United States v. Brien

July 14, 1995
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 94-1840

UNITED STATES,

Appellee,

v.

NICHOLAS BRIEN,

Defendant, Appellant.

ERRATA SHEET
ERRATA SHEET

The opinion of this court issued on July 11, 1995 is hereby
amended as follows:

On the cover sheet: "* Of the District of Northern California,"
should be changed to "* Of the Northern District of California,".

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 94-1840

UNITED STATES,

Appellee,

v.

NICHOLAS BRIEN,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Robert E. Keeton, U.S. District Judge]

Before

Boudin, Circuit Judge,

Lynch, Circuit Judge,

and Schwarzer,* Senior District Judge.

James L. Sultan with whom Rankin & Sultan was on brief for

appellant.
Christopher F. Bator, Assistant United States Attorney, with whom

Donald K. Stern, United States Attorney, was on brief for appellee.

July 11, 1995

* Of the District of Northern California, sitting by designation.

BOUDIN, Circuit Judge. On August 31, 1993, a grand jury

indicted Nicholas Brien for armed bank robbery, 18 U.S.C.

2113(a), (d), and carrying a firearm during a crime of

violence, id. 924(c)(1). In April 1994, a jury convicted

Brien of the former offense, and he was later sentenced to

204 months in prison. He now appeals, raising important

issues concerning (1) expert evidence on eyewitness

identification and (2) courtroom identification procedure.

As background, we briefly summarize the evidence and do so in

the light most favorable to the government. United States v.

Torres-Maldonado, 14 F.3d 95, 100 (1st Cir.), cert. denied,

115 S. Ct. 193 (1994).

According to the government's evidence, Brien and an

accomplice entered the Family Bank in Dracut, Massachusetts,

on June 3, 1993. Brien, armed with a gun, confronted three

tellers and collected money from two of them. He and his

accomplice then fled with over $4,000 in a bag containing

(unknown to them) an explodable red dye pack. Before and

after the robbery, Brien stayed for several days with his

girlfriend at the Avalon Motel in Saugus, Massachusetts.

There, on June 4, an employee found some of the stolen money-

-identified by serial numbers and red dye--in a trash barrel

outside Brien's room.

Brien was caught on July 15, 1993. On August 6, 1993,

Brien was identified from a photo array by three bank

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tellers, including two of those whom he had directly

confronted. All three testified to this effect at trial and

identified Brien in the courtroom. Two of the hotel

employees also identified Brien from a photo array as the man

who had stayed at the hotel and also identified him at trial.

The employee who had found the dye-stained money outside

Brien's room testified to this effect.

Given the array of eyewitnesses, it is understandable

that Brien does not now challenge the sufficiency of the

evidence, but the nature of his defense at trial is pertinent

to the claims he does raise on appeal. His defense was a

claim of mistaken identity, based in part on inconsistent

descriptions that the tellers had given of the robbers'

physical characteristics after the event. Brien also offered

testimony of one teller who was unable to pick Brien out from

the photo array and from a customer who picked out an

individual other than Brien from the photo array.

1. Brien's first claim on appeal concerns expert

testimony. Prior to trial, Brien sought an in limine ruling

permitting testimony from Alexander Yarmey, a professor of

psychology, as an expert witness on the weaknesses of

eyewitness identification. The one-paragraph description in

the motion indicated that Yarmey would testify as to "the

factors that affect memory, image retention and retrieval,"

and it provided a few sentences of detail. The trial judge

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asked for a proffer of testimony; Brien then submitted a

three-page statement signed by counsel, somewhat enlarging

upon the description.

The next day the court denied the motion in limine,

stating that the proffer was too general and did not satisfy

the foundational requirements for expert testimony under

Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2786

(1993). The court made clear that, if the motion were

renewed, the court wanted not the attorney's statement but

"testimony of the [expert] under oath with respect to the

proposed foundation evidence." In due course Yarmey filed an

eight-page affidavit, which provided about 11 paragraphs of

substantive opinion.

