U.S. v. Downing

Decision Date25 January 1985
Docket NumberNo. 82-1766,82-1766
Citation753 F.2d 1224
Parties17 Fed. R. Evid. Serv. 1 UNITED STATES of America, Appellee, v. John W. DOWNING, Appellant.
CourtU.S. Court of Appeals — Third Circuit

Edward S.G. Dennis, Jr., U.S. Atty., Walter S. Batty, Jr., Peter F. Schenck (Argued), Asst. U.S. Attys., Philadelphia, Pa., for appellee.

Brian E. Concannon (Argued), Concannon & Kudzma, Marshfield, Mass., for appellant.

Before GIBBONS and BECKER, Circuit Judges, and DUMBAULD, Senior District Judge *.


BECKER, Circuit Judge.

This case presents a question of first impression in this Circuit--whether Fed.R.Evid. 702 permits a defendant in a criminal prosecution to adduce, from an expert in the field of human perception and memory, testimony concerning the reliability of eyewitness identifications. The district court refused to admit the testimony of a psychologist offered by the defendant, apparently because the court believed that such testimony can never meet the "helpfulness" standard of Fed.R.Evid. 702. We hold that the district court erred. We also hold that the admission of such expert testimony is not automatic but conditional. First, the evidence must survive preliminary scrutiny in the course of an in limine proceeding conducted by the district judge. This threshold inquiry, which we derive from the helpfulness standard of Rule 702, is essentially a balancing test, centering on two factors: (1) the reliability of the scientific principles upon which the expert testimony rests, hence the potential of the testimony to aid the jury in reaching an accurate resolution of a disputed issue; and (2) the likelihood that introduction of the testimony may in some way overwhelm or mislead the jury. Second, admission depends upon the "fit," i.e., upon a specific proffer showing that scientific research has established that particular features of the eyewitness identifications involved may have impaired the accuracy of those identifications. The district court's assessment of these factors will guide its discretion in deciding whether to admit the evidence under Fed.R.Evid. 702, which contemplates a liberal view toward the admissibility of expert testimony generally. The district court's ruling under Fed.R.Evid. 702 will be reviewable under an abuse of discretion standard. Finally, the district court retains discretionary authority under Fed.R.Evid. 403 to exclude any relevant evidence that would unduly waste time or confuse the issues at trial.

The defendant in this case was convicted solely on the basis of eyewitness testimony. On the record before us the error cannot be deemed harmless, and accordingly we will vacate the judgment of conviction. It is possible that the district court might conclude, after holding a foundation hearing required by Fed.R.Evid. 702 in this case, that the proffered expert testimony is inadmissible in which case a new trial would be unnecessary. We therefore remand for such a hearing on admissibility, cf. Waller v. Georgia, --- U.S. ----, 104 S.Ct. 2210, 2217, 81 L.Ed.2d 31 (1984); United States v. Faison, 679 F.2d 292, 297-98 (3d Cir.1982), with the proviso that, if the evidence is found admissible, the district court will have to order a new trial.


Appellant, John W. Downing, was indicted for mail fraud, 18 U.S.C. Secs. 1341 & 1342; wire fraud, 18 U.S.C. Sec. 1343; and interstate transportation of stolen property, 18 U.S.C. Sec. 2314. All counts of the indictment arose from a scheme to defraud numerous vendors conducted in 1978 and 1979 by a group of individuals calling themselves the Universal League of Clergy (U.L.C.). U.L.C. operated first out of Bedford, Massachusetts, and then out of Blue Bell, Pennsylvania. Its modus operandi was essentially as follows. U.L.C. representatives at national trade shows made contact with manufacturers' representatives by expressing an interest in their product line. When the representative took an order for his product, U.L.C. furnished the vendor with the list of supposed credit references. In fact, U.L.C. had compiled a list of non-existent trade and bank references; the trade addresses were actually the addresses of mail-drops, and the bank reference was a foreign post office box. Later, when the credit department of the manufacturer investigated the "references"--usually by mail--it received favorable reports concerning U.L.C.'s payment history with other corporate creditors and assurances from the "bank" that U.L.C.'s account was substantial. These reports, the government established, were actually supplied by U.L.C. itself after collecting the credit inquiries from the various mail-drops. These positive credit references usually induced the manufacturer to ship goods to U.L.C. on credit. U.L.C. then disposed of the goods, without making payment to the manufacturers.

