The People, Appellant,v.Jamell R. McCullough, Respondent.

Brief

N.Y.May 31, 2016

APL-2015-00148 Appellate Term, Fourth Department Docket No. 2011-01614 KA Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Appellant, —against— JAMELL R. MCCULLOUGH, Defendant-Respondent. BRIEF OF AMICUS CURIAE THE INNOCENCE PROJECT, INC. IN SUPPORT OF DEFENDANT-RESPONDENT JAMELL R. MCCULLOUGH d BARRY C. SCHECK KAREN A. NEWIRTH THE INNOCENCE PROJECT, INC. 40 Worth Street, Suite 701 New York, New York 10013 Telephone: (212) 364-5340 DAVID S. FRANKEL LYNDA M. TRICARICO KAAVYA VISWANATHAN KRAMER LEVIN NAFTALIS & FRANKEL LLP 1177 Avenue of the Americas New York, New York 10036 Telephone: (212) 715-9100 Facsimile: (212) 715-8000 Attorneys for Amicus Curiae The Innocence Project, Inc. April 22, 2016 CORPORATE DISCLOSURE STATEMENT Pursuant to New York Court of Appeals Rule of Practice 500.1(f), The Innocence Project, Inc. states that it is a not-for profit corporation and that it has no parent, subsidiary or affiliate. TABLE OF CONTENTS Page TABLE OF AUTHORITIES ................................................................................... iii INTEREST OF AMICUS CURIAE ....................................................................... 1 SUMMARY OF ARGUMENT ............................................................................... 2 PRELIMINARY STATEMENT ............................................................................. 3 ARGUMENT ............................................................................................................ 7 I. STATEMENT OF FACTS ............................................................................ 7 II. EXPERT TESTIMONY ON THE WAYS IN WHICH EYEWITNESS IDENTIFICATIONS MAY BE UNRELIABLE PROVIDES AN IMPORTANT SAFEGUARD AGAINST WRONGFUL CONVICTIONS BASED ON MISTAKEN IDENTIFICATIONS ................................................................................... 11 A. As This Court and the U.S. Supreme Court Have Recognized, a Robust Body of Scientific Research Concerning Memory and Perception Establishes That There is a Significant Risk of Erroneous Eyewitness Identification ................................................... 11 B. The Danger of Misidentification Remains Strong Even When More Than One Eyewitness Identifies the Perpetrator Or Other Corroborating Evidence Exists ......................................... 16 C. Expert Testimony on the Reliability Issues Relating to Eyewitness Identifications Performs a Critical Role in Protecting Against Wrongful Convictions ....................................... 19 III. THIS COURT SHOULD RECONSIDER THE CORROBORATION-BASED RULE OF LeGRAND AND HOLD THAT THE ADMISSIBILITY OF EXPERT TESTIMONY ON THE RELIABILITY OF EYEWITNESS IDENTIFICATIONS IS GOVERNED BY THE SAME EVIDENTIARY STANDARDS APPLICABLE TO ANY OTHER TYPE OF EXPERT TESTIMONY ............................................................................................... 23 - ii - A. LeGrand’s Focus on Corroboration Is Both Illogical and an Anomaly in New York Law ................................................................ 24 B. LeGrand Violates the Constitutional Guarantee that a Defendant Must Be Permitted a Meaningful Opportunity to Present a Complete Defense ................................................................ 30 C. This Case Illustrates the Perils of the LeGrand Rule ...................... 33 i. Dr. Franklin’s testimony was both relevant and based on scientifically accepted principles .............................................. 36 ii. Dr. Franklin’s testimony was on a topic beyond the knowledge of the average juror ................................................. 39 iii. Dr. Franklin is a qualified expert .............................................. 40 CONCLUSION ....................................................................................................... 41 - iii - TABLE OF AUTHORITIES Page(s) Cases Commonwealth v. Crayton, 21 N.E.3d 157 (Mass. 2014) ............................................................................... 21 Commonwealth v. Walker, 92 A.3d 766 (Pa. 2014) ................................................................................. 23, 29 Crane v. Kentucky, 476 U.S. 683 (1986) ............................................................................................ 30 Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) .................................................................... 4, 25, 29 Holmes v. South Carolina, 547 U.S. 319 (2006) ............................................................................ 7, 30, 31, 32 Patterson v. United States, 37 A.3d 230 (D.C. 2012) (Glickman, J., concurring) ......................................... 33 People v. Abney, 13 N.Y.3d 251 (2009) ......................................................................................... 40 People v. Allweiss, 48 N.Y.2d 40 (1979) ........................................................................................... 25 People v. Berry, 2016 WL 1190397 (N.Y. Mar. 29, 2016) .................................................. 38 n. 12 People v. Lee, 96 N.Y.2d 157 (2001) ......................................................................................... 26 People v. LeGrand, 8 N.Y.3d 449 (2007) ....................................................................................passim People v. Lerma, 2016 IL 118496 (Ill. Jan. 22, 2016) .................................................................... 29 People v. Norstrand, 35 Misc. 3d 367 (S. Ct. Mon. Cty. 2011) ........................................................... 40 - iv - People v. Oddone, 22 N.Y.3d 369 (2013) ........................................................................ 6, 26, 27 n. 9 People v. Riley, 70 N.Y.2d 523 (1987) ......................................................................................... 11 People v. Rivers, 18 N.Y.3d 222 (2011) ......................................................................................... 25 People v. Santiago, 17 N.Y.3d 661 (2011) ....................................................................... 11, 24, 32, 40 People v. Santiago, 75 A.D.3d 163 (N.Y. App. Div. 2010) (McGuire, J. concurring) ...................... 33 People v. Wesley, 83 N.Y.2d 417 (1994) ......................................................................................... 25 Perry v. New Hampshire, 132 S. Ct. 716 (2012) .............................................................................. 12, 13, 22 Shomberg v. State of Wisconsin Claims Board, Case No. 13CV71 (June 8, 2013) ................................................................ 20 n. 6 State v. Carr, 300 Kan. 1 (Kan. 2014) ...................................................................................... 29 State v. Guilbert, 306 Conn. 218 (2012) ................................................................................... 15, 29 State v. Lawson, 291 P.3d 673 (Or. 2012) ..................................................................................... 21 State v. Shomberg, 709 N.W.2d 370 (2006) ................................................................................ 19, 20 United States v. Brownlee, 454 F.3d 131 (3d Cir. 2006) ............................................................................... 15 United States v. Downing, 753 F.2d 1224 (3d Cir. 1985) ............................................................................. 14 - v - United States v. Moore, 786 F.2d 1308 (5th Cir. 1986) ............................................................................ 15 United States v. Scheffer, 523 U.S. 303 (1998) ............................................................................................ 30 United States v. Wade, 388 U.S. 218 (1967) ...................................................................................... 12, 22 Watkins v. Sowders, 449 U.S. 341 (1981) (Brennan, J., dissenting) ................................................... 22 Young v. Conway, 698 F.3d 69 (2d Cir. 2012) ........................................................................ 34 n. 10 Young v. Conway, 715 F.3d 79 (2d Cir. 2013) ................................................................................. 15 Statutes N.Y. Crim. Proc. Law § 60.22 ................................................................................. 27 N.Y. Crim. Proc. Law § 60.50 ................................................................................. 27 N.Y. Penal Law § 210.50 ......................................................................................... 27 Other Authorities Benton, Tanja Rapus et al., Has Eyewitness Testimony Research Penetrated the American Legal System?: A Synthesis of Case History, Juror Knowledge, and Expert Testimony, 2 Handbook of Eyewitness Psychology: Memory for People 453 (R.C.L. Lindsay, et al., eds., 2007) ............................................................................ 13 Bornstein, Brian H., et al., Effects of Exposure Time and Cognitive Operations on Facial Identification Accuracy: A Meta-Analysis of Two Variables Associated with Initial Memory Strength, 18 Psych., Crime, and L. 473 (2012) .................................................................................... 38 Brigham, John C. & Bothwell, Robert K., The Ability of Prospective Jurors to Estimate the Accuracy of Eyewitness Identifications, 7 Law & Hum. Behav. 19 (1983) .......................................................................... 