USCA1 Opinion
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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