In the

United States Court of Appeals

For the Seventh Circuit

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No. 03-3638

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ANDRE WELCH,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 02 CR 818—Blanche M. Manning, Judge.

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ARGUED APRIL 15, 2004—DECIDED May 27, 2004

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Before FLAUM, Chief Judge, and MANION and ROVNER,

Circuit Judges.

FLAUM, Chief Judge. Andre Welch was convicted of the

robbery of Illiana Federal Credit Union on February 28,

2003. He now appeals his conviction and argues that the

district court abused its discretion by excluding expert

testimony regarding the possible inaccuracy of eyewitness

identifications. For the reasons stated herein, we affirm.

I. BACKGROUND

On August 21, 1997 at approximately 11:20 a.m., there

was a bank robbery at the Illiana Federal Credit Union in
2 No. 03-3638

Calumet City, Illinois. According to the bank teller, the

robber approached her teller window and gave her a note

instructing her not to make a sound or set off any alarms

and to put all of the money into a bag. The robber placed a

blue vinyl bag onto the counter in front of the window, and

the teller saw that the bag had a brown handle sticking out

of it that appeared to be the handle of a gun. Upon seeing

what she believed to be a gun, the teller complied with the

robber’s instructions and filled a bag with money. The

robber then grabbed the bag as well as his own blue vinyl

bag and ran out of the bank.

 Throughout this experience the bank teller was extremely

frightened and upset. She estimates that she saw the

robber for only thirty seconds and that her powers of

observation were negatively affected due to her heightened

emotional state. Still, the teller did give a general description of the robber as being an African-American male between 5'10" and 6' tall and 160-180 pounds. The teller also

noted that the robber was wearing a long-sleeve buttondown blue denim shirt with a t-shirt underneath, denim

jeans, a dark-colored baseball cap, and sunglasses. Additionally, the teller viewed the bank surveillance videotape

after the robbery and positively identified the individual on

the tape as the robber.

This identification was corroborated by a bank customer

who waited in line directly behind the robber for five minutes. Although the customer never got a good look at the

robber’s face, he described him as an African-American

male approximately 5'10" or 5'11" tall, weighing between

170-180 pounds, and wearing blue jeans, a denim shirt, a

hat, and sunglasses. The customer also viewed the bank’s

surveillance videotape and confirmed that the man depicted

on the tape was the robber.

Nearly five years later, on August 20, 2002, Andre Welch

was indicted and charged with one count of robbing the
No. 03-3638 3

Illiana Federal Credit Union. Welch was not linked to the

crime by any fingerprints, nor was he identified in a line-up

that he had participated in on September 8, 1997 where the

bank teller made a tentative identification of another

individual. However, Welch did match the general description given by the bank teller and bank customer. Namely,

Welch is an African-American male and at the time of the

crime he was 5'10" or 5'11" tall and weighed 165-175

pounds. Moreover, a search of Welch’s house uncovered

an air gun with a brown handle similar to the gun the teller

saw, as well as a family photograph where Welch was

wearing a baseball hat and sunglasses similar to those

worn by the bank robber. 

Welch was also linked to the bank robbery by three

individuals who knew Welch and believed that he was the

person depicted in the bank surveillance videotapes. The

first of these individuals was Steven Austin, Welch’s former

roommate and co-worker. In August 1997, Austin had

known Welch for a year and a half and had lived with him

for a few months. When asked after the robbery if he recognized the person depicted in the bank’s surveillance

videotape, Austin stated that he had no doubt that the

robber was Andre Welch. He recognized the sunglasses the

robber was wearing as similar to those worn by Welch, and

examined the face in the photograph carefully to determine

that it was indeed Welch depicted in the picture. 

The second person who recognized Welch as the man in

the bank surveillance videotape was Lorraine Cook. Cook

worked with Welch every day for two or three weeks in

August 1997. According to Cook, Welch typically wore jeans

and a button-down shirt with a t-shirt underneath to work.