13 - vi - Deffenbacher, Kenneth A. , et al., A Meta-Analytic Review of the Effects of High Stress on Eyewitness Memory, 28 Law & Hum. Behav. 687 (2004) ............................................................................................... 37 Desmarais, Sarah L. and Read, J. Don, After 30 Years, What Do We Know about What Jurors Know? A Meta-Analytic Review of Lay Knowledge Regarding Eyewitness Factors, 35 Law & Hum. Behav. 200 (2011) ............................................................................................... 40 Epstein, Jules, The Great Engine That Couldn’t: Science, Mistaken Identity, and the Limits of Cross-Examination, 36 Stetson L. Rev. 727 (2007) ........................................................................................................... 21 Hall, Dee J., Madison man, who has served more than six years in prison, is ordered released, Wis. State J., Nov. 13, 2009, http://host.madison.com/wsj/news/local/crime_and_courts/madison -man-who-has-served-more-than-six-years-in/article_06117988- d09a-11de-8341-001cc4c002e0.html .......................................................... 20 n. 5 Innocence Project, Informants, http://www.innocenceproject.org/causes-wrongful- conviction/informants .................................................................................. 17 n. 4 Leippe Michael R., The Case for Expert Testimony About Eyewitness Memory, 1 Psychol. Pub. Pol’y & L. 909 (1995). .............................................. 14 Malpass, Roy S., et al., The Need for Expert Psychological Testimony on Eyewitness Identification, Expert Testimony on the Psychology of Eyewitness Identification (Cutler ed., 2009). ................................................. 40 National Academy of Sciences, Identifying the Culprit: Assessing Eyewitness Identification (2014) ........................................................................ 29 Steblay, Nancy Mehrkens, A Meta-Analytic Review of the Weapon Focus Effect, 16 Law & Hum. Behav. 413 (1992) ............................................. 38 Wells, Gary , et al., Eyewitness Identification Procedures: Recommendations for Lineups and Photospreads, 22 Law & Hum. Behav. 603 (1998). ..................................................................................... 34 n. 10 - vii - Wixted, John T. et al., Estimating the reliability of eyewitness identifications from police lineups (Jan. 12, 2016), http://www.pnas.org/cgi/doi/10.1073/pnas.1516814112 .......................... 34 n. 10 INTEREST OF AMICUS CURIAE The Innocence Project, Inc. (the “Innocence Project”) is an organization dedicated to providing pro bono legal and related investigative services to indigent prisoners whose actual innocence may be established through post-conviction DNA evidence. To date, the work of the Innocence Project and affiliated organizations has led to the exoneration of more than 330 individuals who post- conviction DNA testing has shown were wrongly convicted. The Innocence Project has a compelling interest in ensuring that criminal trials reach accurate determinations of guilt and promote justice. Because wrongful convictions destroy lives and allow the actual perpetrators to remain free, the Innocence Project’s objectives help to ensure a safer and more just society. Indeed, in 48 percent of the wrongful convictions proven by post-conviction DNA testing, the work of the Innocence Project and affiliated organizations has also helped identify the real perpetrators of those crimes. In addition to its work on individual cases, the Innocence Project seeks to prevent future wrongful convictions by researching the causes of wrongful convictions and pursuing reform initiatives designed to enhance the truth-seeking functions of the criminal justice system. Nearly 75 percent of individuals exonerated by DNA testing were originally convicted based, at least in part, on the testimony of eyewitnesses who turned out to be mistaken. The majority (54 - 2 - percent) of these mistaken eyewitness identification cases involved in-court identifications and a significant percentage (33 percent) involved multiple witnesses misidentifying the same innocent person. Thus, inasmuch as mistaken eyewitness identifications are a principal cause of wrongful convictions, the Innocence Project has a compelling interest in the adoption of a legal framework that reduces the risk of a finding of guilt based on eyewitness misidentification. SUMMARY OF ARGUMENT Amicus curiae the Innocence Project respectfully submits this brief in support of defendant-respondent Jamell McCullough. Amicus urges affirmance of the Appellate Division’s holding that the trial court erred in excluding testimony from McCullough’s proffered eyewitness identification expert, thereby requiring reversal of McCullough’s conviction and a new trial. Further, amicus requests that the Court reconsider the rule established in People v. LeGrand, which permits the trial court to exclude otherwise relevant and probative eyewitness identification expert testimony if the People’s case includes corroborating evidence rendering the expert testimony “unnecessary.” The LeGrand evidentiary rule is an anomaly in New York evidence law; is not calculated to serve its stated purpose of excluding extraneous or potentially confusing evidence; and raises grave constitutional concerns. Given the compelling scientific research regarding unreliability of eyewitness - 3 - identifications, combined with the numerous ways in which expert witness testimony may assist jurors in fulfilling their role, amicus respectfully submits that, when determining the admissibility of eyewitness expert testimony, the trial court should be required to undertake the same evidentiary analysis applied to all other expert testimony. PRELIMINARY STATEMENT Respondent Jamell McCullough was convicted of murder and robbery based on the questionable identification of a single witness. No forensic evidence tied McCullough to the crime. The only purported corroborating prosecution evidence was a second identification, made more than a year after the crime, by an admitted participant in the crime – an individual who had initially failed to identify McCullough in a photo array; who falsely denied involvement on two occasions when first questioned by police, and only admitted having lied when told he had been identified; who was incarcerated and awaiting trial on murder and robbery charges; and who, after identifying McCullough in a second photo array, was permitted to plead guilty to a single robbery count and promised the minimum sentence if he testified against McCullough at trial. He did testify at trial and, in exchange for that testimony, he received these promised benefits. - 4 - At trial, McCullough sought to present expert testimony on the unreliability of eyewitness identifications. Had McCullough proffered an expert on any other subject, the trial court would have assessed the relevance of the testimony, the jurors’ need for specialized information, the expert’s qualifications, and whether the testimony was based on principles generally accepted in the scientific community (thereby addressing the reliability concerns of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923)) – all factors McCullough’s proffered testimony undoubtedly satisfied. But because the expert was to address the subject of eyewitness identifications, the trial court applied this Court’s decision in People v. LeGrand, 8 N.Y.3d 449 (2007), which imposes an additional, threshold hurdle: Before the trial court may consider whether the proffered testimony is relevant and probative, it must first decide whether the eyewitness identification at issue is central to the case and is corroborated by other evidence. Only if there is “little or no corroborating evidence connecting the defendant to the crime” will the court determine the admissibility of the expert testimony in the fashion applied to all other expert evidence. Id. at 452. Here, because the trial court found that statements by a second individual – an admitted serial liar and incentivized informant – sufficiently corroborated the eyewitness identification, it precluded McCullough’s proffered expert. - 5 - Had the trial court allowed the testimony, the jury would have heard that stress, the presence of a weapon, and a witness’ limited time to observe the perpetrators of a crime – all variables present during the eyewitness’s viewing of this crime – have been scientifically shown to reduce eyewitness memory and accuracy. With the benefit of this expert assistance, the jury would have had the tools necessary to accurately evaluate the weight to be given to the eyewitness’s identification of McCullough. The jury could well have assessed the identification – and, ultimately, the case as a whole – differently. The Appellate Division vacated McCullough’s conviction, finding the second witness’s testimony provided insufficient corroboration to satisfy LeGrand and, applying the second stage of the LeGrand test, concluding that the proffered expert testimony satisfied “the general criteria for the admissibility of expert proof” and should have been admitted. This Court should affirm the Appellate Division’s holding. Amicus respectfully submits that this Court should also take the opportunity to reconsider LeGrand’s corroboration component. By excluding expert testimony that would ordinarily be admissible (that is, testimony that is relevant, beyond the ken of the