PRESENT: All the Justices
TIMOTHY JOSAAHN WATSON
OPINION BY
v. Record No. 181569 JUSTICE WILLIAM C. MIMS
December 12, 2019
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal, we consider whether the trial court abused its discretion in a criminal case
by excluding expert testimony regarding eyewitness confidence and denying a proffered jury
instruction regarding eyewitness identification.
I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW
Joseph Jackson and Paul Abbey went to the Cheetah Lounge, a so-called “gentleman’s
club” in Virginia Beach, to celebrate Jackson’s birthday. As they arrived, another car pulled in
after them and parked directly across from them. Raiquan Turner exited and approached the
passenger side of Jackson’s car, where he briefly spoke with Abbey. Timothy Watson also
exited and approached Abbey for a cigarette. Jackson did not interact with Turner or Watson
while they were at his car. Only after Jackson exited his car and approached the club did he see
Watson’s face.
Jackson and Abbey entered the club first and sat at the bar. Turner and Watson entered
the club shortly thereafter with Keith Mitchell, a friend, and Ericka Phillips, Watson’s girlfriend.
The group walked in front of Jackson and Abbey before they sat at a table to the left of the bar.
They did not interact with Jackson and Abbey, who stayed at the bar, except for when Abbey left
to talk with friends in the stage area. Approximately forty-five minutes later, Watson and
Phillips left. Mitchell went back and forth to the bathroom several times before eventually
leaving alone. Turner made eye contact with Jackson and gave him a thumbs up before he too
left.
Once outside the club, Watson said that he needed some money and wanted to rob
somebody. He gave Turner a handgun and instructed Mitchell to move his car to another area of
the parking lot. Mitchell did so, leaving Watson and Turner alone together.
After last call, which occurred about twenty minutes after Turner left, Jackson and Abbey
also exited the club and walked toward Jackson’s vehicle. The parking lot was “not well lit,” but
lights attached to the surrounding buildings provided some illumination. The club itself had
flood lighting installed on the side of its building.
Turner then emerged from behind Jackson’s car holding the gun. He pointed it at
Jackson’s head and demanded that he empty his pockets. As Jackson did so, a shot rang out and
something struck his head. He fell to the ground, unable to tell whether he had been grazed by a
bullet or pistol whipped. He remained on the ground, ears ringing, as Turner climbed on his
back and removed his wallet.
While on the ground, Jackson heard a second gunshot and saw Abbey lying prone, dying
from a gunshot wound to the head. Jackson testified at the preliminary hearing that he saw
Watson standing over Abbey rifling through his pockets, but at trial he testified that both Watson
and Turner were standing over Abbey. Mitchell later testified that he heard two gunshots and
then saw Turner and Watson running toward the car. Once they were inside, they told Mitchell
to drive. As Mitchell left the scene, Turner—still holding the handgun—said, “I think I shot
him.”
Immediately after the incident, Jackson met with two detectives at the scene. He gave a
statement and reviewed video from the Cheetah Lounge’s surveillance camera. Using the video,
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Jackson identified Turner, Watson, Mitchell, and Phillips entering the club on the video and
named Watson as the shooter. He made these identifications based on their stature and clothing
as their faces were not apparent.
Ten days later, Jackson met with another detective and went through photo line-ups.
Jackson identified both Turner and Mitchell with “one-hundred percent” confidence. He also
identified Watson in the photo line-ups, but said he was only “eighty-five percent to ninety”
percent confident in that identification. Nevertheless, he insisted that none of the other men
pictured could have been Watson.
Based on the investigation, Watson was detained and ultimately charged with first-degree
murder, two counts of robbery, two counts of use of a firearm in the commission of a robbery,
and conspiracy to commit robbery. At the preliminary hearing, Jackson identified Watson a third
time. Watson was wearing an inmate uniform with handcuffs and was sitting next to Turner and
Mitchell. Jackson stated that he was “positive” and one-hundred percent confident in his
identification of Watson.
At trial, Watson sought to introduce expert testimony from Dr. Brian Cutler, a recognized
expert in matters concerning eyewitness identifications. Watson sought to use Cutler’s
testimony to introduce factors that he believed negatively affected Jackson’s eyewitness
identification and thus reduced his reliability. The trial court recognized Cutler’s qualifications,
then permitted Watson to proffer his testimony through an abbreviated examination outside the
jury’s presence.
