Saturday, August 13, 2005

Daubert and Cross-Racial Identifications

A white eyewitness identifies a black defendant in a criminal trial. Should defense counsel be able, in closing argument, to appeal to the jurors' putative "common knowledge" that cross-racial identifications are less reliable? Or should such an argument in closing be barred unless there is record evidence (e.g., expert testimony) to support it?

Maryland's highest court has just issued a puzzling 4-3 opinion on this subject, holding that it was error to disallow closing argument on cross-racial identification where the identifying witness claimed to be "extremely good with faces." See Smith v. State, No. 116 (Md. Aug. 12, 2005). The witness's identification was sole significant evidence against the defendants, and no expert evidence on cross-racial identifications was offered.

The Court of Appeals opinion begins by canvassing the social scientific literature on the issue, concluding that although most research seems to support the existence of some differential between the accuracy of same-race and cross-racial identifications (especially as regards identifications of blacks by whites), there is no clear consensus on the strength of the effect. For that reason, says the opinion, "we cannot state with certainty that difficulty in cross-racial identification is an established matter of common knowledge."

So far, so good. If indeed it is not a matter of jurors' common knowledge that cross-racial i.d.'s are less reliable, it should follow, seemingly, that the inference cannot permissibly be argued in closing, absent record evidence to support it. But the Court of Appeals reaches the opposite conclusion in the opinion's very next sentence: "Here, however, the victim's identification of the defendants was anchored in her enhanced ability to identify faces."

The question is, how does the witness's claim to be an above-average identifier of faces in general open the door to any inference of a cross-racial differential? We're at a loss. (We can see how it would open the door to cross-examination on the issue, but that's another story.)

We're not saying the result is incorrect. Maybe criminal defense counsel should have wide latitude in closing arguments, and the theory may enjoy enough empirical support to warrant a per se rule permitting such arguments without reliance on expert testimony. Maybe expert testimony would just foster uncertainty and inconsistency from case to case.

But we don't follow the opinion's reasoning at all.


Ted writes ...

The one consistency about decisions regarding expert evidence regarding the reliability of eyewitness testimony is that the opinions don't really know what to do about it. Our judicial system is based on the idea that one can reliably test the credibility of percipient witnesses through direct and cross-examination, and the scientific work of Loftus et al. fairly consistently demonstrates that this premise is false. Clever attorneys seek to educate the jury to be more skeptical about eyewitness testimony, but to permit this unreservedly is to throw the entire system into doubt. I don't claim to have an answer myself. (Hmm. Maybe this is a good panel discussion.)

But I think what we're seeing with this opinion is a sense that there was a great unfairness committed by a witness claiming to be especially good at recognizing faces, and permitting the expert testimony balances out the unfairness. Unfortunately, this sort of case-by-case reasoning doesn't give much guidance to lower courts on the issue of whether they're committing error--and we can start to expect to see collateral challenges complaining of ineffective assistance for failure to open this Pandora's box.

5:25 PM  

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Fed. R. Evid. 702: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.