When shown the surveillance videotape from the bank,

Cook stated that she had no doubts that the robber was

Welch. First, Cook recognized the clothing as similar to

clothing usually worn by Welch. Also, Cook found the
4 No. 03-3638

posture of the bank robber to be the same as Welch’s posture when he had been standing for a long period of time.

Welch’s ex-wife, Judith Welch, also recognized the man in

the bank photographs as Andre Welch. Judith and Andre

Welch were married for twelve years and lived together for

eleven years. They had three children together, but separated in 1996 after Judith discovered that Andre Welch was

having an extramarital affair. When Judith was shown the

bank surveillance tapes, she testified that she was completely certain that Andre Welch was the robber. Judith

testified that the shirt worn by the robber looked exactly

like a shirt she had purchased for Andre Welch when they

were married. She also identified the sunglasses as sunglasses that Andre Welch wore in May 1997 when the two

met at a train station. Furthermore, Judith believed that

the running shoes worn by the robber were those that

Andre Welch typically wore. Finally, when asked what

particularly about the photographs made her believe it was

Andre Welch, Judith replied, “[w]hen I looked at the

photographs, I just did not pick out one specific thing. I

recognized the individual. I know his features, I know what

he looks like.”

Prior to Welch’s trial, Welch filed a “Notice of Expert

Testimony Concerning Eyewitness Identification and

Human Memory and Perception.” Welch argued that Dr.

Otto Maclin, a psychologist in the field of witness identifications, memory, and perception, should be allowed to

testify for the defense regarding witnesses’ propensity to

identify a defendant based upon their familiarity with the

defendant’s clothes (known as “clothing bias”) and witnesses’ tendencies to misidentify defendants based upon

factors of which the witness is not aware. The expert also

would have testified that memory diminishes over time

rather than improves over time. In response, the government moved in limine to exclude the expert’s proposed testimony, arguing that it would not assist the jury in this
No. 03-3638 5

case. The district court agreed with the government and

excluded Dr. Maclin’s testimony.

At trial, the government presented the testimony of

Steven Austin, Lorraine Cook, and Judith Welch. In addition to identifying Andre Welch in the bank photographs,

Austin also testified that Welch had made incriminating

statements regarding bank robbery. Specifically, the week

prior to the bank robbery, Welch asked Austin if he was

interested in making extra money. When Austin replied

that he was, Welch said, “If I tell you, I’ll have to kill you.”

Later that day, Austin again asked the defendant how to

make extra money, and the defendant replied, “banks.”

Austin knew that Welch did not work at a bank and had

never been employed as a banker. The government also

provided evidence at trial that during the week of August

17, 1997, Welch normally worked the 7 a.m. to 3 p.m. shift,

but on the day of the robbery Welch did not arrive at work

until 2 p.m. It was a thirteen-minute drive from Illiana

Federal Credit Union to Welch’s workplace. Based upon this

evidence, Welch was found guilty of the bank robbery of

Illiana Federal Credit Union at the conclusion of a threeday jury trial.

II. DISCUSSION

Welch’s sole argument on appeal is that the district court

erred by excluding Dr. Maclin’s testimony on eyewitness

identification and human memory and perception. Given

that both parties agree that the district court properly

followed the framework set forth in Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993), we review the

district court’s decision to exclude the testimony for an

abuse of discretion. See United States v. Crotteau, 218 F.3d

826, 831 (7th Cir. 2000). In attempting to show that the

district court did abuse its discretion, Welch faces an uphill

battle against the long line of Seventh Circuit cases holding
6 No. 03-3638

that district courts did not commit abuses of discretion by

excluding expert testimony regarding the reliability of

eyewitness identifications. See, e.g., Crotteau, 218 F.3d at

833; United States v. Hall, 165 F.3d 1095, 1105 (7th Cir.

1999); United States v. Daniels, 64 F.3d 311, 315 (7th Cir.

