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UNITED STATES v. NORWOOD

September 6, 1996

UNITED STATES OF AMERICA
v.
MICHAEL NORWOOD



The opinion of the court was delivered by: ORLOFSKY

 ORLOFSKY, District Judge:

 Defendant, Michael Norwood, has moved for permission to introduce expert testimony at trial relating to the reliability of eyewitness identification, since he contends that the Government will rely, in part, upon the testimony of eyewitnesses in proving its case.

 In deciding this question, I must perform the "gatekeeping role" assigned to district judges by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597, 125 L. Ed. 2d 469, 113 S. Ct. 2786 (1993), and apply both the techniques of Daubert, and Judge Becker's prescient opinion in United States v. Downing, 753 F.2d 1224 (3d Cir. 1985), to the unique facts of this case.

 For the reasons which follow, Defendant's motion to introduce expert testimony relating to the reliability of eyewitness identification will be granted.

 On April 13, 1996, Defendant, Michael Norwood, was arrested by the New Jersey State Police in Holmdel, New Jersey, and charged in state court with unlawful possession of a handgun, two counts of aggravated assault, conspiracy to commit carjacking, theft and attempted motor vehicle theft arising out of a bank robbery that occurred on April 12, 1996, at Amboy National Bank in Old Bridge, New Jersey, and a carjacking of a 1987 Chrysler LeBaron on the Garden State Parkway later that same day.

 On April 24, 1996, the Grand Jury in and for the District of New Jersey returned a one-count indictment charging the defendant with a violation of the federal carjacking statute, 18 U.S.C. §§ 2119 and 2. Shortly thereafter, on May 22, 1996, the Grand Jury in and for the District of New Jersey returned a six-count superseding indictment charging the defendant with the following: bank robbery, in violation of 18 U.S.C. § 2113(a) (Count One); assault on bank employees and customers by the use of a dangerous weapon, specifically a handgun, in violation of 18 U.S.C. § 2113(d) (Count Two); carrying a handgun during the bank robbery, in violation of 18 U.S.C. § 924(c) (Count Three); theft of a motor vehicle that had traveled in interstate commerce, in violation of 18 U.S.C. § 2119 (Count Four); carrying a handgun during the carjacking, in violation of 18 U.S.C. § 924(c) (Count Five); and possession of a handgun by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e) (Count Six). The Defendant was arraigned on the first superseding indictment on May 31, 1996, and entered pleas of "not guilty" on all charges. A second superseding indictment was returned on July 19, 1996, amending certain dates set forth in the first superseding indictment. The trial of this case is scheduled to commence on Monday, September 9, 1996, at 9:30 a.m.

 II. Discusion

 Rule 702 of the Federal Rules of Evidence "authorizes the admission of expert testimony so long as it is rendered by a qualified expert and is helpful to the trier of fact." United States v. Stevens, 935 F.2d 1380, 1397 (3d Cir. 1991) (citation omitted). *fn1" In United States v. Downing, 753 F.2d 1224 (3d Cir. 1985), the Court of Appeals for the Third Circuit recognized that Rule 702 may permit "a defendant in a criminal prosecution to adduce, from an expert in the field of human perception and memory, testimony concerning the reliability of eyewitness identifications." Id. at 1226.

 In so holding, the Downing Court held that the determination whether to admit such testimony requires an examination of the following criteria:

 
First, the evidence must survive preliminary scrutiny in the course of an in limine proceeding conducted by the district judge. This threshold inquiry, which we derive from the helpfulness standard of Rule 702, is essentially a balancing test, centering on two factors: (1) the reliability of the scientific principles upon which the expert testimony rests, hence the potential of the testimony to aid the jury in reaching an accurate resolution of a disputed issue; and (2) the likelihood that the introduction of the testimony may in some way overwhelm or mislead the jury. Second, admission depends upon the "fit," i.e., upon a specific proffer showing that scientific research has established that particular features of the eyewitness identifications involved may have impaired the accuracy of those identifications. The district court's assessment of these factors will guide its discretion in deciding whether to admit the evidence under Fed. R. Evid. 702.

 Downing, 753 F.2d at 1226. In sum, the reliability, the propensity to confuse or overwhelm, and the fit of the proposed testimony must all be considered by a district court before it can be introduced at trial.

