People v. Brooks

• Decision Date: 23 May 1985
• Citation: 128 Misc.2d 608,490 N.Y.S.2d 692
• Parties: The PEOPLE of the State of New York v. Donald BROOKS, Defendant.
• Court: New York County Court

Page 692

490 N.Y.S.2d 692

128 Misc.2d 608

The PEOPLE of the State of New York v. Donald BROOKS, Defendant.

Westchester County Court.

May 23, 1985.

Carl A. Vergari, Dist. Atty. of Westchester County, White Plains (John A. Kancans, White Plains, of counsel), for the People.

Calcagnini & Lichtenstein, Mount Kisco (George Calcagnini, Mount Kisco, of counsel), for defendant.

KENNETH H. LANGE, Justice.

The defendant has requested a ruling in limine as to whether expert testimony concerning the factors which affect the reliability of an eyewitness identification will be admitted into evidence at this trial. The People have cross-moved to preclude such testimony. Resolution of this issue lies within the discretion of this Court (see Rodriguez v. Board of Educ. of City of New York, 104 A.D.2d 978, 480 N.Y.S.2d 901).

The defendant is accused of the crimes of rape in the first degree and sexual abuse in the first degree. He was acquitted in the first trial of this matter of the crimes of robbery in the first degree, petit larceny, and criminal use of a firearm in the first degree. The jury was unable to reach a verdict with respect to the rape and sexual abuse counts and the case is before this Court for retrial. The prosecution case rests primarily upon the testimony of the complainant, Julie Bondi, including her identification of the defendant as her attacker. It is anticipated that there will be some extrinsic evidence of defendant's culpability, none of which will conclusively establish the defendant's commission of the crime. It is also anticipated that the defendant will interpose an alibi defense.

An application identical to that which is presently before the Court was made in the first trial, before the Honorable Joseph K. West of this Court. Judge West, in the exercise of his discretion, declined to admit the proferred testimony. Because of the discretionary nature of the ruling, and the fact that it is essentially an evidentiary matter, this Court is not precluded from taking a fresh look at the request (see People v. De Iorio, 45 Misc.2d 68, 256 N.Y.S.2d 248).

The defense offer of proof indicates that Dr. Robert Buckhout, a psychologist specializing in the field of memory and perception, will testify, if permitted, to the factors which studies have shown are relevant to the reliability of an eyewitness identification. These factors include:

(1) the delay between the event and the identification;

(2) stress;

(3) the violence of the situation;

(4) assimilation of post-event information;

(5) the cross-racial aspect of the identification;

(6) the selectivity of perception;

(7) the "filling in" phenomenon;

(8) expectancy;

(9) the effect of repeated viewings;

(10) the lack of a correlation between confidence and reliability;

(11) the motivation of the victim to make a correct identification;

(12) the motivation of the police to make an arrest;

(13) the introduction of suggestiveness through photo arrays;

(14) the availability of a "zero option;" and

(15) the effect of what a witness is told after the identification is made.

He is also prepared to testify that laymen place an undue emphasis on identification testimony in general and that cross-examination is not effective to discredit a mistaken identification because the witness truly believes that his testimony is accurate, even if it is not. According to the defense memorandum of law, Dr. Buckhout will specifically not venture any opinion as to the validity of eyewitness identification testimony in general or as to the reliability of the identification testimony in the case at bar.

Several New York trial courts and the Appellate Division, First Department, have held the testimony of this particular witness to be inadmissible on the ground that expert testimony with respect to such matters is improper (see People v. Valentine, 53 A.D.2d 832, 385 N.Y.S.2d 545; People v. Brown, 124 Misc.2d 938, 479 N.Y.S.2d 110; People v. Brown, 117 Misc.2d 587, 459 N.Y.S.2d 227). The Court of Appeals' most recent explanation of the role of expert testimony (People v. Cronin, 60 N.Y.2d 430, 470 N.Y.S.2d 110, 458 N.E.2d 351), however, has cast doubt on the authority of that First Department decision, and in several other jurisdictions the trend in favor of excluding such testimony has recently been reversed. This Court is of the opinion that admission of the proferred testimony, when limited to an explication of the factors which studies have shown are relevant to making a reliable identification, is proper expert testimony and will enhance the ability of the jury to reach its decision in this case.

