Friday, September 01, 2006

Third Circuit finds reversible error in exclusion of expert testimony regarding reliability of eyewitness identification

In United States v. Brownlee, Case No. 04-4134 (3d Cir. July 18, 2006), the defendant was convicted of carjacking, use of a firearm in relation to a federal crime of violence, and possession of a firearm by a convicted felon. His convictions were based primarily on eyewitness identifications and inculpatory statements that he made to a law enforcement officer prior to being informed of his Miranda rights. The Third Circuit remanded the case for a new trial, finding that the District Court erred in excluding the expert witness testimony and in admitting the inculpatory statements.

At a pretrial Daubert hearing, the District Court excluded defendant's proffered expert testimony on the reliability of show-ups in relation to other identification techniques, the peculiar suggestiveness of the show-up in this case, confidence malleability, post-event suggestiveness, and the low correlation between eyewitness confidence and eyewitness accuracy. The Third Circuit held that the science underlying the type of expert testimony that defendant wanted to present on eyewitnesses is well-established. It further held that the expert testimony would have been helpful to the trier of fact and should have been admitted because the Government relied in part on the confidence of the eyewitnesses to bolster its case against defendant, and the defendant was arguing a theory of mistaken identity despite there being no "physical scientific means" by which defendant could undermine the eyewitness identifications or otherwise inform the jury that eyewitness confidence may not be correlated with accuracy. The Third Circuit then held that the erroneous exclusion of the expert testimony was not harmless, and remanded the case for a new trial in which the defendant should be permitted to present expert testimony on all of the proffered topics of expert testimony.

The Third Circuit also found reversible error in the District Court's admission of inculpatory statements made by the defendant in response to questions posed by a law enforcement officer before the defendant heard his Miranda rights. At the time he was questioned, the defendant was handcuffed and locked in the back of a police cruiser. The law enforcement officer (with whom the defendant was acquainted) asked defendant questions in a conversational manner. The answers to the questions would establish that the defendant had been driving the carjacked car, present at the scene of the crash of the car, and in possession of a firearm found at the scene of the crash. The Third Circuit found that even though the law enforcement officer may not have actively intended to elicit inculpatory statements, the defendant was subjected to custodial interrogation under these circumstances. It then held that the error was not harmless because, given the peculiar probative force of confessions, the inculpatory statements likely had a profound influence on the jury's decision.

Finally, the Third Circuit found that the District Court had not erred when it admitted eyewitness identifications that were the result of unduly suggestive show-ups. The Third Circuit found that while the eyewitnesses (1) identified the defendant while he was either handcuffed in the back of a police car or handcuffed and surrounded by police while standing next to a police car; (2) were permitted to see and hear one another identifying the defendant; and (3) were able to give only general descriptions of the suspect, there were sufficient indicia of reliability associated with the eyewitness's identifications that the admission of the identifications was not a violation of the defendant's due process rights. Rather, the flaws in the eyewitness's identifications were for the jury to consider when weighing the eyewitness testimony.

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The District Court's indication of the sentence it would impose before the defendant allocuted was not reversible plain error.

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