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UNITED STATES v. JORDAN

May 1, 1996

UNITED STATES OF AMERICA, Plaintiff,
v.
STEVEN JORDAN, a/k/a "BOOBA", Defendant.



The opinion of the court was delivered by: LARIMER

 In this criminal case defendant Steven Jordan is charged with armed bank robbery, bank robbery and bank larceny (in violation of 18 U.S.C. § 2113(a),(b), and (d)), as well as using or carrying a firearm (in violation of 18 U.S.C. § 924(c)). The Government represented that, at trial, it would rely in significant part on the testimony of victim bank teller Gayle McKinley. McKinley identified the defendant first from a photo array 47 days after the robbery and again at a preliminary hearing almost 2 years later. It was anticipated that McKinley would make an in-court identification at trial.

 The Government also indicated that two alleged accomplices would testify, no physical evidence existed (fingerprints, gun, etc.), and that the Government did not intend to introduce any surveillance photographs.

 BACKGROUND

 In the past, federal trial courts typically have been unwilling to admit the testimony of "eyewitness identification" experts. In United States v. Serna, 799 F.2d 842, 850 (2d Cir. 1986), the Second Circuit upheld the district court's exclusion of eyewitness identification expert testimony in a drug case where an informant identified the defendant from 2 photo arrays. Without extensive discussion, the Second Circuit noted that the voir dire of the expert was not clearly erroneous; the judge had broad discretion under Federal Rules of Evidence ("FRE") 702 and 403; the expert was ignorant of the conditions under which the informant identified the defendant; the expert's testimony consisted primarily of generalized pronouncements about the lack of reliability of eyewitness identification, particularly cross-racial identification; and the expert admitted that many of his conclusions coincided with common sense. The Circuit concluded that this expert's testimony would have done nothing but "muddy the waters."

 More recently, federal courts have become more receptive to eyewitness identification expert testimony and, while the Second Circuit has not spoken on this issue since Serna, a number of other Circuits have expressly stated that, under the right circumstances, such testimony should be admitted. See, e.g., United States v. Brien, 59 F.3d 274, 277 (1st Cir.) (noting increased acceptance of eyewitness identification experts because "there is more expert literature on the subject, more experts pressing to testify, and possibly more skepticism about the reliability of eyewitnesses"), cert. denied, 133 L. Ed. 2d 320, 116 S. Ct. 401 (1995); United States v. Rincon, 28 F.3d 921, 926 (9th Cir.) (noting that where the eyewitness identification expert's opinion is based upon scientific knowledge which is both reliable and helpful to the jury in a given case, then it should be admitted), cert. denied, 130 L. Ed. 2d 516, 115 S. Ct. 605 (1994).

 THE LEGAL STANDARD

 In order to be admitted in federal court, any proposed expert testimony, including eyewitness identification testimony, must meet the standards set forth in FRE 702. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). As explained in Daubert, scientific expert testimony is admissible if (1) it is based upon "scientific knowledge" and (2) it will "assist the trier of fact to understand or determine a fact in issue." Daubert, supra, at 2796. "This entails a preliminary assessment [by the trial judge] of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue." Id.

 In Daubert, the Supreme Court provided district courts with a list of "general observations" to assist them in determining whether a theory or technique is based upon "scientific knowledge."

 
-- Has the theory or technique been tested? Or can it be?
 
-- Has the theory or technique been subjected to peer review and publication? (relevant but not dispositive)
 
-- In the case of a technique, what is the known or potential rate of error?
 
-- "General acceptance" -- though not required, is certainly useful where it exists. Id. at 2796-97.

 The inquiry is supposed to be a flexible one, focusing on the "scientific validity -- and thus the evidentiary relevance and reliability -- of the principles that underlie a proposed submission. The focus ... must be solely on principles and methodology, not on ... conclusions ..." Id. at 2797.

 Decisions from other Circuits offer guidance on applying the FRE 702 standards in the context of expert testimony concerning eye witness identification. In United States v. Brien, supra, the First Circuit upheld the district court's exclusion of eyewitness identification expert testimony because the proffer of evidence did not meet the first Daubert prong -- i.e., establishing that the testimony was based upon scientific knowledge. Brien was an armed bank robbery case. Defendant was identified by 3 different tellers, 2 of whom were directly confronted by the robber. Defendant was also identified by 2 motel employees as having stayed at the motel for several days immediately after the robbery.

 The defendant's first proffer of expert testimony (a three page statement) was rejected as being too general and lacking the foundational requirements of Daubert. In the second proffer (an 8 page affidavit containing about 11 paragraphs of substantive opinion), the expert stated that he would not opine as to whether a specific witness' identification was accurate, but he would discuss the elements of memory (observation, retention and retrieval) and the factors that undermine memory, such as stress, delay, and improper reinforcement through ...


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