Judge Precludes Questioning on Cross-Race IDs, Witness Gets 2 of 3 IDs Wrong, Man Still Goes to Jail

Donald Glenn Flack, a black man, was accused of assaulting a white woman at a mall in Knoxville, but when the victim attempted to identify her attacker from a photo in court, she picked another man -- even with Mr. Flack sitting directly across from her at the defense table. In the initial police lineup a month after the assault, she also picked someone other than Mr. Flack. The only time she identified Mr. Flack was when the prosecutor asked her if her attacker was sitting in the courtroom, at which point she pointed to the only black man sitting at the defense table. In the words of her attorney:

"I'm sorry, that's not an identification," he said in his closing argument. "She's one for three, that's less than 50 percent."

Further, Mr. Flack's brother testified that another man, James Blance, committed the crime. When Blance was called to testify, he invoked the 5th and refused to testify.

Despite the victim's identification of someone other than Mr. Flack on two out of three occasions, and other evidence suggesting an alternate suspect, the Knox County Court prohibited defense counsel from even questioning the investigating officer about the well-known difficulty that members of one race have when attempting to identify members of another race, a problem which is amplified by the presence of a weapon, stress, and a very short exposure time, all of which were factors in this case.

Notwithstanding the serious questions raised about Mr. Flack's culpability within the constraints defined by the court, the all-white jury convicted Mr. Flack and sealed his fate of up to 15 years in prison. This case is another illustration of the importance of expert testimony when it comes to the reliability of eyewitness evidence. Cross-examination and a compelling closing are rarely enough to shake a witness who honestly believes that she's right, but happens to be wrong.

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Conviction Overturned for Failure to "Seriously Consider" Expert Testimony on Eyewitness Factors

The Illinois Court of Appeals overturned a conviction Friday in People v. Allen (PDF) (update: now on Westlaw at 2007 WL 2821966), for the trial court's "failure to conduct a meaningful inquiry" into proposed expert testimony on eyewitness factors by Dr. Steven Penrod.

Subjects of proffered testimony were to include the effects of stress, weapon focus, cross-race, lack of correlation between witness confidence and accuracy, and police procedures. The appellate court's analysis of those factors is imperfect (for example, the court found that cross-race research would not have applied because the witness was married to an African American, which the research shows to be largely irrelevant).

Nonetheless, the Illinois court was concerned with the fact that the prosecutor had argued effects that conflict with research findings:

The State's comments: "[t]here is no higher degree of attention than someone pointing a gun at you;" "[defendant's] face is burned in her memory forever;" " [tlhere is no doubt she was certain;" and "if she is so certain, there is no reason and no doubt that you should be certain."

That doesn't stop our courts from excluding the same research on the same grounds, but I digress. The court didn't go as far as to say that it was error to exclude the expert testimony, but citing Illinois case law, found that it was error to fail to provide a reasoned basis for its exclusion.

Neither at trial nor in this appeal does the State challenge the reliability of the research cited by Dr. Penrod. Nor did the trial court when it rejected the proposed testimony. The court merely said it did not believe: "experts in this particular case will assist the jury in determining the identification in
this case. I believe it would probably confuse them more and I believe that the
instruction that's provided by the Illinois Pattern Jury Instructions is sufficient."

The appellate court also made some affirmative findings on the question of whether the research is common sense/not beyond the ken, which is helpful in light of the fact that courts most often rely on the claim, however unsupported, that these factors are common sense such that expert testimony would not be helpful. Quoting from another Illinois case:

The research challenges the claim that the jury does not require expert assistance. As the prosecutor understood, reasonable people well might believe an eyewitness will be more accurate when faced with a weapon and when the witness shows
confidence in the accuracy of her identification. The expert testimony "dispels myths or attacks commonsense misconceptions about eyewitness identifications, such as the effects of stress and weapon focus on the accuracy of identifications." Tisdell,
338 Ill. App. 3d at 467. In Tisdell I we said: "Numerous studies in the area of eyewitness psychology indicate there is a significant potential for eyewitness error and that jurors have misconceptions about the abilities of eyewitnesses." Tisdell, 316 Ill. App. 3d at 1157.

In other words, there is something wrong with excluding expert testimony on weapon focus and stress on the grounds that their effects are common sense, but nonetheless allowing prosecutors to argue the opposite of the common sense view, as they do in trial after trial.

Further, the court observed that:

No careful scrutiny took place in this case. Relevance of the different parts of Dr. Penrod's proposed testimony was not seriously considered. Nor their weight. The conclusion that the proposed testimony would confuse the jury had no considered basis. The balancing test requires a weighing of "probative value against its prejudicial effect.".