In his affidavit Yarmey disclaimed any ability to

determine if a particular witness is credible or accurate in

making an identification. But he set forth three elements of

memory--observation, retention and retrieval; described

pertinent factors that can undermine those elements (e.g.,

the stress of being confronted with a gun; the delay between

the event and later identification); and drew attention to

certain other sources that may create or compound errors in

identification (e.g., reinforcement through police

questioning; disparities in appearance that distinguish the

suspect from others in a line-up or array).

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Most of Yarmey's statements were general and but a few

related directly to facts in this case. We set forth in the

margin Yarmey's most detailed comment on the evidence,

responding to the question, "What is [your] opinion about the

suggestiveness of the photospreads used in this case?"1

Neither the affidavit nor any other submission by Brien's

counsel purported to set forth in detail the scientific

foundations for any of Yarmey's premises or conclusions,

although Yarmey referred once to "the literature" documenting

the phenomenon of "consistent error" (i.e., multiple mis-

identification based on a common source of error).

Two days later the district judge ruled that "in the

exercise of whatever scope of discretion I have," he was

excluding the testimony. The judge expressed a variety of

concerns about the basis for assumptions in Yarmey's

testimony and about "the fit and usefulness and misleading

qualities" of the testimony. The judge stressed that he was

not excluding expert testimony on identification as a matter

of law. He also noted the risks of confronting the jury

1"The particular male photospread in this instance
(because it depicts several people of a light complexion) was
of lesser reliability because witnesses could eliminate those
people who do not fit the dark or medium complexion, which I
understand that they observed. This, in itself, indicates
suggestiveness because of the quality of the photographs.
The female photospread is also suggestive because only a few
of the photographs reflect women with any makeup or earrings,
which I understand at least one of the witnesses observed."

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with battles of experts on areas within the common-sense

competence of jurors.

The issue of expert testimony on eyewitness

identification is an important and recurring one, and behind

it lie issues even more fundamental: what factors should

control the admission of such testimony, how much latitude

does the trial judge have in resolving the issue, and what

formulas or rules constrain the decision. In a recent case,

we described the pertinent Federal Rules of Evidence but

decided the case on its facts and declined to go very far in

laying down general rules. United States v. Shay, No. 93-

2141, June 22, 1995, slip op. 13-15. This case bears out the

wisdom of that caution.

Broadly speaking, the expert testimony in this case

involved a credibility determination within the ken of the

ordinary judge and juror--unlike, say, DNA identification.

But Fed. R. Evid. 702 permits expert evidence that

"assist[s]" the jury; and quite possibly an expert such as a

psychologist familiar with identification problems could give

the jury background information about the mechanism of

memory, types of errors, error rates, and other information

not commonly possessed by the jury--information that may even

be at odds with what a judge or juror might expect.

But helpfulness is a matter of degree, and expert

evidence involves costs and risks--too obvious to need

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recounting--that distinguish it from lay evidence about "what

happened here." Daubert itself, recalibrating the

longstanding threshold requirement that the trial judge find

expert evidence to be reliable, is but one facet of the

difference in treatment. Indeed, trial judges have

traditionally been afforded wide discretion to admit or

exclude expert evidence. E.g., Hamling v. United States, 418

U.S. 87, 108 (1974). But discretion is not carte blanche

and, in some areas, prior law has been modified by the

Federal Rules of Evidence.

In all events, for a range of reasons, trial courts have

long hesitated to admit expert evidence purporting to

identify flaws in eyewitness identification: for example,

courts have said that the jury could decide the credibility

issues itself; that experts in this area are not much help

and largely offer rather obvious generalities; that trials

would be prolonged by battles of experts; and that such

testimony created undue opportunity for confusing and

misleading the jury. Appeals courts have generally upheld

rulings excluding such evidence. E.g., United States v.

Fosher, 590 F.2d 381, 382 (1st Cir. 1979); United States v.

