same age, with very short hair, similar facial features, and similarly shaped faces. The men pictured
in the photo arrays need not look exactly alike, as “a lineups of clones is not required.” See Galati,
230 F.3d at 260 (approving photo array of six white men in their forties, with dark and relatively
short hair); see also United States v. Moore, 115 F.3d 1348, 1360 (7th Cir. 1997) (approving photo
array where photos of six young, clean shaven, black males with some hair, and some similar
features); United States v. Sleet, 54 F.3d 303, 309 (7th Cir. 1995) (approving photo array where six
men pictured were all black men about the same age).

Defendant argues that since only six photos were included in each spread, they were unduly
suggestive; however, six photos has been held numerous times to be sufficient to satisfy due process.

See Galati, 230 F.3d at 260; Moore, 115 F.3d at 1360; Sleet, 54 F.3d at 309. Defendant further

asserts that the white shirt he is wearing in the September photo array draws undue attention to him;
however, another man (at position #2) in that photo array is also wearing a white shirt. Defendant
also complains that the Government could have conducted a lineup in September rather than
showing a photo array; however, no lineup is necessary. See United States v. Jackson, 835 F.2d
1195, 1198 (7th Cir. 1987).

Defendant’s main argument is that showing the September photo array to Hernandez, and
later showing him the December photo array, unreasonably suggested to him that he should choose
Defendant as the bank robber, since only Defendant’s photo appeared in both spreads. However, a
previous failure to make a positive identification from a photo array does not necessarily make a later
identification less certain. See United States v. Napoli, 814 F.2d 1151, 1160 (7th Cir. 1987)
(discussing later in-court identification). The Defendant approached Hernandez while pointing a gun

at him. In short, Hernandez got enough of a look at Defendant to obtain a definite impression of his


at 831. The Court of Appeals held that the opportunity for cross-examination, the use of cautionary
instruction and the presence of corroborating evidence obviated the need for expert testimony. Id.
at 832; see also Hall, 465 F.3d at 1107-1108.

Likewise, in Larkin, the Seventh Circuit affirmed the district judge’s decision to deny the
defendant’s request to appoint an expert to testify on the undependable nature of eyewitness

identification under stressful circumstances, Larkin, 987 F.2d at 971. Although the case was decided

before Daubert, the Court of Appeals evaluated the testimony in a manner consistent with the

forthcoming Daubert framework. Id. Moreover, the Seventh Circuit has reaffirmed its pre-Daubert

decisions as being consistent with Daubert. See Hall, 165 F.3d at 1106.

As in Crotteau, the defense lawyer in Larkin had “ample opportunity at trial” to discuss the

hazards of eyewitness identification and cast doubt on the witnesses’ identification of his client
through cross-examination. Larkin, 978 F.3d at 971. Further, the district court gave comprehensive
instructions to the jury which “focused ‘the jury’s attention on the reliability of the witness
identification and . . . acquant[ed] the jury with factors relevant in evaluating those identifications.”
Id. (quoting United States v. Anderson, 739 F.2d 1254, 1258 (7th Cir. 1984).

In this case, the facts do not create an unusual or compelling situation in which the aid of an
expert witness is required. Carter has been charged with robbing two banks at gunpoint, the Firstar
Bank on September 1, 2001, and the First American Bank on September 4, 2001. The government
intends to present the testimony of witnesses to each robbery who have identified Eddie Carter as
the robber. However, identification testimony will not be the only evidence that the government

offers. For the First American Bank robbery, the government intends to introduce corroborating


at the confrontation, and (5) the time between the crime and confrontation.” Manson v. Brathwaite.

432 U.S. 98, 114 (1977) (citing Biggers, 409 U.S. at 199-200).

Even if the photo arrays were suggestive (which they were not), Hernandez’ identification
is reliable and admissible.

Additionally, Defendant seeks court-appointment of an expert witness to challenge the
reliability of eyewitness identification that the Government intends to introduce at trial. The
appointment of an expert is within the discretion of the district court. See United States v. Daniels,
64 F.3d 311, 315 (7th Cir. 1995); United States v. Larkin, 978 F.2d 964, 971 (7th Cir. 1992).
Appointment of an expert witness on the reliability of eyewitness identification is not necessary in
this case because the testimony of such an expert will not aid the jury in its determination; further,
any such testimony might confuse, mislead, or unduly influence the jury.

This court is well aware that the decision to admit expert testimony lies with the district court

judge, who performs a “gatekeeping” function. Daubert v. Merrell Dow Pharmaceuticals, 509 U.S.

