1 In McM ullen v. State , 714 So .2d 368 ( Fla. 1998 ), reh’g deni ed , (June 10, 1 998), cit ed by the majority , a comprehensive review of vari ous state and federal jur isdict ional posi

tions regar

ding the admissibil ity

of eyewi tness expert t estimony was present ed. Alt hough the majorit y in t he present case conclud es that T ennes see pe rmits, on a discretio nary bas is, expert e yewitness testimo ny, McMullen and other lega l treat ises have, i n interpr eting Wooden , concluded t hat Tennessee has adopted a per serule of inadm issibility. See McMullen , 714 So .2d at 371 ; Annota tion, Experts on Eyewit ness Testimony

, 46 ALR 4th 1047, 1105 (1986). 

# FILED

October 13, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE JUNE 1998 SESSION

STATE OF TENN ESSEE, ) ) C.C.A. NO. 01C 01-9707-CC-00270 Appellee, ) ) WILLIAMSON COUNTY VS. ) ) HON. DONALD P. HARRIS, EDDIE L. COLEY, JR., ) JUDGE ) Appellant. ) (Aggravate d Robbery)

SEPARA

TE CONCURRING OPIN ION

I agree that the proffered exper t testimony regarding

eyewitness testimony should have been excluded. I am unable, however, to join with the majority in concluding that the admissi on or non-admission of expert testimony should be exercised under a judicial discretio n standard on a case by case basis. Although clearly subject to varying interpretations, I believe the current state of the law in Tennessee on this issue forbids th e introduction of expert tes timony regarding eyewitness identific

ation. 1 

## See State v. Wooden , 658 S.W.2d 553 (Tenn. Crim. App. 1983); see also State v. Ward , 712 S.W.2d 485 (Tenn. Crim. App. 1986). Indeed, Judge Byers, wr

iting on behalf of this court, concluded that the evaluation of the credibility of eyew

itness testimony is a matt er within the prov

ince of the jury and does not require expert te

stimony. Wooden , 658 S.W.2d at 557. Be cause I believe this reasoning sound, I woul d adhere to the position of a per se exclusionary rul e regarding2 At the outset, it is prudent to note the three views on the admissibility of ey ewitness expert testimony that have emerged:

(1) The discretionary vi ew , whic h hold s tha t the a dm issio n of e xpe rt test imo ny is within the dis cretion of the trial judge . Curren tly this is the m ajority view am ong bo th federal and st

ate courts; (2) The prohibitory view , which expressly prohibits the use of this type of expert testimo ny. See, e.g. , United Stat es v. Holl oway , 971 F.2 d 675 (1 1th Cir. 19 92), cert. denied , Rudder v. Unit ed States , 507 U.S . 962, 113 S.Ct. 139 0 (1993 ); State v. Goldsby , 650 P.2d 952 (O re. Ct. App . 1982); Comm onwealth v. Simmons , 662 A.2d 621 (Pa. 199 5), cert. deni ed , 516 U.S. 1128, 116 S.Ct. 945 ( 1996); and (3) The limited admissibil ity view , which co ncludes that the trial cou rt abuse s its discreti on in excludi ng this evidence in cases where there is no subst antial corrob orating ev idence. O nly two cou rts have a dopted this position. See, e.g. , United States v. Downing , 753 F.2 d 1224 (3d Cir. 19 85); Peo ple v. M cDo nald , 690 P.2d 709 (Cal. 1984).
McMullen , 712 So .2d 368, 3 70 (Fla. 19 98), reh’g deni ed , (June 10, 1 998). Again , the majori ty i n the present case adopt

s the majorit

y discretionary

positi on. However, I find tha t thi s positi on is inconsistent both wit h prior hol dings of t his court a nd with Tenn. R. Evid. 702.

3 It shoul d be noted that both Wooden and W ard were decided pr ior to the adoption of the Tennessee Rules of Evide nce ( effecti ve date January 1,1990 ).

4 As ill ustrati on, in t he present case, the appell ant’s expert was “prepared t

o provide t

estimony about the areas of the process of eyewitness identification, t he relationship between stress and m emory for an event,cross-racia l ident ification, t he relationship between the confidence t hat a wit ness has in the accuracy of hi s or her iden tifi cation and t he accuracy of that ident ification, and t he effect t ime has on the accura cy of rem emb ering som ething se en.” 

