U.S. v. Rincon
Decision Date | 17 June 1994 |
Docket Number | No. 90-50491,90-50491 |
Citation | 28 F.3d 921 |
Parties | 39 Fed. R. Evid. Serv. 684 UNITED STATES of America, Plaintiff-Appellee, v. Hugo RINCON, Defendant-Appellant. . Decided: |
Court | U.S. Court of Appeals — Ninth Circuit |
Neison M. Marks, Deputy Federal Public Defender, Los Angeles, CA, for defendant-appellant.
Alejandro N. Mayorkas, Asst. U.S. Atty., Los Angeles, CA, for plaintiff-appellee.
On Remand from the United States Supreme Court.
Before: Chief Judge WALLACE, TROTT, and T.G. NELSON, Circuit Judges.
Opinion by Judge T.G. NELSON.
I
Hugo Rincon (Rincon) was convicted on two counts of unarmed bank robbery. On Rincon's first appeal to this court, he contended that the district court erred in refusing to admit expert testimony regarding the reliability of eyewitness identification. We affirmed the district court's exclusion of that expert testimony in United States v. Rincon (Rincon I), 984 F.2d 1003 (9th Cir.1993). After the Supreme Court's recent decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. ----, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), regarding the admissibility of expert testimony, the Court remanded this case and asked us to reexamine that issue in light of Daubert. We remanded to the district court for reconsideration. The district court upheld its earlier decision to exclude the expert testimony. We affirm.
II
Rincon was indicted on two counts of unarmed bank robbery. Count one charged Rincon with the April 21, 1988 robbery of California Federal Savings and Loan. Count two charged him with the April 27, 1988 robbery of Culver National Bank. The district court denied Rincon's pretrial motion in limine in which he sought to introduce expert testimony on eyewitness identification. After a jury trial, Rincon was convicted of both robberies. On appeal, Rincon contended that the district court erred both in refusing to admit the expert testimony regarding the reliability of eyewitness identifications and in allowing the jury to review certain evidence. We rejected both arguments and affirmed Rincon's convictions in Rincon I, 984 F.2d at 1003. 1
After our decision, the Supreme Court held that Fed.R.Evid. 702 regarding the admissibility of expert testimony superseded the general acceptance theory as set forth in Frye v. United States, 293 F. 1013 (D.C.Cir.1923). See Daubert, 509 U.S. ----, 113 S.Ct. 2786. Accordingly, on October 4, 1993, the Supreme Court granted Rincon's petition for writ of certiorari, vacated our decision in Rincon I and remanded for further consideration in light of Daubert. See Rincon v. United States, --- U.S. ----, 114 S.Ct. 41, 126 L.Ed.2d 12 (1993). We then remanded to the district court for the limited purpose of reexamining the admissibility of the expert testimony on eyewitness identification in light of Daubert. See United States v. Rincon, 11 F.3d 922 (9th Cir.1993).
On remand to the district court, Rincon again proffered the testimony of an experimental
psychologist and full professor at the Claremont Graduate School of Psychology, Kathy Pezdek, Ph.D. If permitted to testify, Dr. Pezdek would explain to the jury, among other things, the three phases of eyewitness identification, including perceiving and encoding, storage and retention, and retrieval of information. Dr. Pezdek would also testify as to the effect of various psychological factors on each phase, including stress, the observer's state of mind, suddenness, suggestibility, and cross-ethnic identifications. In addition, she would testify that empirical research contradicts numerous lay notions of eyewitness identifications. Dr. Pezdek, however, would offer no definitive opinion concerning the reliability or certainty of the witnesses identifications in this case. After reconsidering the issue, the district court affirmed its earlier order denying Rincon's motion in limine and excluding the expert testimony. Rincon challenges the district court's exclusion of the expert testimony.
III
We review for abuse of discretion the district court's decision regarding the admissibility of expert testimony on the reliability of eyewitness identifications. United States v. Amador-Galvan, 9 F.3d 1414, 1417 (9th Cir.1993) ( ); see also United States v. Rahm, 993 F.2d 1405, 1409-10 (9th Cir.1993).
In Daubert, the Supreme Court held that Fed.R.Evid. 702 2 supersedes the general acceptance standard established in Frye. 509 U.S. at ---- - ----, 113 S.Ct. at 2793-94. It noted, however, that notwithstanding its holding, the Federal Rules of Evidence still place limits on the admissibility of scientific evidence. Id. at ---- - ----, 113 S.Ct. at 2794-95. Id. at ----, 113 S.Ct. at 2795. The Court established a two-part test for determining whether to admit expert testimony: "[T]he trial judge must determine at the outset, pursuant to Rule 104(a), whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue." Id. at ----, 113 S.Ct. at 2796. These preliminary questions must be established by a preponderance of proof. Id. at ---- n. 10, 113 S.Ct. at 2796 n. 10. Finally, the Court stated that evidence otherwise admissible may be excluded under Rule 403 if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. Id. at ----, 113 S.Ct. at 2798.
On remand, the district court excluded the expert testimony on eyewitness identification, ruling that:
1. The proposed testimony invades the province of the jury (i.e., it does not assist the trier of fact);
2. No showing has been made that the testimony relates to an area that is recognized as a science; and
3. The testimony is likely to confuse the jury.
Moreover, the district court stated that "the proposed expert eyewitness identification testimony is being offered by the defense more in the role of an advocate and not as a scientifically valid opinion." We conclude that the district court did not abuse its discretion in excluding Dr. Pezdek's expert testimony because Rincon's proffer failed to satisfy the admissibility standard established in Daubert.
