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Eyewitness expert exclusion upheld

A couple of years back, we reported a speaker’s comments that trial judges are warming to the use of expert testimony to challenge eyewitness identifications.

But it’s a slow thaw, as evidenced by a 4th Circuit case upholding exclusion of a psychologist’s expert testimony at a defendant’s prosecution in Richmond federal court for an alleged car theft and related traffic offenses at Ft. Lee.

The defendant got halfway there.

After a Daubert hearing, Chief U.S. District Judge James R. Spencer said the proffered testimony of Brian Cutler, Ph.D., qualified as “scientific knowledge” and so satisfied the first prong of the Daubert test. Cutler said that cross-race recognition, the mug shot recognition effect, the confidence and accuracy correlation and the nature of the Caucasian officer’s initial identification of the African-American defendant all might have impacted the identification.

But the defendant failed the second Daubert prong because he did not show that Cutler’s testimony would assist the trier of fact in determining the issue of the defendant’s identity.

The district court did not abuse its discretion, according to the appellate court’s unpublished Jan. 29 opinion in U.S. v. White.
By Deborah Elkins

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