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).

Read more :: Permalink

Violent Encounters, Cops, and the Frailty of Human Memory

We recently stumbled across a joint DOJ/FBI publication called Violent Encounters: A Study of Felonious Assaults on our Nation's Law Enforcement Officers (Aug. 2006), which purports to "offer insights that may help to improve safety-training techniques." One source of insight happens to be the same social science research on which reform advocates rely to show the fallibility of human memory in the eyewitness context.

Chapter 5 of this training manual is titled "Perception -- Its Role in the Violent Encounter." The chapter examines a collection actual violent encounters undergone by police officers, and chronicles a laundry list of cognitive errors that were associated with the events in the officers' memories. The chapter reads like a greatest-hits of factors tending to reduce the reliability of eyewitness memory, so it is of particular interest that this is coming from a law enforcement publication. Defense lawyers are repeatedly confronted with the critique that these effects have never been corroborated by real field studies, and are thus irrelevant to real-world scenarios -- as if the stressfulness of having a gun in one's face in real life would somehow invert the well-known detrimental effect of a weapon and stress on eyewitness memory in a lab setting. This publication serves as a definitive rebuttal of that critique, where both the FBI and DOJ are on record acknowledging the negative effects of the same factors on the memory of their own officers.

The chapter covers a range of topics, including (1) the reconstructive nature of memory; (2) the mutability of memory -- in particular as a result of improper questioning; (3) the effect of stress on perception and recall; (4) weapon-focus; (5) the tendency to overestimate the duration of a criminal incident; and (6) other perceptual distortions.

This publication is a substantial concession from the law enforcement community that the psychological phenomena that prosecutors routinely dismiss as academic curiosities have real world application, as defense attorneys have known and argued for years.

(All credit to Kate for this great catch.)

Read more :: Permalink

Weapon Focus Under Attack?

Perhaps the only puzzling part of the LeGrand opinion (PDF) was the section dealing with weapon focus -- that is, the phenomenon in which the presence of a weapon during the commission of a crime negatively affects the eyewitness's ability to later identify the perpetrator. Despite finding that the trial court should have allowed the defense expert to testify on several areas of eyewitness research, the LeGrand court "agree[d with the trial judge] that there was insufficient evidence [of the reliability of weapon focus] to confirm that the principles expounded by defendant’s expert witness are generally accepted by the relevant scientific community."

Is this a signal that the New York Court of Appeals did not believe sufficient scientific consensus on the reliability of weapon focus currently exists? Or was it simply a statement, unique to record in the LeGrand case, that the defense there did not present sufficient evidence there to meet its foundational burden under United States v. Frye?

I don't think the Court could reasonably have meant the former -- i.e., that there is currently not enough expert consensus about the reliability of weapon focus. Or at least, if that's what the Court meant, it is demonstrably wrong. The most recent (2001) Kassin survey of experts in the field showed that 87% of surveyed experts believe the research on weapon focus is now sufficiently reliable to form the basis of testimony. This percentage increased 30% over the 1989 study, in which only 57% of experts found the weapon focus phenomenon sufficiently documented. Kassin, et al, On the General Acceptance of Eyewitness Testimony Research: A New Survey of Experts, American Psychologist at 405 (May 2001).

Why the big increase from 1989 to 2001? The main reason was the publication, in 1992, of Dr. Nancy Steblay's meta-analytic review of the weapon focus effect. Nancy M. Steblay, A Meta-Analytic Review of the Weapon Focus Effect, 16 Law and Human Behavior 413-424 (1992). That review conducted a statistical analysis of the data from the 12 studies that had been done to that date on weapon focus (accounting for 19 individual tests of the hypothesis), to determine whether those results, as a whole, showed a weapon focus effect. The study demonstrated that a statistically significant weapon focus effect does in fact exist, and that the effect was "more pronounced in research scenarios that appear as real life to the subject." The study also showed an increase in the effect when the viewed object was clearly a threatening object, like a gun, even if the entire incident was being viewed on video.

To be sure, in the 19 tests reviewed, only 6 showed a statistically significant weapon focus effect (while the other 13 did not see an effect). But a meta-analysis does not simply count up the studies on the issue and stop there; if it did, a study of 5 witnesses would have equal weight with a study of 500 witnesses. Rather, the meta-analysis (and I'm simplifying here, in part because I'm not a statistician) reviews the entirety of all the witnesses and figures out whether any effect is statistically significant. See, e.g., R. Rosenthal, Combining results of independent studies, Psychological Bulletin, 85, 185-193 (1978); R. Rosenthal, Meta-analytic procedures for social research (1984). The analysis also controls for the possibility that one lab might be skewing the results so that if only one big study showed the phenomenon, that alone would not signify a weapon focus effect.

