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June 6, 1996

UNITED STATES OF AMERICA, Plaintiff, against LOUIS BURROUS, Defendant.

The opinion of the court was delivered by: KORMAN

 Korman, J.

 The purpose of this memorandum is to set out in greater detail the reasons stated on the record on April 12, 1996, for denying defendant's in limine motion to permit Dr. Michael Leippe to testify at defendant's trial. Dr. Leippe, a professor of psychology, was offered as an expert on the subject of eyewitness identification. The motion was filed on Wednesday, April 10, along with a memorandum of law and several scholarly articles. I conducted a hearing on Friday, April 12 in order to resolve the issue in advance of the Monday, April 15 trial date.

 The charges against defendant arise out of a robbery that occurred at a Burger King restaurant located on the Fort Hamilton Army Base in Brooklyn, New York. On the evening of October 12, 1995, two robbers entered the restaurant. One wore a hooded sweatshirt with the hood drawn close around his face and carried no weapons while the other wore a visor and toted a sawed-off shotgun. At the time of the robbery, the manager of the restaurant, Daveena Frazier, was seated in her office counting money in a cash drawer she had removed from the safe located in her office. Ms. Frazier was seven and a half months pregnant at the time. When she heard the commotion surrounding the robbers' entry she rolled her desk chair across her office so that she could look out of the office doorway. Tr. 48. From there, she saw Ethan Whitby, another Burger King employee, standing with his hands up facing her. Between Whitby and the manager's office, about eight feet away from Ms. Frazier, stood the gunman, facing Whitby, with his back to Ms. Frazier. Tr. 48. The gunman then turned to face Ms. Frazier and walked toward her until he was a foot away, at which time he told her to get down on the floor. Tr. 49. As he approached her, Ms. Frazier looked the gunman directly in the face. Tr. 49.

 Immediately following the robbery, Ms. Frazier gave police a detailed description of her assailant. She described a young Hispanic male, about six feet tall, slim, about 160 pounds, with short dark hair, dark eyes, a slight mustache, a long nose and acne under his cheeks. Tr. 56; Tr. 114. That night, Ms. Frazier and Mr. Whitby looked at several hundred mugshots at the police station but did not pick out the robbers. Six days after the robbery, Ms. Frazier was shown a non-suggestive photo array consisting of six pictures and recognized one of them as the gunman. Tr. 75. In the months before trial, Ms. Frazier moved to Alaska and did not see the gunman or his likeness again until early April, when Ms. Frazier saw the defendant standing in the lobby of the courthouse as she was going to meet with the Assistant United States Attorney prosecuting this case. She recognized the defendant as the gunman and was struck by the "way he stared at me when I looked at him, he stared at me. It was the same way he looked that night." Tr. 76. As she walked passed him, defendant asked, "Don't you live on base?" to which she said "no" and kept walking. Tr. 77.

 Based on a proffer of these facts, it appeared that Ms. Frazier's testimony would be, at the very least, a significant part of the case against defendant. Because of the fallibility of eyewitnesses and of the dangers of misidentification, particularly in cases where a single eyewitness's testimony is the only evidence from which a jury is asked to determine guilt beyond a reasonable doubt, see Kampshoff v. Smith, 698 F.2d 581, 585 (2d Cir. 1983), I agreed to take special precautions to ensure that the jury approached Ms. Frazier's testimony with appropriate caution, although I decided not to admit expert testimony.

 As an initial matter, to qualify to testify under Fed. R. Evid. 702, an expert must be able to testify to "(1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue." Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 2796, 125 L. Ed. 2d 469 (1993). I assumed, for the purpose of determining whether to admit Dr. Leippe's testimony, that the defendant's proffer satisfied the first prong of this test. Nevertheless, as is true with all relevant evidence, expert testimony should be excluded where the danger of confusing or misleading the jury substantially outweighs its probative value. See United States v. Serna, 799 F.2d 842, 850 (2d. Cir. 1986), cert. denied, 481 U.S. 1013, 95 L. Ed. 2d 494, 107 S. Ct. 1887 (1987). As the Supreme Court has recognized, "expert evidence can be both powerful and quite misleading because of the difficulty in evaluating it. Because of this risk, the judge in weighing possible prejudice against probative force under Rule 403...exercises more control over experts than over lay witnesses." Daubert, 113 S. Ct. at 2798 (quoting Jack B. Weinstein, Rule 702 of the Federal Rules of Evidence is Sound; It Should Not be Amended, 138 EF.R.D.F 631, 632 (1991)). Indeed, the balancing test of Rule 403 is implicit in the requirement of Rule 702 that the expert's testimony help rather than hinder the jury's deliberations.