1995); United States v. Larkin, 978 F.2d 964, 971 (7th Cir.

1992); United States v. Curry, 977 F.2d 1042, 1052 (7th Cir.

1992). These cases reflect the great deference that this

Court grants to district courts, which have “first-hand

exposure to the witnesses and the evidence as a whole” and

therefore have the “ability to gauge the impact of the

evidence in the context of the entire proceeding.” Crotteau,

218 F.3d at 831.

The admissibility of expert scientific testimony is governed by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509

U.S. at 589-92. Daubert established a two-part test for

district courts, which must determine first whether the

proposed expert’s testimony reflects valid “scientific knowledge,” and if so, whether this testimony “will assist the trier

of fact to understand or determine a fact in issue.” Id. at

592. In this case, both parties agree that Dr. Maclin utilized

reasoning and methodology that was scientifically valid.

The only disputed issue is thus whether this information

would have been of assistance to the jury.

Welch contends that an expert witness on eyewitness

identification would have assisted the jury because the

government’s case depended almost exclusively on eyewitness identifications and Dr. Maclin would have testified

that none of these identifications were as credible as they

seemed to be. For example, Judith Welch testified that she

recognized Andre Welch in the photograph based in part on

the clothes he was wearing. In response, Dr. Maclin would

have explained to the jury the theory known as “clothing

bias” which posits that the possibility of misidentification

from photographs increases when the person making the

identification believes that she recognizes an article of
No. 03-3638 7

clothing worn by the person in the photograph. Additionally, although Steven Austin examined the face of the bank

robber closely to determine if it was Welch, Dr. Maclin

would have explained that misidentification can occur when

the witness views someone structurally similar to someone

the witness knows. Finally, Lorraine Cook testified at trial

that she was certain that Welch was the robber, but on

cross-examination Cook agreed that when the FBI first

approached her five years before the trial, she merely stated

that she believed Welch was the robber. Dr. Maclin would

have attacked Cook’s credibility with testimony regarding

how human memory generally diminishes over time rather

than improves over time.

We are not persuaded by Welch’s arguments that the

proposed testimony would have assisted the jury in this

case. As Welch acknowledges, expert testimony is helpful to

the jury if it concerns a matter beyond the understanding

of the average person, assists the jury in understanding

facts at issue, or puts the facts in context. See Fed. R. Evid.

702; United States v. Mansoori, 304 F.3d 635, 653-54 (7th

Cir. 2002). We do not believe that Dr. Maclin’s proposed

testimony fits into any of these categories. Although the

average person may not know what the term “clothing bias”

means, it is common knowledge that one may mistake a

person for someone else who is similarly dressed. Moreover,

the typical juror would know that two people who are

structurally similar are more likely to be confused for each

other than are dissimilar individuals. Finally, it does not

require an expert witness to point out that memory decreases over time. Where expert testimony “addresses an

issue of which the jury is already generally . . . aware,” such

testimony does not assist the jury. Hall, 165 F.3d at 1104.

Even if this type of information would be enlightening

to an average jury, Welch did not demonstrate a proper “fit”

between the proposed testimony and the eyewitness

identifications in this particular case. Unlike most eyewit-
8 No. 03-3638

nesses, the eyewitnesses in this case knew the defendant

very well prior to the crime. Additionally, these eyewitnesses had ample opportunity to view the bank surveillance

photographs for as much time as they needed while in a

stress-free environment. However, Welch’s motion to utilize

Dr. Maclin’s testimony was not specific to this category of

eyewitness identification. Without a better link to the facts

of the case, it was well within the district court’s discretion

to exclude general assertions about clothing bias and

common mistakes made by eyewitnesses.

