I must respectfully dissent.
At the outset, this court, pursuant to a mandatory provision of the statute, is called upon to review a sentence of death imposed upon defendant-appellant for the kidnapping, felonious sexual penetration and murder of a young girl. There is no question but that a heinous crime was committed, but a reviewing court must never let that fact interfere with the due process protections of law afforded an accused.
As reflected in the majority opinion, eyewitness identification of appellant was hazy, inconsistent, and contrary. Photo identification was not positively made and, in fact, two of the state’s prime witnesses who later testified at trial had, shortly after the crime was committed, picked another suspect out of a valid photo array, and a third could not make a selection.
Months later appellant was arrested in Summit County and charged with unrelated offenses and was pictured in news releases and broadcast reports. Subsequently, yet another witness, after viewing on television and in newspaper photos, came forward to the Wayne County Sheriff’s Department to tell it that she believed appellant was a spectator at a softball game one week before the victim was abducted. As far as identification was concerned, that was the totality of it at the time appellant was arrested and charged with these offenses.
Appellant’s first proposition of law is:
“Where the evidence regarding an identification raises reasonable doubts as to its accuracy, and such identification is crucial to a closely balanced prosecution, expert testimony on eyewitness identification is admissible under Evidence Rule 702 so long as (1) the expert is qualified, (2) the subject is proper, (3) the testimony conforms to a generally accepted explanatory theory, and (4) the probative value outweighs the prejudicial effect.”
In support of this proposition, appellant argues as follows:
“During the course of this lengthy trial, the prosecution presented the testimony of two eyewitnesses to the abduction of Krista Harrison from the park in Marshallville; the testimony of three eyewitnesses, who claimed to have seen defendant in that same one week before the abduction; and one remaining eyewitness, who testified that he saw defendant at the location that Harrison’s body was discarded. At first blush, this general review of eyewitness testimony would seem to present substantial evidence. However, closer inspection reveals that the circumstances accompanying the initial observation, considered in light of the circumstances that existed before, during and after the police identifications, created an atmosphere of suggestibility, which in fairness demanded expert testimony concerning its reliability.
*146“In the court’s review of the proposition urged, two general facts should remain in mind. First, no witness identified defendant until after he or she first saw Buell on television or front page newspaper publications associating him with the murder of Krista Harrison. Second, the only two witnesses who observed the kidnapping identified someone other than Buell. The unusual fact situation surrounding the identification procedures in this case undoubtedly led to this result, and for this reason, as we shall see, due process commanded the admission of Dr. Penrod’s testimony.
“Mildred Butzer testified at the hearing to suppress the in-court identification, as well as the trial. She related that she was present at a baseball game in Marshallville, Ohio, on Friday, July 9, 1982, which was one week before the date of the crime alleged in the indictment. Krista Harrison was the pitcher that evening. While in her position as third base coach, she had a brief discussion with a spectator, who was sitting behind her. Her memory of the few words spoken, she described as vivid. The conversation was in a normal tone of voice and lasted less than fifteen seconds. She determined from this brief observation, that she did not know him. The event was so insignificant in her mind that she spoke with no one about it after the game.
“It was not until October or November of 1983, some sixteen months later, that her attention was again directed to the incident, and the person sitting in the grass. At that time, she saw him on television and on the front page of the newspaper in accounts relating to Mr. Buell [and] to the death of Krista Harrison. It was only after a one and one-half year lapse, and this publicity, that the event became important in her mind.
“Thereupon, Mrs. Butzer called the Wayne County Sheriff’s office. Shortly thereafter, she called Corliss Archie, another witness at the ballfield, to tell her what she had seen on T.Y. and in the news, and that she had already called the sheriff. She asked her to watch the news to see if he looked like the man at the ballfield. She was shown sketch composites of the suspect that she didn’t feel looked anything like the man at the ballfield.
“With this background, Mildred Butzer identified Robert Buell as being the spectator at the game.
“Corliss Archie was the second of three witnesses from the ballfield called by the prosecution at both the motion to suppress and trial. She recounted, through testimony, that she witnessed the encounter between the spectator and Mildred Butzer, although her recollection of the details differed. She described the interaction, between the spectator and Mrs. Butzer, as an argument, during which the parties were ‘hollering’ or ‘yelling’ at one another. She was absolutely sure that Butzer yelled out, ‘who are you?’ and ‘What do you want and if your [sic] not a parent why don’t you just get out of here?’, although Mildred Butzer did not remember such in vivid recollection. She further recalled, that the conversation was approximately three minutes, not fifteen seconds and the spectator was squatting, not standing.
