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Admissibility of Expert Testimony
Concerning By Brett Trowbridge, Ph.D., J.D. This article supported by The Trowbridge Foundation Originally presented at the American College of Forensic Examiners, April 26, 2001 “The vagaries of eyewitness identification are well-known;
the annals of criminal law are rife with instances of mistaken identification.”
So wrote Justice William Brennan in the U.S. Supreme Court case There is an extensive body of research on the fallibility of eyewitness identifications. It is not the purpose of this article to describe or analyze this research; it has been summarized in several excellent books. See Cutler, C & Penrod, S (1995), Mistaken Identification, The Eyewitness, Psychology, and the Law, Cambridge University Press, New York; Sporer, S, Malpass, R, & Koehuken, G C, Eds. (1996), Psychological Issues in Eyewitness Identification, Lawrence Erlbaum Associates Inc., Mahwah, New Jersey; Ross, D, Read, J, & Toglia, M, eds. (1994), Adult Eyewitness Testimony; Current Trends and Developments, Press Syndicate of the Univ. of Cambridge, New York; Geiselman, R. (1994), Eyewitness Expert Testimony (2nd Ed.), ACFP Press, Balboa Island, CA; Loftus, E (1996), Eyewitness Testimony, Harvard University Press, Cambridge, MA. This body of research has suggested a number of conclusions about eyewitness testimony that may be helpful to a jury in considering the credibility of an eyewitness. “These include the findings that (1) people tend to be less accurate observers in stressful situations, (2) people have difficulty making cross-racial identifications, (3) people focus on weapons rather that faces, (4) the memory of a perception begins decaying immediately, (5) gaps in memory are easily and often unconsciously replaced by perceptions about what must have happened or by suggestions implanted by subsequent accounts, the police, or other external forces (“unconscious transference”) and as a result of all this, (6) there is no necessary correlation between the level of certainty evinced by the eyewitness and accuracy.” Melton, G, Petrila, J, Poythess, N & Sologin, C (1997), Psychological Evaluations for the Courts (2nd Ed.), Guilford Press, New York, p. 179. Defense attorneys often
seek to have experts on the topic of the fallibility of eyewitness evidence
testify in trials in which eyewitness identification is one of the significant
issues in the case. The attorneys seek to have these experts describe the
factors affecting the accuracy of eyewitness identification identified by
studies which have been conducted on people’s ability to perceive and recall
complex events. However, until relatively recently, such testimony was generally
not allowed, based on the view that juries were competent to evaluate eyewitness
testimony without expert assistance, or, somewhat contradictorily, that the
jury would be overly influenced by expert testimony on the topic. Furthermore,
until relatively recently, the science of eyewitness testimony was not well
enough developed that it met the Frye test of acceptability in the
scientific community. Frye v. As a starting point for understanding what criteria courts initially applied when determining whether or not to admit eyewitness expert testimony, the Federal Court of Appeals for the Ninth Circuit case of United States v. Amaral, 488 F. 2d 1148 (9th Cir. 1973) may provide some insight. The court decided that in order for expert testimony to be admissible, the expert must provide the jury with “appreciable help”. In making this determination the following admissibility criteria were set forth:
The Amaral court rejected the testimony of the expert on the grounds the testimony was not a proper subject matter:
This decision was often cited, and was given weight in many other jurisdictions, and was generally the way courts dealt with proferred eyewitness expert testimony until the U.S. Courts began using the new Federal Rules of Evidence (FRE) in 1975. Washington’s Supreme Court adopted almost identical Evidence Rules (ER) for use in Washington courts in 1979. Most states now use similar language in their rules governing the admissibity of expert testimony. Compared to the traditional common law rules governing the admissibility of expert testimony, the new rules are more lax, and under the new rules expert eyewitness evidence is more likely to be admitted. Thus, since the 1980’s appellate courts have been more likely to admit expert evidence on eyewitness identification (e.g. State v. Moon, 45 Wash. App. 692 (1986); State v. Chapple, 135 Ariz 281 (1983); People v. McDonald, 37 Cal.3d 351 (1984)). Evidence Rule 702 (worded the same in the Federal Rules of Evidence and in Washington’s Evidence Rules) provides:
