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11th Circuit: Decision to Exclude Eyewitness Expert Testimony Not Reviewable

August 15, 2012

In United States v. Owens, the Eleventh Circuit has held that a district court’s decision to exclude eyewitness testimony can never be reviewed on appeal.

The holding relies on what many feel is an outdated 1997 decision, United States v. Smith, 122 F.3d 1355 (11th Cir. 1997), and drew strong criticism from Judge Rosemary Barkett.

Essentially, a “district court’s decision to admit or exclude evidence will not be disturbed on appeal absent a clear abuse of discretion.” The Court, citing Smith, noted that it has “consistently looked unfavorably on” expert testimony about eyewitness reliability and held that “a district court does not abuse its discretion when it excludes expert testimony on eyewitness identification.” Therefore, the ruling makes it impossible for an appeals court to review the exclusion of this evidence at trial.

Owens was convicted of robbery in 2008. During his testimony, the victim described the physical appearance and behavior of the two men who robbed his store. The witness also picked Owens’ picture out a photo lineup. In addition to arguing that the description provided by the witness did not match Owens, the defendant attempted to offer expert testimony about the inaccuracy of eyewitness identification to the jury. Among other things, Owens sought to examine the adequacy of the witness’s opportunity to observe the robbers, the circumstances of the photo lineup, and the length of time between the offense and the identification. An eyewitness identification expert was prepared to testify concerning the difficulty of encoding a good memory of an armed robber’s face, the effect of having a detective who is currently investigating the case rather than a neutral individual with no exposure to potential suspects conduct the photo lineup, and the overall considerable possibility of an erroneous identification under the conditions of the case.

Despite these issues, the district court reasoned that Owens had ample opportunity to reveal problems with the accuracy of the eyewitness identification during cross-examination of the witness. When Owens proposed a set of jury instructions to assist the jurors in recognizing the issues with eyewitness identification, the court rejected them and held that the pattern instruction would be sufficient to permit the jurors to judge the reliability of the evidence themselves.

By refusing to allow an appellate court to review the rejection of this evidence, the 11th Circuit stands in opposition to all of the other federal circuits (and all but five states) that do permit appellate review in these circumstances. Judge Barkett argued in her dissent that there is no “legal or logical” reason why rejecting eyewitness identification should be treated any differently than other similar evidentiary rulings. Citing the extensive academic coverage of the unreliability of eyewitness identification, she argued that “[o]ur continued adherence to a rule that disfavors this form of testimony is indefensible in light of the science supporting its usefulness. Our doing so is particularly unjustifiable given that we do review the exclusion of polygraph evidence, which is widely condemned as unreliable by courts and experts!”

Due to the circuit split on this issue, it is quite possible that the Supreme Court will decide to hear Owens’ case. That decision will likely come early next year.

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