559 U.S. 460 (2010)
On the evening of April 15, 1989, two white Air Force police officers named Jane Smith and Tony McCormack were walking back to their dormitories at Fort Dix, New Jersey, after seeing a movie.1 They sat under a glass-enclosed bus shelter to avoid light rain.2
A black male wearing a wool cap and tan nylon jogging suit entered the shelter, drew a small silver handgun, robbed McCormack of his wallet containing an unsigned $100 money order, and forced Smith to perform fellatio on him while threatening to shoot McCormack.3 After the assailant fled when a car drove by, the victims contacted military police.4
Investigator Christine Amos suggested they look at a wanted board containing eight posters with composite sketches and photographs.5 McCormack immediately identified a photograph of defendant Richard Stevens, and Smith agreed it resembled the attacker though he appeared heavier in the photo.6 Smith then went to Walson Army Community Hospital where a doctor administered a rape crisis kit and attempted to secure semen samples from her saliva and clothing, producing three glass slides.7
The FBI laboratory later performed serological testing on one slide containing sufficient semen, which consumed all material on the slide and prevented DNA testing.8 A consent order had directed the FBI to preserve samples if possible after its own tests so Stevens could conduct DNA testing.9 The government made remaining materials available to the defense nearly six weeks later, but testing proved inconclusive.10 Stevens was indicted on charges of aggravated sexual assault and robbery within the special territorial jurisdiction of the United States.11
Stevens's first trial ended in a mistrial after the jury deadlocked.12 At the second trial in March 1990, the district court permitted expert testimony on cross-racial identifications, weapon focus, and stress but excluded testimony on the lack of correlation between confidence and accuracy in identifications.13 The court also excluded testimony from Tyrone Mitchell, who had been robbed at gunpoint three days later at Fort Dix in a similar manner; Mitchell did not identify Stevens, and the fruits of both crimes ended up near Fort Meade, Maryland.1415 The jury convicted Stevens on both counts, and the district court sentenced him to 168 months of incarceration.16
Stevens appealed, challenging the destruction of the semen sample, the wanted board identification, the admission of pretrial services testimony, the limits on expert testimony, and the exclusion of the Mitchell evidence.17 The Third Circuit reviewed the record developed at the Wade hearing, the Brady motion hearing, the Downing hearing on expert testimony, and the trial proceedings.18
Whether the government violated Stevens's due process rights by destroying the semen sample in bad faith?19
Under Arizona v. Youngblood, unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.20 The presence or absence of bad faith turns on the government's knowledge of the exculpatory value of the evidence at the time it was lost or destroyed.21
No. The district court applied the Youngblood standard after a hearing and found no bad faith because there was no concealment of proof and the agents were attempting to arrive at a determination rather than conceal evidence.22 The FBI performed serological testing on slide number three after determining that DNA testing was impossible due to insufficient material on the slides.23 The consent order permitted the FBI to conduct its own tests and then preserve remaining samples if possible for the defense.24 The district court's finding that the government acted in good faith is not clearly erroneous on the record developed at the Brady motion hearing.25
The government did not violate Stevens's due process rights by destroying the semen sample in bad faith.26
Whether the wanted board identification procedure was impermissibly suggestive?27
Under Simmons v. United States and Neil v. Biggers, a pretrial identification is inadmissible only if the procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.28 Reliability is the linchpin and is evaluated under the totality of the circumstances using factors such as opportunity to view, degree of attention, accuracy of prior description, level of certainty, and time between crime and confrontation.29
No. Although the wanted board had suggestive attributes because Stevens's photographs appeared twice, were larger, and one was in color while most others were sketches, the procedure was not unnecessarily suggestive because the board was a pre-existing random collection assembled for chance identifications rather than a conventional array constructed for this case.30 Even assuming unnecessary suggestiveness, the Neil v. Biggers factors establish reliability.31 The victims had an unusually lengthy opportunity to view the assailant at close range in a well-lit shelter for at least ten minutes.32 They paid scrupulous attention as trained officers.33
They expressed high certainty immediately after the crime.34 They identified Stevens within about an hour.35 The district court correctly admitted the identifications after the Wade hearing.36
The wanted board identification procedure was not impermissibly suggestive.37
Whether the district court erred in admitting the pretrial services officer's testimony to impeach a defense witness?38
Under 18 U.S.C. § 3153(c)(3), information made confidential under paragraph (1) is not admissible on the issue of guilt in a criminal judicial proceeding.39 The statute contains no clear bar to using such information for impeachment purposes.40 Impeachment evidence addresses credibility and is distinct from substantive guilt evidence.41
