Missouri Supreme Court: Circuit Court Erred in Excluding Expert Witness Testimony Regarding Accuracy of Eyewitness Identification
In October 2016, a young white man (“Victim”) was approached by two black men, hoodies pulled low to cover their faces. It was dark and the nearest street light was some distance away. One of the men lifted his shirt, showing Victim what appeared to be a handle to a pistol. The man said, “Give me what you have or I’ll shoot you.” The two men took Victim’s iPhone, earbuds, e-cigarette, and nicotine cartridge.
Victim observed the two men run into an alley. Victim then borrowed the phone of a nearby pedestrian and phoned police. Two officers met with Victim within seconds. Less than five minutes elapsed from the time of the robbery until a description of the robbers went out over the police radio. Within two minutes, other officers radioed that they had detained two suspects and asked that Victim be brought to location for a show-up identification.
When Victim was brought to location, Carpenter was seated on the curb with another black male. Both were in cuffs. Neither wore a hoodie. A spotlight shown on both men. Victim identified both men as the robbers and identified Carpenter as the one with the gun who had threatened to shoot Victim.
The two men were arrested. Officers conducted a search of the area, beginning with the location from where the men were arrested back through the alley to the location of the robbery. They recovered two discarded hoodies; the iPhone and earbuds; and the e-cigarette and cartridge. They were unable to locate a pistol or anything resembling the handle of a pistol.
Prior to trial, Carpenter served notice that he would call Dr. James Lampinen to testify as an expert about factors that can impact identifications generally. The State moved that such testimony should be excluded based on State v. Lawhorn, 762 S.W.2d 820 (Mo. 1968). The circuit court granted the State’s motion.
At trial, Victim testified he was “one hundred percent certain” Carpenter threatened and robbed him. At the close of evidence, the court instructed the jury, including Carpenter’s tendered Instruction No. 9 that listed the 17 factors juries are to consider when evaluating eyewitness testimony. The jury convicted, and Carpenter appealed. His sole argument was that the circuit court erred in excluding Lampinen’s testimony.
The Missouri Supreme Court observed that when a circuit court’s ruling is based upon an incorrect legal premise, it is an abuse of discretion. State v. Taylor, 298 S.W.3d 482 (Mo. 2009). The circuit court relied on Lawhorn when determining Lampinen’s testimony was inadmissible. When Lawhorn was decided, the rule in Missouri was “expert opinion testimony should never be admitted unless it is clear that the jurors themselves are not capable, for want of experience or knowledge of the subject, to draw correct conclusions from the facts proved.” Because eyewitness identifications “are within the general realm of common experience of members of a jury and can be evaluated without expert assistance,” the Missouri Supreme Court affirmed the circuit court’s decision in Lawhorn to exclude expert testimony related to eyewitness identifications.
However, the Court explained that Lawhorn has since been abrogated by R.S.Mo. § 490.065.2 (Supp. 2018). Of the many requirements regarding expert testimony listed under § 490.065.2, the one relevant to this appeal is that the expert testimony “will help the trier of fact to understand the evidence or to determine a fact in issue.” Even if the issue is one of common experience or knowledge of a jury, expert testimony is now permitted. This is in agreement with the “clear trend” toward admission of expert testimony “for the purpose of aiding the trier of fact in understanding the characteristics of eyewitness identification.” People v. Lerma, 47 N.E.3d 985 (Ill. 2016).
Jurors are persuaded by the confidence with which an eyewitness identifies a defendant. Expert testimony provides the scientific basis as to why a witness can be “100% certain” but 100% wrong at the same time. Jeffrey S. Neuschatz et al., A Comprehensive Evaluation of Showups, 1 Advances in Psychol. & Law 43 (M.K. Miller & B.H. Bornstein eds., 2016). Lampinen’s testimony would have given context and meaning to the factors of Instruction No. 9 that influence accuracy of identifications, including: if defendant and Victim are of differing races, lighting, whether a weapon was used, length of time for observation, and show-up identifications. Lampinen would be prohibited from expressing any opinion as to whether Victim’s identification was accurate (that is within the province of the jury to decide). People v. McDonald, 690 P.2d 709 (Cal. 1984). But Carpenter had a right to present relevant expert evidence on those factors that affected Victim’s accuracy. State v. Wood, 580 S.W.3d 566 (Mo. 2019).
While some evidence other than identification supported conviction (recovery of Victim’s property and hoodies not far from Carpenter), it was far from certain based on that evidence that Carpenter was guilty. Consequently, the likelihood that Lampinen’s testimony would have altered the outcome was high.
Related legal case
State v. Carpenter
|Cite||2020 Mo. LEXIS 289 (2020)|
|Level||State Supreme Court|