 In Serna, the Court of Appeals for the Second Circuit specifically held that a trial court has "broad discretion in admitting or excluding expert testimony under Fed. R. Evid. 702 and in excluding testimony under Fed. R. Evid. 403 because of the danger of jury confusion or unfair prejudice." Serna, 799 F.2d at 850; see also United States v. Brien, 59 F.3d 274, 277 (1st Cir.), cert. denied, 133 L. Ed. 2d 320, 116 S. Ct. 401 (1995). The danger of confusion arises from the "aura of special reliability and trustworthiness surrounding expert testimony." United States v. Young, 745 F.2d 733, 766 (2d Cir. 1984) (Newman, J., concurring) (quoting United States v. Fosher, 590 F.2d 381, 383 (1st Cir. 1979)), cert. denied 470 U.S. 1084, 85 L. Ed. 2d 142, 105 S. Ct. 1842 (1985); see also United States v. Amaral, 488 F.2d 1148, 1152 (9th Cir. 1973). Moreover, much of what an expert would testify to can often be "fleshed out adequately by counsel through probing cross-examination and arguments pitched to the common sense of the jury." United States v. Stevens, 935 F.2d 1380, 1399-1400 (3rd Cir. 1991); see also Amaral, 488 F.2d at 1153.

 In order to determine whether Dr. Leippe should be permitted to testify, I conducted a hearing at which defense counsel was permitted to elicit his testimony. Dr. Leippe stated that the most important point he wanted to make--"the strongest part of what I feel I'm here for," Hearing Tr. 28--is that "we can't be more confident in the accuracy of a witness' identification just because the person himself or herself is confident" of the accuracy of the identification. Hearing Tr. 17. "Even the appearance of confidence does not necessarily mean that the witness is accurate." Hearing Tr. 28. This testimony, however, did not suggest that an identification made by a witness who appeared confident in the accuracy of his or her identification is necessarily unreliable. Moreover, it entails the following corollary, which seems more appropriate to the identification here: we cannot be less confident in the accuracy of an eyewitness identification just because the eyewitness does not, in words or tone, convey confidence in the identification.

 Dr. Leippe also talked about a "forgetting curve," which shows that "most forgetting" takes place "in the hours and days immediately following exposure and encoding," and that "the amount of forgetting that occurred is probably a lot greater between for example day 0 and day 6 than it would be between day 6 and day 12 or day 6 and day 20," Hearing Tr. 14. He later acknowledged, however, that "the retention is not--the six day thing isn't so important, in my opinion, as the fact that this is a stranger seen once, under the most poor conditions." Hearing Tr. 29-30. "The difference between memory for once briefly seen faces and familiar faces is," Dr. Leippe emphasized, "a huge gulf." Hearing Tr. 29.

 A third point in Dr. Leippe's presentation involved a phenomenon he termed "weapon focus." Dr. Leippe testified that studies had shown that facial identification was less reliable in circumstances where a weapon, such as a gun, is present. This testimony simply attached the aura of expertise to two obvious facts: 1) a gun pointed at a victim of a crime is going to focus the mind of the victim on the weapon rather than on the facial features of the perpetrator because a gun "can command attention, can rivet attention," Hearing Tr. 12, and 2) the less attention paid to the face of the perpetrator the less reliable the subsequent identification.

