This post addresses three recurrent issues concerning eyewitness identification:
- When, if at all, is expert testimony about eyewitness identification admissible?
- When, if at all, is an indigent defendant entitled to funds with which to hire an expert on eyewitness identification?
- May jury instructions, rather than expert testimony, be used to inform the jury about factors relevant to the accuracy of an eyewitness identification?
When, if at all, is expert testimony about eyewitness identification admissible?
Expert testimony must meet the standards set forth in Rule 702, meaning that it must be “based upon sufficient facts or data,” be “the product of reliable principles and methods,” and the witness must have “applied the principles and methods reliably to the facts of the case.” It must also be relevant, helpful to the jury, and not so unfairly prejudicial as to run afoul of Rule 403.
Whether to admit expert testimony under these standards “is within the trial court’s discretion.” State v. McLean, 183 N.C. App. 429 (2007). See also Moore v. Hardee, 723 F.3d 488 (4th Cir. 2013) (summarizing, in a federal habeas case, that “expert testimony on eyewitness identifications is not automatically admitted; when allowed, its admissibility is generally at the court’s discretion, both under federal and North Carolina law”); State v. Cotton, 99 N.C. App. 615 (1990) (the defendant in a sexual assault case sought to call a psychology professor to testify that “lighting, stress, cross-racial identification, priming of memory, unconscious transfer, and loss of memory over time [were] factors affecting the identification” made by the victims; the trial court excluded the evidence, finding it of “minimal value” because the jury could understand the significance of those factors without the testimony, and ruling that the testimony would be “unduly prejudicial in the defendant’s favor”; the court of appeals affirmed, stating that “the admission of expert testimony regarding memory factors is within the trial court’s discretion” and finding that the trial judge has properly balanced the relevant considerations).
Expert testimony of this kind has been admitted in some North Carolina cases. See, e.g., State v. Robinson, 330 N.C. 1 (1991) (the trial judge allowed the defendant to call a witness “to attack the weight and credibility of the State’s identification testimony,” and found the witness “to be an expert in the field of clinical psychology with emphasis in the area of perception and eyewitness identification”; the witness testified, among other things, that “whites have a more difficult time identifying blacks than identifying other whites”). I don’t have a sense of how often such testimony is permitted. I would be interested to learn about readers’ experiences in the trial courts.
As far as I am aware, no North Carolina appellate case has ever reversed a conviction based on the trial judge’s decision to exclude expert testimony of this type. A few reversals have taken place in other jurisdictions, however. See, e.g., United States v. Brownlee, 454 F.3d 131 (3d Cir. 2006) (the defendant in a carjacking case claimed misidentification; after a Daubert hearing, the trial judge allowed testimony about “cross-racial identification, the effects of hair covering, weapons focus, and exposure to multiple witnesses,” but excluded testimony about other issues regarding identification, including “the lack of correlation between witness confidence in identification and the accuracy of that identification”; the appellate court reversed, finding that the other factors about which the expert sought to testify likely fell outside the jury’s knowledge and were critical to the defendant’s defense).
The national trend appears to be in the direction of allowing such testimony more often. See generally United States v. Rodriguez-Felix, 450 F.3d 1117 (10th Cir. 2006) (in a drug case, the defendant sought to call an expert to testify about “memory and decision processes which underlie eyewitness identification decisions”; the trial court excluded the evidence; the reviewing court noted that “there has been a trend in recent years to allow such testimony” under narrow circumstances, and stated that “subject to the trial court’s careful supervision, properly conceived expert testimony may be admissible to challenge or support eyewitness evidence”; however, it affirmed the exclusion of such testimony in this case, as it did not present concerns “outside the juror’s common knowledge and experience”); United States v. Harris, 995 F.2d 532 (4th Cir. 1993) (summarizing that “[u]ntil fairly recently, most, if not all, courts excluded expert psychological testimony on the validity of eyewitness identification” but that in recent years, courts have recognized that trial courts have the discretion to allow such testimony under certain circumstances, such as when a case involves “cross-racial identification, identification after a long delay, identification after observation under stress,” and the like; “[o]utside of such narrowly constrained circumstances, jurors using common sense and their faculties of observation can judge the credibility of an eyewitness identification, especially since deficiencies or inconsistencies in an eyewitness’s testimony can be brought out with skillful cross-examination”; in the case at bar, the circumstances did not warrant the introduction of expert testimony).
