IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0727-10
LARRY JOSEPH TILLMAN, JR., Appellant
v.
THE STATE OF TEXAS
ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE FOURTEENTH COURT OF APPEALS
HARRIS COUNTY
H ERVEY, J., delivered the opinion for a unanimous Court.
OPINION
Appellant, Larry Joseph Tillman, was charged with capital murder. T EX. P ENAL
C ODE §§ 12.31(b), 19.03(a)(2). A jury found him guilty, and the trial court assessed the
automatic punishment of confinement for life in the Institutional Division of the Texas
Department of Criminal Justice. The Fourteenth Court of Appeals affirmed. Tillman v.
Tillman - 2
State, No. 14-08-00846-CR, 2010 Tex. App. LEXIS 4013 (Tex. App.—Houston [14th
Dist.] May 27, 2010) (memo. op., not designated for publication). We granted
discretionary review to address whether the eyewitness-identification expert testimony
was relevant. We will reverse the judgment of the court of appeals.
I. FACTS AND PROCEDURAL HISTORY
On the night of December 21, 2005, the victims, Amandre Wilson and Joseph
Liebetreu, returned home after attending a charity ball. Ricardo Avila, who lived across
the street from Wilson’s town home, was in his kitchen just after midnight when he heard
two gunshots from the direction of the victim’s home. As he ran towards the front of his
house to look across the street, Avila heard Liebetreu yell, “Hey, you, get out of here.”
He then heard two more shots. Avila saw an “extremely tall” black man run out of the
victim’s front door. The suspect was wearing a black, mid-thigh length coat and a gray
knit cap. Avila testified that the lights of the victim’s front porch and garage were
working, as was the street light, so he could see the suspect’s face.1 The suspect did not
have any facial hair. On cross-examination, Avila estimated that he was about 62 feet
away from the suspect when he viewed him. Avila went to a neighbor’s house and called
9-1-1. Later that morning, Avila gave a sworn witness statement to the police, and on
January 17, 2006, he assisted the police in making a composite sketch of the suspect,
which was then published on a newscast.
1
Witness Avila testified that as a teacher and a barber, he is accustomed to observing
faces and remembering their features.
Tillman - 3
Dan Christoffel lived in the same town-home complex as Wilson. While his
brother was driving him down the street, Christoffel witnessed a tall black man who
appeared to have been running away from the victim’s home, slowing when he saw the
car’s headlights. Christoffel described the man as having a baby face and wearing a knit
cap and a dark, long, thigh-length coat. Christoffel passed within four to six feet of the
suspect, and the two made eye contact. Christoffel submitted a sworn witness statement
that morning.
Bobby Williams testified at trial that he was at an apartment talking to some people
when three black males came into the apartment. This was shortly after the victims were
murdered. Williams saw and heard one of these individuals, a “big guy,” discussing how
he had murdered the victims.2 A few hours later, Williams called Crime Stoppers.
On February 23, 2006, Williams “tentatively” identified Appellant to a couple of
police officers while they were driving around Appellant’s neighborhood in an unmarked
police vehicle. Subsequently, the investigating officer, Xavier Avila, prepared a photo
spread containing Appellant’s photograph. On February 24, witnesses Avila and
Christoffel viewed a total of six separate photo spreads, each with photographs of six
2
Williams testified that he overheard the “big guy” discussing that the victims, who had
been dressed in ballroom clothing, looked like “easy picks.” The “big guy” explained that he
was prevented from attacking the couple in the garage, so he went to the front door and rang the
bell. When Wilson would not open the door fully, the “big guy” forced his way in. Wilson
fought back, so he shot her. He then shot Liebetreu, who had seen his face. Williams also
described some of the items that the three males pulled from a garbage bag, including a purse,
jewelry, and presents wrapped with Christmas paper.
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persons (for a total of 36 persons). Neither witness was able to identify Appellant as the
person they saw running from the victim’s home on the night of the murder, even though
Appellant’s picture was in the last photo spread they viewed (State’s Exhibit 74). That
day, Williams picked Appellant out of the same photo spread (State’s Exhibit 74).
Williams testified that Appellant was the one he saw and heard in the apartment
discussing how he had murdered the victims.
Twelve days later, on March 8, witnesses Avila and Christoffel separately viewed
a five-person live lineup. Officer Avila described the lineup at trial. He stated that
Appellant was in the number one position, and Appellant was the only individual in this
live lineup who was cleanly shaven. Appellant was also the only one in the live lineup
from the previous six photo spreads that had been viewed by the witnesses previously.
Witness Avila positively identified Appellant. Christoffel “tentatively” identified
Appellant from the lineup—he stated that either Appellant or the number two person in
the live lineup was the person he saw and that he “felt confident that No. 1 was the person
based on his face.” Christoffel testified at trial:
Q. [STATE]: And did you talk to [a police officer] about the individuals
that you saw in the lineup?
A. [CHRISTOFFEL]: Yes.
Q. And do you recall what you said?
A. Yes, that the second, No. 2, the second individual with regard to height, I
felt like that was the individual. But with regard to the face, I really
thought, my gut feeling was the guy is No. 1, or I felt confident, not a
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hundred percent, but I felt confident that No. 1 was the person based on the
face. But the height made it to where I said one or the other.[3]
Officer Avila suggested that there was nothing unusual about the identification
procedure used with witnesses Avila and Christoffel:
Q. [STATE]: When you showed [State’s Exhibit 74] to [Avila], he was not
able to identify anyone from the photos?
A. That’s correct.
Q. Is that unusual?
A. No.
***
Q. Well, have you done many photospreads and lineups over the years?
A. Hundreds.
Q. And do you find it’s easier for people to recognize someone live when
they can see their full body than in a flat, one-dimensional photo?
A. Yes.
***
Q. And is it fairly common that individuals can’t identify someone from a
photospread, but can identify them live?
A. That’s correct.
The defense responded to this during cross-examination by emphasizing some of
the suggestive aspects of the identification procedure:
Q. In regard to the sequence of the photo arrays that you’ve prepared and
then the lineup in this case, in every instance you showed the witnesses a
photo array, before you showed them the lineup in which [Appellant] was
placed, correct?