Purham, 725 F.2d 450 (8th Cir. 1984).

Quite recently, several circuits have suggested that

such evidence warrants a more hospitable reception. E.g.,

United States v. Rincon, 28 F.3d 921 (9th Cir.), cert.

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denied, 115 S. Ct. 605 (1994); United States v. Stevens, 935

F.2d 1380 (3rd Cir. 1991). There is more expert literature

on the subject, more experts pressing to testify, and

possibly more skepticism about the reliability of

eyewitnesses. E.g., Loftus and Doyle, Eyewitness Testimony:

Civil and Criminal (2d ed. 1992). It may be that a door once

largely shut is now somewhat ajar.

We are unwilling to adopt a blanket rule that qualified

expert testimony on eyewitness identification must routinely

be admitted or excluded. Our Fosher decision is not a

general bar to such testimony; that case upheld an exclusion

as within "the broad discretion allowed a trial court." 590

F.2d at 382. But trial courts are likely to educate

themselves, and us, by taking these proffers one by one.

Obvious concerns are the reliability and helpfulness of the

proposed expert testimony, the importance and the quality of

the eyewitness evidence it addresses, and any threat of

confusion, misleading of the jury, or unnecessary delay.

In this case, we sustain the district court's ruling on

the ground that the district judge made clear his need for

some proffer of data or literature underlying the expert's

assumptions and conclusions, and the defense offered

practically nothing, despite repeated opportunities to do so.

In our view, this procedure was justified both in order to

determine reliability under Daubert and to allow the judge to

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gauge whether the testimony would be helpful to the jury or

would confuse or mislead instead. Nor is there any reason

offered why Yarmey could not have supplied this foundation.

Brien argues that the expert literature casting doubt on

eyewitness evidence is now so well established that the

courts should take judicial notice of it. But Yarmey's

testimony does not concern a single long-established

scientific principle such as whether radar can measure speed.

Rather, Yarmey offered a set of assertions whose helpfulness

and reliability in this case depended on what lay underneath

them. To say that eyewitnesses under stress sometimes

misidentify tells the jury almost nothing beyond what common

sense and argument would supply; almost everything turns on

degree, data, comparable conditions, and other specifics.

If presented with a fair sample of the underlying data,

the district court might have decided (as the trial judge

here offered to consider) that some of the warnings were best

reflected in instructions; that other portions of the

proposed testimony were reliable and helpful; and that still

other portions failed one or both of these criteria or met

them but were outweighed by confusion or misleading

character. Daubert, as well as common prudence, entitled the

judge to require such underlying information, and the failure

to provide it supplies an adequate basis for the trial

court's decision to reject the proffer.

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There is nothing to Brien's alternative argument that

Fed. R. Evid. 705 entitled Yarmey to offer the expert

testimony without disclosing the underlying data, leaving

that to be developed by cross-examination. Rule 705 relates

to the presentation of testimony at trial and, even then, is

subject to the supervision of the trial judge to avoid

unfairness. The rule does not impair--indeed, has nothing to

do with--the trial judge's right to insist that he or she be

given the underlying information by proffer as an aid to the

preliminary ruling on admissibility.

2. Brien's next claim of error raises an issue which,

if anything, is even more significant to the conduct of

criminal trials. Every viewer of trials, or even Hollywood

depictions of them, is familiar with the routine practice by

which an eyewitness to the crime takes the stand, points to

the defendant sitting at counsel table, and identifies the

defendant as the one who committed the crime. Here, Brien

complains of the alleged refusal of the trial judge "to

permit [instead] non-suggestive courtroom identification

procedures."