 After listening to Dr. Leippe, I determined that a thorough and evenly balanced jury charge, one that took into account some of Dr. Leippe's concerns, would be the most effective means of guiding the jury in its evaluation of Ms. Frazier's testimony. See United States v. Rincon, 28 F.3d 921, 925-26 (9th Cir.) (holding that comprehensive jury instruction on eyewitness identification was preferable to expert testimony under the circumstances), cert. denied, 130 L. Ed. 2d 516, 115 S. Ct. 605 (1994). Because this was to be a short trial with relatively uncomplicated evidence, a lengthy battle of experts would be distracting and confusing to the jury. Even if the government had not been planning to call its own expert, the testimony of Dr. Leippe posed the danger of confusing the jury because it suggested that the case turned on whether the jury credited his testimony or the eyewitness, Hearing Tr. 32, and because of the "aura of special reliability and trustworthiness surrounding expert testimony which aught to caution its use." Young, 745 F.2d at 766 (2d Cir. 1984) (Newman, J., concurring) (quoting Fosher, 590 F.2d at 383); see also Amaral, 488 F.2d at 1152.

 More significantly, there are special considerations relating to this case that rendered extensive expert testimony unnecessary. This was not a case in which an in-court eyewitness identification was preceded by a suggestive pre-trial identification. Indeed, Dr. Leippe testified that he saw nothing unduly suggestive in the photo array used in this case. Hearing Tr. 16. Nor is this a case in which a suggestive in-court identification would be the only one in the case. On the contrary, six days after the robbery, the eyewitness picked the defendant out of a photographic array that was not suggestive and she again recognized him when she unexpectedly saw him in the lobby of the courthouse shortly before the trial. Moreover, although my ruling came in a pre-trial order, by the end of the trial, it had become clear that the accuracy of Ms. Frazier's identification would not be the only, or even the primary, issue confronting the jury.

 Ms. Frazier's testimony at trial came in exactly as anticipated. With respect to the identification she made from the photo array, Ms. Frazier testified as follows:

Q: When the photographs were shown to you, what did you do?
A: I looked at them.
Q About how long did you look at this group of photographs?
A: About three to five minutes.
Q: After you looked at the photos for this period of time, what if anything did you say?
A: I pointed to the picture and said I felt this was the guy with the gun.
Q: Now, when you first looked at the photograph which you picked out as the man with the gun, what did you say?
A: That that was the man with the gun.
Q: What caused you to spend a few more minutes looking at all the photographs?
A: I felt because of the serious nature of this whole thing, that I ought to look at all the pictures.

 Tr. 116. On cross examination, defense counsel sought to emphasize, among other things, that Ms. Frazier had been "startled" at the time of the robbery, Tr. 100, that having a gun pointed at her head was a new and frightening experience for her, Tr. 102, and that she might have seen the defendant on another occasion, Tr. 109.

 The prosecution supplemented the eyewitness identification with an assortment of circumstantial evidence. Perhaps the most significant such evidence was Ms. Frazier's testimony, not only that she recognized the defendant when she encountered him unexpectedly in the lobby of the courthouse a week before the trial, but that he recognized her. Tr. 76-77. Another incriminating piece of evidence was that just as the arresting officers were breaking down the door to defendant's apartment, he threw a video cassette box containing $ 128 in U.S. currency out of his window and into a nearby tree. Tr. 134; Tr. 159. Although the amount was substantially less than had been stolen from the Burger King, the implication was that defendant was attempting to hide the remaining proceeds of his crime, even though, unknown to him, the bills taken from the Burger King were not traceable. Tr. 214.

 Although the evidence contained in the prosecution's case provided a sufficient basis from which a reasonable jury could find the defendant guilty beyond a reasonable doubt, what was perhaps the most incriminating evidence came from Ethan Whitby, the eighteen-year-old Burger King employee called to the witness stand by the defense. Whitby was called to testify that Louis Burrous was an acquaintance of his whose face Whitby would easily have recognized had the defendant been the gunman. Visibly anxious, Whitby then told the jury that the gunman was not Louis Burrous. Tr. 219; Tr. 226. He said that he had heard the gunman's voice during the robbery but it was not familiar to him. Tr. 230. Whitby acknowledged that he had been shown the photo array containing defendant's picture but claimed to have identified another photograph as that of the gunman and yet another as his accomplice. Tr. 240. Both of these identifications were indisputably inaccurate.

 Whitby's claim that defendant was not the gunman crumbled on cross-examination, where his answers to a series of questions strongly suggested that he had, in fact, positively identified defendant as the gunman when ...

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