concurring.
I concur in ■ the result reached by The Court in this case. I do not, however, agree that the trial judge was in error in excluding the proffered testimony of an expert witness offered by the defense.
Inspection of the photograph display from which no witness made any identification, and the photograph of the show-up from which three eyewitnesses made identification of the appellant, does not in my view lend support to the proposed assertion that exposure of the witnesses to photographs of six men of generally similar facial characteristics preconditioned the witness toward mistaken identification of appellant at the line-up so as to make them “unreliable.”
I am aware that eyewitness identification in violent crime situations, and perhaps particularly in cross-racial crimes, presents possibilities of mistaken identification as to which an expert witness with the qualifications of Dr. Fulero could appropriately caution a jury. Three or four separate characterizations of these three eyewitnesses as “unreliable,” however, appears to me (as it must have to the trial judge) to be such overstatement as to be of dubious assistance to the jury.
Recent amendments to the Federal Rules of Evidence have certainly made expert testimony more acceptable in federal trials. For example, Rule 702 of the Federal Rules of Evidence provides:
Rule 702. Testimony by Experts
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.
I do not, however, believe that Rule 702 has eliminated trial judge discretion. On that assumption, I would hold that Judge Rice’s exclusion of Dr. Fulero’s proffered evidence was not an abuse of judicial discretion.