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It is also anticipated that the defendant will interpose an alibi defense.


A Nassau Rape Lawyer said that, the defendant is accused of the crimes of rape in the first degree and sexual abuse in the first degree. He was acquitted in the first trial of this matter of the crimes of robbery in the first degree, petit larceny, and criminal use of a firearm in the first degree. The jury was unable to reach a verdict with respect to the rape and sexual abuse counts and the case is before this Court for retrial. The prosecution case rests primarily upon the testimony of the complainant, including her identification of the defendant as her attacker. It is anticipated that there will be some extrinsic evidence of defendant’s culpability, none of which will conclusively establish the defendant’s commission of the crime. It is also anticipated that the defendant will interpose an alibi defense.

A Nassau Sex Crimes Lawyer said that, the defense offer of proof indicates that a psychologist specializing in the field of memory and perception, will testify, if permitted, to the factors which studies have shown are relevant to the reliability of an eyewitness identification. These factors include: (1) the delay between the event and the identification; (2) stress; (3) the violence of the situation; (4) assimilation of post-event information; (5) the cross-racial aspect of the identification; (6) the selectivity of perception; (7) the “filling in” phenomenon; (8) expectancy; (9) the effect of repeated viewings; (10) the lack of a correlation between confidence and reliability; (11) the motivation of the victim to make a correct identification; (12) the motivation of the police to make an arrest; (13) the introduction of suggestiveness through photo arrays; (14) the availability of a “zero option;” and (15) the effect of what a witness is told after the identification is made.

A Nassau Rape Lawyer said that, he is also prepared to testify that laymen place an undue emphasis on identification testimony in general and that cross-examination is not effective to discredit a mistaken identification because the witness truly believes that his testimony is accurate, even if it is not. According to the defense memorandum of law, the expert witness will specifically not venture any opinion as to the validity of eyewitness identification testimony in general or as to the reliability of the identification testimony in the case at bar.

The issue in this case is whether expert testimony concerning the factors which affect the reliability of an eyewitness identification will be admitted into evidence at this trial.

Several New York trial courts and the Appellate Division, First Department, have held the testimony of this particular witness to be inadmissible on the ground that expert testimony with respect to such matters is improper. The Court of Appeals’ most recent explanation of the role of expert testimony, however, has cast doubt on the authority of that First Department decision, and in several other jurisdictions the trend in favor of excluding such testimony has recently been reversed. This Court is of the opinion that admission of the proferred testimony, when limited to an explication of the factors which studies have shown are relevant to making a reliable identification, is proper expert testimony and will enhance the ability of the jury to reach its decision in this case.

Courts have traditionally been reluctant to permit expert testimony as to the reliability of identification testimony. The leading case in which the United States Court of Appeals for the Ninth Circuit upheld, as a valid exercise of discretion, the trial court’s exclusion of such testimony. The trial court had reasoned that to allow expert opinion as to the weight or effect to be given to the testimony of an eyewitness would usurp the function of the jury. The Circuit Court, after outlining the elements necessary to any offer of expert testimony, agreed, holding that the reliability of an eyewitness identification was not a proper subject for expert testimony. The Court reasoned that in our adversary system, cross-examination is the primary means of testing for truthfulness.

A proper analysis of the propriety of expert testimony therefore involves inquiry into the relationship among: (a) the subject of the expert’s testimony; (b) the issue presented to the jury; and (c) the information possessed by the average juror. Expert testimony, however, is not all of one genre. The Court of Appeals held long ago, that a distinction must be drawn between experts who state what are essentially facts, although such as to be outside the knowledge of the layman, and those who render opinions.

“It may be broadly stated as a general proposition that there are two classes of cases in which expert testimony is admissible. To the one class belong those cases in which the conclusions to be drawn by the jury depend upon the existence of facts which are not common knowledge and which are peculiarly within the knowledge of men whose experience or study enables them to speak with authority upon the subject. If, in such cases, the jury with all the facts before them can form a conclusion thereon, it is their sole province to do so. In the other class we find those cases in which the conclusions to be drawn from the facts stated, as well as knowledge of the facts themselves, depend upon professional or scientific knowledge or skill not within the range of ordinary training or intelligence. In such cases not only the facts, but the conclusions to which they lead, may be testified to by qualified experts. The distinction between these two kinds of testimony is apparent. In the one instance the facts are to be stated by the experts and the conclusion is to be drawn by the jury; in the other, the expert states the facts and gives his conclusion in the form of an opinion which may be accepted or rejected by the jury.”

The Court described the distinction more particularly as follows: “If the knowledge of the experts consists in descriptive facts which can be intelligently communicated to others not familiar with the subject, the case belongs to the first class. If the subject is one as to which expert skill or knowledge can be communicated to others not versed in the particular science or art only in the form of reasons, arguments or opinions, then it belongs to the second class.”

The expert witness testimony, when limited to a discussion of those factors which the scientific studies and reports have shown are relevant in determining the reliability of eyewitness identification testimony, is essentially akin to that which was held to be admissible in Parks. If he were permitted to offer an opinion as to the reliability of the testimony of the complainant in this case or as to the reliability of eyewitness identification testimony in general, however, he would be venturing into an area where the jury is fully capable of reaching its own result. He will, therefore, take the stand as a live learned treatise on the subject of eyewitness identification to assist the jury by bringing to their attention scientific studies with which they would not otherwise be familiar. Admittedly, his testimony will involve more than just a recitation of facts or description of studies which have been done. He will be called upon to draw from all of the scientific studies the conclusion that certain factors are or are not relevant to determining the reliability of eyewitness identification testimony. However, he will give no opinion with respect to the basic issue as to which his testimony is relevant, the reliability of the complainant’s testimony. On that issue, the jury will draw its own conclusion.

