Farris v. State

BAKER, Judge,

concurring.

I fully concur with the majority's opinion. However, I write separately to emphasize that courts need to be mindful of research regarding the reliability of eyewitness testimony. Eyewitness identification experts can provide to the jury scientific information about the haman memory process and analyze how it is shaped and affected. Nevertheless, Dr. Terry's testimony was properly excluded because eyewitness identification experts should not testify as to the veracity or credibility of a particular eyewitness. Ind. Evidence Rule 704(b).

Eyewitness identification of the wrong person has been the subject of much debate in recent years. Advances in technologies such as DNA testing have led to the release of numerous innocent people who had been convicted of crimes, some of whom had been incarcerated for years. Out of roughly 10,000 sexual assault cases between 1989 and 1996, DNA testing conducted by the Federal Bureau of Investigation revealed that about 2,000 tests were inconclusive, about 6,000 matched or included the primary suspect, and about 2,000 tests excluded the primary suspect. Almost all of the exclusions were in cases where a suspect had been identified as the attacker. Edward Connors, et al., U.S. Dept. of Justice, "Convicted by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence - After - Trial," - available - at http://www.nejrs.org/txtfiles/dnaevid.txt (last visited October 22, 2004).

Scientific research indicates that identification procedures such as lineups and photo arrays produce more reliable evidence when the individual lineup members or photographs are shown to the witness sequentially-one at a time-rather than simultaneously. U.S. Dept. of Justice, National Institute of Justice, "Eyewitness Evidence: A Guide for Law Enforcement", available at http:// www.nejrs.org/pdffiles1/nij/178240.pdf (Last visited on October 21, 2004). Simi*73larly, investigators' unintentional cues (eg., body language, tone of voice) may negatively impact the reliability of eyewitness evidence. Id.

Judge Warren Wolfson noted in a 2000 article that eyewitness identification experts' testimony could enlighten the jury as to research in behavioral science that negates some "common sense" misconception the jury might hold. For instance, research has shown that:

(1) Although low levels of stress may improve an individual's memory of an offender's face, extreme levels often will impair it;
(2) When a weapon is used in a crime, eyewitness identification is less accurate because the witness tends to focus on the weapon;
(3) There is little or no correlation between the degree of confidence expressed by the eyewitness in his or her identification of the offender and the accuracy of that identification;
(4) Witnesses almost invariably think a crime took longer than it did.

Warren Wolfson, "That's the Man! Well, Maybe Not: The Case for Eyewitness Identification Expert Testimony" 26 Litig., Winter 2000, at 6.

In short, we should, as Judge Wolfson argued, encourage judges to read behavioral science literature so they "know what questions to ask and what answers to demand." Id. at 64. Judges should also conduct voir dire hearings to decide whether a proffered eyewitness identification expert is qualified and should ensure that these experts do not address the ered-ibility of a specific witness. Id. In sum, the evidence provided by eyewitness identification experts can help the jury assess the accuracy and credibility of eyewitnesses, and, as such, can be valuable in cases where the identity of the perpetrator is at issue. Nevertheless, I agree that Dr. Terry's testimony regarding the truthfulness of Traci and Alicia's testimony was properly excluded under Indiana Rule of Evidence 704(b).