3
Officer Avila testified that he considered this to be a “tentative” identification.
Tillman - 6
A. Yes, sir.
Q. And sometimes it was only a matter of days after you showed them the
photo array that had [Appellant’s] photograph in it and when you showed
the lineup with [Appellant] in it, correct?
A. It was . . . .
***
Q. . . . I’m talking about the photo array that you showed witness Avila,
witness Christoffel and also another witness by the name of Coy. You
remember that?
A. Yes, sir.
Q. In which you showed them a photo array in which [Appellant’s] picture
was one of the six people?
A. Yes, sir.
Q. And none of them could pick him out, right?
A. Correct.
Q. And a few days after that you put [Appellant] in a lineup with four other
people?
A. Well, they viewed it. The photospread was viewed by those witnesses
that you described on the 24th, and the lineup was held on March 8th.
Q. All right. So 28 days in February, that’s four. It’s 12 days later; 12 days
later you showed the lineup with [Appellant]?
A. Yes, sir.
Q. Now none of the other people that were in the photo array that you’ve
shown him on the 24th of February was in the lineup besides [Appellant],
correct?
A. Correct, yes, sir.
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Q. [Appellant] was the only one whose photograph you had shown these
witnesses some 12 days earlier when he could not identify him that was in
that lineup?
A. That’s correct.
Officer Avila also testified that a videotape of the lineup was shown to
Christoffel’s brother, who said he thought the suspect could either be the man in the third
or fourth position. On re-direct, Officer Avila explained that he did not really expect the
brother to be able to identify anyone since he was driving that night and his focus was on
that task.
Appellant proffered the testimony of Dr. Roy Malpass as an expert on eyewitness
identifications, and the trial court conducted a hearing outside the presence of the jury.
Throughout the gatekeeping hearing, Malpass emphasized that he was not there to render
an opinion about the accuracy of any particular witness’s testimony. Nor did he intend to
tell the jury about the specific lineup or photo spread used. Instead, he was to discuss the
manner in which the lineup and photo spread were employed. For example, he proposed
to testify “[t]hat the use of a photospread prior to gaining identification in a, in a physical
lineup is a biasing fact against the Defendant.” Similarly, defense counsel stated that he
did not intend to ask Malpass specifically about the testimony of Officer Avila. Rather, it
“expected to put those questions to [Malpass] as hypotheticals without reference to
whether or not he had heard the testimony.”
On direct examination, Malpass testified that he was a professor of psychology at
Tillman - 8
the University of Texas at El Paso, has researched eyewitness-related issues since 1969,
and has conducted a number of experimental studies in the area. Malpass asserted that he
leads the Eyewitness Identification and Research Laboratory at the university, which, at
any given time, utilizes two to three Ph.D. students as well as several undergraduates in
ongoing research. A number of scientists from other universities are involved in the
laboratory’s work too. Additionally, Malpass participated in the creation of the
Department of Justice’s publication entitled Eyewitness Evidence, a Guide for Law
Enforcement, which was created to provide a set of guidelines for good practice in
eyewitness-identification procedures to law enforcement throughout the United States.
Malpass also stated that he is familiar with the literature in the area and is on the editorial
board of one of the better journals in the field, Law and Human Behavior.
When asked if his area of psychology, the study of eyewitness identification, is a
field of study, Malpass responded in the affirmative. He explained that it is an
experimental science, using repeatable techniques and calculated error rates to test a
working hypothesis. Additionally, Malpass stated that a community consensus among
experts on the subject matter is achieved through peer review and surveys of those
experts.
Malpass noted that he has conducted experiments using simulated crimes and
testing eyewitnesses in the capacity of eyewitnesses to pick out suspects, and he has been
on national television to discuss those experiments. He also explained that he is familiar
Tillman - 9
with scientific, psychological studies involving eyewitness procedures, including the use
of photo spreads. Malpass stated that he heard the testimony of Officer Avila, and the
type of photo spread used in this case is the same kind examined in the experiments he
has studied. Malpass asserted that he has testified in a number of cases in Texas on
similar matters, and although he has testified only for the defense in criminal trials and
defendants in civil trials, Malpass has worked as a consultant for prosecutors, the federal
government, and for defendants in both state and federal courts.
On cross-examination, Malpass acknowledged that he has never personally done
studies where “there was a photo spread followed by a lineup,” and that his “testimony
has been disallowed several times by trial court judges in state criminal cases” because
the trial court found his testimony either not relevant or not reliable. He also recognized
that “there’s one well-known researcher who flatly states that our knowledge is not
sufficient for him to testify.” However, on re-direct, Malpass stated that the same expert
will never testify for the defense and testifies for the prosecution frequently.
On re-direct examination, Malpass testified that there are a number of people,
including himself, who will not testify about certain issues simply because they believe
that the scientific research is not sufficiently developed at this time. However, there are
over 30 scientific studies involving the use of a photo spread in which no one is
identified, followed by a live lineup in which only the target suspect was also in the photo
spread. According to Malpass, those studies show that such a procedure is suggestive.
Tillman - 10
Q. [DEFENSE]: Now, on the issue of relevance, as a hypothetical, if
someone is shown a photospread and cannot identify anyone and then a
week or so later is shown a live lineup and only one person from that
photospread is standing in that lineup; is that suggestive?
A. [MALPASS]: It certainly is.
Q. Does that increase the chance that the witness is not remembering who
he saw at the scene, but he’s instead remembering who he saw in the lineup
[sic]?
A. That’s right.
Q. Are there scientific studies on that issue?
A. Yes.
Q. How many do you suppose?
A. A little over 30.
Q. A little over 30. You haven’t done those experiments yourself, have
you?
A. No.
Q. But they are available in the scientific literature?
A. Yes.
Q. And you’re familiar with them?
A. Yes.
Malpass also testified regarding identification procedures like those used with Williams.
Q. [DEFENSE]: Now with respect to a photospread if a witness is,
hypothetically if a witness is driving or is being driven through a
neighborhood by a police officer and says that–points out an individual, and
says that that individual would seem to be the assailant and then is taken
Tillman - 11
back to the police station and shown a lineup with that person’s picture in it,
is that a suggestive procedure?
