State v. Outing

• Decision Date: 31 August 2010
• Docket Number: SC17707 Concurrence
• Court: Connecticut Supreme Court
• Parties: STATE v. OUTING

STATE

v.OUTING

SC17707 Concurrence

Supreme Court of Connecticut

August 31, 2010

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SECOND CONCURRENCE

PALMER, J.

with whom NORCOTT and VERTEFEUILLE, Js., join, concurring. Although I agree with the majority that the murder conviction of the defendant, J'Veil Outing, must be affirmed, I disagree with the majority's refusal to reconsider and overrule this court's precedent concerning the admissibility of expert testimony on the reliability of eyewitness identifications. Beginning with State v. Kemp, 199 Conn. 473, 476-77, 507 A.2d 1387 (1986), this court consistently has concluded that expert testimony on the fallibility of eyewitness identifications is unnecessary and, therefore, inadmissible because it is a subject within the ken of the average juror. Although our holding in Kemp and its progeny have been thoroughly discredited by empirical studies, and although eyewitness identification testimony, while highly convincing, is notoriously unreliable, the majority sidesteps the issue of the continued viability of our precedent in this area, even though neither party contends that we should avoid addressing this extremely important issue. In sum, the majority's refusal to address the issue is indefensible, first, because Kemp and its progeny authorize our trial courts to reject expert testimony on the reliability of eyewitness identifications for a reason that we now know is wholly insupportable and, second, because, as a result of those cases, criminal defendants are being denied their right to challenge meaningfully the reliability of eyewitness identification testimony. I therefore cannot join that portion of the opinion of the majority in which it declines to reach the merits of the defendant's claim that the trial court improperly precluded him from introducing into evidence, at the hearing on his motion to suppress eyewitness identification testimony, certain expert testimony concerning the reliability of such identifications.¹ Because, however, the trial court's denial of the defendant's request to introduce that expert testimony constituted harmless error, I concur in the result that the majority reaches.

The following facts, which are set forth generally in the majority opinion, are particularly relevant to this issue. Prior to trial, the defendant filed a motion to suppress the eyewitness identification testimony of two witnesses, Nadine Crimley and Ray Caple. The defendant informed the court and the state that he intended to present the testimony of Jennifer Dysart, an acknowledged expert on eyewitness identifications, for purposes of his motion to suppress and at trial. In testimony proffered by the defendant in connection with his motion to suppress, Dysart opined that, generally: (1) the perpetrator's use of a disguise, including a hat, can impair a witness' ability to make an accurate identification—the ''disguise effect''; (2) a witness is more likely to identify a person as the perpetrator if the witnessbelieves that the perpetrator looks familiar—a phenomenon known as "unconscious transference''; (3) when the perpetrator carries a weapon, a witness tends to focus on the weapon rather than on the perpetrator, thereby reducing the likelihood of an accurate identification—the ''weapons focus effect''; (4) a witness' confidence in his or her identification bears little or no relation to the accuracy of that identification; (5) a witness under stress when observing the commission of a crime is less likely to identify the perpetrator accurately; and (6) witness collaboration can adversely affect the accuracy of an eyewitness identification.² The state objected to Dysart's proffered testimony, claiming, inter alia, that it was inadmissible in light of this court's determination in State v. Kemp, supra, 199 Conn. 477, and State v. McClendon, 248 Conn. 572, 586, 730 A.2d 1107 (1999), that such testimony generally is within the common knowledge and experience of the average person and, therefore, would not aid the fact finder in evaluating the identification evidence.

The trial court agreed to allow Dysart to testify at the suppression hearing on several issues relating to the manner in which the police had administered the photographic identification procedure in the present case.³ The court also permitted Dysart to testify about the theory of unconscious transference. In express reliance on Kemp and McClendon, however, the court sustained the state's objection with respect to any testimony by Dysart concerning her opinion that the reliability of an identification can be adversely affected by witness stress, witness collaboration, the perpetrator's use of a disguise or a weapon, and that the witness' confidence in the accuracy of the identification bears little or no relation to the accuracy of the identification. The court explained that, as this court had determined in Kemp and McClendon, the excluded testimony was unnecessary because it fell ''within the realm... of common sense and... experience.''⁴ After considering that portion of Dysart's testimony that it previously had found to be admissible, the trial court denied the defendant's motion to suppress the evidence establishing that Crimley and Caple initially had identified the defendant as the perpetrator.

I turn next to the principles that govern the resolution of the defendant's claim, beginning with the applicable standard of review. ''[T]he trial court has wide discretion in ruling on the admissibility of expert testimony and, unless that discretion has been abused or the ruling involves a clear misconception of the law, the trial court's decision will not be disturbed.... In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did....

''This court recently articulated the test for the admission of expert testimony, which is deeply rooted incommon law. Expert testimony should be admitted when: (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues.... In other words, [i]n order to render an expert opinion the witness must be qualified to do so and there must be a factual basis for the opinion....

''It is well settled that [t]he true test of the admissibility of [expert] testimony is not whether the subject matter is common or uncommon, or whether many persons or few have some knowledge of the matter; but it is whether the witnesses offered as experts have any peculiar knowledge or experience, not common to the world, which renders their opinions founded on such knowledge or experience any aid to the court or the jury in determining the questions at issue.... Implicit in this standard is the requirement... that the expert's knowledge or experience must be directly applicable to the matter specifically in issue.'' (Citations omitted; internal quotation marks omitted.) Sullivan v. Metro-North Commuter Railroad Co., 292 Conn. 150, 157-59, 971 A.2d 676 (2009); see also Conn. Evid. Code § 7-2.⁵

''Beyond these general requirements regarding the admissibility of expert testimony, [t]here is a further hurdle to the admissibility of expert testimony when that testimony is based on... scientific [evidence]. In those situations, the scientific evidence that forms the basis for the expert's opinion must undergo a validity assessment to ensure reliability. State v. Porter, [241 Conn. 57, 68-69, 698 A.2d 739 (1997), cert. denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998)]. In Porter, this court followed... Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and held that scientific evidence should be subjected to a flexible test, with differing factors that are applied on a case-by-case basis, to determine the reliability of the scientific evidence.... Following State v. Porter, supra, 81-84, scientific evidence, and expert testimony based thereon, usually is to be evaluated under a threshold admissibility standard assessing the reliability ofthe methodology underlying the evidence and whether the evidence at issue is, in fact, derived from and based [on] that methodology... which has been referred to as the fit requirement.'' (Citations omitted; internal quotation marks omitted.) Maher v. Quest Diagnostics, Inc., 269 Conn. 154, 168, 847 A.2d 978 (2004).

With respect to the admissibility of expert testimony on the reliability of eyewitness identifications, this court first...