Taking its decision in  People v. LeGrand a step further, the Court of Appeals decision in People v. Santiago reversed a subway assault conviction, resulting in a 25 year sentence, for the refusal to permit the defense to call an expert to explain why eyewitness identification was unreliable.

The decision, by Judge Eugene Pigott, states:

In this case, turning on the accuracy of eyewitnesses’ recognition of an assailant’s partially concealed face, we consider whether two additional eyewitness identifications sufficiently corroborated the victim’s identification of the defendant, so as to render expert testimony on eyewitness recognition memory unnecessary. We conclude that they did not, and that it was error to exclude much of the proposed testimony.

As with LeGrand, the only evidence of the defendant’s commission of the crime was the identification by eyewitnesses.  The difference here was that the victim’s identification was corroborated by two independent witnesses, raising the question of whether three IDs, in the absence of any physical evidence, sufficiently corroborated each other so as to obviate the defense’s effort to attack the reliability of the identifications by an expert.

By in limine motion, the defendant sought to gain the trial court’s approval of its use of an identification expert.  The prosecution countered that the information the expert would provide was already known by jurors.  The defense provided the nature of the evidence it sought to introduce.

He would testify concerning studies that support various principles proposed by psychologists in the field of eyewitness recognition – exposure time (the amount of time available for viewing a perpetrator affects the witness’s ability to identify the perpetrator); cross-racial and cross-ethnic inaccuracy (non-Hispanic Caucasian eyewitnesses are generally less accurate in identifying Hispanic people than in identifying other non-Hispanic Caucasians); weapon focus (a victim’s focus on the weapon used in an assault can affect ability to observe and remember the attacker); lineup fairness (similarity of fillers to the suspect increases identification accuracy); lineup instructions (police instructions indicating that the police believe the perpetrator to be in the lineup increase the likelihood of false identification); forgetting curve (the rate of memory loss for an event is greatest right after the event and then levels off over time); post event information (eyewitness testimony about an event often reflects not only what the witness actually saw but also information the witness obtained later); wording of questions (eyewitness testimony about an event can be affected by how questions put to the witness during investigation are worded); unconscious transference (eyewitnesses sometimes identify as the culprit an individual familiar to them from other situations or contexts); simultaneous versus sequential lineups (witnesses are more likely to make mistakes when they view simultaneous lineups than when they view sequential lineups); eyewitness confidence issues (an eyewitness’s confidence level is not a good predictor of eyewitness accuracy, but eyewitness confidence is the major determinant in whether an identification is believed by jurors), and confidence malleability (eyewitnesses’ confidence levels can be influenced by factors unrelated to identification accuracy).

A very thorough list which, when the case was sent to a different judge for trial, was summarily rejected.  The Court of Appeals held otherwise.  First, it restated the two-prong(?) rule of LeGrand:

In People v LeGrand (8 NY3d 449 [2007]), we set out standards governing the discretion of trial courts in regard to the admission of expert testimony on eyewitness identification. LeGrand established a two-stage inquiry for considering a motion to admit such testimony. The first stage is deciding whether the case “turns on the accuracy of eyewitness identifications and there is little or no corroborating evidence connecting the defendant to the crime” (LeGrand, 8 NY3d at 452). If the trial court finds itself with such a case, then it must proceed to the second stage, which involves the application of four factors.

The court must decide whether the proposed “testimony is (1)relevant to the witness’s identification of defendant, (2) based on principles that are generally accepted within the relevant scientific community, (3) proffered by a qualified expert and (4) on a topic beyond the ken of the average juror”

The court distinguished it’s holding in an interim decision, People v. Allen, where it held a second identification was sufficient to corroborate, and thus remove the ID from LeGrand, because the witness knew the defendant, thus providing adequate indicia of reliability.

In this case, however, multiple identifications that all suffered from the same reliability issues addressed by the first prong of the LeGrand test did not corroborate each other, thereby removing the taint of unreliability.  In other words, problematic identifications remain problematic, no matter whether it’s one or three.

While the decision isn’t quite firm, noting particular issues with the supporting identifications such as a witness’ assertion of “80% confidence,” when the identification is no less questionable when absolute confidence is expressed, it reflects one more step down the road in supporting the defense’s ability to challenge bad identifications.  We’re getting there. slowly but in the right direction.