Courts have traditionally been reluctant to permit expert testimony as to the reliability of identification testimony. The leading case is United States v. Amaral, 488 F.2d 1148, in which the United States Court of Appeals for the Ninth Circuit upheld, as a valid exercise of discretion, the trial court's exclusion of such testimony. The trial court had reasoned that to allow expert opinion as to the weight or effect to be given to the testimony of an eyewitness would usurp the function of the jury. The Circuit Court, after outlining the elements necessary to any offer of expert testimony, agreed, holding that the reliability of an eyewitness identification was not a proper subject for expert testimony. The Court reasoned that in our adversary system, cross-examination is the primary means of testing for truthfulness.

Similarly, in United States v. Fosher, 590 F.2d 381, the United States Court of Appeals for the First Circuit held that the trial court had not erred in excluding such testimony. The Circuit Court reasoned that the defendant's offer of proof had not made clear the relationship of the expert testimony to the testimony of the eyewitnesses or that the expert's analysis was based upon generally accepted scientific standards. Further, the Court held that "the proferred expert testimony would create a substantial danger of undue prejudice and confusion because of its aura of special reliability and trustworthiness" (590 F.2d at 383). Most importantly, the Court relied upon Amaral in holding that eyewitness identification was not a proper subject for expert testimony, stating:

"[T]o be a proper subject of expert testimony, proof offered to add to [the juror's] knowledge must present them with a system of analysis that the court, in its discretion, can find reasonably likely to add to common understanding of the particular issue before the jury. We are satisfied that the trial court was within its discretion when it found the offer in this case neither sufficiently focussed on the issue nor sufficiently beyond the ken of lay jurors to satisfy Rule 702."

(590 F.2d at 383). Numerous other courts have reached the same result on similar or identical reasoning (see, e.g., State v. Reynolds, 230 Kan. 532, 639 P.2d 461; People v. Johnson, 97 Ill.App.3d 1055, 53 Ill.Dec. 402, 423 N.E.2d 1206, cert. denied, 455 U.S. 951, 102 S.Ct. 1457, 71 L.Ed.2d 667; Sobel, Eye-Witness Identification: Legal and Practical Problems (2d ed. 1984) § 9.6[b], and cases cited therein).

Recently, however, courts have begun to question this traditional analysis. In State v. Chapple, 135 Ariz. 281, 660 P.2d 1208, the Supreme Court of Arizona held that at least in the circumstances presented, the trial court had erred in refusing to allow expert testimony with respect to the identification issue. In Chapple, the defense offer of proof was virtually identical to that at bar. The witness in that case was to testify to certain "variables" with respect to eyewitness identification, such as time lapse, stress, unconscious transfer phenomenon, assimilation of post-event information, and the relationship of confidence to accuracy, all of which scientific studies have shown to be relevant to the reliability of identification testimony. Finding that the existence of these factors and their effect on the reliability of identification testimony are not within the knowledge of the average juror, the court concluded that expert testimony on the subject was admissible to enlighten the jury. The court noted, however, that its holding was based upon the particular relevance of the factors to the facts before it, and refused to endorse a rule permitting such testimony in every case.

The Supreme Court of California reached the same result in People v. McDonald, 37 Cal.3d 351, 208 Cal.Rptr. 236, 690 P.2d 709, overruling in the process a decade-old intermediate appellate decision which had precluded such testimony (see People v. Johnson, 38 Cal.App.3d 1, 112 Cal.Rptr. 834). Under California law, expert testimony is admissible when "[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact" (Cal.Evid.Code § 801, subd [a] ). Based upon this standard, the court held that expert testimony such as that offered in the case at bar should have been admitted. The court stated:

"It is doubtless true that from personal experience and intuition all jurors know that an eyewitness identification can be mistaken, and also know the more obvious factors that can affect its accuracy, such as lighting, distance, and duration. It appears from the professional literature, however, that other factors bearing on eye-witness identification may be known only to some jurors, or may be imperfectly understood by many, or may be contrary to the intuitive beliefs of most ...

"We conclude that although jurors may not be totally unaware of the foregoing psychological factors bearing on eyewitness identification, the body of information now available on these matters is 'sufficiently beyond common experience' that in appropriate cases expert opinion thereon could at least 'assist the trier of fact' (Evid.Code, § 801, subd (a))."

(37 Cal.3d, at pp. 367-69, 208 Cal.Rptr. at 247-48, 690 P.2d at 720-21). The court rejected the argument that such testimony usurps...