A. [MALPASS]: Certainly.
Q. Are there scientific studies about that kind of issue?
A. Not specifically about that particular configuration, but it is, it’s under
the topic of familiarity. It’s a training study.
Q. Would you explain what that means?
A. Well, if you show a person a face one time, they’re more likely to
recognize that same face another time.
Q. Whether or not they remember that person from any actual conversation
or the commission of any offense; is that right?
A. Well, whether the --
THE COURT: Sir, it calls for a yes or no answer.
Q. [DEFENSE]: Whether or not they - - in other words, it doesn’t matter
whether they actually saw the person commit an offense there, their
memory is contaminated and they’re identifying the person from what
they’ve been shown.
A. Yes.
Malpass stated that these two types of identification procedures are “suggestive.”
Q. Would those two identification procedures that I described, would they
be approved by the standards of the U.S. Department of Justice Eyewitness
Evidence Manual?
A. No.
Q. Why not?
Tillman - 12
A. Because they’re suggestive.[4]
Q. When you say “they’re suggestive,” what in language terms does that
mean?
A. It means that there are some external factors apart from a particular
memory from the witness’ observation of the criminal event that points to
the probable guilt of the suspect.
Q. All right. And that’s dictated by the police procedures and not by the
eyewitness’ actual memories?
A. That’s right.
In a later hypothetical, Malpass testified to the psychological effects on an
eyewitness of working with a sketch artist.
Q. [DEFENSE]: Is it possible that someone who participates in the creation
of a caricature or cartoon of a possible perpetrator that the cartoon itself
could affect the person’s memory?
A. [MALPASS]: Yes, both the process of creating it and the process of
viewing it subsequently changed the original memory in the direction of the
appearance of the composite.
Q. So, that a person who may become much more certain about the
identification after he’s participated with the police artist, then that might
contaminate whatever his original memory might be; is that true?
A. Yes, that can change their original memory for a number of things.
Q. Is the whole problem here that when these kinds of procedures that I’ve
described in the hypothetical that you can’t tell where the memory comes
from, is that the problem; you can’t tell if it came from the first photospread
4
Malpass stated that the pertinent procedures would not be approved by the standards of
the U.S. Department of Justice’s Eyewitness Evidence Manual due to their suggestive nature, but
in later questioning, he could not locate this in the materials—“there are a number of things that
dance around the topic, but it doesn’t say that specifically.”
Tillman - 13
or the actual viewing at the scene of the crime?
A. That’s right, and the witness is not aware of the disassociation in their
memory.
A final hypothetical addressed the suggestiveness of a lineup in which only one
individual has a particular physical characteristic.
Q. [DEFENSE]: . . . Now let me ask you one other hypothetical that I
neglected to ask. In your studies on lineup procedures, would it be, would it
be a suggestive factor if a suspect was described as having facial hair and
he was put in a lineup with five other fill-ins who did not have facial hair?
Would that be suggestive for that witness?
A. [MALPASS]: It would not be an appropriate lineup.
Q. It would not be an appropriate lineup, and why is that?
A. Because it’s suggestive. It calls attention to the one individual.
On re-cross examination, the State inquired about why a jury needs an expert to be
told that these identification processes were suggestive, and Malpass replied that there are
studies showing that jurors do not understand eyewitness identification completely and do
not know how to apply what they do know to a particular case. When questioned about
the general studies to which he had referred, Malpass stated that they are conducted with
a wide range of conditions (for example, often staging crimes with varying degrees of
distraction), and he explained via example that the conditions are manipulated in order to
focus on various, isolated factors. The State then asked Malpass to describe the most
reliable study that he knows. In response, Malpass detailed a study in which a crime was
staged in front of about 350 people in a lecture hall, and then law enforcement
Tillman - 14
interviewed the viewers and conducted live lineups. Questionnaires were also distributed
that asked about the viewers’ personal reactions to the events. According to Malpass, the
viewers, like jurors, did not seem to “spontaneously” understand what was a fair lineup
procedure and what was not. Malpass later explained that a witness uses the same mental
processes in a lab experiment as in the real world, so the results of the relevant studies
could be translated into real life, real crime scenarios.
During subsequent questioning, Malpass denied that he was asleep during Officer
Avila’s testimony. He maintained that his attention did not waver while the officer was
on the stand. A deputy did approach him while a supervisor from the Houston Police
Department was on the stand but not when Officer Avila was testifying. Still, Malpass
stated that he was not present during the testimony of witnesses Avila and Christoffel.
The trial court decided that Malpass would not be permitted to testify before the
jury. In excluding Malpass’s testimony, the trial court made this ruling:
[TRIAL COURT]: First of all, for the record, he did state he was not
present for the testimony of the eyewitnesses in this case. He has not done
studies regarding a lineup procedure following a photospread, although he
stated that it was in the document that you have quoted when given, I think
it was about six minutes to find it, he finally stated it’s not in there. He’s
not done a study on the factors that he intended to testify about today; he
personally stated that. He also said that he’s not done any studies on seeing
a defendant and then a photospread later.
There is no doubt in my mind that his testimony about not sleeping is just
not true. I saw him seated at the back of the courtroom with his head down
appearing to nod off several times during the course of the trial. It’s one of
the reasons that I approached Counsel and said perhaps he should be in the
hall. I was then told that it was imperative for his testimony that he see all
Tillman - 15
of this.
Deputy Kaminski had to go, and as the Doctor was seated directly in back
of the courtroom from me where I could see him, and obviously the
attorneys trying the case could not see him I am certain because your focus
is this way. But I had a vantage point where I could see that his head was
down. Deputy Kaminski went up and approached him explained that, he
approached him so that the Doctor could see his feet if he were not asleep
and then would respond, and Deputy Kaminski had to prod him twice to
wake him up.
I do not find, first of all, based on that and the trouble that this entire county
has endured for over 20 years over a lawyer sleeping in court that I can in
good conscious [sic] say that an expert who sleeps in court has availed
himself of testimony deemed relevant to his determination and his opinion
to be able to render that opinion. I also find that the opinion that he has
spoken of will not be relevant. So, I will not, for those reasons, allow his
testimony.
