Court of Criminal Appeals: Trial court abused discretion by disallowing eyewitness ID expert

The Texas Court of Criminal Appeals today issued a remarkable, unanimous opinion (pdf) reversing the judgment of the 14th Court of Criminal Appeals (Houston) to hold that a trial judge abused his discretion in refusing to allow expert witness testimony by Dr. Roy Malpass of the University of Texas at El Paso about the potential pitfalls of eyewitness identification in a capital murder case.

The opinion (State v. Tillman), authored by Judge Barbara Hervey, cited the host of false convictions based on faulty eyewitness identifications discovered through DNA exonerations, as well as a well-developed body of scientific research critiquing over-reliance on eyewitness identification errors:

Nationwide, 190 of the first 250 DNA exonerations involved eyewitnesses who were wrong. BRANDON L. GARRETT, Convicting the Innocent: Where Criminal Prosecutions Go Wrong 8-9, 279 (2011). In Texas, reports indicate 80 percent of the first 40 DNA exonerations involved an eyewitness identification error. Innocence Project of Texas, Texas Exonerations–At a Glance (2011), http://ipoftexas.org/index.php?action=at-a-glance.

In a recent opinion of the Supreme Court of New Jersey, New Jersey v. Henderson, 2011 N.J. LEXIS 927 (N.J. Aug. 24, 2011), the court focused on the reliability of an eyewitness identification. The New Jersey court discussed the broad consensus within the scientific community on the relevant scientific issues. Id. at 113-15. Specifically, the court referred to the results of a 2001 survey of sixty-four experts, mostly cognitive and social psychologists:

Ninety percent or more of the experts found research on the following topics reliable: suggestive wording; lineup instruction bias; confidence malleability; mugshot bias; post-event information; child suggestivity; alcohol intoxication; and own-race bias. . . . Seventy to 87% found the following research reliable: weapon focus; the accuracy-confidence relationship; memory decay; exposure time; sequential presentation; showups; description-matched foils; child-witness accuracy; and lineup fairness.” Id. at 113-14 (citing Saul M. Kassin et al., On the “General Acceptance” of Eyewitness Testimony Research: A New Survey of the Experts, 56 AM. PSYCHOLOGIST 405, 407 (2001)).

The Supreme Court of New Jersey went on to note that, in the ten years since the Kassin study, the consensus that the study of eyewitness identification is a reliable field of research has continued to grow. Id. at 114-15. And the court highlighted that law enforcement and reform agencies throughout the country have taken note of the scientific community’s findings, forming task forces and developing new procedures to improve the reliability of eyewitness identifications. Id. at *115-21. Additionally, the United States Supreme Court recently granted certiorari on another case involving the reliability of eyewitness identification. Perry v. New Hampshire, 79 U.S.L.W. 3672 (U.S. May 31, 2011) (No. 10-8974).

In this instance, the witness in question first viewed a photo spread including the suspect and failed to identify him, but a week later viewed a live lineup including the same man and identified him there. Malpass would have testified that the process was overly suggestive because the witness could have remembered the man from the earlier photo spread instead of from the crime event. According to Malpass, more than 30 studies have studied that specific scenario and concluded that it contributed to higher error rates.

The appellate court's ruling was reversed and the opinion was sent back to them for a harm analysis, but this is the first time the Court of Criminal Appeals has overruled a trial court's exclusion of expert testimony on eyewitness identification errors based on an "abuse of discretion" standard, which means we may expect such testimony to be allowed in courtrooms much more frequently in the future. The CCA said that such testimony may not be relevant in all cases involving eyewitnesses, but where the scientific research "fits" closely with the facts of the case, it must be allowed.

MORE (10/6): From the Fort Worth Star-Telegram and the Dallas News.