United States v. Fosher, Crim. No. 76-229-C.
| Decision Date | 01 May 1978 |
| Docket Number | Crim. No. 76-229-C. |
| Citation | 449 F. Supp. 76 |
| Parties | UNITED STATES of America, Plaintiff, v. Michael P. FOSHER, Defendant. |
| Court | U.S. District Court — District of Massachusetts |
Robert B. Collings, Asst. U. S. Atty., Boston, Mass., for plaintiff.
Andrew H. Good, Boston, Mass., for defendant.
Defendant, pursuant to 18 U.S.C.A. § 3006A(e)(1), has applied for the payment at government expense of the services of Dr. Robert Buckhout, Associate Professor of Psychology, Brooklyn College, City University of New York, as a defense expert witness on the subject of eyewitness identification testimony. Upon order of this Court and in support of the application, defendant has submitted an affidavit of counsel containing an offer of proof concerning the expected testimony of Dr. Buckhout at trial. The United States challenges the admissibility of the proffered expert testimony on the grounds of Rules 702 and 403 of the Federal Rules of Evidence.
Both parties agree that the crucial evidence for the jury to assess will be the eyewitness testimony of two government witnesses identifying defendant as a participant in the bank robbery. Defendant's offer of proof states that Dr. Buckhout would testify as to the results of scientific research regarding the following topics: (1) factors related to perception in original perceptions, including limited opportunities to observe; (2) the psychology of memory as determined through experimental techniques including the rate of decay of remembered visual images; and (3) the difference in reliability between various types of recall and recognition tests. Nothing in the offer of proof indicates that Dr. Buckhout's testimony will analyze the specific testimony of the government witnesses.
Under Fed.R.Evid. 702, a witness qualified as an expert may testify only if his scientific or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact at issue. It has been my experience that juries in criminal cases have been confronted with and have competently evaluated the testimony of eyewitnesses without the aid and assistance of experimental psychologists. Mindful of the dangers inherent in eyewitness testimony, this Court has routinely instructed jurors to scrutinize with care an eyewitness' opportunity for observation, mental state, and environmental conditions at the time of observation, and the lapse of time between observation and subsequent identification. I am convinced, therefore, that the average lay jurors, on the basis of their own life experiences and common sense, can make an informed evaluation of eyewitness testimony without the assistance of a psychologist, particularly when the jurors are aided by professional argument and skillful cross-examination. This conclusion is reinforced by the number of cases in which the rejection by trial courts of alleged expert testimony regarding the credibility of eyewitness identification has met with appellate approval. E. g., United States v. Smith, 563 F.2d 1361, 1362-63 (9th Cir. 1977); United States v. Brown, 540 F.2d 1048, 1053-54 (10th Cir. 1976), cert. denied, 429 U.S. 1100, 97 S.Ct. 1122, 51 L.Ed.2d 549 (1977); ...
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U.S. v. Fosher
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