Other witnesses who testified at trial included policemen and investigating officers
involved in the case, the first paramedic and the first police officer to arrive at the scene, a
shoe-print and tire-tread examiner from the FBI, a forensic consultant, a firearm
examiner, a Harris County medical examiner, a forensic artist, a retail analyst, Appellant’s
former cellmate, Wilson’s brother, and Liebetreu’s co-worker.
During its deliberations, the jury sent out two notes. One note asked “to see the
artist sketch drawn with the description provided by [Officer Avila]” and to “provide the
[post-arrest] picture that the prosecuting attorney showed the jury during final arguments”
of Appellant. The other note asked for “the VHS tape that [the police] took of the outside
of the [victim’s town home] revolving around to [witness Avila’s] house across the
street.” Ultimately, the jury found Appellant guilty of capital murder, and the trial court
Tillman - 16
assessed the automatic punishment of confinement for life in the Institutional Division of
the Texas Department of Criminal Justice.
II. FOURTEENTH COURT OF APPEALS
Appellant argued on direct appeal that the trial court erred in excluding Malpass’s
testimony.5 The Fourteenth Court of Appeals disagreed and affirmed the judgment of the
trial court. Tillman, 2010 Tex. App. LEXIS 4013, at *7-12. It stated that, to be relevant,
expert testimony must make the effort to tie pertinent facts of the case to the scientific
principles. The court asserted that Malpass had no knowledge of the facts of this case and
made no effort to connect his opinion with those facts. As a result, his testimony would
not help the jury understand the evidence or determine a fact in issue, and the court
determined the trial court’s ruling was within the zone of reasonable disagreement.
We granted Appellant’s petition for discretionary review to address whether the
court of appeals erroneously decided that the trial court properly excluded the eyewitness-
identification testimony of Appellant’s proffered expert (Malpass) because the
psychologist “demonstrated no knowledge of the facts of this case and made no effort to
connect his opinion with those facts.” See id. at *12.
III. ARGUMENTS OF THE PARTIES
A. Appellant’s Argument
Appellant argues that the court of appeals improperly excluded Malpass’s
5
Appellant raised a total of six issues on appeal, and the court of appeals overruled each.
Tillman, 2010 Tex. App. LEXIS 4013, at *7-43.
Tillman - 17
testimony because it was indeed relevant and reliable as it satisfied the three requirements
of Nenno v. State, 970 S.W.2d 549, 561 (Tex. Crim. App. 1998), for “soft sciences.”
Appellant reasons that courts have recognized that there is a place for experts in
the area of eyewitness identification in criminal trials. He asserts that Malpass is
qualified as an expert in that field and the subject matter that he proposed to discuss is
within the scope of that field. In addition, he contends that Malpass’s testimony was
aimed at the very procedure used in this case. Malpass was familiar with the
identification procedure at issue, and his proposed testimony would explain the general
suggestiveness of the specific type of identification procedure used here. Appellant
points out that at least thirty studies backed up Malpass’s testimony. Further, Malpass’s
testimony would be helpful to the jury because jurors really do not fully understand
eyewitness identification and the possible bias of an incorrect procedure.
According to Appellant, when Malpass sought to discuss the suggestive nature of
the specific identification process used in this case, he proposed to do nothing more than
what other experts are allowed to do everyday, testify in the hypothetical. Appellant
analogizes this situation to child-abuse cases in which experts are allowed to testify about
“delayed outcry syndrome.” In such cases, the experts do not claim to know whether that
syndrome was in play in any given case, but the testimony is helpful to the jury and
typically permissible.
B. State’s Argument
Tillman - 18
The State responds that Appellant has failed to prove that Malpass’s testimony was
relevant and reliable. The State concedes that Malpass proved to be a psychologist
through profession and he assisted the Department of Justice in publishing literature on
eyewitness evidence, but it maintains that that is the only evidence proffered to support
his expertise in the area of eyewitness identification. The State notes that Malpass
admitted this was not a study conducted or observed by himself but rather something
about which he had read. The State suggests that it cannot be gathered what principles of
psychology Malpass might have relied upon during his eyewitness-identification
testimony. He cited no books, articles, journals, or names of psychologists who practice
in this area—he provided only “generic testimony” and “general studies.”
The State also notes that, to be relevant, Malpass’s expert testimony must assist the
trier of fact to understand and determine a fact in issue. According to the State, Malpass
“demonstrated no knowledge of the facts of this case and made no effort to connect his
opinion with those facts.” The State asserts Malpass only knew that there was a lineup
shown after a photo spread; he knew nothing about the specifics of the case and had not
spoken to any witnesses. The State distinguishes this case from Jordan v. State, 928
S.W.2d 550 (Tex. Crim. App. 1996). In Jordan, the expert had been told the facts of that
case, applied the theories to specific facts, and explained how they might undermine the
reliability of the respective eyewitness identification. But here, the State argues that
Malpass did not exhibit knowledge of specific facts of the case or tie the scientific
Tillman - 19
principles on which he sought to testify to the facts of this case, other than to postulate
generally. Thus, Appellant has not demonstrated that Malpass’s testimony would “assist
the trier of fact” or was “sufficiently tied” to the pertinent facts of the case.
IV. ANALYSIS
A trial judge’s decision on the admissibility of evidence is reviewed under an
abuse of discretion standard and will not be reversed if it is within the zone of reasonable
disagreement. Davis v. State, 329 S.W.3d 798, 813-14 (Tex. Crim. App. 2010); Russeau
v. State, 291 S.W.3d 429, 438 (Tex. Crim. App. 2009).
Here, the evidence at issue is the testimony of eyewitness-identification expert
Malpass. Admission of expert testimony is governed by Rule 702 of the Texas Rules of
Evidence, which states,
If scientific, technical, or other specialized knowledge will assist the trier of
fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or
education may testify thereto in the form of an opinion or otherwise.
Tex. R. Evid. 702; see Morales v. State, 32 S.W.3d 862, 865 (Tex. Crim. App. 2000). For
expert testimony to be admissible under this rule, the party offering the scientific expert
testimony must demonstrate, by clear and convincing evidence, that such testimony “is
sufficiently reliable and relevant to help the jury in reaching accurate results.” Kelly v.
