M.D. Alabama Notes Split Re whether Eyewitness-Identification Expert Testimony Violates FRE 403

Per U.S. v. Smith, --- F.Supp.2d ----, 2009 WL 1444446 (M.D.Ala. May 26, 2009)

The Eleventh Circuit has not had occasion to address whether eyewitness-identification expert testimony would violate [Federal Evidence] Rule 403, and other circuits have split on this question. The Second, Seventh, and Eighth Circuits have reasoned that eyewitness-identification expert testimony might usurp the jury's role of determining witness credibility, thus causing jurors to be confused and misled regarding their role as the trier of fact. United States v. Lumpkin, 192 F.3d 280, 289 (2d Cir.1999) (holding a district court was within its discretion to exclude an expert who “would effectively have inserted his own view of the officers' credibility for that of the jurors, thereby usurping their role”); United States v. Kime, 99 F.3d 870, 884 (8th Cir.1996) (applying a deferential standard to conclude that “the district court properly recognized the very real danger that the proffered expert testimony could either confuse the jury or cause it to substitute the expert's credibility assessment for its own”); United States v. Curry, 977 F.2d 1042, 1052 (7th Cir.1992) (“the district court's decision to exclude Dr. Loftus' testimony was a proper exercise of its discretion, whether under Rule 702 or Rule 403.”); but cf. United States v. Gallardo, 497 F.3d 727, 733 (7th Cir.2007) (holding that expert testimony on effect of drug abuse on witness memory would “intrude upon the jury's role in assessing witness credibility” only because the defendant had not put forth any evidence to show that the witnesses actually used drugs and that, thus, there was no “factual link” between the expert's testimony and the specific witnesses).

Similarly, in United States v. Rincon, 28 F.3d 921, 923-26 (9th Cir.1994), appellate court affirmed a district court's decision to exclude an eyewitness-identification expert under Rules 403 and 702. The court cautioned, though, that the opinion represents an “individualized inquiry” that “does not preclude the admission of such testimony when the proffering party satisfies the standard established in Daubert by showing that the expert opinion is based upon ‘scientific knowledge’ which is both reliable and helpful to the jury in any given case.” Id. at 926.

In contrast, the Third and Sixth Circuits have ruled that eyewitness-identification expert testimony comports with Rule 403. In United States v. Mathis, 264 F.3d 321, 339-40 (3rd Cir.2001), the court reversed a district court's decision to exclude eyewitness testimony based on Rules 403 and 702. Judge Pollack explained that eyewitness-identification experts who employ “reliable scientific expertise to juridically pertinent aspects of the human mind and body should generally, absent explicable reasons to the contrary, be welcomed by federal courts, not turned away.” Id. at 340. The Sixth Circuit has likewise concluded that a trial court erred in excluding an eyewitness-identification expert under Rule 403, but held that the error was harmless. United States v. Smith, 736 F.2d 1103, 1107 (6th Cir.1984); see also Smithers, 212 F.3d at 316 (finding that eyewitness-identification expert testimony did not violate Rule 403's prohibition against evidence that invites unjustified “delay”).