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Eyewitness Identification Expert: When Is Expert Testimony Admissible


People v. Santiago 2011 NY Slip Op 07303

Decided New York Court of Appeals October 20, 2011

See also The Scope of Expert Witness Testimony

Issue: whether two additional eyewitness identifications sufficiently corroborated the victim’s identification of the defendant, so as to render expert testimony on eyewitness recognition memory unnecessary.

Holding: We conclude that they did not, and that it was error to exclude much of the proposed testimony.

Facts: January 10, 2003, a woman waiting for a train at a Manhattan subway station was attacked by a stranger.  the man began assaulting her. She closed her eyes while raising her hands to protect herself. She could not tell whether her assailant had a weapon. After about ten seconds, the attack stopped, and the assailant fled.

The victim was assisted by workers at the station, who, along with the police, searched fruitlessly for the assailant. An ambulance transported her to a hospital where she was treated. At the hospital, the victim gave detectives a description of her attacker, a Hispanic male, late 20s or early 30s, five feet, eight inches to five feet, nine inches tall, with a mustache and a goatee.

The man was wearing a winter jacket, a hooded sweatshirt or “hoodie,” jeans, and a “winter hat.” The jacket, hoodie and hat together covered the assailant’s head in such a way that his face was concealed “from the middle of his top lip, down, and from the top of his eyebrows up.” The victim could not see her assailant’s hair, except for his eyebrows and mustache. On the day after the attack, the victim was interviewed by a police artist who created a sketch of the perpetrator.

Edwin Rios, who had seen the assault, described the assailant as a Hispanic male in his mid- to late 20s, with a goatee, wearing a hood. The assailant had passed Rios after the attack, carrying a knife. Pablo Alarcon, who had noticed the assailant beforehand because the man’s facial expression made Alarcon nervous. After the attack, Alarcon saw the assailant put a knife away as he fled. Alarcon also described the perpetrator as a Hispanic male with a goatee.

Nine days later,  January 19, 2003, a plain-clothes police officer patrolling a subway station in Brooklyn noticed a man in a winter jacket, jeans and winter cap selling Metrocard “swipes.” Later, the officer saw the same man engaged in the same activity at the next stop. The officer arrested the man, defendant Edwin Santiago, and his photograph made its way to the detective squad investigating the January 10 attack.

An array comprising photographs of six men and including defendant’s arrest photograph was shown to Alarcon on January 22. He claimed not to recognize defendant or any of the other men in the array. The victim viewed the photographic array on January 24. She testified that, when she saw the photograph of Santiago, it felt as if her “heart stopped and [she] got really scared and [] said that that was him.”

Santiago, who had been released, was rearrested the following day, at a shelter for the homeless. A photograph taken after the second arrest shows Santiago with a dark mustache and goatee.

On January 26, the victim identified Santiago in a six-person line-up. According to the victim, when she saw defendant, she felt “really scared” — it was, once again, as if her “heart stopped” and she “knew it was him.”  Alarcon viewed the line-up. As he later explained at defendant’s suppression hearing and trial, he recognized defendant as the perpetrator of the attack with an “eighty percent” feeling of confidence in his identification, but, because he was concerned about his immigration status, he told the police that he did not recognize anyone.

No physical evidence linked defendant to the assault. As it appeared at the time of the indictment, the People’s case would be built entirely on the victim’s identification. Attempting to secure expert testimony from Professor Steven Penrod on the psychological factors affecting the accuracy of eyewitness identification, Santiago filed a motion in limine on June 26.