Therefore, after determining that the proferred testimony is “ generally accepted in the scientific community” under Frye and ER 104, the court must then decide whether the witness is qualified as an expert, and whether the proffered testimony will “ assist the trier of fact” under ER 702. Thus the underlying purpose of expert testimony is to assist the trier of fact in understanding the evidence and determining a fact in issue. State v. Kelly, 102 Wn. 2d 188 (1984). In all jurisdictions it is within the trial court’s discretion to decide whether to admit expert opinion evidence, and appellate courts review the decision of trial judges under an “abuse of discretion” standard; decisions are only overturned in cases of manifest abuse of discretion. State v. Coe, 109 Wn. 2d 832 (1988); State v. Guloy, 104 Wn.2d 412 (1985). This means that different judges may act differently in similar cases, and the outcome of a trial may well be determined by the chance factor of which judge is assigned to a case. A judge may rationalize excluding eyewitness expert testimony by stating that the testimony is “not helpful” to the jury, or by stating that the jurors themselves are able to decide what weight to give to eyewitness testimony without the help of experts. Indeed, there is a Washington case from Division Two, which holds that it is not error to exclude expert testimony when the jury can use common sense to determine credibility under the trial court’s instructions. State v. Hernandez, 58 Wash. App. 793 (1990). A leading eyewitness evidence expert has stated she feels there is no real standard trial courts follow in deciding whether to admit eyewitness expert testimony, and she feels the decisions of trial courts in this regard are “ capricious.” Elizabeth Loftus, personal communication, August 15, 2000. Since decisions of trial courts as to whether to admit eyewitness expert testimony are overturned by appellate courts only if it is felt the trial court abused its discretion, appellate courts have grappled with what constitutes an abuse of discretion. Until the 1980’s most cases held that trial courts had not abused their discretion when they declined to allow eyewitness expert testimony. In 1983 the Arizona Supreme Court decided State v. Chapple, 135 Ariz 281, which reversed a trial court ruling excluding such testimony. Chapple had been convicted of three counts of murder and two drug-trafficking charges backed largely on the identifications of two eyewitnesses, who had selected him from photographs they were shown more than a year after the crime. The trial court had refused to admit the expert eyewitness testimony, ruling that the expert’s testimony would not provide anything to the jurors beyond what they would already know. However, the Arizona Supreme Court held that the trial court had abused its discretion, holding that the expert testimony would have provided important information as to the accuracy of delayed identification, the effects of stress on perception, and the relationship between confidence and accuracy. A year later in People v. McDonald, 37 Cal. 3d 351 (1984) the California Supreme Court also reversed a conviction because the trial court had not allowed eyewitness expert testimony. McDonald had been convicted of the murder of a restaurant worker during a robbery. Seven witnesses said McDonald was the perpetrator, but six alibi witnesses said he was visiting relatives in another state at the time. The California Supreme Court set forth a test which specifies when exclusion of eyewitness expert testimony would be an abuse of discretion:
In U.S. v Smith, 736 F. 2d 1103 (6th Cir. 1984), the trial court had ruled the testimony of an expert inadmissible pursuant to FRE 403, (Washington’s ER 403 is worded exactly the same as the FRE 403), which states that in order to be admissible evidence must be “more probative than prejudicial”. The trial court judge had found that the expert’s testimony was not a “proper subject” because “it would not assist the jury in determining the facts at issue”. The trial court had stated that the “jury is fully capable of assessing the eyewitnesses’ ability to perceive and remember”. There had been no dispute that the witness qualified as an expert, and the Sixth Circuit of the Federal Court of Appeals concluded that the expert’s “testimony may have assisted the fact finder to understand the facts in this case”. Thus, the court held that the expert testimony should have been allowed. The case was not reversed, however, as the error was thought to have been “ harmless error”, since three eyewitnesses had identified the defendant, and since the defendant’s palm print was found at the scene of the robbery, thus “invalidating” his alibi defense. In U.S. v. Downing, 855 F. 2d 114 (3rd Cir. 1988), acknowledging that the new federal rules usually favor admissibility, the Third Circuit of the Federal Court of Appeals rejected the “general acceptance” standard of the Frye test, and expressed doubt as to whether the Amaral criteria conformed with the new federal evidence rules. The Downing court set forth a new test, under which trial court judges were instructed to look at:
Incidentally, these Downing, criteria were later cited favorably in Daubert v. Merrell Dow Pharmaceuticals (1993), which required that an expert’s testimony must be “scientific” and gave criteria for determining whether it was. It should be noted again, however, that as yet Washington has not adopted Daubert, and continues to use the Frye “general acceptance” analysis. The first case in Washington in which an appellate court reversed a case because of the trial court’s decision to exclude eyewitness expert testimony was State v. Moon, 45 Wash. App. 692 (1986). Up until that time Division One had followed Amaral in allowing trial courts to exlude expert eyewitness testimony if it was thought that the expert testimony interfered with the jury’s role as a fact finder. State v. Jordan, 139 Wash. App. 530 (1995); State v. Barry, 25 Wash. App. 751 (1980), citing Amaral. In Moon, a Division One case, a