average juror, and generally accepted in the scientific community) on the basis of the trial judge’s finding that other prosecution evidence may be said to “sufficiently” - 6 - corroborate the eyewitness identification, LeGrand subjects this one category of expert testimony to a different and more stringent admissibility standard than any other. Nor is it just the case that the LeGrand rule is an anomaly in New York evidence law. It is ill designed to accomplish its stated purpose, and will in many cases prejudice the defendant and serve only to deprive the jury of relevant, probative and helpful evidence. The stated rationale for the rule is that it will serve to exclude extraneous evidence, thereby minimizing juror confusion. See People v. Oddone, 22 N.Y.3d 369 (2013). But the presence or absence of corroboration is wholly unrelated both to whether expert testimony is probative and potentially useful to the jury’s consideration of the case (rather than somehow “extraneous”), and to whether the proffered testimony will be confusing. Accordingly, in cases where “sufficient” evidence corroborates the eyewitness identification, the jury will not get the benefit of expert testimony that may assist it in reaching a reasoned conclusion. And the ordinary probative value vs. prejudice/confusion analysis, applied routinely by trial courts, would accomplish the purpose of excluding expert evidence where appropriate. Critically, the LeGrand rule is not simply overinclusive in this fashion. It raises serious due process concerns. Because LeGrand conditions a - 7 - defendant’s ability to introduce expert testimony on the trial judge’s assessment of the strength of the prosecution’s case, it risks violating the constitutional guarantee that a defendant have a meaningful opportunity to present a defense. See Holmes v. South Carolina, 547 U.S. 319 (2006). For these reasons, amicus respectfully urges the Court to reconsider LeGrand and to rule that the admissibility of expert testimony on eyewitness identification is governed, like all other types of expert testimony, by the traditional rules of evidence. ARGUMENT I. STATEMENT OF FACTS In October 2009, a Monroe County Grand Jury charged Jamell McCullough with one count of Murder in the Second Degree, one count of Robbery in the First Degree, and one count of Attempted Robbery in the First Degree, based on allegations that on December 27, 2008, McCullough was one of a group of men who robbed a barbershop in Rochester, New York and shot the owner of the store. At trial, the prosecution’s case hinged upon the testimony of James Johnson, Jr., an eyewitness to the crime. Johnson testified that on the night of December 27, 2008, he was with Vincent Dotson, the owner of the barbershop, when a man exited a white Chevy Malibu, came into the shop and asked if he - 8 - could still get a haircut. Dotson said yes, and the man sat down in a barber chair. Shortly after, three other men entered the shop. Johnson described the first two of these three men as dark-skinned, and noted that the first of the two (the “shooter”) wore a dark coat and black winter hat. The third man to enter was lighter skinned and taller, wearing a bright orange coat and matching baseball cap. The men ordered Dotson and Johnson to the ground, pistol whipped them both and demanded money and drugs. One of the men took approximately $200 from Dotson and complained about the amount. Johnson then heard two shots and could see that Dotson had been shot in the chest. The four assailants then fled. The shooter returned briefly, and stood by Johnson, who closed his eyes and heard a “clicking sound” over his head. The shooter then left the shop and Johnson called 911. Later that evening, a police officer stopped a white Chevy Malibu with three men inside, and apprehended the driver, Willie Harvey. A witness who had been near the barbershop when the robbery occurred identified Harvey as one of the men involved. A few weeks after the robbery, the police showed Johnson a photo array containing a photograph of defendant McCullough. Johnson picked out McCullough’s photograph and told police, “that looks a lot like the shooter” (whom he had previously described as the dark-skinned man who was first to - 9 - enter the barber shop). Two months later, the police conducted a lineup including McCullough, who was the only participant whose picture had also been included in the photo array. This time, Johnson identified McCullough not as the shooter, but as “the last guy who came into the barber shop” (the lighter-skinned, taller individual in the orange coat). At trial, Johnson again identified McCullough as the last man to enter the shop. Other than Johnson’s identification, the only trial evidence linking McCullough to the crime was testimony from Harvey, who had initially denied driving the Chevy Malibu, but who later admitted his role after being told by police he had been identified as the driver. Harvey, who admitted having repeatedly lied both to the police and in his plea colloquy in this case, also admitted that he did not know McCullough. Harvey was first shown a photo array containing McCullough’s photograph about a month after the robbery, but told the police that he did not recognize anyone. Harvey only identified McCullough from a second photo array a month later, after Harvey had himself been charged with the murder and robbery, and while he was in jail awaiting trial on those charges.1 Immediately after identifying McCullough, Harvey was offered a plea deal in which the murder and robbery charges were 1 McCullough was the only person whose photograph was included in both the first and second photo arrays shown to Harvey. - 10 - dropped, and he was permitted to plead guilty to robbery in the first degree and receive a 10-year sentence, as opposed to the life sentence he would have otherwise faced. Harvey’s credibility issues aside, his identification of McCullough was suspect for several reasons – Harvey had never met McCullough prior to the robbery, remained in the vehicle during the robbery, and had little opportunity to observe McCullough that night. The trial court did not allow the defense to introduce testimony from Dr. Nancy Franklin, an expert on the factors affecting the accuracy of eyewitness identifications. Dr. Franklin would have testified on the effects of stress, weapon focus (i.e., the presence of a weapon tending to draw the attention of the witness), and event duration on eyewitness memory and accuracy. Relying upon this Court’s decision in People v. LeGrand, the trial judge concluded that the testimony of Harvey sufficiently corroborated Johnson’s identification, and therefore the proffered “assistance of an expert witness on identifications [wa]s not needed.” (A827).2 The jury convicted McCullough on all three counts and he was sentenced to 25 years to life on the murder count, and received sentences of 25 and 15 years on the other two counts, all to run concurrently. On appeal, the Appellate Division vacated McCullough’s conviction, concluding that in light of Harvey’s “dubious credibility” and other reasons to 2 Citations to “A__” are to the Appendix submitted by Appellant on this appeal. - 11 - doubt his corroborating identification, his testimony “was insufficient to relieve the [trial] court of its obligation to proceed to the second stage of the LeGrand analysis.” (A4). Applying that second part of the analysis the Appellate Division panel concluded “that the proposed testimony ‘satisfies the general criteria for the admissibility of expert proof.’” (A4). II. EXPERT TESTIMONY ON THE WAYS IN WHICH EYEWITNESS IDENTIFICATIONS MAY BE UNRELIABLE PROVIDES AN IMPORTANT SAFEGUARD AGAINST WRONGFUL CONVICTIONS BASED ON MISTAKEN IDENTIFICATIONS A. As This Court and the U.S. Supreme Court Have Recognized, a Robust Body of Scientific Research Concerning Memory and Perception Establishes That There is a Significant Risk of Erroneous Eyewitness Identification Both this Court and the U.S. Supreme Court have recognized what more than four decades of social science research and exoneration cases have established: Eyewitness identifications are often unreliable – even when offered with great confidence and certainty by the witness – and eyewitness misidentifications pose a grave risk of wrongful conviction. See, e.g., People v. Santiago, 17 N.Y.3d 661, 669 (2011) (“mistaken eyewitness identifications play a significant role in many wrongful convictions”); People v. Riley, 70 N.Y.2d 523, 530 (1987) (“The influence of improper suggestion upon identifying witnesses probably accounts for more miscarriages of justice than any other factor – perhaps it is responsible for more such errors than all other - 12 - factors combined.”) (citation omitted); United States v. Wade, 388 U.S. 218, 228 (1967) (the “vagaries of eyewitness identification are well-known” and the “annals of criminal law are rife with instances of mistaken identification”). Yet juries tend to rely heavily upon eyewitness identifications, which are, in the courtroom setting, an enormously powerful type of evidence. Given both “the importance [and] the fallibility of eyewitness identifications,” Perry v. New Hampshire, 132 S. Ct. 716, 728 (2012), it is unsurprising that mistaken identifications are a leading cause of wrongful convictions, having played a role at trial in more than 70% of 336 post-conviction DNA exonerations nationwide.3 The problem with eyewitness identifications is that humans neither mentally record nor recall events exactly as they occurred. Instead, witnesses’ memories are affected by a variety of factors that occur from the time of the incident onwards, and can easily be contaminated. For example, eyewitness identifications are affected by factors like the lighting at the time of the crime, the distance from which the witness saw the perpetrator, and the witness’s exposure to the defendant through multiple identification procedures. They are also affected by more complex factors, such as race (identifications are less 3 In New York alone, sixteen individuals who were convicted in large part based upon eyewitness identifications have since been exonerated through DNA evidence. - 13 - accurate when witnesses are identifying perpetrators of a different race), the presence of a weapon during the crime, the degree of stress or trauma the witness experienced while observing the perpetrator, and the phenomenon of “unconscious transference,” which occurs when a person seen in one context is confused with a person seen in another. Yet juries find eyewitnesses – including mistaken eyewitnesses – extremely believable, and tend to overestimate “the . . . accuracy of eyewitness evidence.” John C. Brigham & Robert K. Bothwell, The Ability of Prospective Jurors to Estimate the Accuracy of Eyewitness Identifications, 7 Law & Hum. Behav. 