Through the Lens of Federal Evidence Rule 403: An Examination of Eyewitness Identification Expert Testimony Admissibility in the Federal Circuit Courts

By Tallent, Lauren | Washington and Lee Law Review, Spring 2011 | Go to article overview

Through the Lens of Federal Evidence Rule 403: An Examination of Eyewitness Identification Expert Testimony Admissibility in the Federal Circuit Courts


Tallent, Lauren, Washington and Lee Law Review


I. Introduction

"Better that ten guilty men escape, than that one innocent suffer."1

In 1981 Julius Ruffin was found guilty of rape and sodomy in a Virginia court.2 A white female nursing student was the victim of a rape, and Ruffin, an African-American male, worked at the same Virginia Hospital as the victim.3 At trial, the victim testified she was certain that Ruffin was the perpetrator.4 Ruffin's girlfriend testified he was with her the night in question, but the scientific testing performed on the semen sample displayed a high probability that Ruffin was a match.5 Despite Ruffin's proclamations of his innocence and an alibi witness, after two hung jury trials Ruffin was sentenced to life in prison.6 In 2003, DNA testing exonerated Ruffin.7 An innocent man spent twenty-one years in prison based almost entirely on one erroneous eyewitness identification.8

"[T]here is almost nothing more convincing than a live human being who takes the stand, points a finger at the defendant, and says 'That's the one!'"9 Over the last twenty years, researchers have made significant scientific advances that bring to light the reliability problems inherent in eyewitness identifications.10 This research reveals that many of the factors affecting eyewitness identification reliability are counterintuitive and many jurors' assumptions about how memories are created are actively wrong.11 One study estimated that half of all wrongful convictions result from false identifications.12 Despite this, jurors often find eyewitness testimony very convincing and most believe that it is reliable.13

However, Federal Evidence Rule 40314 grants federal judges wide discretionary power to exclude eyewitness identification expert testimony highlighting these reliability issues. It is thus important to examine the purpose and language of the federal rule that judges are using to block this now well-established body of research from coming into our nation's courtrooms. Is Federal Evidence Rule 403 being used as a weapon against the admissibility of eyewitness expert testimony?

This Note will begin by briefly summarizing the recent scientific findings in the area of eyewitness identification.15 This overview will focus principally on the counterintuitive weak correlation between eyewitness confidence and accuracy.16 Additionally, the eyewitness identification section will conclusively demonstrate that the "alternatives" to eyewitness identification expert testimony are unacceptable and ineffective.17 An analysis of the purpose and history behind Federal Evidence Rule 403 18 will then set the stage for an in-depth examination of the current federal circuit court split regarding the admission of eyewitness identification expert testimony.19 This Note divides the current treatment of eyewitness expert testimony in the federal circuit courts into three categories: the Majority Approach,20 the Progressive Minority,21 and the Per Se Inadmissible Approach.22 The analysis then delves deeper into how each of the three approaches uses Federal Evidence Rule 403 to exclude eyewitness identification expert testimony.23 Part V of this Note advocates for reform in the area of Federal Evidence Rule 403 and eyewitness identification expert testimony admissibility.24 This Note proposes and assesses both a legislative solution25 in the form of a specialized relevance rule and a judicial solution26 in the form of the global adoption of the Progressive Minority approach. After analyzing the strengths and weaknesses of each alternative, this Note will demonstrate that the legislative solution is the superior alternative.27 In the area of eyewitness identification expert testimony admissibility, the time has come for a limitation on the unfettered discretion given to federal judges under Federal Evidence Rule 403.

II. Eyewitness Identification Expert Testimony

A. General Overview

Eyewitness misidentification is the leading cause of wrongful convictions in the United States. …

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