Supreme Court granted defendant’s motion to the extent of ordering a Frye hearing (see Frye v United States, 293 F 1013 [DC Cir 1923]), to determine whether the principles Professor Penrod proposed to describe in his testimony had gained general acceptance in their scientific fields. During subsequent motion practice, defendant gave provisional summaries of Penrod’s expected testimony. He would testify concerning studies that support various principles proposed by psychologists in the field of eyewitness recognition:  

exposure time (the amount of time available for viewing a perpetrator affects the witness’s ability to identify the perpetrator);

cross-racial and cross-ethnic inaccuracy (non-Hispanic Caucasian eyewitnesses are generally less accurate in identifying Hispanic people than in identifying other non-Hispanic Caucasians);

–weapon focus (a victim’s focus on the weapon used in an assault can affect ability to observe and remember the attacker);

–lineup fairness (similarity of fillers to the suspect increases identification accuracy);

–lineup instructions (police instructions indicating that the police believe the perpetrator to be in the lineup increase the likelihood of false identification);

–forgetting curve (the rate of memory loss for an event is greatest right after the event and then levels off over time);

–postevent information (eyewitness testimony about an event often reflects not only what the witness actually saw but also information the witness obtained later);

–wording of questions (eyewitness testimony about an event can be affected by how questions put to the witness during investigation are worded);

–unconscious transference (eyewitnesses sometimes identify as the culprit an individual familiar to them from other situations or contexts);

–simultaneous versus sequential lineups(witnesses are more likely to make mistakes when they view simultaneous lineups than when they view sequential lineups);

–eyewitness confidence issues (an eyewitness’s confidence level is not a good predictor of eyewitness accuracy, but eyewitness confidence is the major determinant in whether an identification is believed by jurors), and

–confidence malleability(eyewitnesses’ confidence levels can be influenced by factors unrelated to identification accuracy).

Defendant’s case was transferred to a different Supreme Court Justice, defendant renewed his motion to admit expert testimony. On December 19, 2003, Supreme Court denied defendant’s motion, without holding a Frye hearing.

Following a suppression hearing, at which his motions were denied, Santiago was tried before a jury. The victim identified Santiago at the trial, insisting that there was no doubt in her mind that he was her assailant. Rios and Alarcon also identified defendant; the latter repeated that he was only “eighty percent sure” of his identification.

Defense counsel’s summation stressed that certainty of identification was not equivalent to accuracy of identification. As promised, Supreme Court’s final charge told the jury to “[k]eep in mind that the witness’s confidence or lack of confidence in his or her testimony is not necessarily indicative of accuracy of identification.”

The jury found Santiago guilty of assault in the first degree. Supreme Court convicted him accordingly, sentencing him to 25 years imprisonment, to be followed by 5 years postrelease supervision.

Legal Analysis: A trial court may, in its discretion, admit, limit, or deny the testimony of an expert on the reliability of eyewitness identification, weighing a request to introduce such expert testimony “against other relevant factors, such as the centrality of the identification issue and the existence of corroborating evidence” (People v Lee, 96 NY2d 157, 163 [2001]). Because mistaken eyewitness identifications play a significant role in many wrongful convictions, and expert testimony on the subject of eyewitness recognition memory can educate a jury concerning the circumstances in which an eyewitness is more likely to make such mistakes, “courts are encouraged . . . in appropriate cases” to grant defendants’ motions to admit expert testimony on this subject

In People v LeGrand (8 NY3d 449 [2007]), established a two-stage inquiry for considering a motion to admit such testimony. The first stage is deciding whether the case “turns on the accuracy of eyewitness identifications and there is little or no corroborating evidence connecting the defendant to the crime” (LeGrand, 8 NY3d at 452). If the trial court finds itself with such a case, then it must proceed to the second stage, which involves the application of four factors. The court must decide whether the proposed “testimony is (1) relevant to the witness’s identification of defendant, (2) based on principles that are generally accepted within the relevant scientific community, (3) proffered by a qualified expert and (4) on a topic beyond the ken of the average juror” (id.).

If, on the other hand, sufficient evidence corroborates an eyewitness’s identification of the defendant, then there is no obligation on the part of the trial court to proceed to the second stage of analysis, because testimony concerning eyewitness identifications is unnecessary we ruled that there was insufficient evidence to confirm that the principles underlying the expert’s testimony on weapon focus were generally accepted by the relevant scientific community, so that this testimony was properly excluded

People v Allen (13 NY3d 251 [2009]).