U.L.C. was represented in these dealings by men identifying themselves as U.L.C. clergy, including "Reverend" or " 'Doctor' Claymore," "Malcolm Sloane," "Reverend Olson," "Paul Eaton," and "Richard Thomas." The government contended that the individuals acting as the U.L.C. clergy were actually appellant and his co-defendants, James A. Silva and Richard Piazza. The central issue at the trial was the identification of appellant as Reverend Claymore. Silva and Piazza admitted setting up U.L.C., but denied knowing that the suppliers were going to be defrauded. They asserted that they were innocent dupes of Reverend Claymore, who masterminded the entire scheme. They (along with appellant) further asserted that appellant was not Claymore, and that if the government could only find the real Claymore, their innocence would be proved. 1

The government's case against appellant consisted primarily of the testimony of twelve eyewitnesses who, with varying degrees of confidence, testified that appellant was the man they knew as Reverend Claymore. 2 These witnesses testified on the basis of their personal observations of Reverend Claymore for periods ranging from 5 to 45 minutes during the course of business dealings that later were discovered to be fraudulent. Appellant contended at trial that these eyewitnesses were mistaken and that their testimony was unreliable because of the short period of time in which the witnesses had to view Claymore the innocuous circumstances of their meetings with him, and the substantial lapse of time between the meetings and the subsequent identifications.

In an effort to overcome the substantial weight of twelve eyewitness identifications in the jury's mind, appellant's counsel, at the beginning of the trial, inquired whether the court would permit expert testimony on the unreliability of eyewitness testimony. Transcript Vol. 43, at 4-2 to 4-5. The district court deferred ruling on the motion and requested that appellant's counsel inform it during a break in the proceedings as to the substance of the proposed expert testimony, and as to any federal cases that have held such testimony to be admissible. On the tenth day of trial, following an off-the-record side-bar discussion, the court briefly summarized the parties' positions and then denied appellant's motion:

THE COURT: There is a discussion at side bar.

Mr. Concannon offered Robert Weisburg, Ph.D. of Temple University, who is a cognative [sic] psychologist. He is an assistant professor of psychology at Temple University.

Mr. Concannon wants to offer him as an expert witness in order to present him to the Jury as a person who would be able to help them deal with the problem of identification of the defendants or any witnesses.

He also would want him to answer a hypothetical question which would be related to the evidence presented in this case.

The U.S. Attorney's position is this would usurp the function of the Jury, and he opposes the witness appearing.

Mr. Concannon said the objection the U.S. Attorney has could be dealt with as of cross examination.

Anything else you want to add to that summary?

MR. CONCANNON: This is basically it, Your Honor.

THE COURT: Anything you want to add to what has been said?

MR. SCHENCK: No, but I have case law.

THE COURT: Do you want to cite any cases?

MR. SCHENCK: The United States versus Focher [sic], 590 Fed.2d 381, 1979 case by the Third Circuit [sic].

In a recent case with Judge Green of this court he declined to admit the same type of evidence.

THE COURT: Anything else?


THE COURT: It is the ruling of this court that the motion to have the psychologist testify is denied because this is a function of the jury to deal with the credibility of the witness[es] that have appeared here and give whatever weight to that testimony that they see fit and also determine if their evidence is credible. What we have in this case is not only a matter of identification, but we have as an [sic] additional evidence such as finger prints, handwriting, which is also for the jury and the credibility of the experts that appeared.

Transcript, Vol. 55, at 3-4.

This dialogue represents the total on-the-record discussion concerning the admissibility of defendant's expert testimony. The case went to the jury without the expert's testimony and appellant was convicted. He appeals, asserting that the district court's exclusion of his expert's testimony was erroneous and harmful within the meaning of Fed.R.Evid. 103(a).


As the transcript of the colloquy indicates, the district court articulated two reasons for refusing to permit appellant's expert witness to testify: (1) the witness would usurp the "function of the jury"; and (2) there was additional evidence "such as fingerprints [and] handwriting." We note at the outset, and the government concedes, that the court was in error as to the second ground: no fingerprint or handwriting evidence was offered against appellant; rather, the government's case rested almost exclusively on the eyewitness identifications.

The first ground for the court's decision...

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