*147“When requested by Mildred Butzer, she observed the spectator for approximately thirty seconds to see if he was a parent or she knew him. He was not a parent and she did not know him. She then walked to a lawn chair, where a third coach, Claudia Casey, was seated, to see if she knew him, but the man in question was gone by the time she arrived at Casey’s chair.
“It was not until November of 1983, some sixteen months later, that her attention was again directed to the incident and the person squatting in the grass. The event was so insignificant that she mentioned it to no one in the interim. In November, she received a call from Mildred Butzer, who informed her that a Robert Buell had been arrested in Summit County, for the abduction and rape of two women, and he would be on T.Y. that evening. She further told Mrs. Archie to see if he looked like the man at the ballfield, and if he did to call the Wayne County Sheriff. She further told Corliss that she had already been to the Sheriff’s office and identified Buell as the spectator at the game.
“Mrs. Archie watched the T.V. reports and read the newspaper accounts of Mr. Buell’s arrest, all of which associated him with the death of Krista Harrison. About two days later, she was shown a series of photos from which she picked Buell.
“With this background, Corliss Archie identified Robert Buell, as being the spectator at that game.
“The third and final witness from the ballfield was Claudia Casey, called by the prosecution at the hearing on the motion to suppress, as well as at the trial. She also testified that she had witnessed the encounter at the baseball game, although her recollection of the details differed from that related by both Butzer and Archie. She described the exchange between Mildred Butzer and the fan as yelling, unlike the description by the participant, Mildred Butzer. She recalled Butzer responding, ‘What do you want? Blood?’; a memory different from either of the other witnesses. Her testimony described the man as standing, not sitting or squatting, as she observed him from her position on the player’s bench, not in a lawn chair as related by Corliss Archie and Mildred Butzer.
“Following the verbal exchange between Butzer and the spectator, she recalled that Corliss Archie approached her, where she was seated, and asked her if she knew the man. She viewed the man for approximately thirty seconds, a modification of the one minute estimate she gave at the motion hearing. She didn’t recognize him. It should be remembered that Corliss Archie testified that when she arrived at Claudia Casey’s lawn chair, the troublesome spectator was already gone.
“It was not until the end of October of 1983, some sixteen months later that her attention was again directed to the incident and the person standing in the grass. At that time, Corliss Archie called her and explained that the Wayne County Sheriff would probably contact her about the man arrested in Summit County, because the police thought there may be a link between him, the man at the ball diamond and Krista. She had already *148heard, about Buell, and although she didn’t recall seeing news and T.Y. photos of Buell, it was very possible she did.
“She insisted that she positively identified Buell from a photographic array, despite the fact that Detective Augenstein, who had shown her the array, testified that she responded that she was not sure, because she ‘did not see the subject who [sic] they were arguing with very clearly.’
“With this background, Claudia Casey identified Robert Buell as being the spectator at that game.
“Of the remaining three eyewitnesses, one was Donald J. Middleton, who testified at the hearing on defendant’s motion to suppress the in-court identifications as well as at the trial. He related an incident, which occurred on a Friday in July of 1982, which was more particularly described by officers involved as July 23, 1982 one week after the abduction of Krista Harrison. While traveling down a route known as Calico Road in Holmes County, Ohio, he encountered an abandoned shed along the roadway, with an automobile parked along its side, and a man standing between the car and the shed. He lost site [sic] of the man as he approached, because of a grade in the road. By the time Middleton regained his view, the man was in the car driving toward him. As he approached and then passed in his automobile, he looked up, waived [sic], and smiled. His total viewing time was three to four seconds. It was later that same day that Middleton learned that Krista Harrison’s body had been found by that shed.
“Unlike Butzer, Archie and Casey, who were not asked by police at the time for a description of the man they saw at the ballfield, Middleton gave police a description of the man he had seen, which included the age of twenty-five to thirty years and a gap between his teeth; two important details, which did not correspond to the defendant, who was admittedly forty-three years old without a space between his two front teeth. He also provided a description to a Holmes County Sheriff’s Deputy, who sketched a composite, which Middleton admitted looked nothing like Buell.
“Middleton was called upon at least two times by police to identify a suspect from a photographic array. The first time was approximately one and one-half years before the trial, close to the date of his observation, but before Buell was an arrested suspect. He remembers selecting one photo as looking like the man, but later learned that Buell’s photo was not included in the array. He further testified that the second time he saw photographs occurred after Buell had been arrested, and he had seen him on T.V. and in the newspaper associated with the kidnap-murder of Krista Harrison. According to the testimony, he was shown three photographs; one of Buell, one of a car, and one of a van.
