A trial judge’s belief that the government has a very strong case is not a basis to exclude the defense’s proffered expert testimony.

In re L.C., No. 10-FS-709 (decided June 5, 2014)

Players: Chief Judge Washington, Associate Judge Glickman, Senior Judge Nebeker. Opinion by Judge Glickman. Dissent by Judge Nebeker. PDS for L.C. Trial judge: Hiram Puig-Lugo.

Facts: Juvenile attempted carjacking case. Defense is misidentification. Complainant was accosted by two men who attempted to take her car keys, but fled after she screamed for help. She called the police and described one of the would-be robbers as wearing an open-faced ski mask and a light blue jacket with a white stripe or stripes. A few minutes later, the police stopped L.C. approximately 200 feet from the scene, in the area toward which the would-be robbers had run. L.C. was wearing a light blue jacket with white stripes, and had an open-faced ski mask in his pocket. Another man with L.C. approximately matched the complainant’s description of the other would-be robber. The complainant identified L.C. during a show-up identification, including noting that she recognized his jacket. At trial, the complainant testified that she was certain of her identification, and admitted that her heart was racing and that she was afraid.

The defense, in addition to presenting two alibi witnesses, sought to admit the testimony of Dr. Steven Penrod, an expert regarding the psychological factors that can effect eyewitness identification. Specifically, the defense sought to elicit testimony regarding “clothing bias” (resulting from a witness viewing a suspect wearing similar clothes to the witness’s initial description), the poor correlation between the witness’s confidence in her identification and the accuracy of that identification, and the negative effect of stress and emotion on the accuracy of identifications.

The trial judge precluded the defense expert without conducting a voir dire of Dr. Penrod or evaluating the psychological research on which Dr. Penrod’s proffered testimony relied. The judge ruled that Dr. Penrod’s testimony was not beyond the ken of the average layperson and that the proposed areas of expert testimony were matters of common sense that could be elicited through defense cross-examination and closing argument. (During defense counsel’s closing argument the trial court precluded counsel from referring to Dr. Penrod’s research because it was “not common knowledge.”)

Issue 1: Whether the trial judge abused its discretion in precluding the eyewitness expert testimony on the ground that it was not beyond the ken.

Holding 1: As in Benn v. United States ( Benn II), 978 A.2d 1257 (D.C. 2009), and Russell v. United States, 17 A.3d 581 (D.C. 2011), the trial court abused its discretion in ruling that the proffered expert testimony was within the ken of the average lay person requiring a remand for a Dyas hearing.

Issue 2: Whether the trial court’s ruling excluding the expert testimony can be upheld because the eyewitness’s identification was corroborated and therefore the expert testimony would not be “helpful” to the factfinder.

Holding 2:
A) That was not the basis of the trial court’s ruling, and the Court of Appeals may not affirm a discretionary ruling on a ground the trial court did not rely on and had the discretion to reject.

B) Evidence corroborating an eyewitness’s identification is “irrelevant to the question of the admissibility of [the] proffered expert testimony.” “Even in a bench trial, the inquiry as to admissibility does not call for the court to assess the weight of pertinent and admissible expert testimony in light of the anticipated strength of the opposing party’s evidence.” “The criterion of helpfulness is not a grant of authority to the trial judge to exclude relevant and otherwise admissible expert testimony merely because it is against the expected weight of the evidence. Still less does Dyas authorize the trial judge to exclude expert testimony as unhelpful based on the perceived strength of the opponent’s evidence alone.”

Of note:

·“[E]vidence may not be rejected as irrelevant merely because it is contradicted by other evidence.”

·“The standard of relevance is the same for expert testimony as it is for other evidence[.]”

·Although other cases have found no abuse of discretion in the exclusion of eyewitness expert testimony where corroboration of the challenged identification exists, those cases represent the appellate court’s assessment of prejudice; the corroboration of the identification is not a legitimate reason for the trial court to exclude the evidence

·The dissent argues that inquiry into expert admissibility should include the court’s assessment of “the weight of the expert testimony in light of contrary evidence” and that the error in failing to admit the expert testimony here was harmless in light of the evidence corroborating the witness’s identification. JA