In this criminal case, defendant was convicted, after a jury trial, of placing a six inch knife to the throat of a thirteen year old girl and then ripping the chain off her neck. The victim was the only eyewitness to the crime, which lasted only seconds. No other evidence, aside from the victim’s later identification, connected the defendant to the crime. The defendant’s principal contention on appeal was that the now retired trial judge abused his discretion by denying his application to elicit expert testimony with respect to the reliability of eyewitness identifications without first holding a hearing.
A Nassau County Criminal attorney said that in June 2005, a 13-year-old girl was on her way home from school, was descending well-lit stairs into the subway station when a man whom she did not know approached her and asked for “some change.” This man stood face-to-face with her, about two feet away. She initially did not think he intended to harm her and was not afraid. Looking him squarely in the face, she said she had no change.
A Nassau County Criminal lawyer said that after the victim “took a couple of steps forward,” the stranger wheeled in front of her, placed a knife with a six-inch blade and “a big curve on the end” near her throat, and asked her “a couple of times” to hand over her necklace, a gold chain with a locket. As this man stood close by her, she was “looking at his face”; she was “really scared” and “didn’t know what to do.” When she refused his demand, screaming “No,” he ripped the chain off her neck, and fled up the stairs. This entire encounter was fleeting.
She continued down the stairs into the subway station and reported the robbery to a token clerk. At about 4:30 P.M., a Detective interviewed her at his desk in the transit station house. According to the Detective, the girl seemed frightened; she told him that she had been robbed at knife-point by a stranger, a black man in his thirties who was over six feet tall, had “pinkish” lips, and wore a short-sleeved blue shirt and a blue bandana.
Her physical description of the robber and how he carried out the crime prompted Detective to suspect the defendant: he was familiar with defendant on account of his arrest for an earlier subway-related robbery. When the detective returned, he told her that he “was going to show her a group of photos and, if she recognized anyone, to let him know which one and what number.” Pointing out defendant’s photograph, she responded, “that’s him, number six.”
In June 2005, the Detective telephoned the victim at her home to ask her to view a lineup. Upon arrival at the station house, she waited in an office with the door shut while the lineup was being put together. From the office, she could not see defendant, who was in a “cell area” on the other side of the building, or any of the “fillers” selected to participate in the lineup. Once the lineup was assembled, the Detective escorted her to the viewing room, where they were joined by another police officer and defendant’s attorney. She identified defendant, in position number four (there were six men in the lineup); she was “sure” that he was the man who had asked her for change and then robbed her at knife-point.
Defendant was arrested and charged with one count of robbery in the first degree (Penal Law § 160.15[3]). At the subsequent jury trial, She testified on direct examination that the man who robbed her had a dark brown complexion, “puppy dog eyes,” and “pinkish-purplish lips”; she did not remember whether he was wearing anything over his head, but thought his shirt was blue. Defense counsel cross-examined Detective about the details of victim’s initial description of the robber; the Detective about the lineup, eliciting testimony that he let the victim know ahead of time that a suspect was included (which she contradicted, saying that the detective told her only that he wanted her to view “a couple of people”); and victim about the lineup and the appearance of the knife.
The Court finds the testimony given by the doctors to be credible and makes the following conclusions of law with respect to the four factors that were the subject of the hearing. The proponent of the disputed expert testimony, in this criminal case the defendant, has the burden of proving that the four factors about which he seeks to introduce expert testimony are generally accepted within the relevant scientific community.
This Court finds that the defendant has met his burden of showing that the event stress phenomenon is generally accepted as reliable in the community of psychologists who study and conduct research in the eyewitness identification field. The 2004 peer-reviewed meta-analysis, which analyzed 27 independent laboratory studies involving more than1700 participants, concluded that high levels of stress impair identification accuracy. Likewise, the 2004 peer-reviewed Morgan Study of 500 active-duty military soldiers, which created a degree of stress akin to that found outside the laboratory, also found that high levels of stress affect identification accuracy.
That event stress is generally accepted as reliable in the field of eyewitness identification is underscored by the number of New York courts that have permitted expert witnesses to testify with respect to this phenomenon.
Other jurisdictions have also permitted expert eyewitness testimony in the area of event stress. Support for the general acceptance of the event stress phenomenon can also be found in studies and legal writings. Eyewitness Identification The study also concluded that laboratory studies have underestimated the impact that stress has on the reliability of eyewitness identification and “that the potential for error associated with eyewitness identification evidence is even greater than laboratory studies have suggested.
