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Hofstra Public Safety Office

A Nassau Sex Crimes Lawyer said that, on October 1, 1985, the defendants were arrested and charged with two counts of Assault in the third degree. Wade and Huntley hearings were held wherein the facts of this case were reported as follows: the victims were assaulted by ten unknown assailants at the Restaurant on Hempstead Turnpike, Hempstead, New York. The complainants went to the Hofstra Public Safety Office (PS) headquarters seeking assistance, since they believed that their assailants were Hofstra University students. The person presently in charge of the PSO, allowed the victims to look at I.D. photos of the students.

A Nassau Rape Lawyer said that, both the victims testified at the Wade-type hearing that each complainant made an independent identification of a defendant from the photographs and was one-hundred percent sure the identification was accurate before showing the photo to the other complainant. There was no testimony that indicated that the complainants talked to each other about possible defendants during the identification procedure. The person presently in charge of the PSO brought the two complainants to the athletic department at Hofstra where they viewed photos of football players and identified another of the defendants. Again, the complainants of child pornography testified that they identified the third defendant in the same manner as in the Hofstra PSO.

A Nassau Sex Crime Lawyer said that, on October 1, 1985, Police Officer arrested the three defendants at Hofstra and brought them to the Hempstead Police Precinct. The defendants were advised of their Miranda rights at the precinct by the Police Officer. Police Officer testified at the Huntley hearing that defendant stated that he was willing to talk without his attorney present. Defendant was not intoxicated and he understood the meaning of the Miranda warnings which were read to him. The Police Officer testified that Defendant stated that he was engaged in words with the victim and pushed him, and the defendant jumped in to break up the fight.”

The issue in this case is whether an “expert” will be permitted to testify with respect to the reliability of eyewitness identification.

It is the defendants’ contention that they are the victims of a mistaken identification by both eyewitnesses, the complainants hereto. The defendants have requested that the court permit the doctor to testify in this regard. The expert witness is a psychologist and holds himself out as an “expert in the field of perception, memory and the vagaries of eye-witness identification.” The defendants’ arguments rest heavily with a similar case, wherein the Court permitted the said doctor to testify with respect to factors which studies have shown are relevant to the reliability of an eyewitness identification.

These factors include: 1. The delay between the event and the identification; 2. stress; 3. the violence of the situation; 4. assimilation of post event information; 5. the cross-racial aspect of the identification; 6. The selectivity of perception; 7. the ‘filling in’ phenomenon; 8. expectancy; 9. the effect of repeated viewings; 10. The lack of a correlation between confidence and reliability; 11. The motivation of the victim to make a correct identification; 12. The motivation of the police to make an arrest; 13. The introduction of suggestiveness through photo arrays; 14. The availability of a ‘zero option;’ 15. The effect of what a witness is told after the identification is made. Rape was not charged.

He is also prepared to testify that laymen place an undue emphasis on identification testimony in general and that cross-examination is not effective to discredit a mistaken identification because the witness truly believes that his testimony is accurate, even if it is not.” According to the defendants’ memorandum of law, “the doctor will specifically not venture any opinion as to the validity of eyewitness identification testimony in general or as to the reliability of the identification testimony in the case at bar.” The admissibility and bounds of expert testimony are addressed primarily to the sound discretion of the trial court.

It is a well settled legal principle that the opinion of an expert in a specific field is admissible due to the necessity of receiving such evidence. “Where the subject matter to be inquired about is presumed not to be within common knowledge and experience, and where legal inference predominates over statement of fact, expert opinion based on suitable hypothesis is required to furnish the basis for a determination by the ordinary jury; but where the matters are within the experience and observation of the ordinary jurors, from which they may draw their own conclusions, and the facts are of such a nature as to require no special knowledge or skill, the opinion of experts is unnecessary.” “In a sense, opinion testimony of an expert witness necessarily enters upon the jury’s province, since the expert–and not the jury–draws conclusions from the facts, which the jury is then asked to adopt. Such testimony, however, is admissible where the conclusions to be drawn from the facts “depend upon professional or scientific knowledge or skill not within the range of ordinary training or intelligence.”