State, 824 S.W.2d 568, 572 (Tex. Crim. App. 1992). In other words, the proponent must
prove two prongs: (1) the testimony is based on a reliable scientific foundation, and (2) it
is relevant to the issues in the case. Hartman v. State, 946 S.W.2d 60, 62 n.4 (Tex. Crim.
Tillman - 20
App. 1997); Jordan, 928 S.W.2d at 555.
A. Reliability 6
The focus of the reliability analysis is to determine whether the evidence has its
basis in sound scientific methodology such that testimony about “junk science” is weeded
out. Jordan, 928 S.W.2d at 555. Expert testimony in the field of psychology pertaining
to the reliability of eyewitness identifications is a “soft science.” See Weatherred v. State,
15 S.W.3d 540, 542 (Tex. Crim. App. 2000). Consequently, to establish its reliability, the
proponent must establish that “(1) the field of expertise involved is a legitimate one, (2)
the subject matter of the expert’s testimony is within the scope of that field, and (3) the
expert’s testimony properly relies upon or utilizes the principles involved in that field.”
Id.; Nenno, 970 S.W.2d at 561. This analysis is “merely an appropriately tailored
translation of the Kelly test to areas outside of hard science.”7 Nenno, 970 S.W.2d at 561.
6
Although the court of appeals stated that “only the relevance of Dr. Malpass’ testimony
is at issue,” the reliability of that testimony is very much in issue. Relevance and reliability are
closely related, and the State and Appellant addressed both issues in their briefs to the court of
appeals and to this Court.
7
In Kelly, 824 S.W.2d at 573, we stated the following:
Factors that could affect a trial court's determination of reliability include, but are
not limited to, the following: (1) the extent to which the underlying scientific
theory and technique are accepted as valid by the relevant scientific community, if
such a community can be ascertained; (2) the qualifications of the experts
testifying; (3) the existence of literature supporting or rejecting the underlying
scientific theory and technique; (4) the potential rate of error of the technique; (5)
the availability of other experts to test and evaluate the technique; (6) the clarity
with which the underlying scientific theory and technique can be explained to the
court; and (7) the experience and skill of the person(s) who applied the technique
on the occasion in question.
Tillman - 21
As such, the “general principles announced in Kelly (and Daubert[8]) apply, but the
specific factors outlined in those cases may or may not apply depending upon the
context.” Id. at 560.
Here, Malpass was to testify about the reliability of eyewitness identifications. We
believe that psychology is a legitimate field of study and that the study of the reliability of
eyewitness identification is a legitimate subject within the area of psychology. Malpass
explained that the study of eyewitness identification is an experimental science—it tests a
working hypothesis using repeatable techniques that allow for the calculation of error
rates. Universities and colleges, including the University of Texas at El Paso, have
laboratories that focus on eyewitness identification, and there are published journals on
the subject matter. In addition, those involved in the field are able to establish a
consensus through peer review articles and surveys of experts.
Nationwide, 190 of the first 250 DNA exonerations involved eyewitnesses who
were wrong. B RANDON L. G ARRETT, Convicting the Innocent: Where Criminal
Prosecutions Go Wrong 8-9, 279 (2011). In Texas, reports indicate 80 percent of the first
40 DNA exonerations involved an eyewitness identification error. Innocence Project of
Texas, Texas Exonerations–At a Glance (2011),
http://ipoftexas.org/index.php?action=at-a-glance.
In a recent opinion of the Supreme Court of New Jersey, New Jersey v. Henderson,
8
Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).
Tillman - 22
2011 N.J. LEXIS 927 (N.J. Aug. 24, 2011), the court focused on the reliability of an
eyewitness identification.9 The New Jersey court discussed the broad consensus within
the scientific community on the relevant scientific issues. Id. at 113-15. Specifically, the
court referred to the results of a 2001 survey of sixty-four experts, mostly cognitive and
social psychologists:
Ninety percent or more of the experts found research on the following
topics reliable: suggestive wording; lineup instruction bias; confidence
malleability; mugshot bias; post-event information; child suggestivity;
alcohol intoxication; and own-race bias. . . . Seventy to 87% found the
following research reliable: weapon focus; the accuracy-confidence
relationship; memory decay; exposure time; sequential presentation;
showups; description-matched foils; child-witness accuracy; and lineup
fairness.”
Id. at 113-14 (citing Saul M. Kassin et al., On the “General Acceptance” of Eyewitness
Testimony Research: A New Survey of the Experts, 56 A M. P SYCHOLOGIST 405, 407
(2001)). The Supreme Court of New Jersey went on to note that, in the ten years since the
Kassin study, the consensus that the study of eyewitness identification is a reliable field of
research has continued to grow. Id. at 114-15. And the court highlighted that law
enforcement and reform agencies throughout the country have taken note of the scientific
9
After the State’s petition for certification was granted and briefs were filed, the Supreme
Court of New Jersey decided that the factual record on which to test the current validity of
pertinent state law standards for eyewitness identification needed to be developed more fully.
Henderson, 2011 N.J. LEXIS 927, at *33-34. It therefore remanded the matter to consider the
validity of existing eyewitness-identification case law in light of recent scientific and other
evidence. Id. at *34. The New Jersey court appointed a Special Master to preside over the
remand hearing, and during the ten-day hearing, the Special Master heard testimony from seven
expert witnesses, including Malpass (who was called by the State). Id. at *34-35.
Tillman - 23
community’s findings, forming task forces and developing new procedures to improve the
reliability of eyewitness identifications. Id. at *115-21. Additionally, the United States
Supreme Court recently granted certiorari on another case involving the reliability of
eyewitness identification. Perry v. New Hampshire, 79 U.S.L.W. 3672 (U.S. May 31,
2011) (No. 10-8974).
Since the first two prongs of Nenno are satisfied, the issue becomes whether
Malpass’s testimony properly relied upon and utilized the principles involved in the
relevant field of psychology. We believe that this standard has been met. Malpass’s
extensive resume reflects his status as a scientist and consultant in the field: he is a
professor of psychology, he has researched eyewitness-related issues for over 40 years, he
has conducted experiments in the area, he leads the Eyewitness Identification and
Research Laboratory, he assisted the Department of Justice in creating a publication on
eyewitness-identification procedures, he is on the editorial board of the Law and Human
Behavior journal, and he has been on national television to discuss eyewitness-
identification studies. Malpass used this extensive experience and knowledge to opine
about the identification procedures in this case. He expressed familiarity with the
literature and many relevant studies in the area and applied the relevant concepts to the
hypotheticals presented.