579, 592-93 (1993). The Seventh Circuit has been unwavering in its criticism of and disfavor for
expert testimony regarding the reliability of eyewitness testimony. United States v. Crotteau, 218
F.3d 826, 832 (7th Cir. 2000) (affirming exclusion of expert testimony; noting that weaknesses in
eyewitness identification testimony ordinarily can be exposed through careful cross-examination);
United States v Hall, 165 F.3d. 1095, 1103-04 (7th Cir. 1999) (affirming exclusion of expert
testimony; noting that “this Court has a long line of cases which reflect our disfavor of expert

testimony on the reliability of eyewitness identification”); accord 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

vy. Curry, 977 F.2d 1042, 1051 (7th Cir. 1992); United States v. Hudson, 884 F.2d 1016, 1024 (7th


appearance to make a reasonable identification of the Defendant during the daylight hours in the
bank.

The Seventh Circuit has noted before that the “police are not required (in arranging a
photographic display of suspects) to conduct a search for identical twins in age, height, weight or
facial features.” United States ex re/. Christ v. Lane, 745 F.2d 476, 479 n.1 (7th Cir. 1984).

Defendant’s motion further seeks suppression of any in-court identification by Hernandez.
This motion is also denied. Whether a pretrial identification procedure is unduly suggestive, and
whether a witness’ subsequent in-court identification is nonetheless reliable, are two separate

inquiries. See United States v. Johnson, 859 F.2d 1289, 1292 (7th Cir. 1988); see also Stewart v.

Duckworth, 93 F.3d 262, 265 (7th Cir. 1996). A subsequent in-court identification is inadmissible
only if there is a very substantial likelihood of irreparable misidentification. See Johnson, 859 F.2d
at 1292. The fundamental question is whether a witness’ identification testimony is so unreliable
that it violates due process to allow the jury to hear it. See Johnson v. McCaughtry, 92 F.3d 585, 597
(7th Cir. 1996). The Court has not been persuaded that due process would be violated if the Court
allows the jury to hear any in-court identification testimony of teller Hernandez. Defense counsel
will be able to cross-examine Hernandez thoroughly on his previous failure to identify the
Defendant. Thorough cross-examination will sufficiently assure that any due process concerns are
satisfied.

The reliability of an identification is considered in light of the following factors, first
articulated by the United States Supreme Court in Neil v. Biggers, 409 U.S, 188 (1972): “(1) the
opportunity of the witness to view the criminal at the time of the crime, (2) the witness’ degree of

attention, (3) the accuracy of the witness’ prior description, (4) the level of certainty demonstrated


requirement; (2) held that the district court properly applied the Daubert framework in its analysis
of the proffered testimony; (3) affirmed that the district court reasonably exercised its discretion in
its decision to exclude the expert testimony; (4) discussed the “long line of cases” from the Seventh
Circuit that reflected the court’s disfavor of expert testimony on the reliability of eyewitness
identification; and (5) noted that the district court’s decision to exclude the testimony was bolstered.
by the opportunity for a thorough cross-examination of the witnesses, the clear cautionary
instructions given to the jury by the court, and the existence of corroborating evidence. Id. at 1100-
08. In his concurring opinion, Judge Easterbrook discussed the value of social science in court
proceedings, mentioning, among other areas, the study of memory. However, he concluded that,
with regard to testimony pertaining to memory:

The judge could inform jurors of the rapid decrease of accurate

recollection, and the problem of suggestibility, without encountering

the delay and pitfalls of expert testimony. Jurors are more likely to

accept that information coming from a judge than from a scholar,

whose skills do not lie in the ability to persuade lay jurors (and whose

fidgeting on the stand, an unusual place for a genuine scholar, is apt

to by misunderstood.) Altogether it is much better for judges to

incorporate scientific knowledge about the trial process into that

process, rather than to make the subject a debatable issue in every

case.
Id, at 1120.

In other cases, the Seventh Circuit has unfailingly affirmed the decisions of district court

judges to exclude expert testimony on the psychology of memory and the reliability of eyewitness
identification. For example, in Crotteau the Seventh Circuit affirmed the decision of the district

court to exclude proffered expert testimony by a psychologist regarding the reliability of eyewitness

testimony and the effects of stress on the accuracy of eyewitness identification. Crotteau, 218 F.3d


‘Minule Onder Form (06/97)

United States District Court, Northern District of Ilinois

Docketing to mail notices.
Mail AQ 450 form.

