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Limiting Expert's Eyewitness-Reliability Testimony Upends Carjacking Verdict

By KEVIN MCVEIGH, ESQ., Andrews Publications Staff Writer

Ruling that a trial judge improperly excluded expert witness testimony about the accuracy and reliability of eyewitness identifications, the 3d Circuit has reversed a Pennsylvania man's carjacking conviction.

The unanimous federal appellate panel held that since the prosecution's case was based almost entirely on eyewitness identifications, the expert testimony about the inherent unreliability of such evidence was highly relevant and admissible.

According to the opinion, Virginia Daly was carjacked at gunpoint in the parking lot of a Kmart in New Kensington, Pa., on the morning of June 13, 2003.

Mary Ulizio, a shopper at the store, witnessed the incident and returned with Daly to the Kmart to contact the police, the opinion said. Both Daly and Ulizio identified the assailant as a black male dressed in a dark T-shirt and a baseball cap, according to the opinion.

The carjacker drove Daly's Jeep to Tarentum, a small town located across the Allegheny River, where he lost control of the vehicle, crashed into a utility pole and fled the scene on foot, the opinion said.

Scott Thompson and Robert Walker witnessed the wreck and gave police descriptions of the driver consistent with the ones given by Daly and Ulizio, according to the opinion.

Shortly thereafter police arrested Craig Brownlee, a 30-year-old black man wearing a dark T-shirt, and took him in handcuffs to the scene of the wreck, the opinion said. Walker and Thompson identified him on the spot as the driver of the Jeep.

Police then brought Daly and Ulizio to the accident scene and asked the women if they could "identify anyone," the opinion said.

Both women identified Brownlee as the carjacker, with Daly saying there "was no doubt in her mind," according to the opinion. A baseball cap and a handgun were found inside the Jeep, the opinion said.

Identification procedures such as the ones used for all four witnesses are known as "show-up" identifications, the opinion said.

Brownlee was charged with carjacking, using a firearm in commission of a violent crime and possessing a firearm as a convicted felon.

At trial in the U.S. District Court for the Western District of Pennsylvania, prosecutors based their case on the eyewitness testimony, and Brownlee employed a "mistaken identity" defense, according to the 3d Circuit's opinion.

Brownlee sought to present the testimony of Jonathan Wolf Schooler, a University of Pittsburgh psychology professor and expert on human perception, to demonstrate the unreliability of eyewitness identifications.

According to the opinion, Schooler offered opinions on:

  • • The tendency of a witness to focus on a weapon;
  • • The effect of allowing eyewitnesses to meet with other eyewitnesses before identification;
  • • The effect of hats on recognition;
  • • Cross-racial identification;
  • • The lack of correlation between confidence and accuracy in witness identifications;
  • • The influence of show-up identification procedures on witness accuracy; and
  • • The effect of post-event information on witness confidence.

    U.S. District Judge Arthur Schwab limited Schooler's testimony to the areas of weapon focus, exposure to multiple witnesses, hair coverings and cross-racial identification, finding the other areas potentially confusing to jurors.

    The jury convicted Brownlee on all three charges, and he appealed. Among other arguments, Brownlee claimed that Judge Schwab abused his discretion by limiting Schooler's testimony.

    The U.S. Court of Appeals for the 3d Circuit said eyewitness testimony is widely recognized as fallible and often inaccurate. Jurors seldom possess the scientific knowledge to understand that eyewitness identifications are unreliable, the panel noted.

    The reliability of the four eyewitnesses was "the primary issue before the jury," and expert testimony was "the only method of imparting the knowledge concerning confidence-accuracy correlation to the jury," Judge Thomas L. Ambro wrote for the appeals court.

    He noted that Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993), sets particular standards judges must use to determine the admissibility of expert testimony.

    Rule 702 of the Federal Rules of Evidence, which deals with expert testimony, was amended in 2000 to incorporate the Daubert standards.

    Judge Ambro noted that the 3d Circuit had previously ruled several times that Rule 702 permits a defendant to use expert testimony on human perception and memory to rebut the reliability of eyewitness identifications.

    Although those rulings were made before Daubert, they remain good law because the amendments did not change Rule 702's provisions regarding helpfulness to jurors, he said.

    Thus the 3d Circuit panel found that Schooler's testimony was improperly restricted and granted Brownlee a new trial.


    United States v. Brownlee, No. 04-4134, 454 F.3d 131 (3d Cir. July 18, 2006).
    Expert & Scientific Evidence Litigation Reporter
    Volume 03, Issue 09
    08/24/2006

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