The State contends that Malpass’s testimony is not reliable because he provided
only “generic testimony” and “general studies.” Malpass’s testimony involved more than
Tillman - 24
mere generalities. In Coble v. State, 330 S.W.3d 253 (Tex. Crim. App. 2010), we held
that the expert testimony was not reliable because it was unclear what principles of
forensic psychiatry the expert might have relied upon. We pointed out that “he cited no
books, articles, journals, or even other forensic psychiatrists who practice in this area,”
and “[a]lthough there is a significant body of literature concerning the empirical accuracy
of clinical predictions versus actuarial and risk assessment predictions, [the expert] did
not cite or rely upon any of these studies and was unfamiliar with the journal articles
given to him by the prosecution.” Id. at 278-79.
The specific principles of psychology in the area of eyewitness identification relied
upon by Malpass were sufficiently clear. Although some references to studies and
experts were of a general nature, Malpass articulately described specifics when asked to
do so. For example, he detailed the study in which a crime was staged in front of 350
people in a lecture hall, and he extensively commented on the pertinent conclusions
resulting from that experiment. Malpass also referenced over 30 scientific studies
involving the use of a photo spread in which no one is identified, followed by a live
lineup where only the target suspect is in both.10 He detailed the psychological
explanations leading to the primary conclusion that such a procedure is suggestive, and he
applied that learned knowledge to various hypothetical scenarios, describing his rationale
clearly throughout. Additionally, Malpass noted his participation in the creation of the
10
Contrary to the State’s assertion, it is not essential to a determination of relevance that
Malpass did not conduct these particular studies himself.
Tillman - 25
Department of Justice’s publication on eyewitness-identification procedures, and he
articulated the psychological basis for its overall substance. It is clear that Malpass relied
upon and utilized the principles in the relevant area of psychology. Therefore, we
conclude that Malpass’s testimony was reliable.
B. Relevance
Relevance is “a looser notion than reliability” and is “a simpler, more straight-
forward matter to establish.” Jordan, 928 S.W.2d at 555. The relevance inquiry is
whether evidence “‘will assist the trier of fact’ and is sufficiently tied to the facts of the
case.” Id. Hence, to be relevant, the expert “must make an effort to tie pertinent facts of
the case to the scientific principles which are the subject of his testimony.” Id. Upon
examining his testimony, we hold that Malpass’s proffered testimony is relevant because
it satisfies those requirements.
In Jordan v. State, we specifically addressed the “fit” aspect of the relevance
inquiry. There, the proffered expert “answered questions about the specific facts of the
case and how they might be affected by the factors he testified to,” “stated his opinion
about the reliability of the eyewitness identifications,” and “identified facts in the case
that he believed impacted those identifications.” Id. at 556. However, the expert “did not
testify about several factors that might have affected the reliability of the eyewitness
identifications”;11 nor did he “interview the witnesses or examine certain pieces of
11
These factors included “the length of time appellant was viewed by the witnesses, the
lighting conditions, [and] the physical descriptions of appellant initially given by the witnesses
Tillman - 26
evidence.” Id. at 555-56. We held that, although the expert “did not testify as to every
conceivable factor that might affect the reliability of eyewitness identification present,”
his testimony “was sufficiently tied to the facts to meet the simple requirement that it be
‘helpful’ to the jury on the issue of eye witness reliability.” Id. at 556. We explained that
the question under Rule 702 is “not whether there are some facts in the case that the
expert failed to take into account, but whether the expert’s testimony took into account
enough of the pertinent facts to be of assistance to the trier of fact on a fact in issue.” Id.
Further, we noted that the expert’s failure to account for some facts “is a matter of weight
and credibility, not admissibility.” Id.
Like the expert in Jordan, Malpass tied the relevant facts of the case to the
scientific principles about which he testified. In fact, Malpass testified to a hypothetical
set of facts that mirrored the procedure employed in this case.
During the gatekeeping hearing, Malpass discussed the psychology of eyewitness
identification and how certain factors may contribute to disassociation in the eyewitness’s
memory. He explained his own studies conducted on the topic as well as other studies
with which he was familiar (including 30 on the use of a photo spread in which no one is
identified, followed by a live lineup in which only the target suspect was in the photo
spread). Then, Malpass responded to a series of hypotheticals proposed by the defense,
applying his knowledge of eyewitness identification to the facts presented. He answered
prior to viewing the photo lineup.” Jordan, 928 S.W.2d at 555-56.
Tillman - 27
questions about each of these detailed scenarios and how they might be affected by
various circumstances. Malpass stated his opinion about the reliability of the eyewitness
identifications in each situation, and he identified the factors that he believed impacted
those identifications.
Significantly, each hypothetical to which Malpass applied his theories and
opinions paralleled the facts of this case and the scenarios in which the eyewitnesses
found themselves. For example, one hypothetical mirrored the identification procedure
by which witnesses Avila and Christoffel identified Appellant—it described a procedure
in which a witness could not identify anyone in a photo spread, and then a week later, the
witness was shown a live lineup, with only one person from the photo spread standing in
that lineup. A later hypothetical corresponded to witness Avila working with a police
artist to develop a suspect sketch, as it concerned the effects on an eyewitness of working
with a police sketch artist. Still another hypothetical paralleled the identification
procedures used with Williams—it described a drive-by identification of a suspect,
followed by a live lineup. Finally, the last hypothetical concerned a live lineup in which
only one individual had facial hair, and such facts are the opposite of what occurred in the
live lineup viewed by witnesses Avila and Christoffel in which Appellant was the only
individual who was cleanly shaven. Thus, it would appear that Malpass was familiar with
the case or at least a procedure exactly like that employed in this case.
