Sunday, January 10, 2016

by Bill Easton

Over the last eight years the Court of Appeals has addressed the admissibility of expert testimony in identification cases at least five times.  It is scheduled to revisit the issue yet again in the near future.  (People v McCullough, 126 AD3d 1452 [4th Dept 2015], lv to appeal granted 25 NY3d 1079). During this time, the Second Circuit has also issued a rare full panel decision on the same issue (Young v Conway, 698 F3d 69 [2d Cir 2012]).  One would be hard-pressed to come up with any other issue over the last decade that has been such a magnet for appellate consideration.

The Court’s concern regarding this issue is well-founded.   False identification testimony is the one of the most, if not the most prevalent source of documented wrongful convictions in this country.  (See Laurie Gould et al., Reforming the Use of Eyewitness Testimony, 35 Okla. City U. L. Rev. 131, 134 [2010] [collecting empirical data from numerous studies and concluding that “approximately 4500 people are wrongfully convicted every year in the United States due to eyewitness identification”].)   Further, empirical studies over the past decades have demonstrated that eyewitness testimony, especially in a “stranger identification” case, is unreliable and misleading to a jury.  In Young v Conway, the Second Circuit collected many of these peer-reviewed articles and cited them with approval.

An expert witness in eyewitness identification provides great help in de-mystifying the reliability of identification testimony and exposing many of its misleading traits: for example, that the notion that the confidence of a witness translates into the accuracy of the identification or that a witness is more likely to remember a stressful event than a less stressful incident.  

Thus, the New York Court of Appeals has accordingly concluded that, in appropriate cases, experts should be allowed to inform juries about research findings regarding many of the factors affecting the accuracy of eyewitness memory (see People v LeGrand, 8 NY3d 449, 452 [2007]; People v Santiago, 17 NY3d 661 [2011]; People v Abney, 13 NY3d 251, 267 [2011]).

It is important to remember that in the ordinary case, the trial court’s decision to allow expert testimony will not be disturbed on appellate review unless it constitutes an “abuse of discretion” which is a high standard to surmount.  The Court of Appeals, however, has such concerns about the reliability of eyewitness testimony that it has carved out an exception in an eyewitness identification case.

In People v LeGrand (8 NY3d 449, 452 [2007]) the Court held that in a case that turns on the accuracy of eyewitness identifications and there is little or no corroborating evidence connecting the defendant to the crime, it constitutes an abuse of discretion as a matter of law for a trial court to exclude expert testimony on the reliability of eyewitness identifications if that 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.  (See also People v Abney, 13 NY3d 251, 267 [2011].)

Since LeGrand, the Court of Appeals has reversed the trial court’s exclusion of eyewitness expert testimony in two cases People v Abney  and  People v Santiago (17 NY3d 661 [2011])  In Santiago, the Court held that the testimony of two additional eyewitness identification witnesses did not sufficiently corroborate the victim's identification of the defendant and did not obviate the need for expert testimony.

In two other cases, the Court declined to reverse the trial court’s exclusion of expert testimony, holding that the identifications at issue were sufficiently corroborated thus not removing the trial court’s decision from the ordinary abuse of discretion standard (People v Muhammad, 17 NY3d 532, 546 [2011] [victim testified that he knew defendant for over a decade prior to the shooting, spoke to him shortly before the altercation and recognized defendant at the time of the attack];  People v Allen, 13 NY3d 251, 262-63 [2011] [witnesses had known the defendant from the neighborhood for several months and immediately recognized him during the robbery]. In People v McCullough, the case pending at the Court of Appeals, the issue will be whether a cooperating witness’s testimony provided adequate corroboration to the eyewitness testimony.

In light of these cases, if you have a case that turns on identification evidence, you should certainly explore the possibility of making a motion to introduce expert testimony.  This testimony could supply jury critical information that it will otherwise lack, and in the event the trial court excludes the expert, you may have a solid issue to argue on appeal.


  1. Along these lines, United States v. Archibald (734 F.2d 938 [2d Cir. 1984]), offers authority for a motion to have the defendant seated in the audience together with others of similar physical features and characteristics rather than at the counsel table at the time the People’s identification witnesses are called to testify. A far too little used motion, in light of the vagarities of eyewitness testimony.

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