The trial judge actively participated along with counsel during Cutler’s proffer, asking
detailed questions about aspects of his testimony. For instance, as Cutler opined that
eyewitnesses’ confidence is malleable and can be influenced by factors after an identification has
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been made, the judge asked him to provide examples of feedback factors that validate
eyewitnesses’ identifications and whether in his “review of the case materials . . . there [was] any
evidence of feedback factor[s] coming into play in Mr. Jackson’s identification of perpetrators.”
Cutler replied that a witness learning that another witness had identified the same individual, that
the police believe the individual is the perpetrator, or that additional evidence implicates the
suspect are the “kind[s] of information that can inflate confidence.” He additionally noted that
the process of making multiple identifications and identifying the same person on multiple
occasions can also raise confidence. In response to the judge’s specific question about whether
evidence of those factors existed in this case, Cutler acknowledged that, based on his review of
the case materials, he “didn’t see evidence of [confidence-increasing] feedback per se” and was
“not aware of any direct feedback given to [Jackson],” but “it appeared there were changes in
[his] confidence.” Moreover, Cutler concluded in his report that “[w]ithout a more explicit and
descriptive statement of eyewitness’s confidence at the time of the lineup, there was no way of
knowing whether confidence inflation occurred.”
Watson also sought to introduce Cutler’s testimony on unconscious transference, which
he explained occurs when a witness mistakenly identifies a familiar person for a perpetrator. He
stated the “transference” aspect of the phenomenon occurs when a witness mentally transfers the
identity of a familiar person to that of the perpetrator, and that the process is unconscious
because the witness does not realize the transference is happening. The judge asked whether
“[u]nconscious transference requires that [eyewitnesses] predicate some sort of visual
recognition of the person before the events giving rise to need for an identification . . . [such that]
[t]hey would have to have seen the person somewhere” before. Cutler agreed and opined that the
phenomenon is likely to occur when the witness either already knows or “ha[s] a good look at
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the familiar person to begin with,” but does not get a good look at the perpetrator. He further
noted that unconscious transference could affect photo array identifications. But, much like his
comments on eyewitness confidence, Cutler acknowledged that “[t]here was nothing about the
photo array process . . . that I reviewed that would increase the likelihood of unconscious
transference.”
At the proffer’s conclusion, the trial court excused Cutler and entertained arguments on
his testimony’s admissibility. It then admitted his testimony regarding the effects of stress on
eyewitnesses, eyewitnesses’ tendency to focus on weapons, and the attention-dividing effects of
multiple perpetrators, but excluded the testimony on unconscious transference, eyewitness
confidence, confidence feedback, and confidence inflation. Based on its detailed consideration
of the proffer and parties’ arguments, the trial court found that the testimony concerning
eyewitness confidence was “common sense” and “within the common province and knowledge
of the ordinary juror.” It excluded the unconscious transference testimony as irrelevant because
Cutler stated that he saw no evidence of transference in this case.
Although he was not permitted to introduce expert testimony on eyewitness confidence
and unconscious transference, Watson nonetheless addressed these issues during trial. He
employed concepts related to unconscious transference in his cross-examination of Jackson,
which focused on Jackson’s confidence in his identifications. He also argued both concepts in
his closing argument.
After the close of evidence, Watson proffered a jury instruction on the subject of
eyewitness identification testimony. Although he argued that the instruction was an accurate
statement of the law because it was Model Jury Instruction 2.800 verbatim and the evidence
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supported giving it, the trial court refused the instruction. The jury ultimately convicted Watson,
and the trial court imposed the jury’s recommended sentence of life plus 53 years’ imprisonment.
Watson timely filed a petition for appeal, which the Court of Appeals denied by per
curiam order. In denying the petition, the Court of Appeals held that the trial court did not abuse
its discretion in excluding the expert testimony on eyewitness confidence and unconscious
transference because the testimony was irrelevant or within the common experience of the jurors.
It further reasoned that Watson cross-examined Jackson about transference and his confidence in
his identifications and argued both concepts in his closing argument, which allowed the jury to
consider the concepts in evaluating the credibility of Jackson’s identification testimony.
The Court of Appeals also ruled that the trial court did not abuse its discretion in denying
Watson’s proffered jury instruction. It found that the instructions given by the trial court fully
addressed concepts of witness credibility, the Commonwealth’s burden of proving Watson’s
identity beyond a reasonable doubt, and the presumption of innocence. It concluded that
Watson’s detailed instruction was duplicative and would have improperly focused the jury’s
attention on the enumerated factors outlined in the proposed instruction. The Court of Appeals
also noted that Watson raised many of the identification issues outlined in the instruction during
closing argument to the jury.
We awarded Watson this appeal.