## 2 eyewitnes s expert te stimony. 2



## The introduction of expert testimony is controlled by Rule 702, Tenn. R. Evid. This rule provides that “[i]f scientific, technical or other specialized knowledge will substantiallyassist the trier of fact to understand the evidence or to determ ine a fact in issue, a witness qua lified as an expert . . . may testify in the form of an opinion or otherwise.” (Emphasis added). Wheth er the proffered expert testimony will substantially assist the trier of fact is the touchstone of Rule 702 and, thus, i s the ultimate factor in determining whether such eyew

itness expert testimony is admissible. 3



## It is conceded that expert testimony on eyewitness identification is intr oduced to alert the jury to the fall ibility, inaccurac ies, and inconsistencies o f human perception based upon objective generalities adduced from controlled experiments. 4 

## See generally McMullen , 712 So. 2d at 377 (Anstead, J., c oncurring in part and di ssenting in part). Indeed, as noted in McMullen , one leading commentator on the subject advances the argument “that the average juror actually knows little about factors5 For e xam ple, s om e psyc holog ists in this fie ld arg ue th at the ir res earc h rev ealed com mo nly held misc oncep tions of the genera l public, e.g. , (1) “The more confi dent a wit ness is, t he more accurate the testimony is likely to be,” and (2) “Poli ce officers mak e better witnesses than ordinary citizens.” See McMullen , 712 So .2d at 377 (citing Elizabe th F. Loftu s and J ame s M. Do yle, E YEWITNESS T ESTI MONY : C IVI L AND C RIMINAL(3d ed. 19 97)). 

## 3 affecting the accuracy of eyewitness identifications” and “[w]hile most peop le are satisfied in believing they have ‘common sense,’ the memory process involves factors that are often counterintuitiv e.” 5 

## Id . at 377 (citing Cindy J. O’Hagan, When Seeing is Not Believing: The Case fo r Eyewitness Expert Testi mony , 81 G EO 

## .L.J. 741, 760-61 (1993) (footnotes omitted)). S uch generalizations do not apply to every witness’ ability of perception and do not substantially assist the trier of fact as the trustworthiness of eyewitness observ

ations is not generally

beyond the common knowledg e and experience of the average juror. Moreover, if indeed the purpose of the expert testimony is to contradict “common sense,” the testimony would appear to be m ore akin to impeachment testimony than substantial assistance. In sum, expert testimony on eyewitness identification is not needed to expl ain “common sense.” The making of judgments of identification and the a wareness of the factors beari ng on the reliability of such judgments are so much a part of the day to day experiences of ordinary laypersons that it must be concluded that the jury i s capable of making an intelli gent assessment of the reliability of the identification te stimony without need for expert testimony as to the human perceptional processes. See Wooden , 658 S.W.2d at 557;
see, e.g. , People v. Kelley , 631 N.Y.S.2d 926 (N.Y.App. Div. 1995), appeal denied , 664 N.E.2d 515 (N.Y. 1996). Accordingly, it is not appropriate for the trial judge to take from the jury their own determination as to what weight or effect to give to the evidence of the eyewitness and the i dentifying witnesses , and to have that determination put before them on the basis of the expert testimony as proffered. See, e.g. , United States v. Daniels , 64 F.3d 311 (7th Cir. 1995) , cert. denied , 516 U.S. 1063, 116 S.Ct. 745 (1996); State v. Coleman , 486 So.2d 995 (La. Ct. App.), cert. denied , 493 So.2d 633 (La. 1986); Simmons , 662 A.2d at 621; People v. Anderson , 630 N.Y.S.2d 77 (N.Y. App. Div.), appeal denied , 661 N.E.2d 1383 (N.Y. 1995).

## 4The adversarial system of justice has traditionally relied upon crossexamination as a mechanism to al ert the jury as to any inaccuracies or incons istencies in the testimony of an eyewitness and, when coupled with proper cautionary instructions regarding eyewitness testimony, the jury is presumed to be able to assess the credibility and r

eliability of each witness. It is the responsi bility of counsel, duri ng cross-examination, to i nquire into the witne ss’ opportunity for obser vation, capacity for observation, attention, i nterest, and distraction or division of attention. Ac cordingly, I conclude that the problem of potential ly unreliable eyew itness testimony is not resolved by the introduction of expe rt testimony, but rather, the problem is allevi ated by proper cautionary instructi ons setting forth the factors to be considered in evaluati ng eyewitness testimony

and other existing s

afeguards such as cross-ex amination, closing argument, and the trial court’s power to suppress testimony if the identification procedure rendered it unrel iable. The use of expert testi mony could not only leng then the time and increase the cost o f trials, but could also di vert the jurors from the t rue issues or c

ause them to ab

dicate their

role as the arbiter of c redibilit y in the cou rt room.

As such, I adhere to the per se rule of exclusion pronounc ed in State v. Wooden

.

____________________________________ DAVID G. HAYES, Jud ge