The Court of Appeals held that expert testimony such as this was admissible in part and inadmissible in other part. The Court stated: “In perspective we distinguish between testimony that relates to automobile accident actions in general and testimony that is addressed to the individual action on which this excess liability claim is predicated in particular. The witness should be permitted to identify considerations relevant to the assessment of personal injury claims by insurers in general and then to describe the materiality and weight customarily ascribed to each. So, in this case, the testimony as to factors to be considered in evaluating a personal injury case for settlement was admissible.”

This principle, however, would not cover the testimony elicited in response to the hypothetical questions addressed to plaintiff’s expert witnesses. In these instances the questions were focused precisely on this particular case, and did not seek an expression of expert opinion generally with respect to defenses based on intoxication, on contributory negligence, or on assumption of the risk. The attorney witnesses were invited and permitted to express opinions as to the significance of such considerations in this particular case and that the recovery would exceed policy limits. In our view in thus presuming to apply general experience to the particulars of this individual case, the witnesses trespassed on the jury’s domain. Accordingly, such testimony was inadmissible.”

The Court went on to state that once the jury was informed of the factors relevant to analysis of personal injury actions, it was within their competence to evaluate the worth of the personal injury action in question. The critical focus, as can be seen from the analysis in Kulak, is upon the precise issue to which the testimony of the expert is addressed. While it is no doubt true that all jurors have some everyday experience which is relevant to determining the reliability of eyewitness identification testimony, this does not preclude the introduction of expert testimony on the subject.

This is especially true where the scientific evidence is not in accord with common perceptions. According to the offer of proof, the doctor will testify, among other things, that there is not necessarily a correlation between the reliability of identification testimony and the confidence of the witness in that identification; that it is a myth that recall is enhanced by the violence of a situation; that recall is affected by the selectivity of the initial perception and a phenomenon which involves filling in the details through after-acquired experience. These and other items of his testimony will bring to the attention of the jury certain relevant factors of which they might not otherwise have been aware.

The People contend, however, that the doctor’s testimony is not so reliable or worthy of belief that the jury will be better able to evaluate the complainant’s testimony than it would have been had it merely listened to the arguments of counsel and relied on its own experience. It is true that in the past similar testimony has been excluded because it was not generally accepted in the scientific community. In so arguing, however, the People fail to perceive the distinction between the standard for admissibility and the question of the weight to be accorded to the testimony. The bulk of the studies in this field have been conducted since the early decisions excluding this testimony were made. After an exhaustive review of the scientific literature, the Supreme Court of California concluded that “the consistency of the results of these studies is impressive, and the courts can no longer remain oblivious to their implications for the administration of justice”. Considering this finding, and the facts that, according to his resume, the doctor has testified on numerous occasions and that he and others have compiled a significant mass of scholarly material on this subject, this Court is convinced, in the absence of independent proof on the issue from the People, that a sufficient showing of reliability has been made to present this testimony to the jury. The People will, of course, be able to test his testimony through cross-examination and by expert testimony in rebuttal, if they deem that appropriate.

The fact that this type of testimony is somewhat novel should not preclude its admission into evidence. The People argue correctly that the doctor’s testimony will be prejudicial to their case. In a sense, however, this is true of all testimony which tends to disprove a party’s contention. It is only undue prejudice which the law prohibits. While it is true that the testimony of the doctor will lend a certain aura of reliability to the contentions which defense counsel ordinarily makes in summation, this effect is not so substantial that a manifest injustice will result. The jury is still free to accept or reject his testimony, in whole or in part, and will be so instructed. In similar circumstances, the People have been allowed to introduce expert testimony on the subject of “rape trauma syndrome”. Essentially, this allows the People to bolster in advance the less than certain testimony of a rape victim with scientific evidence that the psychological trauma caused by the rape prevented her from coming forward immediately. The prejudice to the People resulting from his testimony would be no greater than that suffered by the defendant confronted with rape trauma syndrome testimony. Furthermore, the defendant’s constitutional right to due process of law includes the right to present any relevant evidence in his behalf.

In the final analysis, it is for the jury to determine, on the basis of all of the evidence in the case, including the expert testimony, whether the eyewitness identification made by the complainant is reliable. This Court cannot subscribe to the view that permitting the limited expert testimony that will be allowed in this case will either usurp the function of the jury or infringe upon its role as determiner of the facts. To the contrary, to the extent that this testimony brings to the attention of the jurors relevant matters of which they were not previously aware, it can only enhance the ability of the jury to reach a reasoned decision on the difficult issues which are presented to it. Despite all of the talk that the proferred testimony is an attempt to create a “smokescreen” defense or to confuse the jury into seeing a reasonable doubt where there is none, this Court is confident, after years of experience with jury trials in this county, that the jury is fully capable of perceiving the real issues in the case and resolving them in a rational and just manner.

Accordingly, this Court concludes that as a matter of law expert testimony with respect to the factors affecting the reliability of an eyewitness identification may be admitted into evidence in this State, and that in the exercise of discretion it will be so admitted in this case. The People’s cross-motion is denied to the extent indicated herein.

If you are involved in a sex crime or rape case, seek the assistance of a Nassau Rape Attorney and Nassau Criminal Attorney at Stephen Bilkis and Associates in order to defend your case.

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