19, 28 (1983); see also Perry v. New Hampshire, 132 S. Ct. at 739 (Sotomayor, J., dissenting) (“Study after study demonstrates that . . . jurors routinely overestimate the accuracy of eyewitness identifications . . . .” (citations omitted)). In addition to the sheer power of an in-court identification of the defendant, this unfounded confidence in eyewitness identifications is likely the product of a disconnect between what jurors’ “common sense” may be telling them, on the one hand, and what the scientific research actually reflects. Put differently, the principles underlying the unreliability of eyewitness testimony are counterintuitive, and jurors tend to “rely heavily on eyewitness factors that are not good indicators of accuracy.” Tanja Rapus Benton et al., Has Eyewitness Testimony Research Penetrated the American - 14 - Legal System?: A Synthesis of Case History, Juror Knowledge, and Expert Testimony, in 2 Handbook of Eyewitness Psychology: Memory for People 453, 484 (R.C.L. Lindsay, et al., eds., 2007) (emphasis in original); see also Michael R. Leippe, The Case for Expert Testimony About Eyewitness Memory, 1 Psychol. Pub. Pol’y & L. 909, 921 (1995). Thus, for example, although “common sense” or intuition would likely lead a juror to believe that a witness would be better able to observe and remember details during a period of stress, scientific research shows the contrary – stress makes a witness less likely to accurately recall events. United States v. Downing, 753 F.2d 1224, 1231-32 (3d Cir. 1985) (“most jury members . . . probably believe that stress increases the accuracy of one’s perception[, but] studies reveal precisely the opposite effect”); Kenneth A. Deffenbacher, et al., A Meta-Analytic Review of the Effects of High Stress on Eyewitness Memory, 28 Law and Hum. Behav. 687, 699 (2004). Similarly, while intuition would likely lead a juror to be favorably impressed by a witness’s assertiveness and confidence in the accuracy of his identification, research has shown that the correlation between a witness’s confidence in his identification and its accuracy is not strong. Numerous courts have recognized that the reliability problems associated with eyewitness identifications are compounded by a lack of juror knowledge or understanding – indeed, by the likelihood that - 15 - jurors will mistakenly assume eyewitness identifications are a particularly reliable type of evidence. See, e.g., State v. Guilbert, 306 Conn. 218, 252, 263 (2012) (“Many of the factors affecting the reliability of eyewitness identifications are either unknown to the average juror or contrary to common assumptions, and expert testimony is an effective way to educate jurors about the risks of misidentification.”); Young v. Conway, 715 F.3d 79, 81 (2d Cir. 2013) (many of the factors influencing a witness’s ability to accurately process his or her observations “are counterintuitive and therefore cannot be deduced by the application of the ‘common sense’ that juries are customarily instructed to employ”); United States v. Brownlee, 454 F.3d 131, 142 (3d Cir. 2006) (“while science has firmly established the inherent unreliability of human perception and memory, this reality is outside the jury’s common knowledge, and often contradicts jurors’ ‘commonsense’ understandings’”) (internal quotation marks and citations omitted); United States v. Moore, 786 F.2d 1308, 1312 (5th Cir. 1986) (“the conclusions of the psychological studies are largely counter-intuitive and serve to explode common myths about an individual’s capacity for perception”) (internal quotation marks and citation omitted) (emphasis in original). - 16 - B. The Danger of Misidentification Remains Strong Even When More Than One Eyewitness Identifies the Perpetrator Or Other Corroborating Evidence Exists The dangers inherent in eyewitness identifications are not necessarily mitigated just because more than one eyewitness identifies a perpetrator. In fact, 33 percent of the DNA exoneration cases resulting from the work of the Innocence Project and affiliated organizations involved multiple witnesses misidentifying the same innocent person. Moreover, where multiple misidentifications occur, the testimony of one eyewitness may bolster the credibility of another simply by virtue of its existence, and may lead to a wrongful conviction. To cite several examples, illustrating the pervasiveness of the problem and the sheer power of in-court identifications:  Steven Barnes, a New York man, was wrongly convicted of rape and murder and sentenced to 25 years to life after several people, including a police officer, identified him as being in the vicinity of the victim on the night she was murdered. Barnes, who was nineteen at the time of his conviction, served twenty years before being exonerated by DNA evidence.  Alan Newton, another New Yorker, was wrongly convicted of rape and assault after being mistakenly identified in multiple procedures by both the victim and a convenience store clerk. He was exonerated by DNA evidence after serving 21 years in prison.  Kirk Bloodsworth, a former United States Marine, was convicted of raping and murdering a young girl in Baltimore County, Maryland based on the mistaken identifications of five eyewitnesses. - 17 -  Brandon Moon, an army veteran and college student, was misidentified by multiple witnesses and served seventeen years in Texas prisons for rape before DNA evidence proved his innocence.  Dennis Maher, a Massachusetts man and sergeant in the U.S. Army, was convicted of a series of rapes even though no biological evidence linked him to the crimes, based on misidentifications by three victims. He served nineteen years in prison.  Luis Diaz, a Florida cook who was married with three children at the time of his arrest, was convicted of a string of sexual assaults and served 25 years in Florida prisons. Diaz was misidentified by eight witnesses.  Stephen Phillips, a Texas man, was exonerated of a string of sexual assaults after serving 25 years in prison. Of the at least 60 victims to the eleven crimes for which Phillips was wrongfully convicted, at least ten erroneously identified Phillips as the perpetrator. In addition to multiple erroneous, supposedly corroborating, identifications, 53 percent of wrongful convictions were based on eyewitness misidentifications accompanied by other types of purported corroboration that proved equally unfounded, including false confessions, unsound forensic testimony, or incentivized accomplice or informant testimony.4 Again, just by way of example:  Kenneth Adams was among four men convicted in 1978 for rape and murder, based principally on the testimony of one eyewitness and a jailhouse informant, who claimed to have heard two of Adams’ co- defendants discussing how they had committed the crime. The informant later admitted having lied because prosecutors gave him a deal on 4 Notably, and especially relevant here, incentivized informants contributed to 15% of the 336 wrongful convictions established by post-conviction DNA testing. The Innocence Project, Informants, http://www.innocenceproject.org/causes- wrongful-conviction/informants (Feb. 12, 2016). - 18 - charges pending against him at the time. Adams was sentenced to 75 years. DNA testing later conclusively established the innocence of all of the defendants, including Adams. He was released from prison in 1996, eighteen years after having been convicted.  Jimmy Ray Bromgard served fourteen and a half years in prison following his wrongful conviction for the rape of an eight-year-old girl attacked in her home in Billings, Montana. Bromgard’s conviction, based in part on the victim’s in-court identification (notwithstanding testimony that she was only 65% sure of her identification), was also based on the fraudulent testimony of a forensic scientist.  