Several North Carolina cases suggest that expert testimony is more likely to be admissible if it is closely tied to the facts and circumstances of the case in which it is offered. See, e.g., State v. Lee, 154 N.C. App. 410 (2002) (affirming the exclusion of testimony from an expert on eyewitness identification in part because much of the proposed testimony was not case specific); State v. Knox, 78 N.C. App. 493 (1985) (the defendant argued that the trial court improperly excluded testimony from “a professor of psychology . . . [concerning] memory variables affecting eyewitness identification”; the trial judge ruled that the evidence was “not of sufficient probative value and would serve only to confuse the jury,” especially given that the witness had not interviewed the victim who made the identification; the court of appeals affirmed, noting that the proposed testimony was general in nature and that the witness did not apply the “memory variables” to “the facts of this case,” thereby limiting the probative value of the testimony).
When is an indigent defendant entitled to funding for an expert witness regarding eyewitness identification?
Indigent criminal defendants may be entitled to funds for expert witnesses when necessary for effective representation. See generally Ake v. Oklahoma, 470 U.S. 68 (1985); G.S. 7A-450(b). An indigent defendant seeking funds for an expert witness “must make a preliminary showing of specific necessity or a particularized need for the assistance of the expert in the preparation of his defense,” meaning that “(1) he will be deprived of a fair trial without the expert assistance, or (2) there is a reasonable likelihood that the expert assistance will materially assist him in the preparation of his case.” State v. Coffey, 326 N.C. 268 (1990).
Several appellate cases have found no error in the denial of funds for an eyewitness identification expert. See State v. Abraham, 338 N.C. 315 (1994) (a defendant argued that “an eyewitness identification expert would assist in showing the jury the unreliability of [an] identification because of factors such as the time of observation, the distance of observation and the age of the eyewitnesses,” but the trial court properly denied the request for funds; the defendant was identified by several witnesses who knew him personally and identity was not a major issue at trial; furthermore, “the identification issues for which [the] defendant . . . sought expert assistance involved matters within the scope of the jury’s general capability and understanding. . . . Defendant had opportunity during cross-examination . . . to underscore . . . factors such as lighting conditions or distance which would have affected the accuracy or credibility of the identifications. The assistance of an expert would have been of marginal additional value as to these points.”); State v. Garner, 136 N.C. App. 1 (1999) (a defendant sought funds for an eyewitness identification expert “who could have testified that imperfections in memories are especially prevalent in situations of high stress,” and who could have supported the defendant’s arguments that “distortions in memories are common when the identification of a defendant is at issue and that cross-racial identification is highly unreliable”; the trial judge denied funding and the reviewing court agreed, ruling briefly that “the defendant has failed to make the threshold showing” of necessity that is required). I am not aware of a North Carolina appellate case finding error in a trial court’s denial of funds for an eyewitness identification expert. However, in a case in which an eyewitness identification is central and genuinely disputed, a defendant might well be entitled to funds to retain an appropriate expert.
May jury instructions be used to inform the jury about factors that may be relevant to the accuracy of an eyewitness identification?
Some jurisdictions have moved towards using jury instructions, rather than expert testimony, to direct jurors’ attention to factors that may be relevant to the accuracy of an eyewitness identification. See, e.g., United States v. Jones, 689 F.3d 12 (1st Cir. 2012) (in a drug case, the defendant sought to call an expert witness to testify “about a host of issues related to eyewitness identification: the effect of stress on identification; the decreased accuracy of cross-racial compared to same-race identification . . . the lack of correlation between witness confidence and accurate identification; and the influence of suggestive identification practices”; the trial judge agreed that information about these factors would be “useful information for a jury,” but determined that it could “more efficiently, and with less risk of confusion, [be] conveyed by . . . jury instructions”; the reviewing court noted that “trial judges tend to be cautious about opening the door to ‘identification’ experts” for fear of “both sides [offering] expert testimony in every case involving identification issues”; the court noted that such testimony may sometimes be helpful and appropriate, but concluded that it was “within the district court’s province to provide this information through instructions rather than through dueling experts”).
