753 F.2d 1224 (3d Cir. 1985)
In 1978 and 1979 a group identifying itself as the Universal League of Clergy conducted a scheme to defraud vendors at national trade shows.1
The group placed orders and supplied fabricated credit references consisting of mail-drop addresses and a foreign post office box that the group itself controlled.2
Appellant John W. Downing was indicted for mail fraud, 18 U.S.C. §§ 1341 & 1342, wire fraud, 18 U.S.C. § 1343, and interstate transportation of stolen property, 18 U.S.C. § 2314.3
Silva and Piazza admitted setting up U.L.C. but denied knowing that the suppliers were going to be defrauded.4
The government's case against appellant consisted primarily of the testimony of twelve eyewitnesses who, with varying degrees of confidence, testified that appellant was the man they knew as Reverend Claymore.5
These witnesses testified on the basis of their personal observations of Reverend Claymore for periods ranging from 5 to 45 minutes during the course of business dealings that later were discovered to be fraudulent.6
At the outset of trial defense counsel sought to introduce the testimony of Robert Weisburg, Ph.D.7
He was an assistant professor of cognitive psychology at Temple University.8
The expert would address the reliability of eyewitness identifications.9
He would also answer a hypothetical question based on the evidence in the case.10
On the tenth day of trial, following an off-the-record side-bar discussion, the court briefly summarized the parties’ positions and then denied appellant’s motion.11
It is the ruling of this court that the motion to have the psychologist testify is denied because this is a function of the jury to deal with the credibility of the witnesses that have appeared here and give whatever weight to that testimony that they see fit and also determine if their evidence is credible.12
We note at the outset, and the government concedes, that the court was in error as to the second ground: no fingerprint or handwriting evidence was offered against appellant; rather, the government’s case rested almost exclusively on the eyewitness identifications.13
The case went to the jury without the expert’s testimony and appellant was convicted.14
He appeals, asserting that the district court’s exclusion of his expert’s testimony was erroneous and harmful within the meaning of Fed.R.Evid. 103(a).15
Whether Fed.R.Evid. 702 permits a defendant in a criminal prosecution to introduce expert testimony from a psychologist on the reliability of eyewitness identifications?16
Fed.R.Evid. 702 permits expert testimony if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.17 A witness must be qualified as an expert by knowledge, skill, experience, training, or education.18 The rule adopts a liberal policy favoring admissibility when the testimony is helpful.19 It rejects any per se bar based on the notion that the subject matter is within common juror experience.20
Yes. The district court erred when it concluded that expert testimony on eyewitness reliability can never meet the helpfulness standard of Rule 702.21 The court treated the subject as a matter of common experience for the jury.22 The government's case rested almost entirely on twelve eyewitness identifications made after observations of five to forty-five minutes.23
Defense counsel proffered the testimony of cognitive psychologist Robert Weisburg to address factors such as stress, the forgetting curve, and the lack of correlation between confidence and accuracy.24 The district court denied the proffer on the ground that credibility assessment is solely the jury's function.25 These facts demonstrate that the proffered testimony addressed variables that go beyond common knowledge and can assist the jury in evaluating the identifications that formed the sole basis for conviction.26
Expert testimony on the reliability of eyewitness identifications is admissible under Fed.R.Evid. 702 when it satisfies the helpfulness standard and is tied to the facts of the case.27
Related opinions on this issue
Senior District Judge Dumbauld concurred in the remand but emphasized that Rule 403 supplies an independent basis for exclusion even when Rule 702 is satisfied.28 He noted that the district judge had not invoked Rule 403 on the record yet remained free to do so on remand.29 Dumbauld observed that twelve witnesses had spent between five and forty-five minutes negotiating with the defendant during the fraudulent scheme.30
This setting was far removed from a brief glimpse of a masked robber.31 He concluded that any error in excluding the expert was harmless because the weakness in eyewitness identification is ordinarily presented adequately to the jury by argument of counsel.32 He warned that vacating the conviction risked wasting the time already invested in trial over an academic dispute about novel scientific disciplines.33
Whether a district court must conduct a preliminary in limine inquiry into the reliability of the scientific principles underlying such expert testimony and the likelihood that the testimony may overwhelm or mislead the jury?34
Under Fed.R.Evid. 702 a district court must conduct a preliminary inquiry before admitting novel scientific evidence.35 The court balances the soundness and reliability of the underlying process or technique against the danger that the evidence will overwhelm, confuse, or mislead the jury.36 The court must also assess the proffered connection between the research and the disputed factual issues.37 The court's determination is reviewable for abuse of discretion.38
Yes. The district court failed to perform the required preliminary assessment.39 It erroneously treated all such expert testimony as inadmissible per se.40 The only on-the-record discussion occurred after an off-the-record sidebar on the tenth day of trial.41
The court cited the jury's role in credibility determinations without examining the scientific basis of the proffered testimony or the risk of jury confusion.42 No fingerprint or handwriting evidence existed to dilute the impact of the twelve identifications.43 These facts required the court to hold an in limine hearing to evaluate reliability and potential prejudice before deciding admissibility.44
A district court must conduct a preliminary in limine inquiry balancing reliability against the risk of misleading the jury before admitting expert testimony on eyewitness reliability under Rule 702.45
Whether the Frye general acceptance test remains the controlling standard for admitting novel scientific evidence under the Federal Rules of Evidence?46
The Frye general acceptance test is neither incorporated nor repudiated by the Federal Rules of Evidence.47 A particular degree of acceptance within the scientific community is neither necessary nor sufficient for admissibility under Rule 702.48 It remains one factor the district court may consider when evaluating the reliability of novel scientific evidence.49
No. The district court did not apply the Frye test but instead imposed a categorical bar that is inconsistent with Rule 702.50 The proffered testimony concerned empirical research on perception and memory that had produced consistent results across studies.51 The defense sought to introduce it to counter twelve identifications resting solely on brief business encounters.52 The court excluded the evidence without any inquiry into general acceptance or alternative reliability factors.53
These facts illustrate that the Frye test does not control and that a more flexible reliability inquiry is required.54
The Frye general acceptance test is not the controlling standard for admissibility of novel scientific evidence under the Federal Rules of Evidence.55
Whether expert testimony on eyewitness reliability must be sufficiently tied to specific facts of the identifications at issue to satisfy the helpfulness requirement of Rule 702?56
A defendant seeking admission of expert testimony on eyewitness reliability must make an on-the-record detailed proffer.57 The proffer must explain precisely how the expert's testimony relates to the particular identifications.58 It must include the presence of factors such as stress or cross-racial differences that research has shown impair accuracy.59 Failure to make such a proffer is sufficient grounds for exclusion.60
Yes. The defense failed to make a sufficient on-the-record proffer linking the expert testimony to the specific identifications.61 The encounters lasted five to forty-five minutes during business negotiations rather than under stress or cross-racial conditions.62 The proffer occurred off the record after a sidebar.63
The district court never addressed the fit requirement because it applied a per se exclusion.64 These facts required the district court on remand to determine whether the proffered testimony was adequately tied to the identifications before admitting it.65
Expert testimony on eyewitness reliability must be sufficiently tied to the specific facts of the identifications to satisfy the helpfulness requirement of Rule 702.66