Gene Bibbins served fifteen years in prison following his wrongful conviction for the rape of a teenage girl in Baton Rouge, Louisiana. Bibbins’ conviction, based in part on the victim’s identification of Bibbins while he was seated in the back of a police car with a flashlight illuminating his face (and notwithstanding an initial description of her attacker completely inconsistent with Bibbins’ appearance), was also based on the fraudulent testimony of an analyst who claimed that lab analysis of fingerprints from the crime scene were inconclusive, where the state crime lab report had in fact excluded Bibbins as the source of the fingerprints.  James O’Donnell served two years in prison following his wrongful conviction for the attempted sodomy and second degree assault of a woman in a Staten Island park. O’Donnell’s conviction was premised upon the victim’s identification of O’Donnell as her assailant along with inherently unreliable bite mark analysis. Subsequent DNA testing of a sexual assault evidence collection kit, comprised of DNA swabs taken from the victim’s bite mark as well as fingernail scrapings, definitively excluded O’Donnell as the assailant.  George Rodriguez served seventeen years in prison following his wrongful conviction for the kidnapping and rape of a fourteen-year-old girl in Houston, Texas. Rodriguez was identified by the victim, who also testified that she had only been able to view the assailant’s face for three to four seconds during the attack. The victim’s identification was corroborated by testimony from a crime lab director later proven to be false. Rodriguez was convicted of this two person crime even though another man had confessed and had identified as his co-conspirator - 19 - another man – whom the victim had also picked out in a photo array two months after the attack. C. Expert Testimony on the Reliability Issues Relating to Eyewitness Identifications Performs a Critical Role in Protecting Against Wrongful Convictions Expert testimony can mean the difference between a wrongful conviction and an acquittal for an innocent defendant who has been identified by one or more eyewitnesses, as is well illustrated by the case of Forrest Shomberg, a Wisconsin man convicted of a sexual assault in 2003 after a bench trial. The only evidence offered against Shomberg was two identifications, by the victim and by an eyewitness. Shomberg moved the court to permit him to call an eyewitness identification expert to testify about factors that could have negatively affected the reliability of the identifications offered against him (including stress, unconscious transference, confidence-accuracy relationship, and simultaneous presentation). The trial court denied the motion, holding that “everything that the expert would testify to in essence is within the common knowledge and sense and perception of the jury.” State v. Shomberg, 709 N.W.2d 370, 375 (2006) (citation omitted). Shomberg’s conviction was affirmed on appeal by the intermediate court and by the Wisconsin Supreme Court, which also considered various claims of error relating to the trial court’s denial of Shomberg’s motion for an expert and - 20 - concluded there was no abuse of discretion in precluding the expert’s testimony, and that any error was harmless. Id. at 372-73, 377. In 2009, however, Shomberg obtained exculpatory DNA test results and returned to the same judge who had convicted him. At the hearing on his motion for a new trial, the two witnesses maintained their identifications of Shomberg. However, in the context of the new trial motion, he was now permitted to call an eyewitness identification expert.5 The expert testified about the various factors that can lead a witness to misidentify a perpetrator, including the biases inherent in a witness working with police to develop a sketch, as well as the problems with simultaneous lineups. The court granted a new trial and noted the importance of the expert’s testimony to the result. Specifically, the judge, who had been the factfinder at trial, indicated that he had been unaware at the time of trial of the corrupting impact that the identification procedure could have on the eyewitnesses’ memory and that it was the expert’s testimony at the new trial hearing that educated him.6 5 See Dee J. Hall, Madison man, who has served more than six years in prison, is ordered released, Wis. State J., Nov. 13, 2009, http://host.madison.com/wsj/news/local/crime_and_courts/madison-man-who-has- served-more-than-six-years-in/article_06117988-d09a-11de-8341- 001cc4c002e0.html. 6 Shomberg v. State of Wisconsin Claims Board, Case No. 13CV71 (June 8, 2013) (at the new trial proceeding, Judge Fielding noted that the testimony of the expert - 21 - Expert testimony is especially important in eyewitness identification cases because traditional methods of adversarial testing, such as cross-examination of the eyewitness, are insufficient to protect against the risk of a wrongful conviction based on a misidentification. Cross-examination of eyewitness identification testimony is likely to be ineffective, because cross-examination works best as a tool to expose witnesses who are lying. Jules Epstein, The Great Engine That Couldn’t: Science, Mistaken Identity, and the Limits of Cross-Examination, 36 Stetson L. Rev. 727 (2007). Erroneous identification evidence is typically offered by witnesses who are genuinely and honestly mistaken, not lying. As many courts have recognized, once a witness has given confident testimony of an identification – testimony that will likely be perceived as highly confident, because genuinely believed by the witness – it is very difficult for even a highly skilled cross- examiner to undo any damage that has already been done by admission of the evidence. Commonwealth v. Crayton, 21 N.E.3d 157, 169 (Mass. 2014) (“we have previously recognized how difficult it is for a defense attorney to convince a jury that an eyewitness’s confident identification might be attributable to the suggestive influence of the circumstances surrounding the identification”); State v. Lawson, 291 P.3d 673, 695 (Or. 2012) (“[F]ederal and state courts around the country have illustrated the dangers of composite sketches, which in 2002 he had considered to be “good things”). - 22 - recognized that traditional methods of informing factfinders of the pitfalls of eyewitness identification – cross-examination, closing argument, and generalized jury instructions – frequently are not adequate to inform factfinders of the factors affecting the reliability of such identifications.”); see also Perry v. New Hampshire, 132 S. Ct. at 732 (Sotomoyor, J., dissenting) (citations omitted) (“At trial, an eyewitness’ artificially inflated confidence in an identification’s accuracy complicates the jury’s task of assessing witness credibility and reliability. It also impairs the defendant’s . . . basic right to subject his accuser to meaningful cross- examination.”); Watkins v. Sowders, 449 U.S. 341, 350, 356-57 (1981) (Brennan, J., dissenting) (eyewitness identification evidence is “notoriously unreliable” and it cannot be assumed that cross-examination will protect the accused; it “is both an ineffective and a wrong tool for purging inadmissible identification evidence from the jurors’ minds . . . because all of the scientific evidence suggests that much eyewitness identification testimony has an unduly powerful effect on jurors [and they are] likely to give the erroneously admitted evidence substantial weight, however skillful the cross-examination”). In contrast to cross-examination, which is intended to test the credibility of a witness, eyewitness identification experts offer opinions not on witness credibility, but rather, on the factors that can affect the reliability of eyewitness testimony generally. See Commonwealth v. Walker, 92 A.3d 766, 780 (Pa. 2014). Because - 23 - eyewitness expert testimony is based on an analysis of the specific factors and variables which social science has shown can affect the accuracy and reliability of eyewitness testimony – and which, as previously noted, are largely counterintuitive and beyond the knowledge of the average juror – such testimony enables jurors to assess eyewitness identification testimony on a more informed basis. See id. at 784 (“In light of demonstrated misconceptions that jurors and other lay persons may possess regarding the infallibility of eyewitness identification, . . . use of expert testimony . . . will permit jurors to engage in the process of making credibility determinations with full awareness of limitations that eyewitness testimony may present.”).7 III. THIS COURT SHOULD RECONSIDER THE CORROBORATION-BASED RULE OF LeGRAND AND HOLD THAT THE ADMISSIBILITY OF EXPERT TESTIMONY ON THE RELIABILITY OF EYEWITNESS IDENTIFICATIONS IS GOVERNED BY THE SAME EVIDENTIARY STANDARDS APPLICABLE TO ANY OTHER TYPE OF EXPERT TESTIMONY In People v. LeGrand, 8 N.Y.3d 449 (2007), this Court established a two- stage inquiry for determining whether to admit a defendant’s proffered expert testimony on eyewitness identification, that is unlike the admissibility inquiry for 7 Indeed, because the factors potentially affecting the reliability of eyewitness identifications are outside the ken of the lay witness providing the identification, the information the jury needs to assign weight to the eyewitness testimony is likely to be outside the scope of cross-examination. - 24 - any other type of expert testimony. At the first stage of the LeGrand test, the court decides whether the case “turns on the accuracy of eyewitness identifications and there is little or no corroborating evidence connecting the defendant to the crime.” Id. at 452. Only if the court answers both questions in the affirmative does it proceed to the second