Prior to trial Brien's trial counsel, who appears to

have provided Brien with an energetic and inventive defense,

began by moving (with notice to the government) for

permission to have the defendant seated in the spectator

section of the courtroom during the trial; and by a

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contemporaneous motion (filed ex parte), Brien's counsel

asked leave to salt the audience with "three or four

individuals of the same general description as the bank

robber . . . ." Shortly before picking the jury, the trial

judge, on March 28, addressed both motions in open court, as

follows:

First, the court said that the proposal to salt the

audience opened the way to "the reverse of an improper

identification procedure" by the government, noting that

Brien's proposal would allow him to bring in anyone including

an identical twin. Second, the court ruled that the

defendant could sit "anywhere in the courtroom," subject to

limitations required by security; but the court said it could

"have a problem" with the defendant switching positions at

will from counsel table to audience. Third, the court said

that it would not permit ex parte submissions on the

identification procedure but would allow argument by both

sides.

Defense counsel said that he wanted to discuss the

matter with Brien himself. Two days later, Brien's counsel

renewed (not ex parte) his original request to bring in

spectators similar in description to the bank robber but

offered no details that might have allayed the concern

expressed by the trial judge. On March 31, shortly before

opening argument, defense counsel asked the court to rule on

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the renewed motion, amending his earlier request by

indicating that Brien might choose to sit at counsel table if

the motion to bring in selected spectators were denied.

The trial judge then said in part:

I do not write blank checks and sign them. Now,
that's what you're asking me to do . . . here.
You're not disclosing to me anything about what are
the arrangements that you've set up, how you expect
to handle it, and I am not going to give you
complete authority to do it any way you want to and
give you an advance ruling that it's permissible.
As I've said to you yesterday, there are problems
here. You're very close to the edge, it seems to
me, of some problems about whether you are
undertaking to proceed in a way that will tend to
mislead witnesses . . . .

The court then denied the motion. Defense counsel made no

effort to provide any further details of his proposal.

On appeal, Brien's appellate counsel has made the

obvious attack on the usual practice of courtroom

identification of the defendant while seated at counsel

table; and he has cited us to several Second Circuit cases

suggesting that that court might favor a defendant who sought

a more balanced form of courtroom identification where

identification was a contested issue, the defendant moved

pretrial for a courtroom line-up, and the witness did not

pick the defendant out in a fair out-of-court lineup prior to

trial. E.g., United States v. Sebetich, 776 F.2d 412 (1985),

cert. denied, 484 U.S. 1017 (1988). These conditions, Brien

says, were met in this case.

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If Brien had presented the court with a detailed plan

for a fair in-court line-up, and the court had rejected the

plan without a plausible justification, then on the present

facts we think that a significant issue would be presented.

But Brien's motion is not within a country mile of such a

proposal. As the trial court sensibly explained, Brien's

plan left room for a scenario fully capable of misleading the

jury. To alter the standard practice, it was up to Brien's

counsel to propose a plan that would guard against unfairness

to either side. This, despite ample invitations, Brien's

counsel declined to do.

This refusal may well have been an entirely justified

trial tactic. If counsel feared that a fairly staged court

room line-up would still likely result in identification of

Brien as the robber, the line-up would strengthen the

credibility of the witnesses and undermine counsel's

misidentification argument to the jury. But whether or not

counsel sought an advantage and retreated when none was

offered, the trial judge was within his discretion--and we

think eminently right--in refusing to endorse what the trial

judge properly described as a blank check.

3. Four additional rather compact claims of error are

urged by Brien (e.g., that the trial court should have

granted a requested continuance). The government's answering

brief provides on the surface an ample response to each of

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the four claims; Brien's reply brief makes no effort to meet

the responses. Appraising the four claims on the merits, we

do not think that any of them warrants separate discussion.

In each instance the trial judge handled the matter properly,

the issue is not close, and no significant legal question is

presented.

By contrast, the first two issues in the case--the

expert evidence and courtroom identification--do raise very

difficult questions that have been ably briefed on both

sides. But the difficulty of these issues, taken in the

abstract, confirms the wisdom of the trial judge's approach:

outlining his legitimate concerns to counsel, providing

opportunities for those concerns to be addressed, and

(ultimately) insisting on justifications grounded in the

particulars of the case.

Affirmed.

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