92 A.3d 290 (D.C. 2014), 10-FS-709, In re L.C.

Docket Nº:10-FS-709
Citation:92 A.3d 290
Opinion Judge:Glickman, Associate Judge:
Attorney:Stefanie Schneider, Public Defender Service, with whom James Klein and Alice Wang, Public Defender Service, were on the brief, for appellant. John J. Woykovsky, Assistant Attorney General, with whom Irvin B. Nathan, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, an...
Judge Panel:Before WASHINGTON, Chief Judge, GLICKMAN, Associate Judge, and NEBEKER, Senior Judge. Opinion for the court by Associate Judge GLICKMAN. Dissenting opinion by Senior Judge NEBEKER. Nebeker, Senior Judge, dissenting:
Case Date:June 05, 2014
Court:Court of Appeals of Columbia District

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92 A.3d 290 (D.C. 2014)


No. 10-FS-709

Court of Appeals of Columbia District

June 5, 2014

Argued: November 9, 2012.

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[Copyrighted Material Omitted]

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Editorial Note:

This is an unpublished decision under D.C.App. R. 28 (h) and is of no precedential value except when used under res judicata, collateral estoppel, in a criminal action against same defendant or in a disciplinary action against the same respondent.

Appeal from the Superior Court of the District of Columbia, (DEL 3131-09). (Hon. Hiram Puig-Lugo, Trial Judge).

Stefanie Schneider, Public Defender Service, with whom James Klein and Alice Wang, Public Defender Service, were on the brief, for appellant.

John J. Woykovsky, Assistant Attorney General, with whom Irvin B. Nathan, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, and Rosalyn Calbert Groce, Deputy Solicitor General, were on the brief, for appellee.

Before WASHINGTON, Chief Judge, GLICKMAN, Associate Judge, and NEBEKER, Senior Judge. Opinion for the court by Associate Judge GLICKMAN. Dissenting opinion by Senior Judge NEBEKER.


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Glickman, Associate Judge:

This is an appeal from a delinquency adjudication after a bench trial on charges arising out of an attempted carjacking. The case against L.C. rested on the complainant's identifications of him shortly after the crime occurred and a month later at trial. L.C. claims the trial court erred in precluding him from presenting expert testimony on relevant psychological factors bearing on the reliability of such eyewitness identifications. We agree that the court erred in ruling that the proffered testimony was not " beyond the ken" of the average layperson without conducting the particularized inquiry required by our decisions in Dyas v. United States [1] and Benn v. United States ( Benn II ).[2] We cannot dismiss the error as harmless. We therefore vacate the judgment and remand the case for further proceedings to determine the admissibility of the expert's testimony.


According to the government's evidence, the complainant, Adrienne Kinney, had just parked her car in the alley behind her home in the 300 block of Division Avenue, N.E., on the evening of November 22, 2009, when she and her mother (who was accompanying her) were accosted by two unknown men. One of the men pushed Ms. Kinney back into her car, yelled at her, and tried to wrest her car keys from her hands. She resisted, and as the women began screaming for help and honking the car horn, the two assailants gave up and fled without taking anything. Ms. Kinney and her mother immediately called the police, who arrived within two or three minutes. Ms. Kinney told police the man who grabbed for her keys was taller than she was, of medium build and complexion, and that he was wearing an open-faced ski mask and a light blue ski jacket with a

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white stripe or stripes. She said his companion also wore a mask and was dressed in black.[3]

Within a few minutes, the police stopped appellant and a second man on the street at a location approximately 200 feet from the scene of the attempted carjacking, in the area toward which the perpetrators had run. Appellant was wearing a light blue jacket with white stripes; in his pocket police later found an open-faced ski mask. The man accompanying him had on a black jacket and blue jeans; the police did not find a mask in his possession. The police arranged for Ms. Kinney to view the two men. Sitting in a police car at a distance of approximately fifty feet, she identified appellant as her attacker and his companion as the second would-be carjacker. Ms. Kinney stated that she recognized appellant's jacket, his complexion, his build, and his face, and she commented, " That's why his hair . . . looked puffy in the ski mask--he has dreads."

