USA v. Smith et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
JOHN PEARL SMITH, II,
Defendant.
Case No. 3:16-cr-00086-SLG-1
ORDER REGARDING MOTION TO PRECLUDE EYEWITNESS
IDENTIFICATION EXPERT
Before the Court at Docket 717 is the government’s Motion In Limine to
Preclude Expert Testimony Concerning Eyewitness Identification. Defendant John
Pearl Smith, II responded in opposition at Docket 820. The government replied at
Docket 850.
The defense intends to challenge an eyewitness’s identification of Mr. Smith
in a photographic lineup.1 Specifically, the defense has given notice that it intends
to call Dr. Geoffrey Loftus as an expert in “eyewitness identification” who “would
testify about ‘best practices’ for conducting eyewitness identifications and the
differences between ‘best practices’ and the identifications that occurred in this
case.”2 The government’s instant motion seeks an order precluding the defense
1 Docket 820 at 1–2.
2 Docket 717 at 2–3 (quoting defense letter to government).
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“from offering or introducing any expert testimony concerning eye-witness
identification and specifically the noticed testimony of defense expert Geoffrey
Loftus.”3
As a preliminary matter, the Court notes that neither party has set forth Dr.
Loftus’ proposed testimony nor presented any argument as to whether such
testimony meets the standards set forth in Federal Rule of Evidence 702 or
Daubert v. Merrell Dow Pharmaceuticals, Inc. and its progeny.4 Instead, the
parties have focused on whether eyewitness identification experts are
categorically permitted or prohibited.
The parties’ positions can be quickly summarized: The government
contends that the Ninth Circuit “has repeatedly held that expert testimony as to
eyewitness identification generally does not help the jury,” that the Ninth Circuit
“has recognized that expert testimony regarding eyewitness identification is
‘strongly disfavored by most courts,’” and that “[t]his is not an ‘eye-witness’
identification case.”5 Mr. Smith responds that the government’s summation of the
3 Docket 717 at 2.
4 509 U.S. 579, 592–93 (1993) (“Faced with a proffer of expert scientific testimony, . . . the trial
judge must determine at the outset, pursuant to Rule 104(a), whether the expert is proposing to
testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a
fact in issue. This entails a preliminary assessment of whether the reasoning or methodology
underlying the testimony is scientifically valid and of whether that reasoning or methodology
properly can be applied to the facts in issue.” (footnotes omitted)). Thereafter, a court must
apply Rule 403 to determine whether the probative value of the evidence is substantially
outweighed by the danger of unfair prejudice. Id. at 595.
5 Docket 717 at 3–4 (citing United States v. Langford, 802 F.2d 1176 (9th Cir. 1986) and
Schroeder v. Premo, 712 Fed. Appx. 638 (9th Cir. 2017) and citing and quoting United States v.
Labansat, 94 F.3d 527 (9th Cir. 1996)).
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Ninth Circuit’s position on eyewitness-testimony experts is “misleading” and
outdated and that eyewitness-identification procedures are recognized as being
based in scientific knowledge.6
The Court has reviewed the Ninth Circuit’s opinions related to eyewitness-
testimony experts and reaches two conclusions based on this review: First, the
Ninth Circuit has not set an almost categorical bar on such testimony as the
government seems to maintain; the determination as to whether eyewitness-
identification expert testimony should be admitted is particular to the facts of the
individual case. Second, the Ninth Circuit has recognized that eyewitness
identification has become a focus of academic and scientific study.
As the government recognizes, United States v. Rincon (Rincon II) appears
to be the leading case on this issue in the Ninth Circuit.7 Rincon II examined the
proposed expert testimony under the Daubert standard and concluded that the
district court had not abused its discretion in excluding the testimony.8 Notably,
however, the Ninth Circuit “emphasize[d] that the result that [it] reach[ed] in this
case is based upon an individualized inquiry, rather than strict application of the
past rule concerning expert testimony on the reliability of eyewitness identification.
Our conclusion does not preclude the admission of such testimony when the
6 Docket 820 at 4–6 (discussing case law).
7 Docket 717 at 4 (citing Rincon II, 28 F.3d 921 (9th Cir. 1994)).
8 Rincon II, 28 F.3d at 923.
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proffering party satisfies the standard established in Daubert . . . .”9 In its most
recent, albeit unpublished, opinion on the issue, the Ninth Circuit found that the
district court had not abused its discretion in excluding eyewitness-identification
expert testimony, but again stressed that its conclusion was reached “[u]nder the
particular facts of this case.”10
In another recent unpublished decision, the Ninth Circuit has suggested that
expert testimony regarding eyewitness identification has become more
scientifically based, recognizing that “[t]here is now a robust body of scientific
research and evidence that highlights the unique perils of eyewitness identification
testimony as ‘one of the greatest causes of erroneous convictions.’”11
This Court will not categorically exclude expert testimony regarding
eyewitness identification, as such an exclusion is not supported by Ninth Circuit
precedent.12 However, the Court will not rule at this time on the admissibility of Dr.
Loftus’ testimony because the parties have not provided the Court with sufficient
information.
9 Id. at 926 (internal citation omitted).
10 United States v. Cruz-Ramirez, 782 Fed. Appx. 531, 538 (9th Cir. 2019).
11 United States v. Valencia-Cortez, 769 Fed. Appx. 419, 422 (9th Cir. 2019) (quoting Dennis v.
Sec’y, Pa. Dep’t of Corr., 834 F.3d 263, 313–45 (3d Cir. 2016)). Cf. United States v. Felinciano,
Case No. CR-08-0932-01PHX-DGC, 2009 WL 3748588, at *3 (D. Ariz. Nov. 6, 2009) (“There is
an increasing body of academic literature concerning the reliability of eyewitness testimony.”).
12 The government repeatedly asserts that “[t]his is not an ‘eye-witness’ identification case.”
Docket 717 at 3; Docket 850 at 2–3. Although the government may be correct that most of the
evidence implicating Mr. Smith is not eyewitness identification evidence, it appears undisputed
that the government intends to present the identification of Mr. Smith by an eyewitness.
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In light of the foregoing, IT IS ORDERED that the motion at Docket 717 is
DENIED.
DATED this 30th day of October, 2020, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
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