AMY J. ST. EVE, District Court Judge.
On October 6, 2016, the Government moved to exclude Defendant Vandetta Redwood's ("Defendant") proposed expert in perception and human memory, Dr. Ken Paller, pursuant to the Federal Rules of Evidence and Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). (R. 153.) For the following reasons, the Court, in its discretion, grants the government's motion. The Court therefore declines to appoint an expert under the Criminal Justice Act, as Defendant requests, (R. 146), because Defendant has failed to establish that Dr. Paller's testimony is "necessary for adequate representation." 18 U.S.C. § 3006A(e); see United States v. Carter, 410 F.3d 942, 949-51 (7th Cir. 2005).
On February 10, 2016, a grand jury returned a two-count indictment against Defendant. (R. 1.) Count One charges Defendant with transferring a handgun and ammunition, namely, a loaded Smith & Wesson, Model 642 Airweight, .38 special caliber revolver, bearing serial number CRZ6547, to Minor D.P., knowing and having reasonable cause to believe that Minor D.P. was a juvenile, in that she had not attained eighteen years of age, and knowing and having reasonable cause to believe that Minor D.P. intended to carry and otherwise possess and discharge and otherwise use the handgun and ammunition in the commission of a crime of violence, namely first degree murder, aggravated battery with a firearm, and aggravated discharge of a firearm, in violation of 18 U.S.C. §§ 922(x)(1)(A), (B) and 924(a)(6)(B)(ii). (Id.) Count Two charges Defendant with knowingly possessing in and affecting interstate commerce a firearm, namely, the same handgun identified above in Count One, which had traveled in interstate commerce prior to Defendant's possession of the firearm, within a distance
The charges against Defendant are premised on events that took place on April 28, 2014, during a fight among high school students. Defendant is charged with giving D.P., her then 14-year old cousin, a loaded firearm and telling her to shoot another 14-year old girl. D.P. then used the firearm to shoot two teenage girls, killing one of them.
On September 23, 2016 — the deadline for expert disclosures, (R. 131) — Defendant provided notice to the government of her intent to call Dr. Geoffrey Loftus as an expert witness. (R. 153-1 at 1.) Defendant explained that Dr. Loftus would "testify to the vagaries of eyewitness identification under the specific circumstances of this case." (Id.) Specifically, Defendant indicated that Dr. Loftus would testify about the following issues: (1) "that [a] witness's level of confidence does not necessarily correlate to the accuracy of the eyewitness identification"; and (2) "that numerous factors can undermine the accuracy of an eyewitness's recall of series of events or identifications, including" (a) "the stress of the event itself," (b) "the presence of a weapon," (c) "the passage of time," (d) "the `forgetting curve,'" (e) "exposure to post-event information," (f) "divided attention of the witness," and (g) "suggestive police identification procedures." (Id. at 2.) Defendant highlighted that Dr. Loftus would testify regarding how "the slow-motion crime scene video"
On September 26, 2016, Defendant told the government that Dr. Loftus was unavailable to testify at trial and that a second expert, Dr. Paller, would replace him. (R. 153 at 1.) Then, on September 30, 2016, Defendant provided an expert disclosure summarizing Dr. Paller's testimony. (R. 153-1 at 3-4.) Relevantly, Defendant said:
(Id. at 3.)
In a September 29, 2016 motion for expert assistance under the Criminal Justice Act, which Defendant amended the following
Finally, on October 4, 2016, Defendant provided a third disclosure. (R. 153-1 at 5.) It stated:
(Id.)
"Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), govern the admission of expert testimony in federal courts." C.W. ex rel. Wood v. Textron, Inc., 807 F.3d 827, 834 (7th Cir. 2015). "The rubric for evaluating the admissibility of expert evidence considers whether the expert was qualified, whether his methodology was scientifically reliable, and whether the testimony would have assisted the trier of fact in understanding the evidence or in determining the fact in issue." Hartman v. EBSCO Indus., Inc., 758 F.3d 810, 817 (7th Cir. 2014); see also Higgins v. Koch Dev. Corp., 794 F.3d 697, 704 (7th Cir. 2015) ("Rule 702 and Daubert require the district court to determine whether proposed expert testimony is both relevant and reliable."). Although the Seventh Circuit reviews "the district court's application of Daubert [ ] de novo," if "the court adhered to the Daubert framework, then its decision on admissibility is reviewed for abuse of discretion." Estate of Stuller v. United States, 811 F.3d 890, 895 (7th Cir. 2016).
