The eyes have it: Court rules eyewitness ID expert testimony admissible

By Jessica Shumaker
BridgeTower Media Newswires
 
ST. LOUIS, MO — Departing from more than 30 years of precedent, a split Missouri Supreme Court vacated a man’s robbery conviction and ordered a new trial after ruling a lower court judge erred by excluding expert testimony on the reliability of eyewitness identification.

In a 5-2 ruling on Sept. 1, the court sided with defendant Kane Carpenter, holding that expert testimony on eyewitness identification should be treated like any other expert testimony following the state’s enactment of the so-called Daubert standard in 2017.

The ruling marks a sea change for defendants, who previously were barred from bringing such testimony before juries.

Rosemary E. Percival, a public defender based in Kansas City, represented Carpenter. She said she was “very, very happy” with the opinion.

“For three decades, defense attorneys have been trying unsuccessfully to present expert testimony on eyewitness identification, which is the leading cause of wrongful convictions,” she said. “With the court’s opinion, we can now present that evidence.”

Tricia Bushnell, executive director of The Midwest Innocence Project, which filed an amicus brief in the case, said the opinion “will help juries understand what does and does not make an identification reliable and ensure convictions are based only on reliable evidence.”

“This ruling brings Missouri in line with the vast majority of states that allow expert testimony on eyewitness identifications, which is critical to ensuring the jury is able to assess the reliability of the evidence it’s presented,” she said in an email.

A spokesman for the Missouri Attorney General’s Office did not respond to a message seeking comment.

According to the principal opinion, written by Judge Paul C. Wilson, Carpenter was accused of robbing a man on East Capitol Avenue in October 2016.

Minutes after the robbery occurred and the victim reported it, police found Carpenter near the scene and detained him for a so-called “show up” for the victim to identify a potential perpetrator, Wilson said.

The victim identified Carpenter and told police he was 100 percent certain Carpenter robbed him.

At trial, Carpenter’s attorneys sought the admission of testimony from Dr. James Lampinen on the reliability of eyewitness testimony. Lampinen is a professor at the University of Arkansas whose research is focused on memory and face perception. Cole County Circuit Judge Patricia S. Joyce denied the request.

Carpenter ultimately was convicted of first-degree robbery and sentenced to 10 years in prison for the crime. His appeal followed.

On appeal, he argued that Joyce should have allowed Lampinen to testify because the testimony was critical to his defense of mistaken identity.

In making his argument, Carpenter said mounting scientific evidence on eyewitness testimony should lead the court to overrule its precedent in State v. Lawhorn, a 1988 case in which the court affirmed the exclusion of expert testimony regarding certain factors affecting the reliability of eyewitness identification.

Wilson said Lawhorn and the cases that followed it no longer control on the issue — they were abrogated in 2017 by the legislature’s enactment of the Daubert standard in Section 490.065.2 of the Missouri Revised Statutes.

“Section 490.065.2 no longer follows the binary analysis of Lawhorn and [State v.] Taylor under which expert testimony was admissible only where the jury could not proceed without it,” Wilson said. “Instead, a qualified expert can offer testimony based on sufficient facts and reliable principles that have been reliably applied whenever such testimony will help the jury understand the evidence and decide the disputed issues.”

Wilson was joined by Chief Justice George W. Draper III and Judges Mary R. Russell, Patricia Breckenridge and Laura Denvir Stith.

Judge W. Brent Powell dissented and was joined by Judge Zel M. Fischer.

In his dissent, Powell agreed with the majority that Lawhorn and subsequent cases have been abrogated by the new law. While Joyce should not have excluded Lampinen’s testimony based on Lawhorn, the exclusion was valid on other grounds, Powell argued.

He said expert opinion is admissible if the testimony will “help the trier of fact to understand the evidence or to determine a fact in issue.”

A circuit court does not abuse its discretion by rejecting an offer of proof if the offer includes both admissible and inadmissible evidence, Powell said.

“While some of Dr. Lampinen’s testimony may have been admissible, portions of his testimony would not have assisted the jury in understanding the evidence at hand,” he said. “The proffered testimony was, therefore, inadmissible.”
In an example, Powell said Lampinen’s proffered testimony addressed how impaired eyesight affects eyewitness identification, which was not relevant to Carpenter’s case.

A footnote on the subject has caught the attention of — and amused — court watchers for its reference to a movie loved by nearly all lawyers.

Even if there were evidence that poor eyesight was relevant in Carpenter’s case, a jury does not need expert testimony to understand it would have an effect on eyewitness identification, Powell said.

“Recall the scene in ‘My Cousin Vinny’ in which Vinny Gambini famously discredits the eyewitness identification made by a pleasant elderly witness with comically thick glasses: ‘Maybe you’re ready for a thicker set,’” he said.