimony may be discarded in favor of believing the eyewitness).
154. State v. Guilbert, 49 A.3d 705, 715 (Conn. 2012) (discussing proposed expert testimony on the impact of stress, time, and police interrogation techniques on the accuracy of eyewitness identifications).
155. Commonwealth v. Walker, 92 A.3d 766, 773, 791 (Penn. 2014) (allowing expert testimony offered to show the phenomenon of weapon focus and the impact of stress and police tactics on eyewitness-identification accuracy).
156. State v. Clopten, 223 P.3d 1103, 1105, 1118 (Utah 2009) (ruling to include expert testimony on factors impacting the accuracy of eyewitness testimony including "cross-racial identification, the impact of violence and stress during an event, the tendency to focus on a weapon rather than … facial features, and the suggestive nature of certain identification procedures used by police").
157. U.S. Const. amend. VI (guaranteeing the defendant in a criminal prosecution the right "to be confronted with the witnesses against him").
158. Transcript of Record at 23-25, United States v. Gipson, 2008 WL 8762440 (E.D. Wash. July 23, 2008) (No. CR-07-2056-LRS-1).
159. Christian Sheehan, Note, Making the Jurors the "Experts": The Case for Eyewitness Identification Jury Instructions, 52 B.C. L. Rev. 651, 688 (2011) ("A court is especially likely to disallow an expert's testimony if it appears that the expert is commenting on the reliability of a specific witness in the case.").
160. With modular testimony, the fact finder would presumably understand that the expert was not a partisan, hired by the specific party, and potentially shading and tailoring his or her testimony specifically for that particular trial. With the typical expert, not only is there a risk of partisanship, given adversarial pressures and the dynamics of "team" membership, but there is the related-but-distinct concern that a jury needs to assess the expert's partisanship and assess credibility in light of it. In other words, with case-specific experts, the fact finder must determine credibility while recognizing that the expert has been hired by a particular party and that his or her testimony may be affected by this role. With modular testimony, the expert was not hired by any party in particular. His or her role is more thoroughly that of a social scientist providing information about relevant research. This lack of case-specific tailoring might make his or her ready-to-wear testimony more reliable and, perhaps, more credible as well. Thanks to Jaci Seelagy for helpful discussions on this point.
161. For example: could an expert legitimately opine that a lineup design was so flawed as to be unreliable? This might be more legitimate, scientifically, than an opinion that a particular eyewitness was mistaken. In the former case, the expert would not be opining on the identification itself from the lineup, but on the legitimacy of the lineup method used given what the research has shown. This issue may be significant on cross too, where a prosecutor might want to ask specifically about the factors not present in the given case. Clearly modular testimony makes this kind of inquiry challenging-though the prosecutor could potentially make the same point through her own use of modules about the factors that assist reliability combined with effective use of argument.