In Abney, where “it was clear that there was no evidence other than [the victim’s] identification to connect defendant to the crime, and she did not describe him as possessing any unusual or distinctive features or physical characteristics” (13 NY3d at 268), we held that the trial court abused its discretion in failing to allow expert testimony on the subject of witness confidence and in refusing to hold a Frye hearing with regard to the expert’s proposed testimony on the effect of event stress, exposure time, event violence and weapon focus, and cross-racial identification.

In Allen, on the other hand, the case against defendant did not depend exclusively on one eyewitness’s identification, and we ruled that the trial court acted within its discretion. Whether a victim’s or other eyewitness’s identification of a defendant is sufficiently corroborated by other eyewitness identifications, so that the trial court need not proceed to the second stage of theLeGrand analysis, is dependent on the circumstances of the case.  However, even when the evidence that a defendant was the perpetrator of a crime consists entirely of eyewitness identifications, the case is not necessarily one in which “there is little or no corroborating evidence” (8 NY3d at 452).

Thus, in Allen, we held that the second eyewitness’s identification of the defendant constituted evidence corroborating an eyewitness identification (13 NY3d at 269). We reached that conclusion because the corroborating identification possessed strong indicia of accuracy. In particular, the defendant in Allen was known to the second eyewitness, who recognized him during the robbery

In the present case, when Supreme Court denied Santiago’s in limine motion in December 2003, the evidence disclosed by the People consisted of the victim’s identifications of him in a photographic array and a lineup. At that time, as Supreme Court noted, the case turned on the accuracy of a single eyewitness identification and there was no corroborating evidence connecting the defendant to the crime. The issue therefore becomes whether the four factors enumerated in the second stage of the LeGrand analysis apply to the proposed testimony.

Supreme Court abused its discretion when it refused to allow testimony on studies showing that eyewitness confidence is a poor predictor of identification accuracy and on studies regarding confidence malleability.  the principles concerning confidence about which the expert was to testify are generally accepted within the relevant scientific community, and are beyond the ken of the average juror For similar reasons, Supreme Court abused its discretion when it excluded expert testimony on the effects of postevent information on eyewitness memory.

Given that the People did not dispute that the victim is a non-Hispanic Caucasian, the proposed testimony on inaccuracy of identifications of Hispanic people by non-Hispanic Caucasians appears relevant, and is beyond the ken of the average juror.

A separate question is whether Supreme Court abused its discretion when, after the defense had rested, the court denied defendant’s renewed request to call an expert witness on eyewitness identification. By this time, the People had introduced evidence of Alarcon’s and Rios’s identifications of defendants, in addition to the victim’s.

Here, as in LeGrand, several factors call the corroborating identifications into question. Like the victim, Alarcon saw only part of the perpetrator’s face. Alarcon identified defendant as the perpetrator with only 80% confidence. It is also possible that Alarcon’s December 2003 identification, using the photographs of the January 2003 lineup, was tainted by his memory of the photograph of defendant he had seen in the Spanish-language newspaper. Moreover, Rios’s identification of defendant may have been influenced by his memory of the police artist’s sketch of the assailant, calling into question the independence of this evidence from the victim’s own identification. Taking into account all these circumstances, we do not consider the corroborating evidence sufficient to obviate the second stage of the LeGrand analysis.

Supreme Court, therefore, having erred in certain respects in denying defendant’s pretrial motion to admit expert testimony regarding eyewitness testimony, erred in the same respects in denying defendant’s end-of-trial motion to reopen the case and admit the expert testimony. Moreover, in its second ruling, Supreme Court should have given specific consideration to the proposed testimony concerning unconscious transference. That testimony would have been relevant, given that Alarcon saw a photograph of Santiago, and Rios saw a sketch of the perpetrator based on the victim’s description, and familiarity with these images may have influenced these eyewitnesses’ identifications.

Supreme Court’s errors were not harmless. Trial error is only harmless when there is overwhelming proof of the defendant’s guilt and no significant probability that the jury would have acquitted the defendant were it not for the error (People v Crimmins, 36 NY2d 230, 242 [1975]). Here, the proof of defendant’s guilt was not overwhelming; therefore, the errors cannot be regarded as harmless. We need not decide the probability that the verdict would have been different if the expert testimony had not been excluded.

New trial ordered.