woman had been abducted by two men, who forced her into her car by stating that they had a gun. The woman sat in the front passenger seat while one man drove and the other sat in the backseat. The driver directed her to hand her wallet to the man in the backseat, and as she did she got a brief look at the man in the back, after which she was released from the car. About a week later a minimart was robbed, and investigating officers noticed a car parked at a motel near the robbery which had been listed in a recent bulletin as having been involved in a series of other robberies. The engine was still warm. Officers determined that one owner of the car was registered in the motel room in front of which the car was parked. When they knocked on the door to that room the appellant answered the door. The officer said she wanted to speak to the owner of the car, but the appellant said the room was his and he was there alone; at that time other officers in the alley could see there was another person in a back bedroom to that motel unit. The appellant consented to a search, and officers found the owner of the car and another man hiding under the covers in a bed in the bedroom. All three individuals were held in the room while the victim in the minimart robbery was brought to the motel room, and she identified the man who had been under the covers as the person who had robbed her 45 minutes earlier. The appellant was arrested on suspicion of rendering criminal assistance. Two days later the appellant was placed in a line-up which was viewed by the woman who had been abducted in her car, and she made a tentative identification that he had been the person in the backseat of the car, although the appellant’s appearance was quite different than the description she had given to the police on the evening of the incident of the man in the backseat. At the trial the appellant sought to introduce expert eyewitness testimony about the short duration of the viewing and the stress during the time of the viewing. The trial court refused to admit the testimony, because “use of the such testimony would invade the province of the jury by telling them whether or not to believe the witness who made the identification”. Although the appellant apparently offered an alibi defense (the case is unclear on this), he was nonetheless convicted. Division One of the Washington State Court of Appeals rejected the argument that the testimony would have invaded the province of jury, stating that “an expert cannot usurp the jury’s duty of deciding facts because the jury may always accept or reject the expert’s evidence or opinion in whole or in part”. The Court of Appeals reviewed cases from other jurisdictions, specifically citing Chapple, McDonald, Smith and Downing, and set down the following criteria for determining whether exclusions of eyewitness expert testimony would be an abuse of discretion by a trial court:
The case was remanded for a new trial. It is interesting to note that only two of the four cases (all discussed above) cited by the Moon court had involved an alibi defense (Smith and McDonald ). No alibi defense was apparently involved with Chapple, in which the defendant was apprehended more than a year after the crime, and the Downing criteria did not include a requirement for an alibi defense. The Moon decision was soon further refined by another Division One case, State v. Johnson, 49 Wash. App. 432 (1987). In Johnson, a series of four robberies was committed within a few days in the Seattle area. In each case the robber wore a tan or brown jacket with an attached hood, which he wore over his head, and in each case the robber appeared to have a gun in his pocket. A detective who suspected Johnson compiled a photo-montage in which Johnson’s picture appeared along with pictures of five other individuals. Johnson was independently identified by all of the victim- witnesses, and Johnson was charged with four counts of robbery. At his residence a jacket was found which one witness said resembled the jacket worn by the robber, but another witness said it did not. At trial, Johnson sought to introduce the expert testimony of psychologist Edith Greene. During an offer of proof Dr. Greene said she would testify about “weapon focus”, the “confidence factor”, and about the tendency of people under stress to overestimate time. The trial court found that most of Dr. Greene’s proposed testimony was within the “common experience” of the jurors, and that the studies pertaining to the confidence factor were not “persuasive” since they had reached contrary results. Consequently, the court limited Dr. Greene’s testimony to the effects of stress on memory, since one of the robbery victims had testified that in his opinion stress enhanced memory. Johnson took the stand and testified he was at his mother’s house when the robberies were committed, but he was convicted on all four counts. The court of Appeals found that all three Moon factors were present, as the eyewitness identifications were the only evidence against Johnson other than the jacket found at his residence, and as he did testify to an alibi. However, the Court of Appeals still distinguished the case from Moon, since in Johnson the trial judge had allowed some of the expert’s testimony, and had excluded the rest based on a Frye analysis and ER 702, rather than finding the testimony would “invade the province of the jury” as