U.S. v. Smith

• Decision Date: 07 June 1984
• Docket Number: No. 83-3436,83-3436
• Citation: 736 F.2d 1103
• Parties: 15 Fed. R. Evid. Serv. 1398 UNITED STATES of America, Plaintiff-Appellee, v. James Darnell SMITH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1103

736 F.2d 1103

15 Fed. R. Evid. Serv. 1398

UNITED STATES of America, Plaintiff-Appellee, v. James Darnell SMITH, Defendant-Appellant.

No. 83-3436.

United States Court of Appeals, Sixth Circuit.

Argued Jan. 10, 1984.

Decided June 7, 1984.

John Paul Rieser (argued), Dayton, Ohio, for defendant-appellant.

Robert C. Brichler (argued), Asst. U.S. Atty., Dayton, Ohio, for plaintiff-appellee.

Before EDWARDS and JONES, Circuit Judges, and PECK, Senior Circuit Judge.

PER CURIAM.

This case is currently before the Court upon James Darnell Smith's appeal from his district court jury conviction for armed robbery, pursuant to 18 U.S.C. Secs. 2113(a), (d) and 2. On appeal, Smith contends that the district court erred in refusing to allow expert witness testimony about the reliability of eyewitness identification. Upon consideration of this perplexing legal question, we are unable to find that the district court committed reversible error in excluding that testimony.

On July 22, 1982, two armed men entered the Arcanum branch of the Second National Bank of Greenville in Arcanum, Ohio. Two tellers and the branch manager were in the bank. One of the men announced a robbery and instructed the employees to lie face down on the floor. Teller Diane Flory was able to observe one of the men for two to three minutes as he grabbed her. Teller Suzanne Anderson was able to observe the men for almost four minutes. Linda Newbaur, the bank's manager, was forced by the "shorter robber" to enter the vault and to lie face down. When the man tried to remove her rings, Newbaur observed that he was not wearing gloves. After they were unable to open the time-delay vault, the robbers fled on foot. The three women could not see the fleeing men through the windows of the bank.

After the robbery, Deputy Sheriff Toby Spencer took a palm print from the counter of a middle teller station, where the two men had vaulted. F.B.I. fingerprint examiner Benjamin Moore examined the print and concluded that it belonged to appellant Smith. The employees also gave the police descriptions of the men. About three weeks after the robbery, the employees were shown a photo-spread of six photos. One of the photos was of Smith and another was of Marcellus Edwards, who has since been convicted of this robbery. Manager Newbaur identified Edwards. Not one of the employees, however, could identify appellant Smith.

On November 19, 1982, nearly four months later, the FBI requested that three employees view a line-up. At the line-up, all three women identified Smith. The grand jury indicted Smith on February 15, 1983. After a trial before Judge Walter Rice, the jury returned a guilty verdict and Smith was sentenced to 12 years imprisonment.

At trial, the government's case consisted of the employees' eyewitness testimony and the fingerprint expert's testimony. In his defense, Smith testified that he had never been to Arcanum, Ohio and that he had no knowledge of the robbery. Smith's 13-year old niece testified that she ate breakfast with him at the time of the robbery. Venita Faircloth remembered breakfast because Smith gave her a "crumpled ten-dollar bill" as a birthday present.

The defense also sought to introduce the testimony of psychologist Solomon M. Fulero as an expert in the field of eyewitness identification in order to rebut the eyewitness' testimony. Out of the presence of the jury, the district judge heard arguments and proffers on the admissibility of Fulero's testimony. The government conceded that Fulero was an expert, but the district court ruled that the testimony was inadmissable pursuant to Federal Rule of Evidence 403. The district court's decision to exclude that testimony is the subject of this appeal.

In United States v. Green, 548 F.2d 1261 (6th Cir.1977), this Court adopted four criteria for review of trial court decisions involving expert testimony: (1) qualified expert, (2) proper subject, (3) conformity to a generally accepted explanatory theory, and (4) probative value compared to prejudicial effect. See also United States v. Brown, 557 F.2d 541 (6th Cir.1977).