A district court's evaluation of expert testimony under Daubert does not "take the place of the jury to decide ultimate issues of credibility and accuracy." Lapsley v. Xtek, Inc., 689 F.3d 802, 805 (7th Cir. 2012); see also Stollings v. Ryobi Techs., Inc., 725 F.3d 753, 765 (7th Cir. 2013) ("[T]he district court's role as gatekeeper does not render the district court the trier of all facts relating to expert testimony"). Once it is determined that "the proposed expert testimony meets the Daubert threshold of relevance and reliability, the accuracy of the actual evidence is to be tested before the jury with the familiar tools of `vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof.'" Lapsley, 689 F.3d at 805 (quoting Daubert, 509 U.S. at 596, 113 S.Ct. 2786). A district court's inquiry under Daubert is a flexible one and district courts have wide latitude in performing this gate-keeping function. See Kumho Tire Co. v. Carmichael, 526 U.S. 137,
Even if evidence is otherwise admissible under Rule 702 and Daubert, the Court may exclude it under Federal Rule of Evidence 403. "Rule 403 permits a district court to `exclude relevant evidence if its probative value is substantially outweighed by a danger of...unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.'" United States v. Boros, 668 F.3d 901, 909 (7th Cir. 2012) (alteration in original) (quoting Fed. R. Evid. 403). "Expert evidence can be both powerful and quite misleading because of the difficulty in evaluating it. Because of this risk, the judge in weighing possible prejudice against probative force under Rule 403 ... exercises more control over experts than over lay witnesses." Daubert, 509 U.S. at 595, 113 S.Ct. 2786.
One of the requirements of expert testimony under Daubert and Rule 702 is that it "assist the trier of fact to understand the evidence or to determine a fact at issue," which "goes primarily to relevance." Daubert, 509 U.S. at 591, 113 S.Ct. 2786. The government contends that "Redwood has proffered testimony about three general topics: the reliability of a witness's identification of a person, the reliability of a witness's initial perception of an event, and the reliability of a witness's memory of an event." (R. 153 at 5.) The government argues that "none of these is the proper subject of expert testimony." (Id.) Before the Court considers the government's contentions, however, it is helpful to review the Seventh Circuit's treatment of expert testimony regarding witness perception and memory.
"An expert ... must testify to something more than what is `obvious to the layperson' in order to be of any particular assistance to the jury." Dhillon v. Crown Controls Corp., 269 F.3d 865, 871 (7th Cir. 2001) (alteration in original) (quoting Ancho v. Pentek Corp., 157 F.3d 512, 519 (7th Cir. 1998)); see also Taylor v. Ill. Cent. R.R. Co., 8 F.3d 584, 585-86 (7th Cir. 1993) (affirming the exclusion of expert testimony where "any lay juror could understand th[e] issue without the assistance of expert testimony");In re Ingram Barge Co., No. 13 C 3453, 2016 WL 3763450, at *10 (N.D. Ill. July 14, 2016) ("Expert testimony does not assist the trier of fact when the jury is able to evaluate the same evidence and is capable of drawing its own conclusions without the introduction of a proffered expert's testimony." (quoting Sullivan v. Alcatel-Lucent USA Inc., No. 12 C 7528, 2014 WL 3558690, at *6 (July 17, 2014))). Moreover, if jury instructions and cross-examination allow the jury to sufficiently evaluate an eyewitness's testimony, expert testimony about memory and perception may well be unhelpful and potentially confusing. See Carter, 410 F.3d at 950-51;United States v. Hall, 165 F.3d 1095, 1107 (7th Cir. 1999).