No. The district court permitted the pretrial services officer to testify about a prior inconsistent statement made by the defendant's father regarding the length of the defendant's visit.42 The testimony was offered solely to impeach the father's credibility on the issue of whether the defendant is left-handed and was not admitted on the issue of guilt.43 Section 3153(c)(3) expressly limits the prohibition to admission on the issue of guilt.44 The plain language of the statute permits the use for impeachment.45
The legislative history does not demonstrate that a literal reading would thwart the statute's purpose of protecting the defendant-PSO relationship when the witness is a third party.46
The district court did not err in admitting the pretrial services officer's testimony to impeach a defense witness.47
Whether the district court abused its discretion in limiting the expert's testimony on eyewitness identification?48
Under United States v. Downing and Federal Rule of Evidence 702, expert testimony on eyewitness identification is admissible if the scientific principles are reliable, the testimony would not overwhelm the jury, and there is a fit between the testimony and the facts of the case such that it will assist the trier of fact. The touchstone is whether the testimony is helpful to the jury.49
Yes in part. The district court correctly excluded testimony on the suggestiveness of the wanted board and the relation-back of subsequent identifications because those points were intuitive and susceptible of elucidation through cross-examination without specialized knowledge.50 Their probative value was substantially outweighed by Rule 403 considerations of undue delay and needless presentation of cumulative evidence.51 The district court abused its discretion, however, in excluding testimony on the lack of correlation between confidence and accuracy.52
Both victims expressed high confidence in their identifications.53 The expert's proffered testimony that scientific studies show a fairly weak relationship between confidence and accuracy was sufficiently tied to the facts to aid the jury in assessing reliability.54 The differences between real-life and laboratory conditions go to weight rather than admissibility under the liberal standard of Rule 702.55
The district court abused its discretion in part by limiting the expert's testimony on the lack of correlation between confidence and accuracy in eyewitness identifications.56
Whether the district court erred in excluding evidence of the similar crime against Tyrone Mitchell under reverse 404(b)?57
Under Federal Rule of Evidence 404(b) as applied to reverse 404(b) evidence offered by a defendant, other-crimes evidence is admissible if it is relevant under Rule 401 and its probative value is not substantially outweighed by Rule 403 considerations.58 When a defendant offers such evidence defensively there is no possibility of prejudice to the defendant, so a lower standard of similarity applies and the evidence need only tend to negate guilt.59
Yes. The Mitchell robbery shared significant similarities with the charged offenses.60 Both occurred within a few hundred yards of one another at Fort Dix on the same night or within days.61 Both involved armed robbery with a handgun against military personnel between 9:30 and 10:30 p.m.62 The fruits of both crimes ended up near Fort Meade, Maryland.
The CID initially believed the same person committed both crimes.63 Mitchell, a black victim, did not identify Stevens.64 The evidence was relevant under Rule 401 because it tended to show that another person may have committed the charged crimes and to support the defense of misidentification, especially when combined with expert testimony on cross-racial identifications.65 The probative value was not substantially outweighed by Rule 403 factors because the government agreed to stipulate to essential facts and the presentation would not have degenerated into a mini-trial or confused the issues.66
The district court imposed an unduly stringent standard by requiring either a prior misidentification of the defendant or signature-crime similarity.67
The district court erred in excluding evidence of the similar crime against Tyrone Mitchell under reverse 404(b).68
Whether any errors were harmless?69
Under Federal Rule of Criminal Procedure 52(a), an error is harmless if it does not affect substantial rights.70 Reversal is required when the court cannot say with fair assurance that the error did not substantially sway the verdict, particularly when the case is close and the errors concern evidence directly bearing on the reliability of the sole predicate for conviction.
No. Stevens's first trial ended in a mistrial because the jury could not reach a verdict, demonstrating the closeness of the evidence.71 The government's case rested entirely on the two victims' identifications.72 The excluded evidence directly detracted from the reliability of those identifications: expert testimony that confidence does not correlate with accuracy and evidence that a black victim of a similar crime failed to identify Stevens.73 Given the apparent closeness of the evidence, it is possible that admission of the excluded evidence might have swayed the jury toward acquittal.74
The court cannot say it is highly probable that the errors did not contribute to the verdict or that the errors did not prejudice the defendant.
The errors were not harmless.