# FILED
October 13, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE JUNE 1998 SESS ION

STATE OF TENNESSEE, ) ) Appellee, ) No. 03C01-9707-CC-00270

) ) Williamson County v. ) ) Honorable Donald P. Harr is, Judge ) EDDIE L. COLEY, JR., ) (Aggravate d Robbery) ) Appellant. )

DISSENTING OPINION
I respectfully disagr

ee with both of my colleag ues and believe that the judgment should be vacated and the case remanded for a hearing for the proper determination of the admissibility of Dr. Johnson’s testimo ny under Rule 702, Tenn. R. Evid., and McDaniel v. CSX Transportation, Inc ., 955 S.W.2d 257 (Tenn. 1997). The trial court essentiall

y held both that psychol ogy has not reached the l evel of reliability to permit testimony regar

ding eyewitness i dentification and that the exper t would not be of assistance to the jury. Unfortunately, though, the trial court made these rul ings without having heard any testimony by Dr. Johnson about the present extent of eyewitness identification research and th e extent of research findings that could contradict common assumptions about factors that are thought to bear on the issue of r eliability of identification. In this res pect, it is unfortunate that the i nformation comes to us only as a proffer as opposed to witness testimony subject to probi ng cross-examination.

The defendant’s proffer reflects that Dr. Johnson’s expertise is based upon substantial research by him and others into the menta l processes that are important to eyewitnes

s identification. The proffer reflects that Dr. Johnson was2

prepared to testify, among ot her things, that the lev el of the victim’s certa inty or confidence in his or her ident ification has no correlati on to the level of accuracy in the identification when the facts are similar to those in the present case. If this is true, it directly contradict

s the assumption, recogniz ed by our supreme court, tha t the degree of certainty expressed by the witness reg arding the identification has a bearing on the accuracy of the identificati on. See , e.g. , State v. Dyle , 899 S.W.2d 607, 612 (Tenn. 1995); see also Neil v. Biggers , 409 U.S. 188, 199-200, 93 S. Ct. 375, 382 (1972). Certainly, Dr. Joh nson’s expertise w ould substantially ass ist the jury relati ve to its assessment of this misconception that is not commonly understood by the public. The remaining question, then, is whether the eyew itness expert testimony is based upon trustworthy facts and data and upon sufficiently val id and reliable reasoning or methodology. See McDaniel , 955 S.W.2d at 265 (T enn. 1997).

As Judge Peay’s opinio n reflects, the state’s case rests solely upon the eyewitness identific

ation testimony of the two r obbery victims. Ther

e is no other evidence connecting the de fendant to the crime. The defendant presented an alibi defense. Under these circumstances, the thoughts o f the United States Supreme Court are significant:

The vagaries of eyew

itness identification are w ell-know n; the annals of criminal law a re rife with instances of mistaken identification.

. . . The identification of strangers is proverbially untrustwo rthy. The hazardsof such testimony are establ ished bya formidable number of instances in the records o f English and American trials. United States v. Wade , 388 U.S. 218, 228, 87 S. Ct. 1926, 1933 (1967). Th is concern has been expressed by our supreme court, as well

. Dyle , 899 S.W.2d at 609 (Tenn. 1995). We should not lightly cast as ide eyewitness ident ification expert testimony as lacking value to our

system of justice.3 Also, given the fact that State v. Ward , 712 S.W.2d 485 (Tenn. Crim. App. 1986), a nalyzes the issue of the admi ssion of eyewitness identif ication e xpert test imony in the context of the discret ion of the trial court, I q uestion Judge Hayes’ s tatement that current Tenn essee law forbids the i ntroduction of such evid ence. Regar dless, it i s time to revisit the issue based upon the additional resear ch and studies that have been conducted. However, we cannot do it on the record before us. Therefore , I would remand the cas e for furthe r hearing.

________________________________ Joseph M. Tipton, Judge