The Seventh Circuit has historically disfavored expert testimony regarding eyewitness perception and memory. See Hall, 165 F.3d at 1107. Defendant does not appear to dispute this disfavor, instead arguing that the Seventh Circuit's position is
Turning to the relevant case law, the Seventh Circuit has said that "[w]hether expert testimony regarding witness perception, memory, reliability, and deception could assist a properly-instructed jury in its task of evaluating trial testimony is controversial." Jimenez v. City of Chicago, 732 F.3d 710, 722 (7th Cir. 2013). In United States v. Hall, the Seventh Circuit affirmed a district court's denial of expert testimony regarding the reliability of eyewitness identification, noting that there is "a long line of cases which reflect [its] disfavor of expert testimony on the reliability of eyewitness identification." 165 F.3d at 1104-06. The Hall court cited United States v. Curry, where the Seventh Circuit affirmed the exclusion of testimony that, among other issues, (1) "a witness' confidence in his identification bears little or no relationship to the accuracy of that identification"; (2) "memory fades at a geometric rather than arithmetic rate"; and (3) "post-event phenomena may affect original memory, and memory is easily distorted by leading question or other manipulation." Id. at 1104 (citing United States v. Curry, 977 F.2d 1042, 1051-52 (7th Cir. 1992)). The Hall court also pointed to United States v. Hudson, where the court affirmed the exclusion of expert testimony regarding "the effect of stress on eyewitness identification" and providing "an overview of the memory process." Id. (citing United States v. Hudson, 884 F.2d 1016, 1023-24 (7th Cir. 1989)); see also United States v. Larkin, 978 F.2d 964, 971 (7th Cir. 1992) (affirming the exclusion of testimony regarding the "undependability of eyewitness identification under stressful circumstances").
In United States v. Carter, 410 F.3d 942, 949-51 (7th Cir. 2005), the Seventh Circuit concluded that a district court did not abuse its discretion in excluding expert testimony regarding "factors that could affect memory, including the circumstances surrounding the event in question, the amount of stress on the eyewitness, the amount of attention paid by the witness, and the law enforcement procedures used to elicit the witness's memory." In reaching this conclusion, the court relied on Hall and the many cases like it in which the Seventh Circuit affirmed the exclusion of expert testimony regarding the reliability of eyewitness testimony. See Carter, 410 F.3d at 950. The Carter court also explained that additional factors bolstered the district court's decision to exclude the expert testimony, namely, the defendant's ability to cross-examine witnesses regarding their perception, additional evidence corroborating the relevant eyewitness testimony, and the district court's jury instructions regarding the risks of eyewitness identifications.
In United States v. Bartlett, however, the Seventh Circuit noted:
567 F.3d 901, 906 (7th Cir. 2009) (emphasis in original). The court, however, did not overrule Hall, Carter, and the other cases mentioned above. Indeed, the Seventh Circuit subsequently noted the "controversial" nature of such testimony. See Jimenez, 732 F.3d at 722 (citing Hall, 165 F.3d at 1107; Hall, 165 F.3d at 1118 (Easterbrook, J., concurring)). Moreover, the Bartlett court went on to note that judges "must balance the benefits of illuminating evidence against the costs of collateral inquiries." Bartlett, 567 F.3d at 906. "That's why," the court reasoned, "Rule 403 grants discretion to the trial judge — and why we have held, many times, that a trial court does not abuse its discretion by excluding expert evidence about the reliability of eyewitness testimony." Id.
Proceeding under Rule 403, the court concluded that the district court did not abuse its discretion in excluding the defendant's expert identification witness. Id. The court highlighted the fact that multiple witnesses identified the defendant and noted that "the scholarly findings about eyewitnesses have only limited application when multiple witnesses identify the same person." Id. at 907.
