Thursday, May 11, 2006

CA: trial court can tell a jury to disregard "eyewitness identification" expert witness and not risk reversal

People v Drake, __ NY3d __ [available here]

Earlier this week, the Court handed down two decisions dealing with issues surrounding witnesses who testify as experts on eyewitness identification. I previously posted about People v Young here. The other decision is People v Drake. Unlike in Young, the trial court in Drake actually allowed the "testimony of . . . an expert in the reliability of eyewitness identification testimony." (Drake, __ NY3d at __.) The issue in Drake was not the propriety of allowing the testimony--the Court noted that "courts are encouraged" to admit such testimony "in appropriate cases"--but instead whether a rather bizarre jury instruction given over objection required reversal. The majority's decision (written by Chief Judge Kaye) describes the charge: "At the conclusion of the case, the court, over defendant's objection, charged the jury that the testimony [of the expert] 'may not be used to discredit or accredit the reliability of eyewitness testimony in general or in this case.'" (Id. at __.) Essentially, after allowing the expert to testify, the trial court instructed the jury to ignore the testimony. The majority concedes this was error:

Read in isolation, the sentence instructing that [the expert's] testimony could not be used 'to discredit or accredit the reliability of eyewitness testimony in general or in this case' was incorrect. Indeed, it might be taken to mean that the expert testimony the court had admitted could not in the end by considered for any purpose at all. [...]

Where there has been expert testimony on the reliability of eyewitness identifications, jurors must, if they choose to accept that testimony, be permitted to apply the identified psychological factors to the facts of the case before them in deciding whether they are convinced beyond a reasonable doubt as to the accuracy of the proffered identifications.

(Id. at __.)

Rather than reverse, however, the majority takes a step back and concludes "the charge as a whole did not communicate to the jurors that they should disregard the testimony" of the expert. (Id. at __.)

Judge G.B. Smith dissented; from his opinion:

In this case where two out of the eleven eyewitnesses identified defendant as the assailant and where three eyewitnesses unequivocally stated that defendant was not the attacker, the trial court's charge that the jury could not use the testimony of an eyewitness identification expert to reach its verdict was both an error of law and prejudicial. [...]

[This Court is] concerned with whether the correct instructions predominated. In this matter, they did not. Although the trial judge stated, prior to the incorrect instruction, that an expert's testimony can be weighed for credibility like any other witness, the incorrect statement regarding accrediting and discrediting other witnesses erased and outweighed everything that came before.

Not a great week for defendants. In fact, two more decisions were handed down by the Appeals today, and both set pro-prosecution precedent (one dealing with a Batson violation, one with Brady). More on those cases and the rest of the noteworthy decisions from the Fourth Department's April term over the next few days.