Brought to my attention by one of my favorite, and one of the finest, blawgs around, Sui Generis, is this slip opinion from the Court of Appeals in People v. LeGrand.  The Court reversed the defendant’s murder conviction because the trial court precluded the defense from calling an expert witness to testify as to the reliability of eyewitness identification.

This is huge.  Eyewitness IDs provide the deadliest of evidence against a defendant.  Picture if you will the sobbing witness, pristine and pure in their honesty, being asked, “Do you see the person who murdered your father in this room?”  The witness, looks up, tears in her eyes, and fixes her gaze on the one black person in the well, points her delicate finger toward the defense table and proclaims in a loud, clear voice:  “I will NEVER forget that face. He murdered my father.”  It is one of the most devasting moments in a trial.  There is nothing, absolutely nothing, that has the impact of this moment.

But what if the witness is well-meaning, but wrong?  We know from long experience and many, many studies that people misidentify the alleged perpetrators of crimes with alarming frequency.  The witness often has a mere split second to observe, under unbearably stressful circumstances.  Cross-racial identifications are, despite society’s wish to the contrary, particularly problematic and wrong.  The initial ID is usually based on an article of clothing, and later the mind plays games to reach an absolutely firm conclusion that attaches a face to the clothing, which then becomes the witness’ reality.  All in all, eyewitness identification is one of the worst possible pieces of evidence because it is so devastating and, often, so wrong.

Up to now, however, the defendant was precluded from calling a witness to testify to the jury about the frailties of eyewitness ID.  Some courts precluded it on the basis that it was junk science.  Others on the basis that it was argument, and the jury had no need for an expert to tell them what the attorney could argue in summation.  These bases were, frankly, excuses for denying the defendant an opportunity to mount a real challenge to this dubious evidence.  Eyewitness IDs were historically the lynchpin of prosecutions, and to allow an expert to explain to the jury why there were of such limited evidentiary value was to admit that 200+ years of convictions were based on flimsy evidence.  This undermined the very fabric of criminal convictions, and diminished our respect for a process that took away the liberty, and sometimes the life, of human beings.

Will this fundamental change cause a seizmic shift in the balance of power at trial for criminal defendants?  That has yet to be seen.  Bear in mind that there will likely be a sudden appearance of “experts” in eyewitness IDs who become available to trial testimony despite their lack of credentials and credibility.  This may well result in this important testimony being trivialized and becoming a hackneyed trap for the defense rather than its savior.  But for the moment at least, a door has been opened to allow critical, and crucial, testimony to come before the jury.  What we do with this opportunity has yet to be seen.  We can only hope that it serves to bring greater integrity to the process, and doesn’t devolve into yet another marketing opportunity.  Stay tuned.