Some states have devised detailed pattern jury instructions for this purpose, including Massachusetts and New Jersey. By contrast, North Carolina does not have a detailed pattern jury instruction regarding eyewitness identification. N.C.P.I. – Crim. 101.15, Credibility of Witnesses, instructs the jury generally to consider “the opportunity of the witness to see, hear, know, or remember the facts or occurrences about which the witness testified,” but does not address identification testimony specifically. N.C.P.I. – Crim. 104.90, Identification of a Defendant as a Perpetrator of a Crime, simply instructs the jury that the State has the burden of proving beyond a reasonable doubt that the defendant committed the crime. There are two instructions concerning the Eyewitness Identification Reform Act, G.S. 15A-284.50 et seq., and its requirements, but those are relevant only in cases in which there is evidence of noncompliance with the Act. See N.C.P.I. – Crim. 105.65, 105.70.
A defendant may, of course, request an instruction that goes beyond the pattern instructions. The general standard for requests for jury instructions in North Carolina is: “When a defendant makes a written request for an instruction that is timely, correct in law, and supported by the evidence, the trial court must give such an instruction. However, the trial court is not required to give a requested instruction verbatim, so long as the instruction actually provided adequately conveys the substance of the requested instruction.” State v. Lucas, 353 N.C. 568 (2001).
Our appellate courts have held repeatedly that instructions more detailed than the pattern instructions are not required. See, e.g., State v. Watlington, 234 N.C. App. 580 (2014) (the defendant requested an eyewitness identification instruction that was “eight pages long and contained language that bore a strong resemblance to” New Jersey’s pattern instruction; the trial judge gave the pattern instructions about witness credibility and the State’s burden to identify the defendant; the court of appeals affirmed, stating that “this Court and the Supreme Court have clearly held that the existing pattern jury instructions . . . sufficiently address the issues arising from the presentation of eyewitness identification testimony”); State v. Dodd, 330 N.C. 747 (1992) (the defendant requested an eyewitness identification instruction that, among other things, “emphasized . . . whether [eyewitnesses] had the opportunity to observe the alleged crime, their ability to identify the perpetrator given the length of time they had to observe, their mental and physical conditions, and the lighting and other conditions that might have affected their observation”; the trial judge instead gave essentially the pattern instructions regarding witness credibility and the State’s burden to identify the defendant; the state supreme court ruled that “[t]he charge adequately explained to the jury the various factors they should consider in evaluating witness testimony” and “emphasized the importance of proper identification and . . . that the burden rested with the State to prove such identity beyond a reasonable doubt”; therefore, it was substantially similar to the requested instruction).
Of course, the fact that a judge is not required to give a more detailed instruction regarding eyewitness identification does not mean that a judge is prohibited from doing so. Trial judges sometimes do go beyond the pattern instructions, as illustrated by State v. Carson, 80 N.C. App. 620 (1986). In that case, the trial judge instructed the jury extensively on eyewitness identification, including that the jury should consider “the capacity of the witness to make such an observation . . . the opportunity . . . the witness had . . . to make an observation, and details, such as, the lighting of the scene of the crime at the time of the incident” as well as “the mental and physical condition of the witness, the length of time of the observation and any other contention, condition or circumstance which might have tainted or hindered the witness in making her observation.” The court also cautioned the jury to consider the witness’s subsequent exposure to the defendant. The court of appeals ruled that this was sufficient but that an even stronger instruction “may well have been appropriate had defendant offered expert testimony on the perils of a single eyewitness identification.”
A judge inclined to go beyond the pattern instruction is probably better off informing the jury of factors that it could or should consider, rather than advising the jury about particular pitfalls or research findings. In Watlington, the court of appeals found especially inappropriate those aspects of the defendant’s requested instruction that “contained . . . factual statements about the impact of weapons, focus, stress, racial differences, and the degree of certainty expressed by the witness in identifying the defendant as the perpetrator.”
Readers interested in more information about this topic — and after the length of this post, there may not be many! — could consult Chapter 3 of Alyson A. Grine & Emily Coward, Raising Issues of Race in North Carolina Criminal Cases, available here. The focus is on expert testimony regarding cross-racial identification but the principles addressed are applicable to eyewitness identification more generally.