The opinion of non-expert witnesses has been held admissible with respect to the identity of a person. Nevertheless, expert testimony has been necessary to interpret results of scientific tests regarding the identification of a person through voice prints, hair prints and exemplars.

It is for this Court to determine whether the jurors will be able to draw conclusions from the evidence based on their day-to-day experience, their common observations and the knowledge they bring with them, and whether they would benefit by the specialized knowledge of an expert witness. In the Cronin case, the trial court failed to exercise its discretion as it erroneously thought that it had no discrete to exercise. Accordingly, the Court permitted a psychiatrist to testify generally with respect to the defendant’s condition in view of his ingesting drugs and alcohol. The Court prohibited the witness from giving an expert opinion about the defendant’s ability to form intent as this testimony would “usurp the jury’s function.” The Court of Appeals, reversing the Appellate Division’s affirmance of the trial court, held that the trial court could have properly found the psychiatrist’s testimony admissible regarding the subject of intent. “While jurors might be familiar with the effects of alcohol on one’s mental state, the combined impact of a case of beer, several marihuana cigarettes and 5–10 Valium tablets on a person’s ability to act purposefully cannot be said as a matter of law to be within the ken of the typical juror.” Similarly, the trial court permitted psychologist to testify with respect to the reliability of eyewitness identification testimony, limiting the testimony to the factors enumerated heretofore.

In his decision, the Westchester County Court concedes the fact that the New York Courts, which have had to consider the issue at bar, have not been inclined to the admission of expert testimony on the subject of eyewitness identification. Other jurisdictions have been more favorably disposed to admit such testimony. The doctor’s testimony was also excluded. In that case, the Justice also of this Court, held that such testimony would not assist the jury in their evaluation of the testimony by the eyewitnesses and would infringe upon their role as the determiner of reliability. The decisions by respected trial court colleagues properly reflect the exercise of discretion in these matters which all of the Appellate Divisions have referred. They do not stand for the proposition that expert testimony on the issues of eyewitness identification is never admissible.”

The case is distinguishable from the case at bar. The defendant had been accused of the crimes of rape in the first degree and sexual abuse in the first degree. These are both heinous sex crimes, which would give rise to perhaps an emotional and psychologically impaired victim. Thus, the reliability of the eyewitness identification could be in issue. Therefore, the factors which the scientific studies and reports have shown to affect the reliability of eyewitness testimony might be applicable. Each court must exercise its discretion, on an ad hoc basis, depending upon the nature of the crime charged, and the purpose for which the testimony is being offered and whether an expert opinion is necessary to enable the jury to more fully comprehend the subject matter.

The defendants herein have been charged with two counts of Assault in the third degree, a Class A misdemeanor. It is not likely that the complainants have been emotionally or psychologically scarred to the potential degree that the complainant could have been in Brooks, supra.

The reliability of the eyewitness identification of the defendants herein shall remain within the province of the jury. If this Court were to permit the expert witness to apply his experience to the particulars of this case it would constitute a trespass upon the jury’s domain. The jury in the instant case would not be benefited by the specialized knowledge of the expert witness. All jurors have some every day experience which will help them in determining whether the eyewitness identification is, in fact, reliable. Similarly, in the case at bar, most jurors are familiar with the process of identifying and recognizing other people. Few, if any, however, have been victims of sex crimes, and therefore most can only presume what factors are relevant to making a valid identification in that situation. This issue may be relevant with respect to the victim of a rape or a victim of sexual abuse. This is however, distinguishable from the victim of a simple assault.

It is apparent to this Court that the expert witness’s testimony is not necessary in the instant case. The jury is quite capable of determining whether the eyewitness identification is reliable without the introduction of expert testimony in this regard.

Accordingly, while this Court concludes that as a matter of law expert testimony with respect to the factors affecting the reliability of an eyewitness identification may be admitted into evidence in this State, the Court in the exercise of its discretion will not admit such expert testimony in the case at bar.

It is a well settled legal principle that the opinion of an expert in a specific field is admissible due to the necessity of receiving such evidence. If you wish to present an expert witness seek the representation of a Nassau Rape Attorney and Nassau Criminal Attorney at Stephen Bilkis and Associates.

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