“Detective Augenstein admitted that he was at Middleton’s home on two separate occasions to show him photographic arrays. His trained memory of the results was substantially different than Middleton’s. According to Augenstein, he selected no one from the first array, which did *149not include Buell’s photo, and on the second occasion, said only that the photograph of Buell ‘was as close as anyone he’d seen’, or ‘this looks as much like that man as anybody else I’ve seen.’
“Perhaps, most devasting to any suggestion of Middleton’s identification reliability was his inability to select Detective Augenstein from the courtroom audience at the time of the motion hearing, even though he was pointed out by defense counsel. Nor could he identify Augenstein at the trial, even though Middleton admits that he was within his home for at least ten or fifteen minutes on two separate occasions.
“With this background, Donald Middleton identified Robert Buell as being the man who drove that car on Calico Road [near the scene of the crime],
“The remaining two witnesses were present at the scene of the kidnapping and testified only at the trial. Stephanie Baker was visiting her father in Marshallville. While walking in the vicinity of the park, she was approached by a man in a dark brown van in such a manner that it scared her. She then witnessed the van drive away and enter the entrance to the park, where the bleachers for the ballfield were located. She gave a description to the police of the man and a composite drawing was prepared with her assistance.
“Baker was shown a photographic array before Buell’s arrest, which did not include his picture, and she selected two photos as being the driver of the van, but could not decide which. After Buell’s arrest, she was again shown an array which did include Buell’s photo, but she was unable to make any identification. When asked to personally view the defendant in court, she could not identify him as the driver of the van.
“Roy Wilson is the final eyewitness, who also appeared only at the trial. He was with the victim in the park and witnessed her abduction. He described a maroon-red van pulling up to their location and a man exiting. He thereafter forced the victim into the van and pulled away. He described the van and the driver, but was never asked by the prosecution if he could identify Buell.
“Wilson recalled assisting police in the preparation of a composite from his description, identified as defendant’s Exhibit No. 1, which he testified looked like the kidnapper. He assisted a sketch artist, a few days later in the preparation of a second composite identified as defendant’s Exhibit 2, which he also testified looked like the kidnapper. Each depicts a young long haired man.
“He was also shown a photographic array by the police, sometime in July or August of 1982, and selected the photo of a young man with long hair and a mustache, at a time before Buell was a suspect.
“He concluded his testimony by telling the defense counsel on cross-examination, and the prosecutor on redirect examination, that he had seen Buell on a T.Y. newsreel within the few days before his testimony and *150Buell ‘was not the man’ and ‘didn’t look like’ the suspect who drove the van.
((* * *
“With this background, the defense offered to introduce the testimony of Dr. Steven Penrod, to present expert testimony concerning the reliability of eyewitness identification generally, and the reliability of the eyewitness identifications under the peculiar circumstances of this case. The court refused to permit Dr. Penrod’s testimony, citing the ability of the jury to assess the credibility of the witnesses based on the instructions provided in the charge. At that point, the expert’s testimony was proffered for review by the appellate courts.
“In its argument against the introduction of Dr. Penrod’s testimony, the prosecution cited State v. Sims [(1981), 3 Ohio App. 3d 321] for the proposition that such expert testimony is inadmissible. Specifically, the court held in headnote two:
“ ‘The expert testimony of an experimental psychologist concerning the statistical likelihood of eyewitnesses to observe and recall accurately the details of a crime is not admissible, on the ground that such testimony does not assist the trier of fact to determine the facts in the case before it. The expert testimony of an experimental psychologist, on the issue of whether a particular eyewitness was testifying accurately is likewise inadmissible in the absence of any evidence that the witness suffers from a mental or physical impairment which would affect the witness’ ability to observe or recal [s-ic] events.’
“Despite this language, it’s appellant’s belief that the court’s holding should be limited to the particular facts of that case. The circumstances presented therein were inappropriate for such an expert’s analysis, because there existed overwhelming corroboration for the identification testimony. The witness in question was the victim of a robbery who:
“1. Instantly recognized defendant as someone who had patronized the store sixty or seventy times within the three months preceding the robbery.
“2. She recognized his voice and his habit of calling her ‘baby.’
“3. She recognized his clothing, which included a distinctive orange skullcap that he always wore.
“4. She recognized the co-defendant as a man, who had accompanied the defendant in the store on ten or fifteen previous occasions.
“5. The suspect was in the store with her for three to four minutes.
“6. She knew the residential building in which he lived near the store.
“7. She told her daughter, immediately after the robbery, that she knew the robber, but simply did not know his name.
“8. Defendant fled the store to the high rise building, where the witness knew he lived.
“9. Within three days of the robbery, the witness had selected defendant’s photo from an array.