In all, Malpass’s testimony was sufficiently tied to the facts of this case. Our
Tillman - 28
conclusion is not undermined by the fact that Malpass was not present during the
testimony of witnesses Avila and Christoffel and possibly slept during some of Officer
Avila’s testimony. In Jordan, we disapproved of the court of appeals’s emphasis on the
expert’s failure to interview the State’s witnesses or examine the evidence at issue in the
case. Jordan, 928 S.W.2d at 556 n.8. We explained that such requirements would be
contrary to Rule of Evidence 703, which permits an expert to base his opinion testimony
on the data and facts made known to him during trial. Id. (citing Tex. R. Evid. 703); see
also Ramey v. State, No. AP-75678, 2009 Tex. Crim. App. LEXIS 124, at *44-45 (Tex.
Crim. App. 2009) (not designated for publication) (stating that the rules of evidence do
not require an expert to complete personal interviews in order to give an opinion about
future dangerousness). Thus, it is sufficient that Malpass based his opinion on facts
learned during his testimony. After all, Malpass responded to a series of hypotheticals,
which mirrored the procedure used here and, thus, exposed the expert to the pertinent
facts of this specific case.
Nor is our conclusion weakened because the facts of the case were presented to
Malpass as hypotheticals. In Jordan, we noted that an expert can offer an opinion based
solely on hypothetical questions posed at trial. Jordan, 928 S.W.2d at 556 n.8 (citing
Fielder v. State, 756 S.W.2d 309, 320 (Tex. Crim. App. 1988)). And, although factually
distinguishable, we believe that our reasoning in Cohn v. State, 849 S.W.2d 817 (Tex.
Tillman - 29
Crim. App. 1993),12 is applicable here. In Cohn, we held that expert psychological
testimony about the characteristics commonly displayed by child victims of sexual abuse
was admissible. Id. As we articulated in a later case discussing the “fit” aspect of
relevance, “witnesses other than the expert testified that the child victims in that case
displayed some of the characteristics that the expert had testified were commonly
displayed by child victims of sexual abuse, thereby linking the expert’s generic testimony
to the facts of that case.” Williams v. State, 895 S.W.2d 363, 366 (Tex. Crim. App. 1994)
(discussing Cohn). Here, Malpass went beyond what was sufficient under Cohn. While
he testified to the general implications of eyewitness identifications, he also responded to
detailed hypotheticals that paralleled the facts of the case. When placed in the context of
other witnesses’ testimony regarding the identification procedures employed, Malpass’s
testimony is sufficiently linked to the facts of the case.
The case at hand is distinguishable from other cases in which we have held that
expert testimony is irrelevant on the grounds that it was not sufficiently tied to the facts of
the case. See, e.g.,Williams, 895 S.W.2d 363; Rousseau v. State, 855 S.W.2d 666 (Tex.
Crim. App. 1993); Pierce v. State, 777 S.W.2d 399 (Tex. Crim. App. 1989).13 To
12
In Cohn, a psychiatrist testified that child victims of sexual abuse often experienced
“crying” and “angry” episodes, had problems concentrating in school, and tended to cling to
parents to get reassurance. Cohn, 849 S.W.2d at 817-18. A number of other witnesses testified
that the victims were withdrawn, fearful, and clingy after the alleged acts of abuse. Id. at 818-19.
13
In Jordan, we cited to these cases, noting that the relevance inquiry will not always be
satisfied. Jordan, 928 S.W.2d at 555.
Tillman - 30
illustrate, in Rousseau, the expert testimony failed to satisfy the relevance inquiry.
Rousseau, 855 S.W.2d at 686. The psychologist stated that he was going to testify that
eyewitness identification is flawed, and he referred only to general “studies” and abstract
concepts. Id. He did not discuss, and was not questioned regarding, whether any factors
about which he planned to testify would apply to the facts of the case. Id. Similarly, in
Pierce, the expert, a professor of psychology, discussed some concepts about eyewitness
identification generally, but he could not say which scientific principles that he mentioned
were applicable to the facts of the case and, if applicable, to what extent they would
undermine the witnesses’ testimony. Pierce, 777 S.W.2d at 414-16. Thus, the expert
failed to fit his testimony to the facts of the case. Id.
Indeed, Daubert itself illustrates why the testimony in this case “fits” for relevance
purposes. Daubert created the “fit” analysis to meet Rule 702’s “helpfulness” standard,
which “requires a valid scientific connection to the pertinent inquiry as a precondition to
admissibility.” Daubert, 509 U.S. at 591-92. The Supreme Court noted that this
necessary connection “has been aptly described by Judge Becker as one of ‘fit.’” Id. at
592. The case where Judge Becker created the “fit” description was, like this case, a
situation where the defense proffered eyewitness-identification expert testimony. United
States v. Downing, 753 F.2d 1224, 1242 (3d Cir. 1985). In that case, the expert on
eyewitness identification sought to testify that cross-racial identifications often result in
misidentifications; however, there was no evidence that a cross-racial identification had
Tillman - 31
actually occurred. Id. at 1242. Therefore, the testimony did not “fit” because it
concerned a hypothetical event that had not occurred in that particular case.14
In contrast to the experts in those cases, Malpass did more than generally postulate
or simply discuss the general concepts and theories surrounding eyewitness identification.
Malpass applied those scientific principles and theories to detailed hypotheticals, and he
addressed how various factors in eyewitness-identification processes can contribute to
dissociation in eyewitnesses. And of crucial note, those hypotheticals mirrored the facts
of the case, thus making his principles and theories applicable to the relevant facts.
Hence, Malpass went beyond the general testimony of the experts in Rousseau and Pierce
to sufficiently fit his testimony to the facts of this case.
In addition to being sufficiently tied to the facts of the case, we believe that
Malpass’s testimony would assist the trier of fact.15 “[A] trial court need not exclude
expert testimony when the general subject matter is within the comprehension of the
average juror, as long as the witness has some specialized knowledge on the topic that
will ‘assist’ the jury.” Coble v. State, 330 S.W.3d 253, 288 (Tex. Crim. App. 2010).
Thus, “[t]he question under Rule 702 is not whether the jurors know something about this
subject, but whether the expert can expand their understanding in a relevant way.” Id.