As we did in United States v. Hall, 165 F.3d 1095, 1107

(7th Cir. 1999), we further support our conclusion that the

district court did not abuse its discretion by looking at other

factors surrounding the evidence regarding eyewitness

identification. In Hall, this Court identified three “additional considerations” for appellate review when determining whether a district court abused its discretion. These

three considerations were whether: (1) the defense had an

opportunity to thoroughly cross-examine all of the eyewitnesses; (2) the district court gave the jury an instruction on

the reliability of eyewitness identification; and (3) substantial corroborating evidence implicated the defendant as the

perpetrator of the crime. See id. Like in Hall, the defense in

this case had an opportunity to throughly cross-examine all

of the eyewitnesses. In fact, Welch’s counsel took full

advantage of this opportunity by extensively cross-examining Steven Austin, Lorraine Cook, and Judith Welch

regarding how well they knew Welch, why they became

more certain of their identifications either over time or after

they were granted immunity from prosecution, and the fact

that the clothes worn by the bank robber were not unique.

In addition to the cross-examinations, the jury also was

given cautionary instructions regarding the credibility of

witnesses and identification testimony. And while the

corroborating evidence in this case was not as substantial

as the defendant’s confession in Hall, id. at 1108, we note
No. 03-3638 9

that the jury was able to observe Welch’s appearance and

demeanor at trial and compare it to the surveillance

photographs and videotape themselves. The jury therefore

had an excellent opportunity to determine personally

whether they believed the eyewitness testimony that Welch

was the individual depicted in the bank’s surveillance

videotapes.

This is not to say that similar testimony would never be

helpful to a jury, or that it would have been an abuse of

discretion for the district court to allow Dr. Maclin’s testimony. But based upon the facts of this case, where the

identification witnesses knew the defendant for a substantial period of time prior to viewing the photographs and

videotape and had as much time as they needed to analyze

the photographs and videotape, it was certainly not an

abuse of discretion for the district court to exclude the testimony and instead allow extensive cross-examination and

jury instructions regarding the possible inaccuracies that

accompany eyewitness identifications.

This case is distinguishable from United States v. Alexander, 816 F.2d 164, 168-69 (5th Cir. 1987), where the Fifth

Circuit found reversible error when the district court

excluded expert testimony about photographic comparisons.

Although the contextual facts are similar—in Alexander,

the only evidence linking the defendant to the crime was

the testimony of eyewitnesses who compared the defendant’s photograph to crime scene photographs— the

proposed expert testimony is significantly different. Specifically, Alexander wanted to present the testimony of one

expert witness who was an orthodontist specializing in

cephalometrics (the scientific measurement of dimensions

of the head) and another expert witness who was an agent

with the Federal Bureau of Investigation with expertise in

photographic comparisons. Id. at 167. Both experts would

have testified that it was impossible for the defendant to be

the person in the crime scene photographs. Id. The Fifth
10 No. 03-3638

Circuit determined that these witnesses would have

assisted the jury because they would have been able to

show the jury “claimed specific differences in . . . facial

features which were revealed as a result of . . . scientific

analysis of the photographs.” Id. This is the type of comparison that cannot be made without expert assistance. Id.

The expert testimony proposed by Welch, however, was

not direct evidence regarding whether he committed the

crime. Dr. Maclin would not have offered any opinion on

whether Welch was actually portrayed in the bank’s surveillance photographs. Rather, Dr. Maclin’s only purpose

was to question the credibility of the witnesses who believed

that Welch was depicted in the photographs. As this Court

has often stated, determining the credibility of witnesses is

one of the jury’s critical functions and is “generally not an

appropriate subject matter for expert testimony.” Hall, 165

F.3d at 1107. We therefore conclude that the district court

acted properly by excluding Dr. Maclin’s testimony.

III. CONCLUSION

We emphasize that expert testimony regarding eyewitness identification, memory, and perception is not per se

unhelpful. However, the usefulness of such evidence in a

particular case is best decided by the district court and

given great deference by this Court. For the foregoing reasons, the decision of the district court is AFFIRMED.
No. 03-3638 11

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—5-27-04