In other words, this presumably means that hard data will be required in support of future attempts to exclude expert testimony on common sense grounds. Fortunately, all the hard evidence (PDF) is firmly in favor of defendants seeking to get expert testimony in front of jurors.

Finally,

Because of the trial court's failure to conduct a meaningful inquiry into Dr. Penrod's proposed testimony, under the specific circumstances of this case, we reverse the defendant's convictions and remand this cause for a new trial.

The court could have taken it a step further and held that it was error to exclude the testimony, and further that it was error to allow the prosecutor to make arguments that conflict with what the court held to be common sense, but it's a start.

UPDATE: This case is now available on Westlaw: People v. Allen, --- N.E.2d ----, 2007 WL 2821966 (Ill. App. 1 Dist. 2007).

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Federal Court Gets ID Science Terribly Wrong, Denies Expert Testimony

In one of the worst eyewitness ID decisions I've read, the US District Court for the Eastern District of Virginia denied expert testimony in US v. White earlier this month, and in the process revealed a substantially flawed comprehension of eyewitness research. US v. White, Slip Copy, 2007 WL 1768718 (E.D.Va. June 15, 2007).

The case involves a police officer as a witness, and despite a wealth of research demonstrating that cops are no better at remembering faces than anyone else -- even when specifically "trained" to do so -- the court relied substantially on that fact in distinguishing this case from other cases in which expert testimony on eyewitness issues had been admitted previously:

First, unlike Lester and other cases admitting expert testimony on eyewitness identification, the eyewitness in the instant case is a trained police officer. Officer Catterton served as a military police officer for the United States Army for six years. He has been trained to be constantly observant of his surroundings, especially the people he encounters on the job. He has been specifically trained to observe and remember the faces he comes across so that they may be later identified. This is in sharp contrast to the participants in Dr. Cutler's cited studies, the majority of whom were college students.

In fact, the specific question of cops vs. college students as eyewitnesses has been studies, and all the evidence shows that trained police are no better at remembering perpetrator identities than random college students. See, for example, a 1998 study by Christianson & Karlsson: Police personnel as witnesses to a violent crime, 3 L. & Crim. Psychol. 59 (1998) (cops are no better at identifying perpetrators than civilian college students). And yet judges continue to rely on this false notion in rendering critical decisions, and in turn juries end up relying on the same false notion in their deliberations, because actual experts are prohibited from testifying to the actual scientific findings that clearly clash with the widely held common sense view.

The police-are-better-witnesses misconception was only the first of the court's errors in rendering this decision.

Confidence and Accuracy

The court also misinterpreted the research on the relationship between the confidence of an eyewitness, and that witness's accuracy. The court characterized the research as showing that "an extremely confident eyewitness is more likely to be accurate than a less confident eyewitness, but only by a modest amount." In fact, the research shows that there is a modest correlation between confidence and accuracy only under very narrow circumstances, more resembling a vacuum than the real world, which rarely occur in actual practice -- namely, if the confidence of a witness is recorded immediately following the identification procedure, and only when no other factors are present to corrupt the witness's perception, such as routine suggestive police practices. In most real-world contexts, there is no correlation between confidence and accuracy, and in some cases even a negative correlation has been observed.

This case was no vacuum. By the time the officer made the identification in this case, he had already been exposed to the strong suggestion of Mr. White's guilt -- he was told that Mr. White had been arrested previously on a similar charge, was suspected of the current charge, and on those grounds the officer requested that his arrest photo be sent over. By the time the officer-witness encountered Mr. White in person, there was little doubt that he would make an identification, regardless of whether or not Mr. White was the actual culprit. There is little question that expert testimony on the lack of correlation between confidence and accuracy would have helped dispel a common misconception in the minds of jurors, and thus enhancing the accuracy of their deliberations.

Cross-Racial IDs, Mugshot Exposure, and Show-Ups

The court went on to deny expert testimony on the cross-race impairment, namely that members of one race are more likely to mis-identify members of another race, despite the fact that the phenomenon is well-documented in the scientific literature and has been shown to be misunderstood by juries.

The court made similar errors with respect to the mugshot commitment effect, and the suggestivity of show-up procedures.

As the exonerations continue to show, juries are going to keep getting it wrong until judges allow science into the courtroom to undo the widely held errors of common sense on the reliability of eyewitness evidence. In the meantime, at least there's Tennessee.

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