14
That the facts of Downing are so similar to this case makes it especially helpful to
contrast the Downing expert’s ill-fitting testimony with Malpass’s proposed testimony.
15
We emphasize that we do not believe that an eyewitness-identification expert would
necessarily assist the trier of fact in every case.
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Over forty years ago, the United States Supreme Court stated that the “vagaries of
eyewitness identification are well-known; the annals of criminal law are rife with
instances of mistaken identification.” United States v. Wade, 388 U.S. 218, 228 (1967).
Since then, eyewitness identification has continued to be troublesome and controversial as
the outside world and modern science have cast doubt on this crucial piece of evidence.
As Malpass pointed out in his testimony, eyewitness identification that is not properly
conducted is a major factor behind wrongful conviction. The Supreme Court of New
Jersey has articulated its concern for the current state of eyewitness identification:
[A] vast body of scientific research about human memory has emerged.
That body of work casts doubt on some commonly held views relating to
memory . . . Study after study revealed a troubling lack of reliability in
eyewitness identifications. From social science research to the review of
actual police lineups, from laboratory experiments to DNA exonerations,
the record proves that the possibility of mistaken identification is real.
Indeed, it is now widely known that eyewitness misidentification is the
leading cause of wrongful convictions across the country.
Henderson, 2011 N.J. LEXIS 927, at *14-16.
Awareness and concern surrounding mistaken identifications and wrongful
convictions has impacted the public to the point where it has become an obvious concern
in jury selection. In our recent capital opinion, Davis v. State, 313 S.W.3d 317, 344 (Tex.
Crim. App. 2011), one veniremember expressed, “I don’t see how you can put someone to
death or, you know, say life imprisonment, when you hear all the time of cases that are
overturned for, you know, DNA or whatever.” Similarly, in Chanthakoummane v. State,
No. AP-75,794, 2010 Tex. Crim. App. LEXIS 249, *33, 35 (Tex. Crim. App. April 28,
Tillman - 33
2010) (not designated for publication), another veniremember stated, “I was disturbed by
what has gone on in Dallas County with all the convictions being overturned,” and this
idea was repeated during later questioning. Responding to these national and state
concerns, the Texas Legislature has recently passed a new statute to address the
improvement and standardization of photograph and live lineup identification procedures.
T EX. C ODE. C RIM. P ROC. art. 38.20 (enacted by Acts 82nd Leg., ch. 219 (H.B. 215), § 1,
effective September 1, 2011).
Therefore, while jurors might have their own notions about the reliability of
eyewitness identification, that does not mean they would not be aided by the studies and
findings of a trained psychologist on the issue. See Jordan, 928 S.W.2d at 556.
Additional explanation of eyewitness-identification theories may help guide the jury in its
understanding of the standards in the area. Malpass’s background and experience have
focused on the study of eyewitness identification, and he testified that research reveals
that jurors do not understand eyewitness identification completely and do not know how
to apply what they do know to a particular case. As Malpass explained, his expert
testimony was intended to educate the jury about an area in which it lacked a thorough
understanding so that it might comprehend some of the complications that may arise.
More importantly, since the State was allowed to inform the jury, via Officer
Avila’s testimony, that there was nothing unusual about the identification procedures in
this case, Malpass’s testimony was necessary to provide the jury with a more balanced
Tillman - 34
picture of the reliability of these procedures. We understand the abuse of discretion
standard and hesitate to second guess the trial court in these decisions. We also believe
that an eyewitness-identification expert will not necessarily assist the trier of fact in every
case. However, the jury in this case should have had the benefit of Malpass’s testimony
here because eyewitness identification was crucial to the State’s case, and regardless of
the suggestions made by the State, we believe that the identification procedure employed
(in particular that used with witnesses Avila and Christoffel) was not usual. A total of six
separate photo spreads were shown to the witnesses, each showing six persons. Appellant
was in the last of the photo spreads. Neither witness could identify Appellant in the six
photo spreads. Just twelve days later, the witnesses viewed a live line-up. Of the five
individuals in the lineup, Appellant was the only one who had been in the previously
viewed photo spreads, and Appellant was the only one who was cleanly shaven. Witness
Avila identified Appellant, but Christoffel could only tentatively identify him. This
procedure was out of the ordinary, as it involved many layers of suggestiveness.
Consequently, in this case, it was imperative that the jury be exposed to the full spectrum
of possible implications resulting from that suggestiveness in order to have a full
understanding of the subject.
It is not for us to substitute our judgment for that of the trial court in determining
abuse of discretion, but rather, we must determine whether the trial court has made a
decision that is outside the zone of reasonable disagreement. Dixon v. State, 206 S.W.3d
Tillman - 35
587, 590 (Tex. Crim. App. 2006). We therefore hold that the trial court abused its
discretion when it excluded reliable, relevant evidence that would “assist the trier of fact”
by increasing the jurors’ awareness of biasing factors in eyewitness identification.
Malpass’s testimony could have aided the jury by either validating or calling into question
their own inclinations.16 See Jordan, 928 S.W.2d at 556. If a juror’s common-sense
beliefs about certain factors were to be called into question by Malpass’s testimony, the
juror would be prompted to reconsider preconceived notions that he might otherwise have
been unaware of when reviewing the facts of the case. See id. On the other hand, if a
juror’s preconceived notions were confirmed by Malpass’s testimony, the juror could
proceed with a greater level of confidence. See id. This increases confidence in the legal
system and upholds the tenets of fair play while assisting the trial court in its proper
gatekeeping function as provided by the Texas Rules of Evidence.
In conclusion, Malpass’s testimony is reliable and relevant, and the court of
appeals erred in holding otherwise. We reverse the judgment of the court of appeals and
remand this case to that court for a harm analysis.
Hervey, J.
Delivered: October 5, 2011
Publish
16
For example, “[e]veryone knows, for instance, that bad lighting conditions make it more
difficult to perceive the details of a person’s face. Some findings are less obvious. Although
many may believe that witnesses to a highly stressful, threatening event will ‘never forget a face’
because of their intense focus at the time, the research suggests that is not necessarily so.”
Henderson, 2011 N.J. LEXIS 927, at *108-09.
Tillman, Larry Joseph Jr.
Combined Opinion