Defendant cites a number of other cases for the proposition that social science studies can help correct common misconceptions regarding eyewitness identification, most notably, United States v. Williams, 522 F.3d 809 (7th Cir. 2008); Newsome v. McCabe, 319 F.3d 301, 306 (7th Cir. 2003); and Phillips v. Allen, 668 F.3d 912 (7th Cir. 2012). These cases are not entirely on point, however, because they focus on identification through police lineups. In addition, Newsome and Phillips are civil cases. See Phillips, 668 F.3d at 913; Williams, 522 F.3d at 810; Newsome, 319 F.3d at 302-03, 305, 306 (noting that "it may be prudent to avoid complicating criminal trials with general scientific evidence about the psychology of identification"). Here, as discussed below, there is no dispute that Defendant was present at the scene of the crime within the vicinity of D.P. The cell phone video confirms her presence. Thus, this case does not present the same concern regarding a potential false identification as in Phillips, Williams, and Newsome. Furthermore, multiple witnesses will testify as to Defendant's presence at the scene. Blackmon v. Williams, 823 F.3d 1088, 1101 (7th Cir. 2016) (explaining that findings regarding the rate of error in eyewitness identification of strangers "have only limited application when multiple witnesses identify the same person." (quoting Bartlett, 567 F.3d at 907)); see also id. ("Each witness's identification of Morales as the shooter corroborated the other's testimony." (quoting Morales v. Johnson, 659 F.3d 588, 601 (7th Cir. 2011))); id. at 1101-02 ("[T]he number of identifications supplies valuable information. Even if the risk that any one identification would be mistaken is substantial, the risk that multiple witnesses would make the same error is smaller." (alteration in original) (quoting Williams, 522 F.3d at 812)). Additionally, this case is, of course, a criminal matter, unlike Newsome and Phillips. Finally, Hall and Carter both recognize that this testimony is disfavored.
Redwood seeks the admission of Dr. Paller's expert testimony regarding three
With respect to the first topic, the government argues that "Redwood's identity and presence at the fight" will not be in dispute at trial, especially given that the video is "of sufficient quality to identify Redwood" and that "a family member of the same race who saw Redwood multiple times per week and who has known her for twenty years" will identify her in the video. (Id. at 6.) As noted above, multiple other witnesses will testify as to her presence as well. Defendant does not appear to disagree. She says "[a]t issue is not whether Ms. Redwood is observed on the video or was present at the scene — at issue is whether [certain] witnesses observed her possess or transfer a firearm." (R. 167 at 3.) Dr. Paller's testimony regarding the reliability of a witness's identification will therefore not assist the jury. See Blackmon, 823 F.3d at 1101-02;Bartlett, 567 F.3d at 907. Consequently, the Court considers the propriety of Dr. Paller's testimony with respect to only the reliability of a witness's initial perception of an event (i.e., whether a witness accurately perceived Defendant pass a gun to D.P.) and the reliability of a witness's memory (i.e., whether a witness's memory of the shooting incident is accurate).
The Court, in its discretion, finds the expert testimony regarding the remaining two topics inadmissible in this case under Rule 702 and Daubert as well as Rule 403. First, with respect to the reliability of a witness's initial perception of an event, the Court agrees that "every juror will already know that a witness's ability to perceive something could be affected by whether and for how long the witness could see or hear it, and whether the witness was focused or distracted." (R. 153 at 7.) It is within jurors' experience to know that a witness's perception may not be accurate at a rapidly escalating confrontation involving many people. See Carter, 410 F.3d at 950;Hall, 165 F.3d at 1104-05. Defendant is therefore free to use cross-examination and argument to make clear what witnesses observed, what distractions were present, and how those distractions affected the witnesses. Moreover, the Court will give a jury instruction regarding the risks of eyewitness identification, further decreasing the helpfulness of Dr. Paller's testimony. See Carter, 410 F.3d at 950-51. In this case, cross-examination, argument, and jury instructions are sufficient; Defendant's proposed expert testimony regarding initial witness perception will not assist the trier of fact. See id. Additionally, allowing Defendant's proposed expert testimony will consume trial time far out of proportion to its value, inviting a battle of the experts to opine on issues that lay jurors can understand and potentially causing confusion.