Conducted in this way, the meta-analysis showed a statistically significant weapon focus effect. It also showed that some of the studies in which the effect was reduced or not seen either didn't involve a weapon at all (some involved, for example, a person carrying a bloody meat cleaver but not using it as a weapon) and several others did not involve any sort of crime. Moreover, one of the experiments in which a small effect was seen involved a comparison between two groups in which the culprit had a weapon -- in one the weapon was used and in the other it was concealed; in such a scenario it is easy to see why any weapon focus effect would seem reduced because the control group itself may also have experienced a weapon focus effect as witnesses may well have been focused on the concealed weapon.

Following the meta-analysis, and several other experiments in the 1990's confirming these findings, experts moved from relatively skeptical to substantial consensus on the question of weapon focus. That is where experts are today, which is why LeGrand discussion cannot apply to the phenomenon generally, but can only reasonably be read to mean that the trial court there had not erred in excluding testimony because the defense had failed to demonstrate consensus on that record.

Presumably, when fully confronted with the facts on weapon focus, New York courts will do what others, like the Third Circuit, have done: Let the jury take the science on weapon focus into account when deciding the reliability of an identification.

Read more :: Permalink

LeGrand reversed! (NY Murder Conviction Overturned for Denial of ID Expert)

As previously reported, last month the New York Court of Appeals heard oral arguments in People v. LeGrand, a murder case in which the trial judge last year refused to admit expert testimony (PDF) on the reliability of eyewitness identifications, and further held that such evidence is unreliable under the "general acceptance" standard set forth in Frye v. United States.

Today, New York's high court reversed (PDF) the conviction, on grounds that it was an abuse of discretion for the trial court to exclude expert testimony on the reliability of of eyewitness identifications. With respect to the lack of correlation between confidence and accuracy and "the effect of postevent information on accuracy and confidence malleability," it is error to exclude expert testimony in a case in which the identification is central and there is a lack of corroborating evidence.

In short, the law on expert testimony on eyewitness ID in New York now appears to be:

It is an abuse of discretion to exclude an ID expert when:
- The case turns on an uncorroborated eyewitness ID; and
- The subject matter of the expert's testimony is generally accepted by experts in the field and beyond the ken of the average juror.

And the following factors affecting eyewitness reliability are both generally accepted and beyond the ken:
- Lack of correlation between confidence and accuracy;
- The adverse effect of confirming feedback on eyewitness accuracy; and
- The malleability of eyewitness confidence.

On the above topics, the court at least implied that Frye hearings would no longer be necessary to establish general acceptance prior to admission of expert testimony. The court did not find the "weapon focus effect," however, to be generally accepted among the relevant scientific community, despite substantial research on the subject.

As previously reported, the case was expertly briefed by the Center for Appellate Litigation in New York, with amicus support (PDF) from the Legal Aid Society, Neighborhood Defenders of Harlem, and the New York State Criminal Defense Lawyers Association.

[Cross-posted at Daily Kos.]

Read more :: Permalink

Eyewitness ID Research: Generally Accepted Science? (People v. LeGrande, NY Court of Appeals)

On Wednesday, the New York Court of Appeals heard oral arguments in People v. LeGrand, a case in which the trial judge last year refused to admit expert testimony (PDF) on the reliability of eyewitness identifications, and further held that such evidence is unreliable under the "general acceptance" standard set forth in Frye v. United States.

The case stems from a murder that occurred in upper Manhattan in 1991, and the first lead on a potential culprit emerged a full seven years later, when investigating officers showed a photo array including Mr. LeGrand to witnesses. Based on a seven year old memory of the events, one witness claimed that Mr. LeGrand was the killer; other witnesses admitted that they saw "similarities," but stopped short of making a positive ID -- and others could not make an ID at all. The first trial resulted in a hung jury, but the second ended with a conviction and a 25-year-to-life sentence for Mr. LeGrand.

On appeal, the core issue is whether or not the trial court should have admitted expert testimony on the reliability of eyewitness identifications, particularly in a case where the only ID occurred seven years after the incident, there was a weapon involved, and other issues tending to reduce the reliability of eyewitness identifications were central to the sole evidence purporting to connect Mr. LeGrand to the murder.

During oral arguments yesterday, at issue was Saul Kassin's survey on the "general acceptance" of various issues relating to eyewitness evidence, including the "weapon focus effect" -- an important issue in this case (in addition to confidence-accuracy correlation, the effect of post-event information on eyewitness memory, and confidence malleability). Kassin's survey revealed that 87% of experts polled found the "weapon focus effect" to be reliable and supported by the scientific research, yet the trial court judge refused to allow testimony on the subject, and further found that it is neither reliable nor generally accepted in the relevant scientific community.

This case was expertly briefed by the Center for Appellate Litigation in New York, with amicus support from the Legal Aid Society, Neighborhood Defenders of Harlem, and the New York State Criminal Defense Lawyers Association. Definitely a case to watch, and thanks to Kate for the heads up.

Read more :: Permalink