II. ANALYSIS
Watson’s assignments of error challenge the exclusion of Cutler’s expert testimony
regarding eyewitness confidence and unconscious transference as well as the refusal of the
proffered jury instruction on eyewitness identification testimony.
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A. Expert Testimony
Watson first contends that the trial court erred by limiting the scope of Cutler’s testimony
regarding eyewitness confidence and unconscious transference. He argues that the identification
issues are “highly specialized and counterintuitive,” rendering them beyond the jury’s common
knowledge.
This Court reviews the trial court’s ruling excluding evidence for abuse of discretion.
Payne v. Commonwealth, 292 Va. 855, 866 (2016) (citing Lawlor v. Commonwealth, 285 Va.
187, 229 (2013)). The purpose of expert testimony is to assist the trier of fact in understanding
the evidence. Payne v. Commonwealth, 277 Va. 531, 542 (2009) (citing Velazquez v.
Commonwealth, 263 Va. 95, 103 (2002)). For this reason, expert testimony is admissible only
when it concerns matters that are not within the jury’s ordinary knowledge. Id. (citing Compton
v. Commonwealth, 219 Va. 716, 726 (1979)).
Although this Court has not addressed in what circumstances expert testimony regarding
eyewitness identifications is admissible, the Court of Appeals has considered the issue on several
occasions. It has held “that in some ‘narrow’ circumstances, expert testimony [about eyewitness
identifications] may be useful to the jury, including in the following areas: ‘such problems as
cross-racial identification, identification after a long delay, identification after observation under
stress, and psychological phenomena as the feedback factor and unconscious transference.’”
Payne v. Commonwealth, 65 Va. App. 194, 221 n.22 (2015) (quoting Currie v. Commonwealth,
30 Va. App. 58, 64–65 (1999)), aff’d on other grounds, 292 Va. 855 (2016). Nevertheless, the
Court of Appeals has emphasized that, even in circumstances where expert testimony may be
useful to the jury, “[a] trial court retains the discretion to permit or forbid such testimony.” Id.
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The Court of Appeals considered this issue at length in Currie v. Commonwealth, 30 Va.
App. at 62. In that case, the trial court excluded expert testimony regarding the correlation
between eyewitness certainty and accuracy, the effect of viewing time and stress on eyewitness
accuracy, and the concept of transference because it concluded that these topics “were within the
lay knowledge of the average juror and could be adequately argued to the jury in closing
arguments.” Id. at 63. It also precluded the expert from testifying about the specific
identification at issue in the case because “[s]uch testimony would usurp the function of the jury
to determine the credibility of witnesses.” Id. Currie argued that the proffered expert testimony
was “vital to [the] jury’s understanding of whether the identification made [was] correct.” Id. at
63–64. He contended that his expert should have been allowed to explain the psychological and
scientific principles underlying the identification process to the jury. Id.
The Court of Appeals held that the relationship between eyewitness confidence and
accuracy of identification was not among the “narrow” circumstances for which expert testimony
might be appropriate. Id. at 64–65. It relied on another of its opinions to affirm that “‘the
unreliability of a subsequent identification’ and ‘the prevalence of misidentification in situations
involving stress, poor lighting, or delay’ are topics ‘within the lay knowledge of the jurors.’” Id.
at 64 (quoting Rodriguez v. Commonwealth, 20 Va. App. 122, 129 (1995)). Additionally, it
noted that Currie’s counsel addressed the issues limited by the trial court, like transference, in his
argument to the jury. Id. at 66. The jury was thus capable of evaluating whether the victim’s
identifications of Currie were reliable or whether the identifications were incorrect based on the
proffered eyewitness identification problems. Id. For those reasons, it held that the trial court
did not abuse its discretion in excluding the proffered expert testimony. Id.
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As in Currie, the trial court in this case did not allow appellant’s expert to testify on
issues relating to eyewitness identification because they were within the common experience of
the jurors. The trial court thoroughly considered these concepts as evidenced by its extensive
questioning and engagement with Cutler during the proffer. Its ruling excluding the testimony
concerning eyewitness confidence is consistent with existing Virginia precedent regarding the
exclusion of expert testimony.
Although the Court of Appeals has recognized that unconscious transference is among
the narrow circumstances in which expert testimony may be useful to a jury, the trial court in this
case did not abuse its discretion by excluding it as irrelevant. Only relevant expert testimony
may be introduced. In this case, Cutler acknowledged that there was no indication that
unconscious transference occurred. See, e.g., Farley v. Commonwealth, 20 Va. App. 495, 499
(1995) (“There also must be a connection between the [expert testimony] and the factual dispute
in the case.”). Accordingly, the unconscious transference testimony was irrelevant and therefore
inadmissible.