Four weeks later, at appellant's trial, Ms. Kinney made an in-court identification of appellant. She testified that she first noticed him and his companion when she drove her car into the alley, and that she paid close attention to them because they made her nervous. The two men were strangers whom she had never seen before that night. As she got out of her car and proceeded to gather her things, she was hoping they would walk on by, which they did--but then they abruptly turned and " started to rush" her. Ms. Kinney claimed she had a good look at appellant's clothing; motion lights on the building behind her enabled her to see the colors of his jacket. She was face to face with appellant as they struggled over her keys. Although he was wearing a ski mask, it had a wide opening, through which Ms. Kinney said she could see the shape of his face and his nose, lips, eyes, teeth and skin. She professed to be certain of her identification. On cross-examination, though, Ms. Kinney agreed that she would describe appellant as having a dark complexion rather than a medium complexion. She also acknowledged that during the assault, she was screaming, her heart was racing, and she was afraid for both herself and her mother.

Appellant's defense at trial was misidentification. He called two witnesses--his older cousin, with whom he and his mother resided, and William Locust, the person whom the police had stopped with L.C. They testified that L.C. was on the front steps of his neighbor's house at the time of the attempted carjacking, and that he had just left there and was walking to a nearby convenience store and a gas station when the police stopped him.

To bolster his misidentification defense, appellant sought to call Dr. Steven Penrod to testify as an expert about research findings regarding psychological factors arguably present in this case that had been shown to reduce the probativity of eyewitness identifications. The pertinent proffered factors included: an effect known as " clothing bias" that can result in a mistaken identification when the eyewitness is shown a suspect who is wearing clothing similar to that the witness had described; [4]

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the poor correlation between the confidence an eyewitness expresses and the accuracy of the identification; studies showing that stress and emotional arousal negatively affect the accuracy of identifications by impairing the witness's ability to perceive and to remember the perpetrator's face; [5] and the heightened suggestivity and unreliability of show-up identifications as compared to other identification procedures. The government moved in limine to exclude Dr. Penrod's anticipated testimony on the grounds that it did not satisfy the first or third prongs of the three-prong test for the admission of expert testimony set forth in Dyas .[6] Specifically, the government argued, the proffered testimony was not " beyond the ken of the average layman," and the unsettled state of scientific knowledge did not permit a reasonable opinion to be offered by any expert. The motion asserted that this court's case law supported the exclusion of expert testimony on the psychological factors affecting the reliability of eyewitness identification.[7]

After hearing argument on the motion at a pretrial hearing, but without either conducting a voir dire examination of Dr. Penrod (who was present and available for that purpose) or, so far as appears, evaluating the proffered psychological research on which Dr. Penrod relied, the trial court ruled his testimony inadmissible on the sole ground that none of it was beyond the ken of the average layperson. Rather, in the court's view, the proposed areas of expert testimony were all matters within the reach of " common sense" that the defense could bring out in cross-examination and address in argument. The court did not rule on whether the other requirements of Dyas were satisfied.

In closing arguments, opposing counsel disputed whether the reliability of Ms. Kinney's identification of appellant was undermined by clothing bias, stress, and the suggestiveness of the show-up procedure, whether there were significant inconsistencies in her previous descriptions of her assailant, and whether her confidence in her identification was entitled to weight. The court's ruling excluding Dr. Penrod's testimony precluded appellant's counsel from supporting his arguments on these

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matters with scientific studies.[8]

After hearing arguments, the trial court credited Ms. Kinney's identification of appellant and found him guilty of carjacking and assault with intent to commit robbery.


As L.C. argues, and as the government does not dispute, our decisions in Benn II and Russell v. United States [9] now make it clear that the trial court erred in summarily concluding that the proffered expert testimony was not beyond the ken of the average layperson. In those cases this court recognized that the insights of modern psychological research into the factors influencing eyewitness identifications are not matters of common knowledge or common sense and are, indeed, often counterintuitive.[10] It makes no difference that the fact-finder in this case was an experienced trial judge whose background and knowledge in the area might exceed that of the average layperson. This court has rejected the argument that when the Dyas issue is presented in a bench trial, the proper standard for admissibility should be the " ken of the presiding trial judge" rather than that of the average layperson.[11] The average layperson standard applies " even though it could be said that the trial [judge is] competent to resolve the issue without the aid of an expert." [12]

Seeking to avoid the remedy required by Russell and Benn II --a remand for a full Dyas inquiry that likely would include a voir dire examination of Dr. Penrod[13]--the...

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