Copy to judge/magistrate judge.

courtroom
EF deputy’s
initials

Name of Assigned Judge Charles R. Norgle Sitting Judge if Other
or Magistrate Judge 7 than Assigned Judge
CASE NUMBER 01 CR 783 DATE 11/7/2003
CASE UNITED STATES OF AMERICA vs, EDDIE RAINEY CARTER
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and () state briefly the nature
MOTION: of the motion being presented, }
DOCKET ENTRY:
(e)) o Filed motion of [ use listing in “Motion” box above.]
(2) im Brief in support of motion due
(3) o Answer brief to motion due __. Reply to answer brief due. .
{4) Oo Ruling/Hearing on set for at
(5) oO Status hearing[held/continued to] [set for/re-set for] on set for
(6) Oo Pretrial conference[held/continued to] [set for/re-set for] on set for -
(7) Oo Trial[set for/re-set for] on at
(8) o [Bench/Jury trial] [Hearing] held/continued to at
(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) CLocalRule 41.1 OFRCP41(a)(1) [1 FRCP41(a)(2).
do) i [Other docket entry] Defendant’s motion to suppress identification is denied.
(i) @ {For further detail see order attached to the original minute order.]
No notices required, advised in open court.
No notices required.
Notices mailed by judge’s staff.
V | Notified counsel by telephone, NOV 12 2003

isia’s'A
44unod doles

StslHd 6- AON EG

patedaagy os

central Clerk’s OfkceUl



IV. CONCLUSION
For the reasons stated above, the Court denies Defendant’s Motion to Suppress Identification
and the appointment of a eyewitness identification expert.
IT IS SO ORDERED.

OS iealae!

CHARLES RONALD NORGLE, Idee
United States District Court

DATED: We / 2B

11


evidence which links Carter to the getaway car used in the robbery.!

Moreover, the Government seeks to have the court give two instructions approved by the
Crotteau court, which specifically caution the jury to evaluate identification testimony carefully.
Crotteau, 213 F.3d at 832. Finally, defense counsel will have ample opportunity to cross-examine
the eyewitnesses at trial, and to argue to the jury that the identifications are not reliable. The Court
tules that the Crotteau instructions will be given.

Additionally, Federal Rule of Evidence 702 analysis incorporated to some extent a
consideration of the dangers, particularly the danger of unfair prejudice, enumerated in Rule 403.
The “helpfulness factor” under Rule 702 involves consideration whether the expert testimony would
be misleading or confusing in the context of the trial. In this case, any eyewitness who identified the
defendant may be cross examined about the reliability of their identification, the length of time they
saw the defendant, the conditions under which they saw the defendant, the length of time which
elapsed between seeing the defendant and the photos or the defendant in person, and the number of
times the witness viewed the photo array or arrays. Cross examination may include additional
questions dealing with perception, recall and retention.

As the Seventh Circuit has stated, cross-examination, cautionary instructions, and
corroborating evidence can obviate the need for expert testimony on eyewitness identification.
Crotteau, 213 F.3d at 832-33. In this case, the testimony of an expert witness regarding the
psychology of memory and the reliability of eyewitness identification will not aid the jury, and may

create confusion or undue influence.

'The government may also present DNA evidence linking Carter to a crack pipe that the
robber dropped in Firstar Bank. The analysis of the DNA evidence has been completed and is
favorable to the government.

10


Cir. 1989); United States v. Watson, 587 F.2d 365, 369 (7th Cir. 1978). The Court of Appeals has
accordingly affirmed the trial courts’ refusals to appoint expert witnesses on eyewitness
identification. Daniels, 64 F.3d at 315; Larkin, 978 F.2d at 971. The Court of Appeals has
consistently held that such testimony is “well within the ken of most lay jurors” and “will not
contribute to their understanding of the particular factual questions posed.” Larkin, 978 F.2d at 971.

In Daubert, the Supreme Court set forth the analysis that a district court must perform to

determine whether expert scientific testimony is admissible under Federal Rule of Evidence 702.
“TW]hen faced with a proffer of expert scientific testimony, a district court must determine ‘whether
the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to
understand or determine a fact in issue.” Hall, 165 F.3d at 1101 (quoting Daubert, 509 U.S. at 592).
When applying the Daubert framework, if the court determines that the expert scientific evidence
is properly excluded under the second prong of Daubert (helpfulness to the jury), the court is not
required to undertake an inquiry into the reliability of the proffered testimony. Id. at 1103 n.4.

In its leading post-Daubert case dealing with the admissibility of expert testimony on

eyewitness identification, the Seventh Circuit affirmed the district court’s exclusion of the expert
testimony because such testimony would not assist the trier of fact. Hall, 165 F.3d at 1108. In Hall,
the defendant was charged with kidnaping. He sought to present at trial the expert testimony of Dr.
Gary L. Wells, a renowned professor of psychology, regarding eight separate aspects regarding the
reliability of eyewitness identification and the suggestibility of memory. Id. at 1101. The proffered
testimony of Dr. Wells in Hall closely parallels the positions of Dr. Geoffrey Loftus, whose sample
testimony Defendant Carter has submitted in support of his motion.