stage, to determine whether the defense’s proposed expert testimony is “(1) relevant to the witness’ identification of defendant, (2) based on principles that are generally accepted within the relevant scientific community, (3) proffered by a qualified expert and (4) on a topic beyond the ken of the average juror.” Id. But even if the eyewitness identification is central to the People’s case, if the court finds “sufficient evidence” corroborating the identification, it never reaches the second stage. See Santiago, 17 N.Y.3d at 669 (“If . . . sufficient evidence corroborates an eyewitness’s identification of the defendant, then there is no obligation on the part of the trial court to proceed to the second stage of the analysis, because testimony concerning eyewitness identifications is unnecessary.”). A. LeGrand’s Focus on Corroboration Is Both Illogical and an Anomaly in New York Law In general, when determining whether to admit expert testimony on a particular issue, courts consider only the following factors: (1) the relevance of the expert’s opinion to the issues in the case; (2) the jurors’ need for specialized information; (3) the expert’s qualifications; and (4), if the expert is to offer - 25 - scientific testimony, whether the expert’s opinion meets the test set out in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), i.e., that it is based on generally accepted scientific principles. See, e.g., People v. Rivers, 18 N.Y.3d 222, 228 (2011); People v. Wesley, 83 N.Y.2d 417, 422 (1994); People v. Allweiss, 48 N.Y.2d 40, 50 (1979). When it comes to the admissibility of expert testimony on the reliability of eyewitness identifications, however, LeGrand added a threshold hurdle – the assessment of the presence or absence of corroborating prosecution evidence – seen nowhere else in New York law. As a result, expert testimony that is relevant, beyond the knowledge of the typical juror, and generally accepted in the scientific community – that is, expert testimony that would be admissible if it pertained to any other topic – will still be excluded if “sufficient” other evidence corroborates the eyewitness identification at issue. There is simply no reason to distinguish the testimony of an eyewitness identification expert from that of any other type of expert, and no valid reason to impose a “little or no corroboration” requirement before such testimony will be allowed. To begin with, the presence of corroborating prosecution evidence – notably, the “sufficiency” of which is being determined by the judge, not the constitutionally mandated factfinder, the jury – is analytically unrelated to the - 26 - potential usefulness of expert testimony.8 Further, the only rationale this Court has articulated for the LeGrand rule is that it promotes efficiency in criminal trials, by avoiding the risk of juror confusion. In People v. Oddone, 22 N.Y.3d 369, 379 (2013), the Court noted that although “[c]ourts do not normally exclude relevant evidence merely because the case against the defendant is strong,” eyewitness reliability is a “collateral issue” and expert testimony on the subject “can be a harmful distraction.” But this type of scientific expert testimony can always be said to be “collateral,” i.e., it is by definition not fact evidence, and it may be admissible because useful to the jury in helping it evaluate the import of the factual evidence and testimony in the case. For this reason, the proponent of the testimony is required to make such a showing – that it is relevant, probative and potentially helpful to a lay jury. The purpose of avoiding jury confusion can be achieved in the manner courts routinely employ with respect to other proffered expert testimony (indeed, with respect to all proffered evidence), i.e., by assessing relevance and weighing probative value against prejudicial impact. This commonplace evidentiary analysis is designed precisely to minimize jury confusion and allow only evidence that would be helpful. See People v. Lee, 96 N.Y.2d 157, 162 (2001) (when determining the admissibility of expert testimony, 8 Indeed, as developed further below, precluding relevant and probative expert evidence based upon an assessment, by the judge, of the strength of the prosecution’s case, raises serious constitutional concerns. - 27 - the trial court fundamentally assesses whether the proffered testimony “would aid a lay jury in reaching a verdict”) (internal quotation marks and citation omitted).9 Expert testimony on eyewitness identifications appears to be the only expert testimony in New York that may be excluded – even if probative and potentially helpful to the fact-finder – solely on the ground that the prosecution has presented other corroborating evidence of the defendant’s guilt. But this is more than just an apparent outlier in the evidence rules. In the criminal context, New York law takes care to require corroboration for the protection of defendants, where the prosecution’s evidence is deemed potentially problematic standing alone. See, e.g., N.Y. Penal Law § 210.50 (in a perjury prosecution, “falsity of a statement may not be established by the uncorroborated testimony of a single witness”); N.Y. Crim. Proc. Law § 60.50 (“A person may not be convicted of any offense solely upon evidence of a confession or admission made by him without additional proof that the offense charged has been committed.”); id. § 60.22 (“A defendant may not be convicted of any offense upon the testimony of an accomplice unsupported by corroborative evidence tending to connect the defendant with the commission of 9 Even in Oddone, this Court acknowledged that “there are cases in which it is unfair to deprive the jury of expert testimony about the reliability of eyewitness observations.” 22 N.Y.3d at 379. As has been shown by the numerous wrongful convictions described above, the universe of such cases is not limited to those in which the identification stands alone as evidence of the defendant’s alleged guilt and is not accompanied by any alleged corroborating evidence. - 28 - such offense.”); id. § 60.20(3) (“A defendant may not be convicted of an offense solely upon unsworn evidence [of a child witness]”). LeGrand turns this practice on its head, effectively using corroborating evidence as a sword against defendants, depriving them of the ability to present expert testimony that could be helpful to their case because other evidence may tie them to the crime. In light of the substantial body of scientific evidence on the unreliability of eyewitness identifications, state supreme courts that in recent years have had occasion to consider their rules on eyewitness identification expert testimony have typically liberalized them. For example, the Connecticut Supreme Court flatly rejected the notion that a trial court may exclude otherwise admissible expert testimony on eyewitness identifications when the identification is corroborated by other evidence of the defendant’s guilt: [W]e do not believe that a defendant should be precluded from presenting such testimony merely because the state has presented other evidence of guilt that the jury reasonably could credit. Broadly speaking, when the identity of the perpetrator is disputed and the state seeks to use eyewitness testimony to identify the defendant as the perpetrator, the defendant should be permitted to adduce relevant expert testimony on the fallibility of the eyewitness’ identification, at least in the absence of an adequate substitute for the testimony, such as comprehensive and focused jury instructions. A contrary rule would unfairly restrict the defendant’s opportunity to mount a defense. - 29 - State v. Guilbert, 306 Conn. 218, 263 (2012). Similarly, in People v. Lerma, 2016 IL 118496, at *6 (Ill. Jan. 22, 2016), the Illinois Supreme Court overruled its earlier case law, which had “allowed for but expressed caution toward the developing research concerning eyewitness identifications,” with the result that exclusion of such testimony had been the common practice. The Court stated that “today we are able to recognize that such research is well settled, well supported, and in appropriate cases a perfectly proper subject for expert testimony,” and held that trial courts should simply assess whether proffered testimony is relevant and appropriate. See also State v. Carr, 300 Kan. 1, 226 (Kan. 2014) (overturning blanket rule that expert testimony on the reliability of eyewitness identification should not be admitted at trial in favor of new rule that judge should evaluate in each case whether proffered expert testimony will be helpful to the jury); Commonwealth v. Walker, 92 A.3d 766, 789-90 (Pa. 2014) (overturning rule that automatically barred expert testimony regarding eyewitness identification in favor of rule permitting such testimony if it is relevant and satisfies the Frye “general acceptance” test); National Academy of Sciences, Identifying the Culprit: Assessing Eyewitness Identification 94 (2014) (“NAS Report”) 39-40 (“trend is toward greater acceptance of expert testimony regarding the factors that may affect eyewitness testimony”). - 30 - B. LeGrand Violates the Constitutional Guarantee that a Defendant Must Be Permitted a Meaningful Opportunity to Present a Complete Defense Although “state and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials,” this latitude has limits. United States v. Scheffer, 523 U.S. 303, 308 (1998). “Whether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense.” Crane v. Kentucky, 476 U.S. 683, 690 (1986) (internal quotation marks and citations omitted). Evidence rules that “infringe[ ] upon a weighty interest of the accused” and are “arbitrary or disproportionate to the purposes they are designed to serve” abridge this constitutional right and may not stand. Scheffer, 523 U.S. at 308, 330 (citations omitted). In Holmes v. South Carolina, the Supreme Court applied this analysis and struck down a South Carolina evidence rule that prohibited a defendant from introducing proof of third-party guilt if the prosecution had introduced strong evidence of the defendant’s guilt. 