Additionally, like Currie, Watson had the opportunity to argue the identification issues to
the jury in cross-examination and during closing arguments. Thus, even without the expert
testimony, the jury had the opportunity to consider these concepts in evaluating the credibility of
Jackson’s identification testimony and whether his identification was reliable. Accordingly, the
trial court did not abuse its discretion by following Currie and excluding the testimony.
B. Jury Instructions
Watson next contends that the trial court erred by refusing the jury instruction regarding
eyewitness identifications because the instruction was an accurate statement of law and was
supported by the evidence. This Court
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review[s] jury instructions to see that the law has been clearly
stated and that the instructions cover all issues which the evidence
fairly raises. This is a mixed question of law and fact. It is error to
give an instruction that incorrectly states the law; whether a jury
instruction accurately states the relevant law is a question of law
that we review de novo. However, jury instructions are proper
only if supported by the evidence, and more than a scintilla of
evidence is required. When reviewing a trial court’s refusal to give
a proffered jury instruction, we view the evidence in the light most
favorable to the proponent of the instruction.
Payne, 292 Va. at 869 (quoting Lawlor, 285 Va. at 228–29). “Nevertheless, a court may exercise
its discretion and properly exclude an instruction that both correctly states the law and is
supported by the evidence when other granted instructions fully and fairly cover the relevant
principle of law.” Id. (quoting Lawlor, 285 Va. at 256).
We most recently considered a challenge to refusal of a jury instruction regarding
eyewitness identification in Payne v. Commonwealth, 292 Va. at 867. In that case, Payne
asserted that the circuit court erred in refusing his proffered instruction because it was a correct
statement of the law and supported by the evidence. Id. at 867–68. He further contended that
the proffered instruction was not duplicative of the other granted jury instructions. Id. at 868. In
light of the refusal, Payne argued that the granted jury instructions were insufficient to inform the
jury that it could consider the reliability of an eyewitness’s identification. Id. at 870.
We rejected Payne’s arguments, holding that his “very specific[]” instruction was either
identical in part to or otherwise adequately covered by the given instructions. Id. at 869–71. We
further held that the proffered instruction would have improperly focused the jury’s attention on
the enumerated factors, thereby suggesting that those factors were exclusive or entitled to special
consideration. Id. at 871. Such an instruction would have deleterious effects:
While it may be appropriate during closing argument for each
party to focus the jurors’ attention on the evidence it prefers them
to consider during their deliberations, it is not appropriate for the
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court to do so in a jury instruction because, under the law of
Virginia, the jury is free to weigh the evidence how it chooses.
Id. Lastly, we observed that Payne’s thorough cross-examination of the eyewitness successfully
presented several facts to the jury that could have led it to conclude that the eyewitness’s
identification was unreliable. Id. at 872. That the jury ultimately elected not to do so was “not
attributable to a defect in the court’s instructions.” Id. Accordingly, we found no reversible
error in refusing the instructions. Id.
Watson argues that this case is effectively a sequel to Payne because the instruction he
proffered was drafted by this Court’s Model Jury Instruction Committee in response to our ruling
in Payne. He notes that this Court specifically contemplated such an instruction: “one that
merely mentioned factors to consider, and did not elevate any particular factors above all others.”
Thus, because the instruction accurately stated the law and was supported by the evidence, and
because the identification issue was crucial to his theory of defense, Watson contends the refusal
was error.
This Court has “long recognized [the] dangers inherent in eyewitness identification
testimony.” Daniels v. Commonwealth, 275 Va. 460, 464 (2008). The United States Supreme
Court has observed that “[t]he vagaries of eyewitness identification are well-known; the annals
of criminal law are rife with instances of mistaken identification.” Id. (quoting United States v.
Wade, 388 U.S. 218, 228 (1967)). “[B]oth archival studies and psychological research suggest
that eyewitnesses are frequently mistaken in their identifications.” Jennifer L. Devenport et al.,
Eyewitness Identification Evidence, 3 Psychol. Pub. Pol’y & L., 338, 338 (1997). Because
eyewitness identification is so persuasive to jurors, “eyewitness ‘[m]isidentification is widely
recognized as the single greatest cause of wrongful convictions in this country.’” State v.
Henderson, 27 A.3d 872, 885 (N.J. 2011) (quoting State v. Delgado, 902 A.2d 888, 895 (2006))
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(alteration in original). Both state and federal courts “have opined that courts should guard
against a jury assuming that admitted eyewitness identification testimony is unquestionably
reliable and credible simply because it was admitted in evidence.” Daniels, 275 Va. at 465.
