Timothy P. O'Neill

Chicago Daily Law Bulletin
Volume: 153 Issue: 221

November 09, 2007

The Public Enemy: Eyewitness Experts

A few weeks ago I was watching a Jimmy Cagney film called ''Kiss Tomorrow Goodbye.'' (For readers under 50, ask your parents about Jimmy Cagney.) Cagney played a stick-up guy who robs and pistol-whips a woman. When the police interview the victim, they ask her if she could identify her assailant. She answered: ''No. I was looking at the gun.''

Ironically, I had just read a recent case from the 1st District Appellate Court in which a woman was shot by a robber. In the closing argument, the prosecutor assured the jury that they could believe her identification of the defendant because ''[t]here is no greater degree of attention than someone pointing a gun at you'' and ''[defendant's] face is burned in her memory forever.'' People v. Walter Allen, No. 1-06-1943, (Sept. 28) at slip op. 25.

I don't know about you, but the Cagney film's take on the situation makes a lot more sense to me.

And fortunately for defendant Walter Allen, Justice Warren D. Wolfson felt the same way.

The issue in Allen arose out of an attempted armed robbery of a store. A female clerk was approached by two men. When she asked if she could help, one of the men pulled out a silver handgun and asked her for money. When the clerk turned to go to the cash register, she was shot in the back.

Two days later as she was being treated in the hospital, the clerk selected defendant's picture from a five-picture photo array. She was not asked to make an in-person identification of the defendant until eight months later at the preliminary hearing, where she saw him sitting at the defense table wearing a jail uniform. Her identification at trial was the crucial evidence leading to defendant's convictions of attempted first-degree murder, attempted armed robbery, and aggravated battery with a firearm.

The defense attempted to call Dr. Steven Penrod, an expert in the field of eyewitness testimony. The appellate court characterized Penrod as ''an experienced and highly credentialed psychologist.'' Slip op. 24. Trial counsel submitted an offer of proof in the form of a report by Penrod. He planned to testify concerning common misperceptions a lay person might have about memory and identification. One point - straight out of the Cagney movie - was that a focus on the gun would necessarily allow for less attention to the assailant's physical characteristics. Penrod also planned to testify that studies show that the more certain the eyewitness appears, the more credence the jury gives to the identification. Yet studies also show that there is a low correlation between the eyewitness's level of confidence and the accuracy of the identification.

The Allen court, in an opinion written by Wolfson, first set out how the trial court should have decided whether to allow Penrod's testimony. It cited two 1st District opinions - issued before and after a Supreme Court remand - in a case called People v. Tisdel. People v. Tisdel, 316 Ill.App.3d 1143 (2000), rev'd on other grounds 201 Ill.2d 597 (2002) (Tisdel I); People v. Tisdel , 338 Ill.App.3d 465 (2003) (Tisdel II). These cases dealt with the exact issue of the case at bar: how a trial judge should decide whether to allow the defense to call an eyewitness testimony expert to the stand. In those cases, the 1st District admitted that ''Numerous studies in the area of eyewitness psychology indicate there is a significant potential for eyewitness error and that jurors have misconceptions about the abilities of eyewitnesses.'' Tisdel I, at 1157. They recognized that expert testimony in this area ''dispels myths or attacks commonsense misconceptions about eyewitness identifications, such as the effect of stress and weapon focus on the accuracy of identifications.'' Tisdel II at 467.

Faced with this, the trial judge must follow a two-step process. First, she must ''carefully scrutinize the proffered [eyewitness expert] testimony to determine its relevance - that is, whether there is a logical connection between the testimony and the facts of the case.'' Tisdel II at 468. If the judge determines it is both probative and relevant, she should then proceed to the second step: a balancing of the probative value against any possible prejudice or confusion that the testimony could spawn. People v. Enis, 139 Ill.2d 264, 290 (1990).

The Allen court then applied this two-part test to the actions of the trial judge. The trial judge made no findings as to either the reliability of Penrod's research or its relevance to the facts of the case. Instead, he merely said he did not believe that ''experts in this particular case will assist the jury in determining the identification in this case. I believe it would probably confuse them more and I believe that the instruction that's provided by the Illinois Pattern Jury Instructions is sufficient.'' Slip op. 25.

The 1st District court was not impressed by the trial judge's boilerplate comments. It sharply criticized the trial judge because ''No careful scrutiny took place in this case. Relevance of the different parts of Dr. Penrod's proposed testimony was not seriously considered. Nor their weight. The conclusion that the proposed testimony would confuse the jury had no considered basis.'' Slip op. 27-28.

Concluding that the trial judge had not conducted a ''meaningful inquiry'' into Penrod's proposed testimony in light of its relation to the specific facts of the case, the court reversed the conviction and remanded for a new trial. However, the court did not mandate that Penrod be allowed to testify if there is a retrial. It merely ordered that ''the offer of proof must be given serious consideration'' using the test established in Enis and in the Tisdel opinions.

Allen is a significant decision. Readers of Steve Bogira's Courtroom 302 (Knopf, 2005) might recall the book's observation that most of the judges at 26th Street took a ''dim view of eyewitness experts.'' At 267. Bogira quotes one judge's reaction to the work of Elizabeth Loftus, a psychology professor at the University of California at Irvine who is generally considered the nation's most prominent expert on the problems of eyewitness testimony: ''She can write all the books she wants. I don't have much faith in these self-styled experts.'' Id.

Illinois appellate courts have a long history of upholding trial judges in their refusal to allow defense eyewitness experts to testify. See Allen, slip op. 20 (citing cases). But the Allen decision shows that the tide may be turning. Allen cites a number of recent decisions from around the country from both state and federal appellate courts that have found the exclusion of eyewitness experts to be an abuse of discretion in certain cases. Id., slip op. 22. The most significant may be People v. LeGrand, a 2007 decision from the Court of Appeals of New York. 867 N.E.2d 374 (N.Y. 2007). LeGrand offers an excellent analysis of why such testimony passes the Frye test for being generally accepted within the relevant scientific community. See Frye v. U.S., 293 F. 1013 (D.C. Cir. 1923). (The Frye test, of course, is used by Illinois courts. See, e.g., People v. Sutherland, 223 Ill.2d 187 (2006).)

Defense attorneys can now use Allen to remind trial judges that knee-jerk denials of eyewitness experts will no longer be tolerated in Illinois. The next time a trial judge ''phones in'' such a decision, he runs the risk of the Appellate Court reversing him in an opinion that begins: ''YOU ... DIRTY ... RAT.''

(Like I said, if you are under 50, ask your parents.)