In the initial motion, Rincon asserted that Dr. Pezdek held a Ph.D. in psychology from the University of Massachusetts at Amherst, and was a full professor at the Claremont Graduate School of Psychology. She would testify that there are three phases of eyewitness identification: perception and encoding; storage and retention (memory); and retrieval. In turn, the perception and encoding phase are affected by the factors of stress, duration of exposure, cross-racial identification, and availability of facial features (whether or not the face is partially obscured). The storage and retrieval stages are affected by time delay and suggestibility.
Dr. Pezdek would also discuss certain lay notions of eyewitness identification that are contradicted by research, such as: the certainty of the identification is a measure of the reliability of the identification; accuracy of memory is improved by stress; and memory of a face does not diminish over time.
The declaration of Rincon's counsel which accompanied the motion expanded on each of these matters, with statements such as: "There is a wealth of research supporting this point, ..."; "The research is clear...."; "The research suggests...." However, none of the research was submitted or described so that the district court could determine if the studies were indeed scientific on the basis the Court explained in Daubert: "whether the reasoning or methodology underlying the testimony is scientifically valid...." Daubert, at ----, 113 S.Ct. at 2796.
On remand, Rincon supplemented the record with a copy of an article entitled The "General Acceptance" of Psychological Research on Eyewitness Testimony. 4 The article described a survey of sixty-three experts on eyewitness testimony relating to their views of the scientific acceptance of research on a number of topics, including those that Dr. Pezdek would testify to. As the article said:
The results are discussed in relation to the "general...
To continue reading
Request your trial-
McMullen v. State
...denied, 516 U.S. 1063, 116 S.Ct. 745, 133 L.Ed.2d 693 (1996); United States v. Brien, 59 F.3d 274 (1st Cir.1995); United States v. Rincon, 28 F.3d 921 (9th Cir.1994); United States v. Harris, 995 F.2d 532 (4th Cir.1993); United States v. Curry, 977 F.2d 1042 (7th Cir.1992); United States v.......
-
Bomas v. State
...v. Hall, 165 F.3d 1095, 1104-1106 (7th Cir.1999); United States v. Smith, 156 F.3d 1046, 1052-54 (10th Cir. 1998); United States v. Rincon, 28 F.3d 921, 926 (9th Cir.1994); United States v. Harris, 995 F.2d 532, 534-35 (4th Cir.1993). 6. See Ex parte Williams, 594 So.2d 1225, 1226-27 (Ala.1......
-
Commonwealth v. Walker
...United States v. Bartlett, 567 F.3d 901 (7th Cir.2009); United States v. Martin, 391 F.3d 949 (8th Cir.2004); United States v. Rincon, 28 F.3d 921 (9th Cir.1994); United States v. Rodriguez–Felix, 450 F.3d 1117 (10th Cir.2006); United States v. Smith, 621 F.Supp.2d 1207 (M.D.Ala.2009) (Elev......
-
United States v. Evans
...Cordoba, 194 F.3d 1053, 1056–57 (9th Cir.1999); Hopkins v. Dow Corning Corp., 33 F.3d 1116, 1123–24 (9th Cir.1994); United States v. Rincon, 28 F.3d 921, 923 (9th Cir.1994); United States v. Amador–Galvan, 9 F.3d 1414, 1417–18 (9th Cir.1993). We have also considered the trial court's author......
-
Witness
...the defendant was unable to appreciate the wrongfulness of his acts is inadmissible as to the insanity defense. United States v. Rincon , 28 F.3d 921, 924 (9th Cir. 1994) (excluding testimony of psychologist concerning reliability of eyewitness identification testimony). State v. Bird , 734......
-
CHAPTER 1 THE NEW WORLD OF NATURAL RESOURCES AND ENVIRONMENTAL LITIGATION—HOW THE RULES OF EVIDENCE AND PROCEDURE HAVE CHANGED
...must show that the conclusion reached is premised upon valid research and reasonable assumptions. See, e.g., United States v. Rincon, 28 F.3d 921, 924 (9th Cir. 1994) (proffered eyewitness identification testimony regarding the effect of stress, duration of exposure, cross-racial identifica......
-
Witnessing the witness: the case for exclusion of eyewitness expert testimony.
...1095. (93) Id. at 1096. A "high degree of consensus" refers to an approval rate of seventy-five percent or higher. See id. at 1095. (94) 28 F.3d 921 (9th Cir. (95) The article was submitted to buttress their original motion, which was littered with unsupported claims and phrases like "[t]he......
-
The Admissibility of Expert Witness Testimony Based on Adolescent Brain Imaging Technology in the Prosecution of Juveniles: How Fairness and Neuroscience Overcome the Evidentiary Obstacles to Allow for Application of a Modified Common Law Infancy Defense
...his philosophy on the "gatekeepers" charge that he accepts as a trial court judge. Id. 192 Id. at *3 (citing United States v. Rincon, 28 F. 3d 921, 926 (9th Cir. 193 Id. at *4. 194 See id. 195 The court states, "Dr. Hall's testimony as to its [the functional MRI] usefulness weighs heavily, ......