In re L.C., No. 10-FS-709 (decided June 5, 2014)
Players: Chief
Judge Washington, Associate Judge Glickman, Senior Judge Nebeker. Opinion by Judge Glickman. Dissent by Judge Nebeker. PDS for L.C. Trial judge: Hiram Puig-Lugo.
Facts: Juvenile attempted carjacking case. Defense is misidentification. Complainant was accosted by two men who
attempted to take her car keys, but fled after she screamed for help. She called the police and described one of
the would-be robbers as wearing an open-faced ski mask and a light blue jacket
with a white stripe or stripes. A few
minutes later, the police stopped L.C. approximately 200 feet from the scene,
in the area toward which the would-be robbers had run. L.C. was wearing a light blue jacket with
white stripes, and had an open-faced ski mask in his pocket. Another man with L.C. approximately matched
the complainant’s description of the other would-be robber. The complainant identified L.C. during a
show-up identification, including noting that she recognized his jacket. At trial, the complainant testified that she
was certain of her identification, and admitted that her heart was racing and
that she was afraid.
The defense, in addition to presenting two alibi
witnesses, sought to admit the testimony of Dr. Steven Penrod, an expert
regarding the psychological factors that can effect eyewitness
identification. Specifically, the
defense sought to elicit testimony regarding “clothing bias” (resulting from a
witness viewing a suspect wearing similar clothes to the witness’s initial
description), the poor correlation between the witness’s confidence in her
identification and the accuracy of that identification, and the negative effect
of stress and emotion on the accuracy of identifications.
The trial judge precluded the defense expert without
conducting a voir dire of Dr. Penrod or evaluating the psychological research
on which Dr. Penrod’s proffered testimony relied. The judge ruled that Dr. Penrod’s testimony
was not beyond the ken of the average layperson and that the proposed areas of
expert testimony were matters of common sense that could be elicited through
defense cross-examination and closing argument.
(During defense counsel’s closing argument the trial court precluded counsel from referring to Dr. Penrod’s research because it was “not
common knowledge.”)
Issue 1: Whether the trial judge abused its discretion
in precluding the eyewitness expert testimony on the ground that it was not
beyond the ken.
Holding 1: As
in Benn v. United States (Benn II), 978 A.2d 1257 (D.C. 2009), and Russell v. United States, 17 A.3d
581 (D.C. 2011), the trial court abused its discretion in ruling that the
proffered expert testimony was within the ken of the average lay person
requiring a remand for a Dyas
hearing.
Issue 2: Whether the trial court’s ruling
excluding the expert testimony can be upheld because the eyewitness’s
identification was corroborated and therefore the expert testimony would not be
“helpful” to the factfinder.
Holding 2:
A) That was not the basis of the trial court’s ruling,
and the Court of Appeals may not affirm a discretionary ruling on a ground the
trial court did not rely on and had the discretion to reject.
B) Evidence corroborating an eyewitness’s identification
is “irrelevant to the question of the admissibility of [the] proffered expert
testimony.” “Even in a bench trial, the
inquiry as to admissibility does not call for the court to assess the weight of
pertinent and admissible expert testimony in light of the anticipated strength
of the opposing party’s evidence.” “The
criterion of helpfulness is not a grant of authority to the trial judge to
exclude relevant and otherwise admissible expert testimony merely because it is
against the expected weight of the evidence.
Still less does Dyas authorize
the trial judge to exclude expert testimony as unhelpful based on the perceived
strength of the opponent’s evidence alone.”
Of note:
·
“[E]vidence may not be rejected as irrelevant
merely because it is contradicted by other evidence.”
·
“The standard of relevance is the same for
expert testimony as it is for other evidence[.]”
·
Although other cases have found no abuse of
discretion in the exclusion of eyewitness expert testimony where corroboration
of the challenged identification exists, those cases represent the appellate
court’s assessment of prejudice; the corroboration of the identification is not
a legitimate reason for the trial court to exclude the evidence
·
The dissent argues that inquiry into expert admissibility should
include the court’s assessment of “the weight of the expert testimony in light
of contrary evidence” and that the error in failing to admit the expert
testimony here was harmless in light of the evidence corroborating the
witness’s identification. JA
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