in Moon. Furthermore, in Moon the eyewitness’s initial description was at variance with the actual appearance of the man she later identified. In Johnson there had been no such problem, and furthermore in Johnson four different eyewitnesses had all independently identified the defendant. The Johnson court therefore held that the exclusion of some of the expert’s testimony had not been an abuse of discretion, and the convictions were affirmed. Johnson seemingly modified Moon in several ways. First, in dicta in a footnote the Johnson court seemed to retract the requirement that the defendant must present an alibi defense before exclusion of eyewitness expert testimony would be an abuse of discretion. In footnote # 4 the Johnson court stated, “ Admittedly, it is difficult to see how the presentation of an alibi defense bears on this issue. We doubt that the absence of an alibi defense should by itself exclude a case from the narrow range of cases that require the admission of properly offered eyewitness testimony.” Second, the Johnson court seemed to be stating that if a suspect had been independently identified by several witnesses, and if there were no substantial contradictions between their initial descriptions of the suspect and his actual appearance, excluding eyewitness expert testimony would not constitute in abuse of discretion. If there were such serious contradictions with the eyewitness testimony, expert testimony would still not have to be allowed unless there was “a proper fit” between those contradictions and the purposed expert testimony. Third, the court held that if the expert opinion evidence were excluded based on a Frye analysis and ER 702, the exclusion would be less likely to be considered an abuse of discretion than if, as in Moon, the evidence was excluded merely because it would invade the provuce of the jury, grounds which the Court of Appeals seemed to feel would be “untenable” in any case. Finally the Johnson court stated that the existence of all of the Moon factors would not automatically have to result in a funding of abuse of discretion in cases where expert eyewitness evidence had been offered but excluded; the court stated the Moon factors may “provide guidance for determining whether there has been an abuse of discretion”. Another instructive Division One case is State v. Taylor, 50 Wash. App. 481 (1988). In that case a 79-year-old man was awakened by a noise and his dog’s barking, and was confronted by a man pointing a gun at him. He could not see the man’s face because the man was holding the gun directly in front of his face. The man fired the gun twice, but it misfired. He then demanded money, and the victim told him to look in a certain drawer. The man then shot the victim between the eyes. The victim was able to crawl to a neighbor’s home for help. When the police came he said his assailant had been a white male, 35 years of age and 5 foot 8 inches with long hair. $680 in cash was missing from the drawer. A detective compiled 29 arrest photographs to show to the victim, all of whom appeared to be younger than 35; two of the pictures were of Taylor, because another detective “thought he was a good suspect”. Three days after the shooting the detective showed the pictures to the victim in his hospital room. At that time the victim was in critical condition, with one eye swollen shut, and his speech was slow and garbled. He selected one of the pictures of Taylor, saying, “That’s him, but I don’t remember the mustache.” Taylor was arrested. Three days later the detective showed the victim the same 29 pictures, and again he selected Taylor’s photograph. At trial the victim identified Taylor, but again said the man who had shot him had not had a mustache. The victim testified he was “80 percent” sure of his identification. There was testimony that Taylor lived in the same neighborhood as the victim, and that Taylor frequented some of the same restaurants as the victim. Taylor’s wife and her mother testified Taylor had been home on the night of the shooting. Taylor sought to have the testimony of a psychologist admitted as to the effects of stress, age, and weapon focus on memory. Taylor also proferred testimony of the expert about “unconscious transference” whereby a witness may recognize a person because he saw him elsewhere around the time of the crime, and now mistakenly identifies that person as having committed the crime. The trial court excluded the expert eyewitness evidence. However, Division One of the Court of Appeals opined that all of the Moon factors were present, and further stated that since the victim’s initial description was different from Taylor’s actual appearance, that criterion as stated in Johnson was also met. Although the trial court had used an ER 702 analysis as its reason for excluding the expert testimony, the case was reversed and remanded for a new trial. In another Division One case, State v. Ward, 55 Wash. App. 382 (1989), a series of four robberies had been committed over a one-week period. Three witnesses independently identified Ward, and there were “no serious contradictions” between their initial descriptions and Ward’s actual appearance. Ward presented one alibi witness. The trial court excluded proffered expert eyewitness testimony under an ER 702 analysis. The Court of Appeals held, citing Johnson, that although it was “arguable that the three factors set fourth in Moon are present here, we hold that this case is not one of the “few exceptional cases” involving an abuse of discretion.” The Ward court went on to say that the Moon and Johnson criteria were not inflexible formulas to be followed in every case, stating, “to confine the trial court within the narrow boundaries of the three criteria listed in Moon would strip the court of its traditional discretionary judicial function.” By the time Ward was decided the Washington Supreme Court had decided State v. Coe, 109 Wash. 2d 832 (1988). In Coe, testimony of Dr. Loftus on the fallibility of eyewitness testimony had not been allowed by the trial court. The Washington Supreme Court cited the three Moon factors, and then stated:
