5th Circuit Upholds Exclusion of Testimony on Eyewitness Identification

The Fifth Circuit has issued an unpublished opinion upholding the trial court's exclusion of a psychologist's testimony on sources of error in eyewitness identification. See United States v. McGinnis, No. 05-30317 (5th Cir. Sept. 28, 2006) (Davis, Barksdale, & DeMoss, JJ.).

The panel distinguished between cases where expert testimony affords counterintuitive insights at variance with common myths about memory and perception, versus cases where it merely elaborates on commonsense insights already within the jurors' fund of general knowledge. The panel also said:

Although expert eyewitness identification testimony may be critical when eyewitness testimony makes the entire difference between a finding of guilt or innocence, it obviously becomes considerably less critical when physical evidence of guilt substantiates such testimony.

(Internal quotations omitted.) To the extent that the quoted remark was addressed to the Rule 702 inquiry, it is of dubious consistency with Gen. Elec. Co. v. Joiner, 522 U.S. 136 (1997). In Joiner, the Supreme Court rejected the proposition that the standard of review for rulings on expert evidence should vary depending on whether the ruling under consideration is "outcome-determinative." It is possible, however, that the quoted remark was addressed more to the separate constitutional challenge that the defendant mounted.