United States v. Owens

• Citation: 23 Fla. L. Weekly Fed. C 1117,682 F.3d 1358
• Decision Date: 08 June 2012
• Docket Number: No. 10–15877.,10–15877.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Dwight Daryl OWENS, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

682 F.3d 1358

23 Fla. L. Weekly Fed. C 1117

UNITED STATES of America, Plaintiff–Appellee,

v.Dwight Daryl OWENS, Defendant–Appellant.

No. 10–15877.

United States Court of Appeals,Eleventh Circuit.

June 8, 2012.

Christopher Conrad Bly, Jeffrey A. Brown, Katherine Monahan Hoffer, Lawrence R. Sommerfeld, Sally Yates, U.S. Attys., Atlanta, GA, for Plaintiff–Appellee.

Brian Mendelsohn, Stephanie A. Kearns, Regina Cannon Stephenson, Fed. Pub. Defenders, Fed. Def. Program, Inc., Atlanta, GA, for Defendant–Appellant.

Appeal from the United States District Court for the Northern District of Georgia (No. 1:09–cr–00286–RWS–JKF–1); Richard W. Story, Judge.

ORDER ON PETITION FOR REHEARING EN BANC

Before DUBINA, Chief Judge, and TJOFLAT, EDMONDSON, CARNES, BARKETT, HULL, MARCUS, WILSON, PRYOR, MARTIN and JORDAN, Circuit Judges.

Prior report: 445 Fed.Appx. 209.

BY THE COURT:

The court having been polled at the request of one of the members of the Court and a majority of the Circuit Judges who are in regular active service not having voted in favor of it (Rule 35, Federal Rules of Appellate Procedure), the Suggestion of Rehearing En Banc and the Petition for Rehearing are DENIED.

BARKETT, Circuit Judge, dissenting from the denial of rehearing en banc:

Having been given the opportunity to change our court's position that appellate courts are never permitted to review for abuse of discretion the exclusion of expert testimony regarding the reliability of eyewitness identifications, we should avail ourselves of it. That isolated position, established thirty years ago, conflicts with all of the other circuits¹ and all but five of the states² that have considered the question. I cannot think of any reason, legal or logical, why such a ruling should not be subject to the same abuse of discretion standard as any other evidentiary ruling in a trial, especially in light of what we know today, thirty years later, about eyewitness identification. Our continued adherence to a rule that disfavors this form of testimony is indefensible in light of the science supporting its usefulness. Our doing so is particularly unjustifiable given that we do review the exclusion of polygraph evidence,³ which is widely condemned as unreliable by courts and experts!⁴

Dwight Owens was convicted of armed robbery based on the identifications of the victims who picked him out of a photographic lineup. The court excluded expert testimony about scientific evidence that undermined confidence in the witnesses' ability to correctly perceive and recall the appearance of the robbers. This court held that it was barred from reviewing the decision to exclude the expert's testimony by our precedent in United States v. Thevis, 665 F.2d 616 (5th Cir.1982).

Thevis was decided on the premise that “the problems of perception and memory can be adequately addressed in cross-examination and ... the jury can adequately weigh these problems through common-sense evaluation.” Thevis, 665 F.2d at 641. In the thirty years subsequent to Thevis, however, over two-thousand studies on eyewitness memory have been published making clear that the premise of Thevis does not justify a categorical rule of non-review. ⁵ Indeed, the U.S. Supreme Court recently cited the use of expert testimony in state courts as an important “safeguard” against unreliable identifications. See Perry v. New Hampshire, ––– U.S. ––––, 132 S.Ct. 716, 729, 181 L.Ed.2d 694 (2012). The ten other circuits and forty-two state courts ⁶ that disagree with our approach have recognized that expert testimony can be helpful to the jury precisely because “the conclusions of the psychological studies are largely counter-intuitive, and serve to ‘explode common myths about an individual's capacity for perception.’ ” United States v. Moore, 786 F.2d 1308, 1312 (5th Cir.1986) (quoting United States v. Smith, 736 F.2d 1103, 1105 (6th Cir.1984)).