Coe is the only recent Washington Supreme Court case which addresses the admissibility of expert eyewitness testimony, and as the Ward court noted in a footnote, “Although the Supreme Court addressed the Moon factors in Coe, the court declined to either adopt or reject the factors as establishing a test.” In State v. Bell, 57 Wash. App. 447 (1990), another Division One case, the victim had been beaten and robbed while walking home at 8:00 am after visiting her husband at a hospital. She gave police a description (which later turned out to closely match Bell’s actual appearance), stating she had seen the man in the neighborhood before, and she thought he lived in the area. A week later she was again visiting her husband at the hospital when she saw Bell in a hallway, and she called the police, who arrested Bell. A tee-shirt belonging to Bell which closely resembled the description of the shirt worn by the robber was located. Bell stated he had been doing his laundry at the time of the robbery at his former residence, stating his former roommates would confirm that. A former roommate said Bell had been doing his laundry on the morning of the incident, and had been wearing the tee-shirt at that time, but said he had not been aware of Bell’s presence until about 9:30 a.m. The route Bell likely would have walked from his new residence to the former residence would have taken him past the scene of the robbery, and the victim’s statement that he had been carrying a large bag was consistent with the laundry bag Bell had brought with him to the former residence. At trial the court admitted some of the proffered expert eyewitness testimony, but excluded some of it (including discussion of “unconscious transference”) under a Frye analysis, as the expert had admitted that the evidence was mostly anecdotal and “there are a variety of different theories about accounting for the process”. The trial court also indicated there was not a fit between the proposed testimony and the facts of the case because no evidence had been presented suggesting unconscious transference might have taken place. Although Bell argued that all of the Moon factors had been met, the Court of Appeals opined there was substantial evidence against Bell other than the eyewitness identification and affirmed the conviction. It appears that Division Three of the Washington State Court of Appeals has adopted Division One’s analysis, as it has cited Johnson with approval. State v. Hernandez, 54 Wash. App. 323 (1989). Division Two, however, has decided not to adopt Division One’s test in State v. Hernandez, 58 Wash. App. 793 (1990), which cited Moon and Johnson, and then stated, “We are unwilling to require trial courts to admit this type of testimony, even in the circumstances outlined in those cases.” The Ninth Circuit of the United States Court of Appeals has also declined to adopt any specific test for determining when exclusion of expert eyewitness testimony would be an abuse of discretion, expect to continue to use the Amaral criteria. U.S. v. Cristophe, 833 F. 2d 1296 (9th Cir. 1993); see also U.S. v. Rincon, 984 F. 2d 1003 (9th Cir. 1987), which states, “courts are not required to admit expert eyewitness testimony on the unreliability of eyewitness testimony and we have continually upheld its exclusion.” After Daubert was decided the Ninth Circuit again considered the Rincon case (U.S. v. Rincon, 28 F. 3d 921 (9th Cir. 1994)), but again decided to uphold the exclusion of the expert eyewitness testimony, stating, “Our conclusion does not preclude the admission of such testimony when the proferring party satisfies the standard established in Daubert by showing that the expert opinion is based upon “scientific knowledge” which is both reliable and helpful to the jury in any given case.” Expert testimony by eyewitness experts is different from most other types of expert testimony usually offered by psychologists and psychiatrists. In most other types of cases (e.g. competency, insanity, diminished capacity, childhood incapacity, juvenile decline, testimonial capacity of a child, etc.) the psychologist or psychiatrist has personally interviewed the defendant or a witness, and offers a specific opinion about that person. However, the area of expert testimony about eyewitness testimony is different, in that the expert never actually evaluates the specific witness in the case at hand, but rather simply testifies in general about what factors might have caused an unreliable identification under the facts of the case. It is generally believed that it is impermissible for an expert to comment on the reliability of a particular witness, since determining the credibility of a witness in the