U.S. v. Rincon, 90-50491

• Decision Date: 03 November 1992
• Docket Number: No. 90-50491,90-50491
• Citation: 984 F.2d 1003
• Parties: 37 Fed. R. Evid. Serv. 1279 UNITED STATES of America, Plaintiff-Appellee, v. Hugo RINCON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1003

984 F.2d 1003

37 Fed. R. Evid. Serv. 1279

UNITED STATES of America, Plaintiff-Appellee, v. Hugo RINCON, Defendant-Appellant.

No. 90-50491.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 3, 1992. ^*

Decided Jan. 28, 1993.

Neison M. Marks, Deputy Federal Public Defender, Los Angeles, CA, for defendant-appellant.

Alejandro N. Mayorkas, Asst. U.S. Atty., Los Angeles, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before Chief Judge WALLACE, TROTT, and T.G. NELSON, Circuit Judges.

T.G. NELSON, Circuit Judge:

Hugo Rincon was convicted on two counts of unarmed bank robbery. On appeal, he contends that the district court erred in refusing to admit expert testimony regarding the reliability of eyewitness testimony. He also argues the district court committed error when it allowed the jury to view Rincon next to a surveillance photograph after jury deliberations had begun.

The district court had jurisdiction pursuant to 18 U.S.C. § 3231 (1988). We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We affirm.

I. FACTS AND PROCEDURAL HISTORY

The indictment charged Rincon with the robbery of two different banks on different days in April, 1988. The demand note in each robbery was the same: "This is a robbery. Don't make it a murder. Give me all the money now." The robber wore sunglasses during the first robbery, and in the second, the robber spoke Spanish and wore a baseball cap.

The teller at the first bank was unable to make an in-court identification, but had picked Rincon out of a photo spread three to four months after the robbery. Four witnesses testified to Rincon's identity as the robber of the second bank. One witness made an in-court identification, as well as having picked Rincon out of the photo spread three months after the robbery. Two witnesses were unable to make in-court identifications, but had picked Rincon out of a photo spread about a year after the robbery. One witness made an in-court identification, but did not make a photo spread identification.

All of the witnesses agreed that the robber did not have a mustache at the time of the robberies. Rincon had a mustache during the trial, but refused to shave it off when the district court ordered him to do so. The district court gave a consciousness of guilt instruction which is not challenged in this appeal.

The district court denied Rincon's pretrial motion in limine in which he sought a ruling that would allow him to introduce the testimony of an expert witness on eyewitness identification. Rincon offered the testimony of an "experimental psychologist" who was a full professor of the Claremont Graduate School of Psychology. She would offer no opinion about the specific eyewitness identifications involved in Rincon's case. Rather, she would discuss the phases of eyewitness identification and the effect of various psychological factors on each phase. In addition, she would state that empirical evidence contradicts numerous lay notions of eyewitness identifications. Rincon contends the district court erred in rejecting that expert testimony.

Rincon did not testify at the trial. His defense consisted of presenting himself to the jury in order to contrast his appearance with that of a surveillance photograph of the robber which the government had introduced as a trial exhibit.

After the jury had started deliberations, they communicated with the district judge, asking to see the defendant standing next to the surveillance photograph, with and without sunglasses. Over Rincon's objections, the district judge permitted them to view Rincon without sunglasses next to the photograph. Because no sunglasses were in evidence, the district judge denied the jury's request to see Rincon with sunglasses.

Rincon contends that the court erred in permitting this comparison while the jury was deliberating.

II. THE EXPERT TESTIMONY

We review for abuse of discretion the district court's determination to exclude expert testimony regarding the unreliability of eyewitness identifications. United States v. Poole, 794 F.2d 462, 468 (9th Cir.) ("[t]he trial court has 'broad discretion' to admit or exclude expert testimony ... [and] [w]e will not reverse the trial court's ruling unless we conclude that it was 'manifestly erroneous' ") (citations omitted), amended on other grounds, 806 F.2d 853 (9th Cir.1986).

Expert testimony is admissible only when it will assist the jury in understanding the case. Federal Rule of Evidence 702 provides that an expert may testify when it "will assist the trier of fact to understand the evidence or to determine a fact in issue...." In addition, the advisory committee's note to Fed.R.Evid. 702 states that a common sense inquiry is appropriate to determine whether a juror would be qualified to decide an issue intelligently without enlightenment from an expert.