 In this case, the Defendant seeks leave to introduce the testimony of Michael R. Leippe, Ph.D., concerning the reliability of eyewitness identifications. An in limine hearing on this issue was conducted before this Court on September 3, 1996. *fn2"

 Dr. Leippe's qualifications, to which he testified at the in limine hearing, and which appear in his resume are impressive. (Resume, Defendant's Exhibit 2). He has a Ph.D. in social psychology, and has taught in the field of psychology since 1976. Moreover, as also reflected in his resume, Dr. Leippe testified at the in limine hearing that he has conducted research in many fields including social influence processes, psychology and law, eyewitness memory and its communication, prejudice, and social cognition. In addition, he stated that he has edited or published dozens of articles in the field of psychology, and more specifically, the areas of eyewitness identification and memory. Finally, Dr. Leippe has testified as an expert on the reliability of eyewitness testimony in criminal cases throughout the country. Based upon the foregoing, I find that Dr. Leippe qualifies as an expert in the field of psychology as it relates to eyewitness identification.

 At the in limine hearing, Dr. Leippe outlined the following specific areas in which he plans to testify at trial: (1) the accuracy of cross-racial identifications relative to same-race identifications; (2) the effect of "weapon focus" on identifications; (3) the effect of stress on identifications; (4) the "forgetting curve," i.e., the effect of time on memory as it relates to identification; (5) the "relation back" phenomenon; (6) the lack of correlation between the confidence a witness expresses in making an identification and the accuracy of the identification; (7) the suggestiveness of the photo array used during the pretrial identification procedures in this case; and (8) exposure duration. *fn3"

 Notwithstanding Dr. Leippe's expertise in the field of psychology in which he proposes to testify, the Court must nonetheless assess Dr. Leippe's proposed testimony against the guidelines set forth in Fed. R. Civ. P. 702, as construed by the United States Supreme Court in Daubert, and by the Third Circuit in Downing. The specific areas of Dr. Leippe's proposed testimony must be examined to ascertain its reliability, likelihood to overwhelm or mislead the jury, and "fit" to the particular facts of this case. In addition, Dr. Leippe's testimony must also be considered to determine whether it meets the "helpfulness" standard of Rule 702. "Helpfulness," as Judge Becker noted in Downing, is the "touchstone of Rule 702," i.e., whether the testimony "'will assist the trier of fact to understand the evidence or to determine a fact in issue.'" Downing, 753 F.2d at 1235 (citing Fed. R. Evid. 702).

 A. The Reliability and Tendency to Confuse or Overwhelm the Jury

 As noted above, Defendant proposes to introduce the testimony of Dr. Leippe relating to the reliability of eyewitness identification. The inquiry "as to whether a particular scientific technique or method is reliable is a flexible one." In re Paoli R.R. Yard PCB Litigation, 35 F.3d 717, 742 (3d Cir. 1994).

 In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 125 L. Ed. 2d 469, 113 S. Ct. 2786 (1993), the United States Supreme Court suggested numerous factors to be considered by a district court in assessing the reliability of scientific testimony. Such factors include: (1) whether the expert's hypothesis can be, and has been tested; (2) whether the methodology has been subjected to peer review and publication; (3) the frequency by which the methodology leads to erroneous results; (4) the existence and maintenance of standards controlling the technique's operation; and (5) whether the methodology has been generally accepted in the scientific community. Id. at 592-93.

 Virtually all of these factors were listed by the Third Circuit in Downing as considerations which should be addressed by a district court in assessing the reliability of scientific expert testimony. The Court in Downing, however, included two additional factors which were not discussed in Daubert -- the qualifications of the expert witness testifying and the non-judicial uses to which the scientific technique are put. Downing, 753 F.2d at 1238-39. Indeed, the Third Circuit has specifically stated that "a district court should take into account all of the factors listed by either Daubert or Downing " when assessing the reliability of proposed scientific expert testimony. In re Paoli R.R., 35 F.3d at 742.

 At the in limine hearing, Dr. Leippe described in detail the many studies, which either he or other reputable experts in the field conducted, on which he relied in formulating his conclusions relating to each of the areas to which he plans to testify at trial. Dr. Leippe explained that, based upon his scientific training and background, he was able to determine that each study scrupulously adhered to scientifically valid methodologies, was capable of replication and objective measurement, and was subjected to discriminating peer review prior to publication. Dr. Leippe added that the studies involved, inter alia, the live simulation of a crime scene under controlled conditions, video or slide projections of images and faces, and the post-crime study of the accuracy of eyewitness identification of victims of actual crimes.

 At the in limine hearing, Dr. Leippe presented the Court with specific studies, along with the testing conditions and underlying data relied upon in the studies he described. Upon consideration of Dr. Leippe's testimony, I conclude that the jury, when presented with Dr. Leippe's conclusions, properly supported by a detailed description of each study upon which he relies, as well as the data supporting each study, will be able to understand his testimony and will not be confused, misled or overwhelmed. Although Dr. Leippe briefly testified regarding the data on which each study relied at the in limine hearing, in order for his testimony to be admissible and truly reliable, at trial he must discuss such underlying data in greater detail and depth. See Downing, 753 F.2d at 1239 ("the danger that scientific evidence will ...


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