Law Web: Whether testimony of eye witness identification expert is admissible in evidence?

Principles proposed by psychologists in the field of eyewitness recognition:
–exposure time (the amount of time available for viewing a perpetrator affects the witness’s ability to identify the perpetrator);

–cross-racial and cross-ethnic inaccuracy (non-Hispanic Caucasian eyewitnesses are generally less accurate in identifying Hispanic people than in identifying other non-Hispanic Caucasians);

–weapon focus (a victim’s focus on the weapon used in an assault can affect ability to observe and remember the attacker);

–lineup fairness (similarity of fillers to the suspect increases identification accuracy);

–lineup instructions (police instructions indicating that the police believe the perpetrator to be in the lineup increase the likelihood of false identification);

–forgetting curve (the rate of memory loss for an event is greatest right after the event and then levels off over time);

–postevent information (eyewitness testimony about an event often reflects not only what the witness actually saw but also information the witness obtained later);

–wording of questions (eyewitness testimony about an event can be affected by how questions put to the witness during investigation are worded);

–unconscious transference (eyewitnesses sometimes identify as the culprit an individual familiar to them from other situations or contexts);

–simultaneous versus sequential lineups(witnesses are more likely to make mistakes when they view simultaneous lineups than when they view sequential lineups);

–eyewitness confidence issues (an eyewitness’s confidence level is not a good predictor of eyewitness accuracy, but eyewitness confidence is the major determinant in whether an identification is believed by jurors), and

–confidence malleability(eyewitnesses’ confidence levels can be influenced by factors unrelated to identification accuracy).

People v. Santiago

2011 NY Slip Op 07303

Decided New York Court of Appeals October 20, 2011

Issue: whether two additional eyewitness identifications sufficiently corroborated the victim’s identification of the defendant, so as to render expert testimony on eyewitness recognition memory unnecessary.

Facts: January 10, 2003, a woman waiting for a train at a Manhattan subway station was attacked by a stranger. the man began assaulting her. She closed her eyes while raising her hands to protect herself. She could not tell whether her assailant had a weapon. After about ten seconds, the attack stopped, and the assailant fled.

The victim was assisted by workers at the station, who, along with the police, searched fruitlessly for the assailant. An ambulance transported her to a hospital where she was treated. At the hospital, the victim gave detectives a description of her attacker, a Hispanic male, late 20s or early 30s, five feet, eight inches to five feet, nine inches tall, with a mustache and a goatee.

The man was wearing a winter jacket, a hooded sweatshirt or “hoodie,” jeans, and a “winter hat.” The jacket, hoodie and hat together covered the assailant’s head in such a way that his face was concealed “from the middle of his top lip, down, and from the top of his eyebrows up.” The victim could not see her assailant’s hair, except for his eyebrows and mustache. On the day after the attack, the victim was interviewed by a police artist who created a sketch of the perpetrator.

Edwin Rios, who had seen the assault, described the assailant as a Hispanic male in his mid- to late 20s, with a goatee, wearing a hood. The assailant had passed Rios after the attack, carrying a knife. Pablo Alarcon, who had noticed the assailant beforehand because the man’s facial expression made Alarcon nervous. After the attack, Alarcon saw the assailant put a knife away as he fled. Alarcon also described the perpetrator as a Hispanic male with a goatee.

Nine days later, January 19, 2003, a plain-clothes police officer patrolling a subway station in Brooklyn noticed a man in a winter jacket, jeans and winter cap selling Metrocard “swipes.” Later, the officer saw the same man engaged in the same activity at the next stop. The officer arrested the man, defendant Edwin Santiago, and his photograph made its way to the detective squad investigating the January 10 attack.

An array comprising photographs of six men and including defendant’s arrest photograph was shown to Alarcon on January 22. He claimed not to recognize defendant or any of the other men in the array. The victim viewed the photographic array on January 24. She testified that, when she saw the photograph of Santiago, it felt as if her “heart stopped and [she] got really scared and [] said that that was him.”

Santiago, who had been released, was rearrested the following day, at a shelter for the homeless. A photograph taken after the second arrest shows Santiago with a dark mustache and goatee.

On January 26, the victim identified Santiago in a six-person line-up. According to the victim, when she saw defendant, she felt “really scared” — it was, once again, as if her “heart stopped” and she “knew it was him.” Alarcon viewed the line-up. As he later explained at defendant’s suppression hearing and trial, he recognized defendant as the perpetrator of the attack with an “eighty percent” feeling of confidence in his identification, but, because he was concerned about his immigration status, he told the police that he did not recognize anyone.

No physical evidence linked defendant to the assault. As it appeared at the time of the indictment, the People’s case would be built entirely on the victim’s identification. Attempting to secure expert testimony from Professor Steven Penrod on the psychological factors affecting the accuracy of eyewitness identification, Santiago filed a motion in limine on June 26.

Supreme Court granted defendant’s motion to the extent of ordering a Frye hearing (see Frye v United States, 293 F 1013 [DC Cir 1923]), to determine whether the principles Professor Penrod proposed to describe in his testimony had gained general acceptance in their scientific fields. During subsequent motion practice, defendant gave provisional summaries of Penrod’s expected testimony. He would testify concerning studies that support various principles proposed by psychologists in the field of eyewitness recognition:
–exposure time (the amount of time available for viewing a perpetrator affects the witness’s ability to identify the perpetrator);