The DC Court of Appeals recently in IN RE L.C., (10-FS-709) vacated the conviction for carjacking and assault with intent to commit robbery and remanded the case to the trial court for determination as to the admissibility of the expert testimony. According to the proffered evidence at trial, L.C. and another companion attacked the complaining witness and attempted to steal her car. Struggled ensued and the assailants escaped on foot and based on the look out given were stopped shortly thereafter in the vicinity and indentified by the complaining witness and charged.
L.C.’s defense at trial was essentially one of misidentification. He claimed the trial court erred in precluding expert testimony on relevant psychological factors bearing on the reliability of such eyewitness identifications.
The defense sought to introduce testimony on research findings regarding psychological factors pertinent to the case, which in turn would reduce the reliability and probativity of the identification. Specifically “the pertinent proffered factors included: an effect known as clothing bias that can result in a mistaken identification when the eyewitness is shown a suspect who is wearing clothing similar to that the witness had described; the poor correlation between the confidence an eyewitness expresses and the accuracy of the identification; studies showing that stress and emotional arousal negatively affect the accuracy of identifications by impairing the witness’s ability to perceive and to remember the perpetrator’s face; and the heightened suggestivity and unreliability of show-up identifications as compared to other identification procedures.”
The government moved to exclude the anticipated expert testimony on the grounds that it did not satisfy the first or third prongs of the three-prong test for the admission of expert testimony set forth in Dyas v. United States, which provides: (1) the subject matter of the testimony must be so distinctively related to some science, profession, business or occupation as to be beyond the ken of the average layperson; (2) the witness must have sufficient skill, knowledge or experience in the field or calling as to make it appear that his opinion or inference will probably aid the trier of fact in its search for truth; and (3) the state of the pertinent art or scientific knowledge must permit a reasonable opinion to be asserted by an expert.
Essentially the government argued that the expert testimony was not “beyond the ken of the average layman and the unsettled state of scientific knowledge did not permit a reasonable opinion to be offered by any expert.”
The trial court without conducting a voir dire of the expert witness or reviewing the proffered scientific study, granted the motion and excluded the evidence to be proffered as “common sense” and not “beyond the ken of the average layperson.”
The Court of Appeals citing decisions on Benn v. United (Benn II) and Russell v. United States; reiterated that “insights of modern psychological research into the factors influencing eyewitness identifications are not matters of common knowledge or common sense and are, indeed, often counterintuitive.”
The Court thus ruled that the proffered testimony was not beyond the ken of the average layperson and that the trial court on remand should conduct a “particularized inquiry” of the witness and evidence before excluding it and consistent with cases cited.
This case is significant because even with seemingly airtight eyewitness identification both at the scene of the crime and at trial, the defense was able to obtain a remand by using an expert psychological witness creatively introducing scientific evidence to possibly create a reasonable doubt.
Dyson v. United States, 376 A.2d 827, 832 (D.C. 1977).
Russell v. United States, 17 A.3d 581 (D.C. 2011).
Benn v. United States (Benn II), 978 A.2d 1257 (D.C. 2009).