case is the exclusive province of the jury. However, courts will sometimes cite the fact that the expert did not evaluate the witness as a reason to exclude the expert’s opinion. See State v. Rincon, 984 F. 2d 1003 (9th Cir. 1993). The above analysis demonstrates that with some exceptions, courts are generally reluctant to allow expert opinion evidence about the reliability of eyewitness identifications. Various rationales have been used for excluding such evidence, including that the evidence is not “generally accepted” or scientific, that it is common knowledge which jurors already know, or that it is confusing or “prejudicial”, or “unhelpful” under Rule 702. It was probably true that until relatively recently judges simply did not believe there were significant numbers of eyewitness misidentifications. However, recent widespread publication of many cases where DNA analysis has proven that eyewitness identifications were mistaken should be persuasive in convincing judges there are some problems in this area. Perhaps judges tend to discourage attempts to introduce such evidence out of concerns of courtroom efficiency, since such testimony is time-consuming, and if the judge decides to consider such evidence, he must then decide whether to admit each part of the proffered testimony. Perhaps judges feel that our entire court system is based upon eyewitness evidence, and that therefore routine admission of such evidence would undermine people’s faith in our criminal justice system. Courts seem to be particularly unwilling to allow expert opinion evidence about eyewitness fallibility in very serious cases, such as cases involving murder, or very serious injury, robberies, or rapes. This may be because it is felt that these cases require closure in order to satisfy the need for retribution among victims or their relatives. If a defendant is acquitted because of the uncertainty about an eyewitness’s reliability there is no closure, and the fear may be that people may feel the need to take the law into their own hands, under the, “law of the talon”. It may be for this reason that the old maxim, “It is better that ten guilty persons escape than one innocent suffer.” (Blackstone, W (1750) Commentaries on the Law of England, Book IV, p. 27) seems at times to be dis-regarded in cases of very serious crimes. Some courts prefer to give jury instructions on the fallibility of eyewitness testimony rater than allowing expert testimony. For example, in U.S. v. Poole, 794 F. 2d 46 (9th Cir. 1986) the court cited with approval (and as grounds for upholding the exclusion of expert testimony) the fact that the trial court had instructed the jury: “innocent miss-recollection, like failure of recollection, is not an uncommon experience”. In U.S. v. Telfaire, 469 F. 2d 552 (D.C. Cir. 1972) the defendant had been found guilty based solely on the identification of a witness. The D.C. Court of Appeals overturned the conviction on the premise the trial court had failed “to give a special instruction on identification in which the case turned on the testimony of a single witness”, even though a request for such an instruction had not been made by defense counsel. The so-called “Telfaire” instructions set forth in that case have been subjected to extensive research, and have generally not been found to sensitize jurors to the eye witnessing and identification issues in a case. See Cutler, B & Penrod, S (1995). Mistaken Identification: The Eyewitness, Psychology and the Law. Cambridge University Press, New York. Pp. 255-265. Special instructions on the reliability of eyewitnesses’ identifications have not been used in Washington. However, such instructions are preferred in the United Kingdom as a alternative to eyewitness expert testimony. Giselman, R (1994), p.163. Conclusion: Trial courts have broad discretion in deciding whether to admit expert testimony on eyewitness identification; even Division One of the Washington State Court of Appeals has stated in Ward that the Moon and Johnson tests should not be inflexibly applied. It appears that those cases only give factors for trial courts to consider, rather than providing a black letter test. The cases seem to state that courts might consider allowing eyewitness expert testimony in cases in which there is only one eyewitness, and that person’s initial description of the perpetrator differs significantly from the actual appearance of the defendant. The Moon requirement that there must be an alibi defense before experts’ opinions will be admitted seems to have been ill-conceived, appears to have been rescinded by Johnson, and is not supported by case law from other jurisdictions. Expert testimony should not be allowed unless there is a good “fit” between the proferred testimony and the facts of the case. Otherwise, the testimony is not really relevant to the case, and thus not “helpful” under Evidence Rule 702. Courts should consider whether the proffered testimony is something the jury likely already knows, or if it is special knowledge which is probably not known by the average juror. In Washington the proferred testimony may be subjected to a Frye analysis; in Federal Courts and in a growing number of states, it may be subjected to a Daubert analysis. The author thanks Elizabeth Loftus, Ph.D., for her assistance with viewing this article and making valuable suggestions.
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