The Eyewitness Who Saw It Twice
A robbery trial turns on a single eyewitness, Ms. Okafor. She viewed a photo array six weeks after the robbery and identified the defendant, saying 'that's him, I'm sure.' At trial, the defense learns that Okafor had previously viewed a different array in which she pointed to a filler and said 'it might be him.' The first array's administrator was a detective who knew the defendant was a suspect and who told Okafor before the first array that 'we have a guy in mind.' Okafor also testifies that she recognized the defendant because she had seen him at the same bus stop twice before the robbery. The defense seeks to (1) cross-examine on the first array, (2) call an expert on eyewitness memory, and (3) argue that the suggestive first procedure tainted the second identification. The prosecution objects to all three.
1. How should the court evaluate the due-process challenge to the identification, and what role does the first, suggestive array play?
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The governing test asks whether the police used an unnecessarily suggestive procedure and, if so, whether the identification nonetheless possesses sufficient indicia of reliability under the totality of the circumstances - factors including the witness's opportunity to view, degree of attention, accuracy of prior description, level of certainty at the confrontation, and the time between the crime and the identification. The detective's remark ('we have a guy in mind') plus the knowing use of a suspect-present array is unnecessarily suggestive.
But the taint analysis is not limited to the second array. A suggestive first procedure can corrupt memory itself, so the court must ask whether the second identification is an independent product of the witness's original observation or a fruit of the first array. Okafor's claim of prior familiarity with the defendant at the bus stop is a double-edged fact: it can supply an independent source, but it can also be a post-hoc rationalization. The court should hold a suppression hearing, take testimony on the timing and content of both arrays, and assess reliability under the totality. If the second identification is reliable despite the taint, it is admissible and the defense gets cross-examination and argument; if not, it is excluded.
2. Should the defense be permitted to call an eyewitness-memory expert, and what limits apply?
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Courts have broad discretion. The trend permits expert testimony on the general fallibility of eyewitness memory - cross-racial identification, weapon focus, stress effects, confidence-accuracy mismatch, and the contaminating effect of suggestive procedures - where it will assist the trier of fact and does not merely tell the jury that a witness is lying. The expert may not opine on the credibility of Ms. Okafor or on the ultimate issue of whether her identification is accurate.
The court should weigh: (1) whether the testimony addresses matters beyond jurors' common experience; (2) whether it is reliable under the scientific-evidence standard; (3) whether it will confuse or waste time; and (4) whether cross-examination and a jury instruction suffice. Given the suggestive first array and the confidence statement, the expert's testimony on confidence malleability is likely to assist and should be admitted with a limiting instruction that the jury decides credibility. The defense may also cross-examine Okafor on the first array - the prior inconsistent identification is admissible both as impeachment and, if offered substantively, as a prior statement under oath subject to the usual conditions.