The government concedes that Dr. Fulero is an expert. We must first decide, then, whether his testimony involved a "proper subject." The district judge found that Fulero's testimony was not a "proper subject" because it "would not assist the jury in determining the facts at issue." Federal Rule of Evidence 702 allows the admission of such testimony where it "will assist the trier of fact to understand the evidence or to determine a fact in issue." A "proper subject" therefore is one that assists the trier of fact. The advisory committee notes to Rule 702 state that

There is no more certain test for determining when experts may be used than the common sense inquiry whether the untrained layman would be qualified to determine intelligently and to the best possible degree the particular issue without enlightenment from those having a specialized understanding of the subject involved in that dispute.

In keeping with this test, the district court concluded that "the proferred testimony would not assist the jury in determining the facts at issue." Dr. Fulero's testimony would have provided insight into an eyewitnesses' general inability to perceive and remember what is seen under a stressful situation. Smith argues that such insight is not within the "common sense" of the jury; indeed, it explodes common myths about an individual's capacity for perception under stress. The district court, however, concluded that the "jury is fully capable of assessing the eyewitnesses' ability to perceive and remember."

That conclusion is consistent with the First Circuit's treatment of the "proper subject" standard in United States v. Fosher, 590 F.2d 381 (1st Cir.1979). In that case, the Court was confronted with the identical situation and concluded:

Admittedly, lay jurors may not have the best possible knowledge of the organic and behavioral mechanisms of perception and memory. But to be a proper subject of expert testimony, proof offered to add to their 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.

Fosher, 590 F.2d at 383.

The case before us is, however, distinguishable from Fosher in significant respects. In Fosher, the defendant's proffer "did not make clear the relationship between the scientific evidence offered and the specific testimony of the eyewitnesses. Rather, the offer proclaimed that the expert will not comment at all ... on the testimony of any named witness." Dr. Fulero, by contrast, offered proof based upon the facts of this case. (Tr. pp. 99-105). In his proffer, Dr. Fulero analyzed the reliability of eyewitness identification in a hypothetical factual situation identical to this case. In the hypothetical, three witnesses were shown a line-up containing the defendant and four months later they were shown a photospread containing the same defendant. The defendant was the only "common" element in each showing. Dr. Fulero offered that the later line-up was not "independent" of the earlier photospread and that the eyewitnesses "incorrectly transferred" the "familiar" figure from one procedure to the next. What they identified was the picture of the defendant at the earlier photospread, not the figure of him at the bank. Such testimony might have been relevant to the exact facts before the court and not only might have assisted the jury, but might have refuted their otherwise common assumptions about the reliability of eyewitness identification.

Dr. Fulero also might have provided insight outside the jury's "ken" about the possibility of cross-racial misidentification. The bank robbers in this case were two black males, while the eyewitnesses were three white females. Manager Newbauer testified that few black families live in Arcanum and that "it is unusual for black customers to come to the bank." In this situation, Dr. Fulero testified, the reliability of eyewitness identification would be minimized. He also stated that the existence at the bank of a weapon and stress would decrease the possibility of proper identification. The proffer in this case, therefore, demonstrated that Dr. Fulero's testimony may have assisted the factfinder understand the facts of this case.

The district judge concluded, in addition, that a sufficient proffer had not been made to show that Dr. Fulero's research "is a Science containing enough of a degree of exactness or exactitude to render his opinion admissible." Dr. Fulero testified, however, that the American Psychological Association developed a sub-field in the area of eyewitness identification and that his discipline contains the exactness, methodology and reliability of any psychological research. Further, Dr. Fulero and another expert in the field, Dr. Loftus, have appeared as experts in over 60 criminal cases. Indeed, the government never contested Fulero's expertise.

The Government again relies upon Fosher for the exclusion of such testimony. In Fosher, the Court found that the district court could have concluded in 1979 that the level of reliability of the expert testimony had not surpassed the quality of common sense evaluation. 590 F.2d at 383. Four years...