This overwhelming body of scientific research, which has “established beyond any doubt that eyewitness testimony has the potential to be dangerously unreliable,” and that “eyewitness misidentification remains the leading cause of false convictions in the United States,”⁷ was unavailable when Thevis was decided. The unreliability of eyewitness testimony is now widely recognized in the psychological literature and by law enforcement.⁸ Studies conductedin both experimental and real-world settings have revealed eyewitness misidentification rates varying between one-quarter and one-half of all identifications, depending on the factors being tested. See Special Master Rpt. at 15–18. At the same time, jurors remain uninformed of these causes of eyewitness errors and therefore are unable to evaluate their impact on the reliability of eyewitness testimony.⁹

These studies have also undermined the notion that cross examination is an effective instrument to educate the jury about the limitations of eyewitnesses' capacity to make accurate identifications. Witnesses are often unaware of the contextual factors that may have skewed their perception toward identifying a particular suspect as the culprit and therefore are unable to explain the influence of these factors to the jury on cross examination. ¹⁰ Even when eyewitnesses are subjected to intensive cross examination about the circumstances surrounding their identifications, research has shown only a marginal improvement in jurors' ability to distinguish erroneous identifications from accurate ones.¹¹

The scientific literature in this field has demonstrated that expert testimony is especially valuable in cases where the eyewitness identification has been influenced by one of several factors that undermine accuracy and these factors are typically unknown to jurors and cannot be explained through examination of a lay witness. See United States v. Rodriguez–Felix, 450 F.3d 1117, 1125 (10th Cir.2006) (“[A]n expert's testimony describing how certain factors, falling outside a typical juror's experience, may affect a eyewitness's identification is the very type of scientific knowledge to which Daubert's relevance prong is addressed.”); United States v. Stevens, 935 F.2d 1380, 1400 (3d Cir.1991) (reversing where misidentification was the key issue at trial and expert's proposed testimony was outside the realm of typical juror knowledge); United States v. Moore, 786 F.2d 1308, 1313 (5th Cir.1986) (“In some cases casual eyewitness testimony may make the entire difference between a finding of guilt or innocence. In such a case expert eyewitness identification testimony may be critical.”); United States v. Smith, 736 F.2d 1103, 1106 (6th Cir.1984) (recognizing that expert testimony on eyewitness identification “might have refuted [jurors'] otherwise common assumptions about the reliability of eyewitness identification”). In such cases, “[i]t will not do to reply that jurors know from their daily lives that memory is fallible. The question that social science can address is how fallible, and thus how deeply any given identification should be discounted.” United States v. Bartlett, 567 F.3d 901, 906 (7th Cir.2009).

Many of the characteristic flaws of eyewitness identification that can be highlighted and explained only by an expert are implicated in this case. For example, Owens' conviction depended heavily upon the eyewitnesses' identification of him in a photo array conducted by an officer who was involved in the investigation as opposed to one conducted by an officer without knowledge of the suspect's identity. According to a “broad consensus” in the scientific literature, “the reliability of eyewitness testimony is highly dependent on the police procedures used in conducting lineups.” Special Master Rpt. at 19. When the lineup or photo array administrator knows who the suspect is, it is virtually inevitable that the administrator's behavior will influence the witness's choice in making an identification. See New Jersey v. Henderson, 208 N.J. 208, 27 A.3d 872, 896 (2011) (citing analysis of 345 studies concluding that “[t]he overall probability” that administrator expectations do not influence the subject “is near zero”). Thus, the rate of accurate identifications in comparison to inaccurate identifications doubles when a blind procedure is used instead of a non-blind identification. Special Master Rpt. at 20–21. Despite the strength of the lineup administrator's influence, “neither the administrator nor the witness is ordinarily aware of either the unintentional suggestions or their impact; accordingly, neither is in position to report or dissipate the taint.” Id. at 20.

Contrary to our assumptions in Thevis, it is not a subject of everyday knowledge that “even the best-intentioned[ ] non-blind administrator can act in a way that inadvertently sways an eyewitness.”¹²See generally John S. Shaw et al., A Lay Perspective on the Accuracy of Eyewitness Testimony, 29 J. of Applied Soc. Psychol. 52, 65 (1999) (reporting that jury-eligible research subjects tend to be less aware of biasing effects of police activity than contextual influences). But the biasing effects of non-blind lineup administration cannot be exposed on cross examination because both the witness and the administrator are often unaware that these cues have been given. See Henderson, 27 A.3d at 896–97 (citing studies). Nor is a non-expert witness qualified to testify to the impact of these cues, even if the witness is aware of them.

Indeed, in Owens' case, there was evidence of overt biasing signals. Instructing the witness to “pick one” of the photographs from a lineup, as was done in this case, has been shown to encourage witnesses to assume that the police have arrested the actual perpetrator and that it would be incorrect to respond that they do not recognize any of the individuals in the lineup. See Brandon L. Garrett, Convicting the Innocent: Where Criminal Prosecutions Go Wrong60 (2011).

The initial description given to the police by one of the eyewitnesses in Owens' case differed...