May 9, 2001

Court Lets Experts Challenge Witnesses' Accuracy in Trials

By JAMES C. McKINLEY Jr.

ALBANY, May 8 - New York State's highest court ruled today that experts' testimony on the reliability of eyewitnesses could be admitted at a trial, a decision that legal scholars said could have a major impact on criminal prosecutions in the state.

For years, defense lawyers in New York have been trying to call as witnesses experts who could tell juries about a large body of scientific evidence, suggesting eyewitnesses often get things wrong. Defense lawyers would like to use such witnesses to introduce psychological studies showing, for instance, that misidentifications in lineups are commonplace, that people tend to
replace the memory of the criminal at the scene with the memory of a face in a lineup, that witnesses under stress at gunpoint tend to focus on the weapon instead of the attacker's face, and that mistakes occur more often when a witness is trying to identify someone of another race.

By and large, however, most trial judges in New York have kept psychologists who study these phenomena off the stand, under a long-standing legal tradition that jurors have enough experience and common sense to consider a witness's reliability, defense lawyers say.

Until today, the trial judges had little guidance, because appellate courts avoided taking a position. But this morning, the Court of Appeals unanimously ruled such testimony "is not inadmissible, per se" and warned judges not to exclude it solely on the grounds that jurors are already equipped to make an informed judgment.

"It may be the most important ruling the Court of Appeals has come down with in a couple of years," said William E. Hellerstein, a professor at Brooklyn Law School. "The court has finally recognized that laypeople, and indeed even
lawyers, do not necessarily understand what we have come to know scientifically about the fallibility of eyewitness testimony." The Manhattan district attorney's office, however, minimized its significance.

Eyewitness testimony has also come under increasing scrutiny in recent years as advances in DNA evidence have exonerated scores of people convicted of crimes on the strength of witnesses' testimony. A 1996 study by the United States Department of Justice, for instance, found 28 men who were convicted of sexual assault after witnesses identified them, but who later were
exonerated through DNA testing.
 

The admissibility of expert testimony to challenge the accuracy of a prosecution witness varies across the country. For example, California and Wisconsin have allowed such testimony under certain circumstances for many  years. But several other states leave it up to an individual trial judge's discretion. In federal cases, testimony from psychologists against
eyewitnesses is generally permitted.

"Classically, the eyewitness is the king of the trial process," said Paul G. Chevigny, a professor of evidentiary law at New York University Law School. "It was very hard for the courts to say scientific inquiry could call into question a person who has direct evidence to give."

The opinion, issued today, and written by the newly appointed Judge Victoria A. Graffeo, left it up to trial judges to decide when experts on eyewitnesses should be allowed to testify, but said judges must carefully consider whether the testimony would help the jury. But the ruling also rejected the notion that jurors do not need an expert's help to make a decision, admonishing judges to "be wary not to exclude such testimony merely because, to some degree, it invades the jury's province.

"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," Judge Graffeo wrote.
 

Still, the court upheld the conviction in the case before it. The appeal sought a new trial for Anthony Lee, a black man who was convicted of robbing Michael Perani of his car at gunpoint just before 2 a.m. on June 30, 1994. Mr. Perani, who is white, confronted the robber, who got into his car when he went into a delicatessen. The man pointed a gun at Mr. Perani, told him to back off and drove away.

Nine months later, Mr. Lee was arrested driving Mr. Perani's car in the Bronx. Mr. Perani, though he had said to the police the night of the robbery that he could not identify the gunman, picked Mr. Lee out as the carjacker from an array of photos. Mr. Lee was convicted and sentenced to 4 to 12 years in prison. At a pretrial hearing, a judge summarily denied Mr. Lee's request to call an expert witness to testify about the difficulty in identifying someone under those stressful and fleeting conditions, especially someone of another race. The trial judge, Frederic S. Berman of State Supreme Court in Manhattan,
later denied the request again after more deliberation, in part because Mr. Perani's testimony was not the only evidence against Mr. Lee. The Court of Appeals agreed with Justice Berman's decision, but took the opportunity to say that such expert testimony should not always be excluded.

Richard M. Greenberg, the lawyer in charge of the Office of the Appellate Defender, which represents many poor defendants in New York City, and which argued Mr. Lee's case, said he was disappointed the court had not gone further. Had the court overturned the conviction, it would have set a strong precedent that testimony from experts on eyewitnesses must be allowed, he said.

"I am heartened that the court recognizes the importance of this kind of testimony and that it is not in the normal understanding of the jury," he said. "There is some good language in here and arguably we can use this in future cases."

Mark Dwyer, the chief of the appeals bureau in the Manhattan district attorney's office, who played down the importance of the decision, pointed out that judges still had the discretion to reject expert witnesses. The decision did not change a longstanding precedent, he said, that holds that expert witnesses should be allowed only when the subject matter is beyond the
knowledge of most jurors.

"I don't see it as having a big impact," he said. "We had understood this to be the rule all along."

But some legal scholars and defense lawyers said the decision did open the door for more psychologists to testify about the fragility of memory. Burt Neuborne, a professor at New York University Law School, said the ruling could have a potentially dramatic effect if it led to more testimony about the difficulty witnesses have in identifying people of other races.

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