547 U.S. 319 (2006). The Court found that South Carolina’s rule did not rationally serve the purpose it was designed to promote (focusing the trial on central issues by excluding peripheral evidence), and explained that, “[j]ust because the prosecution’s evidence, if credited, would - 31 - provide strong support for a guilty verdict, it does not follow that evidence of third party guilt has only a weak logical connection to the central issues in the case.” Id. at 330 (emphasis in original). Moreover, the rule required exclusion of evidence of third-party guilt, where “the prosecution’s case [wa]s strong enough, . . . even if it would not pose an undue risk of harassment, prejudice, or confusion of the issues.” Id. at 329. Like the rule in Holmes, the LeGrand rule impermissibly infringes upon a defendant’s constitutional right to present a defense, and is “disproportionate to the purposes [it is] designed to serve.” As in Holmes, just because evidence corroborates an eyewitness identification of a defendant, it does not follow that expert testimony is not probative and helpful to the jury’s assessment of the identification and, ultimately, of the defendant’s guilt. The corroboration-based rule will in many cases result in the exclusion of expert testimony that is relevant, probative, and useful to a jury. And the rule goes well beyond what is needed for the purpose: The usual rules of evidence, which govern the admissibility of any other type of expert testimony, are sufficient to enable a court to decide the admissibility of eyewitness expert testimony. In sum, LeGrand’s gateway corroboration inquiry requires a court to assess the strength of the prosecution’s case before determining whether to allow a defendant to present relevant and probative evidence. Excluding defense evidence - 32 - in this fashion is precisely what Holmes forbids. In People v. Santiago, then Associate Justice James McGuire, concurring in the First Department’s affirmance of defendant’s conviction on harmless error grounds, described the constitutional problem created by LeGrand: Deciding this case on harmless error grounds obviates the need to wrestle with constitutional questions raised by Holmes v. South Carolina, (547 U.S. 319 [2006]). There, the question was “whether a criminal defendant’s federal constitutional rights are violated by an evidence rule under which the defendant may not introduce proof of third-party guilt if the prosecution has introduced forensic evidence that, if believed, strongly supports a guilty verdict” (id. at 321). The Court unanimously ruled that the evidence rule was unconstitutional, explaining that “[t]he point is that, by evaluating the strength of only one party’s evidence, no logical conclusion can be reached regarding the strength of contrary evidence offered by the other side to rebut or cast doubt” (id. at 331). LeGrand, of course, does not hold that the testimony of a defense expert is inadmissible where the prosecution’s evidence can be regarded as strong (i.e., supported by more than “a little ... corroborating evidence connecting the defendant to the crime”). But LeGrand does hold that if the identification testimony adduced by the prosecution is sufficiently corroborated, a trial court does not abuse its discretion when it excludes the testimony of the defense expert. Whether that holding is consistent with Holmes v. South Carolina is unclear. Nor is it clear whether a rule that permits the exclusion of the testimony of a defense expert when the prosecution has presented proof of multiple and independent identifications (or when the identification testimony presented by the prosecution is considered sufficiently reliable) would pass muster under Holmes v. South Carolina. One significant question, however, comes into focus when it is considered that under LeGrand criminal defendants are entitled to an opportunity to persuade the jury of a reasonable doubt through the testimony of an expert when there is “little or no corroborating evidence” connecting them to the crime. Can a defendant be deprived of that opportunity whenever the prosecution’s evidence is marginally stronger, when there is some - 33 - incremental evidence so that there is more than a “little” corroborating evidence? People v. Santiago, 75 A.D.3d 163, 177 n.4 (N.Y. App. Div. 2010) (McGuire, J. concurring). Amicus submits that the answer is no. This Court should go further, eliminating any constitutional risk by holding that no corroboration analysis is to be undertaken and that, instead, trial judges should employ the traditional evidentiary analysis applicable to proffered expert testimony generally. See Patterson v. United States, 37 A.3d 230, 250 (D.C. 2012) (Glickman, J., concurring) (“a rule of evidence permitting the trial judge to bar a defendant from introducing relevant and otherwise admissible expert testimony [on the fallibility of eyewitness identifications] merely because the judge perceives the prosecution’s proffered opposing evidence to be strong would raise a serious constitutional question . . . [concerning] the defendant’s . . . right to a meaningful opportunity to present a complete defense”). C. This Case Illustrates the Perils of the LeGrand Rule This case well illustrates how LeGrand’s corroboration component can lead to the exclusion of probative, relevant evidence that would normally be admissible and critical to a defendant’s case. The prosecution’s case against McCullough was weak and turned on the accuracy of Johnson’s identification of McCullough as the shooter. Moreover, the identification was itself - 34 - problematic. Johnson initially expressed uncertainty, and his identifications of McCullough were inconsistent with one another. Johnson first chose McCullough from a photo array as the shooter, whom he had previously described as one of the two “dark skinned” and “shorter” men who entered the barbershop. Then, in a live lineup two months later, Johnson identified McCullough as the lighter skinned “last guy who came into the barber shop.” (A3). That the witness identified McCullough as matching these materially different descriptions further undermines the likely accuracy of his identification.10 10 These infirmities associated with Johnson’s identification of McCullough underscore the prejudicial impact of depriving the jury of probative and relevant expert information on the impact of stress, weapon focus and event duration on the reliability of eyewitness identifications. Indeed, each of these problematic aspects of the identification is reflected in the scientific literature as having an negative impact on identification reliability. First, research shows that identifications made with lower levels of uncertainty (as was Johnson’s initial identification of McCullough) are correlated with less accurate identifications. See, e.g., John T. Wixted, et al., Estimating the reliability of eyewitness identifications from police lineups 304-09, (Jan. 12, 2016), http://www.pnas.org/cgi/doi/10.1073/pnas.1516814112. Second, features of Johnson’s multiple identifications of McCullough are among those known to increase the risk of misidentification, including non-blind administration and the absence of prophylactic pre-lineup instructions. See, e.g., Gary Wells, et al., Eyewitness Identification Procedures: Recommendations for Lineups and Photospreads, 22 Law & Hum. Behav. 603, 612-27 (1998). Third, research shows that multiple identification procedures in which the suspect is the only person appearing across such procedures result in reduced accuracy and more erroneous identifications. Young v. Conway, 698 F.3d 69, 79 (2d Cir. 2012) (citing Ryan D. Godfrey & Steven E. Clark, Repeated Eyewitness Identification Procedures: - 35 - The only other evidence tying McCullough to the crime was the testimony of Harvey, a stranger to McCullough, who repeatedly lied to the police (as he later was forced to acknowledge), and who even disregarded the oath he swore prior to his guilty plea allocution. (A3; A902 (even the prosecutor, in his summation, described Harvey as “a liar”)). The Court nonetheless denied McCullough’s motion to present testimony from Dr. Nancy Franklin, an expert on eyewitness identifications. The Court applied LeGrand’s stage one corroboration test, found that Harvey’s testimony sufficiently corroborated Johnson’s identification, and concluded on this basis that the “assistance of an expert witness on identification is not needed,” without ever determining whether Dr. Franklin’s proffered testimony was probative or relevant to McCullough’s defense. (A827). Absent the LeGrand rule, the trial court would have considered whether Dr. Franklin’s testimony was 1) relevant to Johnson’s identification of McCullough; 2) based on principles that are generally accepted within the relevant scientific community; 3) proffered by a qualified expert; and 4) on a topic beyond the knowledge of the average juror. The testimony easily qualifies. Memory, Decision Making and Probative Value, 34 Law & Hum Behav. 