The People argue that expert testimony with respect to the event stress phenomenon is inadmissible at trial on the ground that the dynamics of an actual crime scene cannot be recreated in the laboratory. Laboratory results, they argue, showing that stress reduces identification accuracy, are not transferable to identifications made by eyewitnesses to actual crimes. To support this premise, they rely, on testimony from a psychologist who subscribes to the minority view in the scientific community that laboratory research results in the area of eyewitness identification reliability are not transferrable to identifications made by eyewitnesses to actual sex crimes.
Moreover, courts in New York and throughout the country have rejected the claims embodied in Wigmore’s 1909 criticisms of Munsterberg, i.e., that there is insufficient data to support the application of psychological principles to eyewitness identification accuracy and that such data is not applicable to identifications made by eyewitnesses to actual crimes.
The Court finds that the defendant has met his burden of proving that the weapon focus phenomenon is generally accepted as reliable in the relevant scientific community. Significantly, at least two New York courts have held, after conducting hearings, that the weapon focus effect was generally accepted as reliable in the relevant scientific community.
The general acceptance as reliable of the weapon focus phenomenon is also demonstrated by criminal cases from other jurisdictions that have permitted expert testimony in this area.
This Court finds, based upon the doctor’s testimony, the meta-analysis, the case law from New York and other parts of the country, and the additional studies and legal writings with respect to the reliability of the weapon focus effect factor, that the defendant has met his burden under proving that the weapon focus effect is generally accepted as reliable in the scientific community. Thus, the criminal defendant may present expert testimony at trial with respect to the weapon focus phenomenon. The People, if they so choose, are free to call their own expert to rebut the defense expert’s testimony.
The criminal court finds that the defendant has met his burden of proving that the event duration phenomenon is generally accepted as reliable in the relevant scientific community. Both witnesses testified that an eyewitness identification is more likely to be accurate if the eyewitness had a prolonged as opposed to a brief opportunity to view the perpetrator. Moreover, the meta-analysis, which analyzed 128 studies involving approximately 17,000 subjects, thoroughly demonstrated the existence of the event duration phenomenon. The general acceptance of the event duration phenomenon is also shown by the results of the Survey, which found that 81 percent of the respondents found the event duration proposition to be reliable and 93 percent stated that there was a research basis for this phenomenon.
That event duration is generally accepted as reliable in the field of eyewitness identification is also shown by the number of New York courts that have permitted expert witnesses to testify with respect to this phenomenon.
The general acceptance as reliable of the weapon focus phenomenon is also demonstrated by criminal cases from other jurisdictions that have permitted expert testimony in this area.
In a case, holding that defense expert could testify regarding the phenomenon of event duration in that “the time in which the witness is exposed to the perpetrator will positively correlate to the accuracy of the identification” and that m]os eyewitnesses overestimate how much time they had to identify an individual.” holding, inter alia, that trial court abused its discretion by prohibiting defense expert from testifying about the event duration phenomenon.
In criminal case where only evidence connecting the defendant to the charged crimes were eyewitness identifications, trial court abused its discretion by preventing defendant from eliciting expert eyewitness testimony that the accuracy of an identification can be impacted by, inter alia, “overestimation of the duration of the event.”; The scientific studies demonstrate that the reliability of an identification is related to the duration of the witness’s exposure to the perpetrator: while there is no minimum time required to make an accurate identification, a brief or fleeting contact is less likely to produce an accurate identification than a more prolonged exposure.”
Support for the general acceptance in the scientific community of the event duration phenomenon is also shown by other studies and legal writings. The amount of time that a person is in view affects the quality of the eyewitness’ memory of the person and, consequently, the accuracy of the identification attempt.” Moreover, “research indicates, for instance, that eyewitnesses tend to overestimate short temporal durations and this tendency is especially pronounced when the eyewitness is feeling stress or anxiety. Hence, the eyewitness who described his or her view of a culprit lasting two or three minutes may in fact have had the culprit in view for 30-35 seconds.” Study in which participants viewed videotaped reconstruction of a robbery in which the perpetrator’s face could be seen for either 12 seconds or 45 seconds concluded that the rates of misidentification were substantially higher when the participants were limited to viewing the perpetrator’s face for 12 seconds as opposed to 45 seconds.
The People do not seriously dispute the general acceptance of the event duration phenomenon. Rather, they argue that the defendant should be precluded from introducing such testimony as it is within the ken of the average juror. The Court of Appeals, however, has held that “despite the fact that jurors may be familiar from their own experience with factors relevant to the reliability of eyewitness observation and identification it cannot be said that psychological studies regarding the accuracy of an identification are within the ken of the typical juror.”
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