*151“Obviously, no similarity exists between the instant fact pattern and the one just reviewed. Except for the eyewitnesses who could not identify defendant, i.e. Wilson and Baker, no witness observed the suspect for a period in excess of thirty seconds; nor identified sooner than sixteen months after their observation; nor identified defendant until they had seen appellant on television and the wrong page of the newspaper in stories associating him with the kidnap-murder of Krista Harrison. These circumstances were so unusual and suspicious that fairness and due process compelled the introduction of expert testimony as it related to the impact, or effect, such circumstances had upon the witnesses’ identification.
“The court in Sims, supra, at p. 325, noted that the expert summoned on behalf of defendant rendered an opinion on the probabilities of the witness making an accurate identification, but was admittedly unaware that she had seen defendant in her store on sixty to seventy earlier occasions, or that she had immediately told police she knew who her assailant was. Once again, such factors are not present herein. Dr. Penrod specifically testified that he had:
“1. Studied the testimony of Augenstein, Middleton, Butzer, Archie, and Casey rendered upon the motion to suppress; and
“2. Reviewed the basic information and the testimony of these same witnesses at trial with their motion testimony; and
“3. Received and reviewed copies of the photographic arrays viewed by these witnesses.
“The court herein has before it, the record of the testimony rendered upon defendant’s motion to suppress and a detailed review confirms the substantial correlation between the eyewitnesses’ motion and trial testimony. Therefore, no issue is presented to suggest that Dr. Penrod’s testimony and opinions were rendered, without benefit of the facts in issue.
“Finally, the defense in the Sims case was apparently unable to present reliable data that such testimony has flourished throughout the judicial system in this country, for the court recites[:]
“ ‘There are numerous decisions by American courts in which expert testimony regarding the credibility of witnesses has been received. * * * All of these cases, however, involved allegations that the witness suffered from an organic illness, a psychiatric disorder, or a mental impairment, which would diminish the witness’ ability to accurately perceive, remember, or relate the events testified to.’ State v. Sims, supra, at p. 325.” (References to record and other material deleted; appellant’s brief at 1-13.)
The appellant then cites State v. Barnett, Montgomery C.P. No. 80CR1953, unreported; State v. Alford, Montgomery C.P. No. 83CR2225, unreported; State v. Jones, Montgomery C.P. No. 78CR448, unreported; United States v. Smith (C.A. 6, 1984), 736 F. 2d 1103; United States v. Downing (C.A. 3, 1985), 753 F. 2d 1224; State v. Chappie (1983), 135 Ariz. *152281, 660 P. 2d 1208; State v. Contreras (Alaska App. 1983), 674 P. 2d 792; People v. McDonald (1984), 37 Cal. 3d 351, 208 Cal. Rptr. 236, 690 P. 2d 709; Lindberg v. Leatham Bros., Inc. (Mont. 1985), 693 P. 2d 1234; and State v. Sellars (1981), 52 N.C. App. 520, 278 S.E. 2d 907. All the above-cited cases approved the testimony of an expert on factors influencing eyewitness identification.
The majority relies heavily on State v. Sims, supra. Sims is clearly distinguishable. The factors presented in that case, i.e., improper subject, expert’s lack of familiarity with the facts, and no precedent, are not present herein. There is, therefore, no valid reason for it to control in this case.
Evid. R. 403 concerns itself with probative value compared to prejudicial effect. It, in part, provides as follows:
“(A) Exclusion Mandatory. Although relevant, evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury.”
In United States v. Brady (C.A. 6, 1979), 595 F. 2d 359, 361, the court applying and giving its rationale for the corresponding federal rule, said, “we must look at the evidence in a light most favorable to its proponent, maximizing its probative value and minimizing its prejudicial effect.”
The United States Supreme Court said, in United States v. Wade (1967), 388 U.S. 218, 228, that “the annals of criminal law are rife with instances of mistaken identification.”
Evid. R. 702 is referred to and cited in the majority opinion. As I view the rule, the application thereof is most apropos in the case sub judice. There is no question, in this writer’s opinion, that the testimony of the expert witness which was not permitted to be heard by the jury, in view of the inconsistencies of the state’s identification witnesses at trial, would have assisted the jury (the very purpose of Evid. R. 702) in assessing the weight to be given to the testimony of each individual witness.
When we also consider that the prosecution’s case consisted of two basic theories, i.e., eyewitness identifications and carpet fiber comparisons, and that the prosecution’s experts regarding the latter theory could not establish a conclusive link to appellant, it was an abuse of discretion to refuse relevant and valuable expert testimony on the reliability of such identification particularly when the stakes are a human life.
I find appellant’s first proposition of law well-taken, would reverse and remand the cause to the trial court for a new trial, with instructions to permit appellant’s counsel to call as a witness the expert whose testimony was prejudicially excluded.