Ina thorough discussion of the issues, the court of Appeals in Hall: (1) reviewed the Daubert


second photo array also contained a photo of the Defendant. Hernandez explained that when he
viewed the first photo array, he was very upset about the robbery and nervous about making an
identification for fear that he may need to testify in court. The agent then showed him the December
photo array. Hernandez immediately identified the photo of the Defendant as the person who robbed
the bank on September 1, 2001. Hernandez stated that he was one-hundred percent certain of his
identification. Of course, Hernandez’s certainty goes to the value of his testimony, not its
admissibility.
IIL. DISCUSSION

Defendant’s motion seeks to suppress Hernandez’s identification in December 2001, and to
preclude Hernandez from making an in-court identification at trial. According to Defendant, due
process would be violated by admitting either identification because the identification procedures
here were impermissibly suggestive.

The Government correctly states there is a two-step test for evaluating a challenge to
identification testimony. First, the defendant must establish that the identification procedure
employed was unreasonably suggestive; and if the defendant meets this burden, the court must
determine whether, under the totality of the circumstances, the identification is reliable despite the
suggestive procedures. See United States v. Galati, 230 F.3d 254, 259 (7th Cir. 2000).

Defendant argues that, for various reasons, the photos in each of the photo arrays
impermissibly suggested that the viewer should choose him. However, this Court finds that neither
the September photo array nor the December photo array is unreasonably suggestive. The September
photo array depicts six black males, all approximately the same age, with short hair, similar facial

hair, and similar noses. The December photo array depicts six black males, all of approximately the


1, 2001. Defendant offers no documentary submissions, let alone any of evidentiary quality to

demonstrate the existence of a genuine issue of material fact. United States v. DiDomenico, 78 F.3d

294, 300-01 (7th Cir. 1996); United States v. Hamm, 786 F.2d 804, 807 (7th Cir. 1986); United
States v. Randle, 966 F.2d 1209, 1212 (7th Cir. 1992). Defendant does, however, submit the photo
arrays at issue. Defendant argues Hernandez’s identification of Defendant, by picking him out of
a photo array, was the result of unduly suggestive identification procedures.

II. BACKGROUND

Daniel Hernandez (“Hernandez”), working as a teller at the Firstar Bank on September 1,
2001, saw a man who he later identified as the Defendant waiting in the teller line, complaining
about the length of the line. Hernandez then saw the Defendant leave the bank. A few minutes later,
Hernandez saw the Defendant re-enter the bank, point a gun around the bank, and yell for everyone
to get on the floor. The Defendant then approached Hernandez’s teller window, pointed the gun at
him, and told him to get down. Hernandez got to his knees, opened his teller drawer, and laid on his
chest. The Defendant then jumped over the teller counter. Hernandez kept down until he heard that
the robber left the bank. He told investigators that the robber was a black male, five feet seven to
five feet eight inches tall, slim build, unshaven, aged 27 to 32.

On September 6, 2001, several days after the robbery, teller Hernandez viewed a photo array,
prepared from a Chicago Police Department database, which contained six photos of black males,
including one of the Defendant (the “September photo array”). Hernandez spent several minutes
viewing the array, but did not positively identify any of the men in the photos as the robber.

Approximately three months later, on December 5, 2001, Hernandez viewed a second photo

array of six black males, prepared from the FBI photo lab (the “December photo array”). This


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA

No. 01 CR 783
Plaintiffs,

)
)
)
)
v. ) Judge Charles R. Norgle
)
EDDIE RAINEY CARTER, )
)
)

Defendant. pOcKet tD

OPINION AND ORDER
NOV 4 2 2003

CHARLES R. NORGLE, District Judge:
I. INTRODUCTION

Defendant, Eddie Rainey Carter, has been charged in a three-count superceding indictment.
Count I alleges that on September 1, 2001 Defendant assaulted and put in jeopardy the lives of bank
employees and customers by the use of a dangerous weapon, namely a firearm, in violation of 18
U.S.C. §§ 2113 (a) and (d). Count IL alleges that on September 4, 2001 Defendant assaulted and put
in jeopardy the lives of bank employees and customers by the use of a dangerous weapon, namely
a firearm, in violation of 18 U.S.C. §§ 2113 (a) and (d). Count HI alleges that on September 4, 2001
Defendant used and carried and brandished a firearm during and in relation to the commission of a
crime of violence, namely a bank robbery, in violation of 18 U.S.C. § 924(c)(1)(A).

Before the Court is Defendant’s motion to suppress identification, which relates to the charge
in Count |. Defendant’s motion also seeks to suppress any in-court testimony concerning the
identification, as well as the appointment of a eyewitness identification expert. Essentially, the
motion does not dispute the facts outlined by the Government. Defendant offers nothing to

contradict any significant fact as to what occurred before and during the bank robbery on September