241, 241, 256 (2010)). - 36 - i. Dr. Franklin’s testimony was both relevant and based on scientifically accepted principles As to the first two factors, Dr. Franklin’s proffered testimony addressed research findings about the effects of stress, weapon focus, and event duration on eyewitness memory and accuracy – each a variable that was present during the viewing of the crime by Johnson, the sole potentially credible eyewitness, and each a variable proven by robust scientific research to have an effect on an individual’s visual perception and memory. Scientists analyzing the nature of memory have focused on its three discrete stages: (i) the acquisition or encoding stage, when a witness perceives an event and information is thereby entered into the memory system; (ii) the retention or storage stage, the period between acquisition and the witness's attempt to recall the information; and (iii) the retrieval stage, when the witness attempts to recall the stored information. See Elizabeth F. Loftus et al., Eyewitness Testimony: Civil and Criminal § 2-2, at 12-13 (4th ed. 2007). “This three-stage analysis is central to the concept of human memory,” and “[p]sychologists who conduct research in this area try to identify and study the important factors that play a role in each of the three stages.” Id. at 13. Those psychologists have identified in particular numerous factors that may adversely affect an eyewitness's memory at each stage. At the acquisition stage, the stage most relevant to the identifications at issue in this case, memory is subject to event-specific variables (such as the duration of the event and - 37 - the presence of violence) and witness-specific variables (such as the distance between the witness and the perpetrator, physiological conditions such as intoxication, and the experience of high stress during the incident). Id. These variables are known as “estimator variables” and they are not within the control of the criminal justice system. Estimator variables include stress level, the presence of weapons and the duration of time, each of which is relevant to the only credible witness’s viewing of Mr. McCullough. Contrary to the popular belief that a stressful event is seared into the memory of a crime victim, the fact is that high levels of stress have been shown to induce a defensive mental state that results in a diminished ability to accurately process and recall events. Kenneth A. Deffenbacher, et al., A Meta-Analytic Review of the Effects of High Stress on Eyewitness Memory, 28 Law & Hum. Behav. 687, 699 (2004).11 This mental state leads to inaccurate identifications. See id. at 699. Indeed, a review of 16 studies involving 1727 participants found that accurate identifications decreased 22.2% under high stress conditions. Id. at 692, 694. In addition, social science research indicates that the presence of a weapon at the scene of a crime “can impair visual perception and memory of key features of the crime event.” NAS Report at 93. As the research indicates, a 11 See also NAS Report at 94 (“Under conditions of high stress, a witness’ ability to identify key characteristics of an individual’s face (e.g., hair length, hair color, eye color, shape of face, presence of facial hair) may be significantly impaired.”). - 38 - weapon “will draw central attention, thus decreasing the ability of the eyewitness to adequately encode and later recall peripheral details.” Nancy Mehrkens Steblay, A Meta-Analytic Review of the Weapon Focus Effect, 16 Law & Hum. Behav. 413, 414 (1992). Indeed, an analysis of 19 weapon-focus studies involving 2082 identifications found that, on average, identification accuracy decreased 10% when a weapon was present. Id. at 415-17. Finally, research indicates that short exposure durations lead to remarkably high rates of false identifications. See Brian H. Bornstein, et al., Effects of Exposure Time and Cognitive Operations on Facial Identification Accuracy: A Meta-Analysis of Two Variables Associated with Initial Memory Strength, 18 Psych., Crime, and L., 473-90 (2012).12 Here, Johnson’s claimed observation of McCullough occurred during a highly stressful situation in which Johnson witnessed his friend being pistol- whipped, shot, and killed, and was himself pistol-whipped, threatened at gunpoint and nearly killed. According to Johnson, when the gun was placed against his head, he closed his eyes and braced for the worst. He heard a clicking sound and 12 This Court’s recent decision in People v. Berry, 2016 WL 1190397 (N.Y. Mar. 29, 2016) is not to the contrary. In Berry, the Court concluded that it was not an abuse of discretion for the trial judge to disallow expert testimony on the impact of stress on the reliability of eyewitness identification. The trial court had permitted expert testimony on weapon focus and the lack of correlation between witness confidence and accuracy, but not on the impact of event stress because, “based on [the court’s] research, that topic was not generally accepted in the scientific community.” In fact, the subject matter is well accepted, but the defense had failed to submit any evidence showing that to be the case. - 39 - the shooter ran out of the shop. For the majority of the short time that the perpetrators were present in the barbershop, Johnson was lying face-down on the floor. Johnson’s recollection of the perpetrators would likely have been affected by the stress and shock he was experiencing as well as by the limited time he actually had to observe the perpetrators during the commission of the crime. Moreover, not only was Dr. Franklin precluded from testifying to the effects that these estimator variables can have on an individual’s capacity to accurately process and recall events: The prosecution argued to the jury in summation that Johnson’s identification was reliable and should be credited because of the “concentrated awareness” he would have experienced during the armed robbery and murder – an argument fundamentally at odds with the accepted scientific findings. ii. Dr. Franklin’s testimony was on a topic beyond the knowledge of the average juror Although scientific research regarding the reliability of eyewitness identification is widely accepted by courts, the same body of research demonstrates that a significant percentage of jurors are unfamiliar with many of the factors that undermine the reliability of an identification, including many of those at issue here. Extensive surveys of lay understanding of eyewitness issues show a “discrepancy between lay understanding of factors affecting eyewitness accuracy and what decades of empirical research has reliably demonstrated to be true;” “jurors . . . exhibit important limitations in their knowledge of eyewitness issues, their - 40 - knowledge diverges significantly from expert opinion, and it is not high in overall accuracy.” Sarah L. Desmarais and J. Don Read, After 30 Years, What Do We Know about What Jurors Know? A Meta-Analytic Review of Lay Knowledge Regarding Eyewitness Factors, 35 Law & Hum. Behav. 200-10 (2011). Even when jurors do understand some of the factors relevant to eyewitness identifications, they do not know how to apply their understanding to the interpretation of evidence. Roy S. Malpass, et al., The Need for Expert Psychological Testimony on Eyewitness Identification, in Expert Testimony on the Psychology of Eyewitness Identification 3, 9 (Cutler ed., 2009). This Court has repeatedly acknowledged that factors affecting witness perception and memory in the context of eyewitness identifications are not only beyond the ken of the average juror, but are actually counterintuitive to a lay person. See, e.g., Santiago, 17 N.Y.3d at 672; People v. Abney, 13 N.Y.3d 251, 268 (2009). iii. Dr. Franklin is a qualified expert Dr. Franklin, a well-recognized professor of psychology, has routinely been deemed a qualified expert by New York courts. See, e.g., People v. Norstrand, 35 Misc. 3d 367, 372 (S. Ct. Mon. Cty. 2011) (the same trial court in a different case ruled that “Franklin is an expert in her field [with] the requisite scientific background and knowledge to testify as an expert in the field of eyewitness identification”). CONCLUSION Given that the evidence against McCullough was weak and the prosecution,s case turned on the accuracy of Johnson's .iclenti ft cation, expert testimony was crucial to McCullough's ability to present a complete defense and to ensure the reliability of the jury 's verdict. This Court should affirm the !\ppellate Division decision reversing the conviction. Moreover, for the reasons stated, amicus respectfully submits that the Court should reconsider LeGrand and hold that proffered expert testimony on the reliabiJity of eyewitness exam inations should be evaluated just as any other expert's proposed testimony, without regard to the presence or absence of corroborating prosecution evidence. Dated: New York, NY April 22, 2016 THE INNOCENCE PROJECT, lNC. Barry C. Scheck Karen /\.. Newirth 40 Worth Street, Suite 701 New York, New York 10013 Telephone: (212) 364-5340 - 41 - Respectfully submitted, KRAMER LEVIN NAFT!\LIS & PRANK.EL LLP By• ~ David S. Frankel Lynda M. Tricarico Kaavya Viswanathan 1177 A venue of the Americas New York, NY 10036 (212) 715-9100 Fax: (212) 7 15-8000 Counsel for Amicus Curiae The Innocence Project, Inc.