United States District Court, D. New Jersey
OPINION AND ORDER (EYEWITNESS IDENTIFICATION
McNULTY, United States District Judge.
defendant, Gregory A. Jones, is charged with two robberies of
the same bank: one, unarmed, on May 6, 2014 ("Bank
Robbery 1"); and another, armed, on September 19, 2014
("Bank Robbery 2"). At issue are the eyewitness
identifications of the defendant by bank employees. Those
identifications occurred after those employees, without
police involvement, went online and saw a mugshot of the
defendant on a privately-run website. On February 27, 2017, I
filed a Memorandum and Order ("Op., " ECF no. 30)
denying the defendant's motion to suppress the bank
employees' eyewitness identifications of him.
same Memorandum and Order, however, I granted defense
counsel's oral motion for an adjournment so that the
defense could retain an expert witness on the reliability of
eyewitness identifications. (Op. 14-16) The government
conceded that such expert testimony, in general, would be
appropriate. The government reserved the right, however, to
object to specific items under the standards of Fed.R.Evid.
702, once it had seen the expert report. The defense has now
proffered the Report of Deryn Strange, PhD ("Strange
Rpt.", ECF no. 34-1) and her c.v. (ECF no. 34-2),
together with a letter brief in support of the admissibility
of her testimony (ECF no. 34). The government has filed a
letter brief in response (ECF no. 35), and the defendant has
filed a reply (ECF no. 40).
government concedes (Gov't Brf. 7), and I agree, that Dr.
Strange is appropriately credentialed and qualified to give
opinion testimony. At issue here are the government's
five objections in limine to the scope of Dr.
Strange's proffered testimony. Those objections are:
1. The Court should limit Dr. Strange to offering testimony
about general psychological principles regarding eyewitness
identifications. She should not be permitted to discuss the
specific eyewitnesses or identification in this case. If Dr.
Strange is permitted to testify about the facts of this case,
her testimony should be limited to discussing only facts that
are in evidence at trial.
2. The Court should prohibit Dr. Strange from offering
testimony about wrongful convictions.
3. The Court should prohibit Dr. Strange from offering
testimony about the behavior or beliefs of jurors.
4. The Court should prohibit Dr. Strange from offering
testimony regarding voice identifications.
5. The Court should prohibit Dr. Strange from offering
testimony about composites.
(Gov't Brf. 1)
purpose of this Opinion, then, is to determine the
permissible scope of Dr. Strange's expert testimony. Like
any in limine ruling, it is subject to revision in
light of trial developments, but it seemed best to set some
ground rules in advance, for the guidance of both sides. From
this pretrial perspective, I rule that the government's
objections, substantially but not entirely, are well-taken.
Dr. Strange's testimony will be limited to what will
assist, but not impinge upon, the jury's fact-finding
relevant background facts are stated in my earlier Memorandum
and Order. (Op. 2-4) Essentially, the time line is as
5/6/2014: Bank Robbery 1. The robber obscures his features
with a scarf, glasses, and a hat, and does not display a
9/19/2014: Bank Robbery 2. The robber does not obscure his
face, and he displays and discharges a gun. Shortly
thereafter, two bank employees tell investigators they
believe the two robberies were committed by the same person.
4/7/2015: The State charges Mr. Jones with Bank Robbery 1
based on a DNA match. The prosecutor's office notifies
one of the bank witnesses that Mr. Jones has been charged
4/2015: The bank witnesses, now aware of Mr. Jones's
name, go online and find a mugshot of Mr. Jones on a
4/30/2015: The bank witnesses tell FBI investigators that the
mugshot depicts the person who committed Bank Robbery 2, and
state that they believe, based on the robber's voice and
general appearance, that he is the same person who committed
Bank Robbery 1.
1/8/2016: Mr. Jones is charged in a federal complaint with
both bank robberies. He is subsequently indicted.
reasons expressed in my earlier opinion, expert testimony is
appropriate here. I do not find it appropriate under the
circumstances to employ the rationale that the strength of
the government's case precludes or reduces the necessity
of expert ...