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United States v. Jones

United States District Court, D. New Jersey

May 1, 2017

UNITED STATES OF AMERICA
v.
Gregory A. JONES, Defendant.

          OPINION AND ORDER (EYEWITNESS IDENTIFICATION EXPERT)

          KEVIN McNULTY, United States District Judge.

         INTRODUCTION

         The 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.

         In the 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).

         The 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)

         The 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 role.

         DISCUSSION

         The relevant background facts are stated in my earlier Memorandum and Order. (Op. 2-4) Essentially, the time line is as follows:

5/6/2014: Bank Robbery 1. The robber obscures his features with a scarf, glasses, and a hat, and does not display a weapon.
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 privately-run website.
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.

         For the 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 ...


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