Thus, in order to determine whether the testimony was properly excluded, we must focus upon whether the jury would receive "appreciable help" from the expert testimony. United States v. Christophe, 833 F.2d 1296, 1299 (9th Cir.1987). Four criteria guide us in determining whether the expert testimony will assist the jury: "(1) qualified expert; (2) proper subject; (3) conformity to a generally accepted explanatory theory; and (4) probative value compared to prejudicial effect." United States v. Amaral, 488 F.2d 1148, 1153 (9th Cir.1973); see also Fed.R.Evid. 702. Only the third and fourth factors are at issue here.

a. Generally Accepted Theory

Before an expert is allowed to testify, the offering party must establish that the testimony is generally accepted in the particular field of expertise: "Unless the testimony conforms to a generally accepted explanatory theory, it will not be the best available approximation of truth in the judgment of the majority of scientists who work in the particular specialty involved." Christophe, 833 F.2d at 1299; see also Poole, 794 F.2d at 468 (expert testimony will only be admitted if it is in accordance with a generally accepted explanatory theory not known by the average person).

In Christophe, this court faced the same issue presented here; i.e., whether the district court erred in excluding expert testimony on eyewitness identification. Christophe, 833 F.2d at 1299-1300. In affirming the district court, we stated that "the proffered expert testimony does not conform to a generally accepted explanatory theory. Psychologists do not generally accept the claimed dangers of eyewitness identification in a trial setting." Id. (citing McCloskey & Egeth, Eyewitness Identification: What Can A Psychologist Tell A Jury? 38 AM. PSYCHOLOGIST 550, 551 (May 1983) ("there is virtually no empirical evidence that [jurors] are unaware of the problems with eyewitness testimony")). We also noted that psychologists warn such expert testimony may make jurors overly skeptical of an eyewitness' testimony as a result of the expert's testimony. Id. at 1300 n. 1.

In this case, Rincon failed to convince the district court judge that the expert's testimony on eyewitness identification is generally accepted in the field. The judge stated: "no offer of proof had been made to show that the expert testimony had reached that degree of science as opposed to an opinion ... that makes it a science rather than an art." Although Rincon's counsel argued during his motion in limine that he thought the expert eyewitness testimony is well accepted in the scientific community, he only cited a few state and federal courts in support of that proposition, none of which control here.

Furthermore, this court has stated that while "[w]e are aware that other federal courts and state courts are beginning to accept expert testimony on the psychological factors affecting eyewitness identifications, at least in some circumstances. The

                reasoning behind those authorities is better directed to the district court at the time it exercises its discretion."  Poole, 794 F.2d at 468 (citations omitted).   Therefore, the district court did not err in ruling that expert testimony on eyewitness identification is not a generally accepted theory
                

b. Probative Value: Assistance to the Jury

In determining whether the eyewitness expert testimony was properly excluded, we must next consider its probative value in comparison to the prejudicial effect. We have stated that "a jury is helped appreciably when testimony is probative rather than prejudicial, confusing, or misleading." Christophe, 833 F.2d at 1299. Moreover, courts are not required to admit expert testimony on the unreliability of eyewitness testimony and we have continually upheld its exclusion. Id. ("[n]o federal authority requires the admission of testimony on the unreliability of eyewitnesses"); United States v. Langford, 802 F.2d 1176, 1179-80 (9th Cir.1986) (upholding exclusion of expert testimony on eyewitness identification because although its admission may be appropriate under certain circumstances, court is not required to admit it), cert. denied, 483 U.S. 1008, 107 S.Ct. 3235, 97 L.Ed.2d 740 (1987).

In this case, the district court determined that the proffered expert testimony would in fact confuse and mislead the jury. The judge made a determination that the prejudicial value of this expert testimony outweighed its probative value. In so deciding, he did not abuse his discretion; rather, his ruling was consistent with Ninth Circuit precedent.

Rincon next argues that the expert testimony offered in this case was admissible because it differed from that testimony excluded in our previous cases and it was tied to the specific eyewitness testimony presented in his case. However, the expert testimony we considered in Poole is almost identical to that proffered in the present case. ¹ Both here and in Poole the expert testimony focused upon stress, cross-gender or cross-ethnic identifications,...