Some jurisdictions have permitted—and others have mandated—a specific jury
instruction alerting the jurors of the risks of eyewitness identification testimony. Id. This Court,
however, has not adopted a rule that would require
a cautionary instruction on eyewitness identification in every case
in which it is requested and the identification of the defendant is
central to the prosecution’s case. Neither have we opined that such
an instruction would never be appropriate, nor that a court would
abuse its discretion by granting such an instruction.
Id. (citing Lincoln v. Commonwealth, 217 Va. 370, 375 (1976)). Instead, we have consistently
ruled that the decision to give or refuse instructions on eyewitness identification rests in the
sound discretion of the trial courts. For instance, we have held that while an instruction “was a
correct statement of the legal principles involved and the trial court, in its discretion, could
properly have given the instruction, it does not follow that it was reversible error to refuse it.”
Lincoln v. Commonwealth, 217 Va. 370, 375 (1976). Likewise, we have affirmed judgments in
which the trial court refused to give a cautionary instruction on eyewitness identification because
the matters contained in the proposed instructions were covered by other instructions. Daniels,
275 Va. at 465. As we observed in Payne, a court may properly exclude an instruction that both
correctly states the law and is supported by the evidence as long as other granted instructions
“fully and fairly cover the relevant principle of law.” 292 Va. at 869.
Given these principles, the trial court did not abuse its discretion in refusing the
instruction. It instructed the jury on its role as the judges of the facts, the credibility of the
witnesses, and the weight of evidence. It also provided the jury with instructions on the
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presumption of innocence and the Commonwealth’s burden of proving appellant’s identity
beyond a reasonable doubt. These granted instructions addressed Watson’s essential defense
theory that Jackson’s eyewitness testimony lacked credibility.
In Payne, we did not find it “difficult to foresee a defendant proffering a jury instruction
similar to Payne’s, but drafted to avoid the problem of focusing the jury’s attention on a limited
number of factors affecting the reliability of an eyewitness identification.” 292 Va. at 872. As
we observed, “[p]rovided that such an instruction is supported by the evidence, it would correctly
state the law and a trial court would not err by giving it, at its discretion.” Id. (emphasis added).
There is no question that the model instruction Watson proffered was supported by the evidence
and was otherwise the sort of instruction we anticipated in Payne. Id. Ultimately, however, this
assignment of error turns on an exercise of the trial court’s discretion. In light of the totality of
the record, the trial court acted within its permissible discretion in declining to give the proffered
instruction.
Finally, we note that Watson thoroughly cross-examined Jackson and in doing so
presented the jury with information it could have relied upon to find his testimony implausible.
Watson additionally directed the jury’s attention to these factors during his closing arguments.
That the jury rejected Watson’s evidence and found the testimony credible is “not attributable to
a defect in the court’s instructions.” Id. at 872. Accordingly, we find no reversible error in the
judgment of the Court of Appeals affirming the trial court’s refusal of Watson’s proffered
instruction.
III. CONCLUSION
For the foregoing reasons, the trial court did not abuse its discretion in excluding Cutler’s
testimony regarding matters of eyewitness confidence because it fell within the jury’s common
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knowledge. It properly excluded his testimony regarding unconscious transference as irrelevant
because Cutler acknowledged that unconscious transference did not appear to have occurred in
this case. Finally, the trial court acted within its discretion in refusing Watson’s proffered jury
instruction because the principles of law contained in the proffered instruction were fully and
fairly covered by other instructions addressing witness credibility.
Affirmed.
JUSTICE McCULLOUGH, concurring.
I join the majority opinion, but I write separately to highlight the need for thoughtful
consideration of expert testimony and/or jury instructions with respect to eyewitness testimony.
While expert assistance or a jury instruction is unnecessary in many commonly encountered
situations involving eyewitness testimony, there are times when an expert or carefully tailored
jury instructions will assist the court or the jury in sifting through a sincere but perhaps mistaken
eyewitness identification. Extensive social science research has uncovered a variety of
phenomena that may mislead a factfinder into crediting flawed eyewitness testimony. For
example, a witness’s recollection may be tainted by suggestive police procedures, greater
difficulty in making cross-racial identifications, diminished reliability due to focus on a weapon,
or unconscious transference. Extensive evidence also documents the weakness of the correlation
between a witness’s confidence and the accuracy of the witness’s recollection. Flawed
eyewitness testimony has led to a non-trivial number of wrongful convictions. The record in this
case reflects a commendable rigor and thoughtfulness by the trial judge in handling the issue.
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