Second, Defendant's proposed testimony regarding memory is similarly inadmissible in this case under Rules 702 and 403. In Hall, the court highlighted how the Seventh Circuit had previously affirmed the exclusion of evidence (1) regarding the relationship between witness confidence and accuracy, (2) that memory fades over time, and (3) that later events can alter memories. Hall, 165 F.3d at 1104. In Carter, the court similarly affirmed the exclusion of evidence regarding the effect of law enforcement procedures used to elicit the witness's memory. 410 F.3d at 949-51. In this case, the Court finds it prudent to follow the path forged in those cases. Again, Defendant may effectively use argument and cross-examination to highlight witnesses' inconsistent statements and changes in their memory, what witnesses heard about the events in question and if
In Libby, for example, the court explained:
461 F.Supp.2d at 18. The court added that allowing the expert testimony "`may cause jur[ors] to surrender their own common sense in weighing [the] testimony,' and instead cause them to rely too heavily upon [the expert's] testimony." Id. (alterations in original) (citation omitted) (quoting Bastow v. Gen. Motors Corp., 844 F.2d 506, 510-11 (8th Cir. 1988)). This, the Libby court concluded, could "confuse" the jury's ability to "assess the credibility and veracity of the witnesses." Id. The Court finds the Libby court's analysis applicable and persuasive based on the allegations and facts in this case.
Other considerations reinforce the Court's conclusion. First, the fact that multiple witnesses
A practical matter further supports the Court's conclusion. This case involves rather unremarkable testimony. Individuals witnessed an event, heard people talk about the event, and some of them may have refreshed their memories by watching a video of the event. To allow expert testimony in cases like this would perpetuate expert-testimony mini-trials within a great many criminal trials, as witnesses to crimes often engage in conversation about what they saw and review relevant videos or photos. Indeed, if the Court accepts Defendant's argument, it would be difficult to justify excluding expert testimony on memory and perception in any case in which eyewitnesses testify about an event they perceived and later discussed. While in unique circumstances expert testimony regarding memory and perception may be warranted, this is not one of those cases. See Carter, 410 F.3d at 950 (explaining that the district court did not abuse its discretion by denying a memory expert, as the case did not present an unusual situation where such an expert was necessary); Newsome, 319 F.3d at 306 ("[I]t may be prudent to avoid complicating criminal trials with general scientific evidence about the psychology of identification."); Libby, 461 F.Supp.2d at 18.
Defendant's counterarguments are unconvincing. First, Defendant wishes to cast aside Hall (and, presumably, Carter, Curry, Hudson, and Larkin, among other cases) by contending that Hall is "based on outdated science" and citing to Bartlett, Williams, Newsome, and Phillips. (R. 167 at 10-11.) Hall and Carter, however, remain good law and support the exclusion of Dr. Paller's testimony under Rule 702, Daubert, and Rule 403. See also supra (discussing differences between this case and Williams, Newsome, and Phillips). Additionally, as discussed above, Bartlett supports excluding Defendant's expert testimony under Rule 403.
Second, Defendant's attempts to circumvent Carter fail. Defendant argues that Carter is factually distinguishable because in that case, "the record demonstrated that the identification was reliable." (See R. 167 at 11-12.) The Carter court, however, did not discuss the reliability of the identification in its section analyzing whether the district court properly excluded an expert witness on memory. 410 F.3d at 949. Moreover, the Carter court affirmed the exclusion of the expert, relying in part on the fact that the witness "was cross-examined on his ability to perceive, remember, and identify" the defendant. Id. at 950. Here, Defendant will have the same opportunity to test the reliability of the witnesses.
Defendant also contends that Carter is distinguishable because it did not present "an unusual or compelling situation in which the aid of an expert witness is required." (R. 167 at 12 (quoting Carter, 410 F.3d at 950).) In this case, Defendant argues, such a situation presents itself because there are child witnesses. (Id.) Defendant has never indicated, however, that Dr. Paller's expertise or testimony focuses or even touches on perception and memory in children. The Court, therefore, does not find Defendant's argument persuasive.
Finally, Defendant argues that Carter is distinguishable because in that case, "the government had significant additional evidence" corroborating the eyewitness testimony. (R. 167 at 13 (quoting Carter, 410 F.3d at 950).). As noted above, in the current case there is additional evidence
As a final note, the Court points out that Defendant has consistently failed to meet Court-mandated guidelines. Defendant disclosed her intention to call a perception and memory expert — a perception and memory expert different from the one it now intends to call — on the day of the expert-disclosure deadline. (See R. 131.) Defendant then petitioned the Court for funds for its expert on September 29, 2016, six days after the expert-disclosure deadline. (R. 140.) At a hearing on October 4, 2016, the Court ordered Defendant to file a proffer of Dr. Paller's anticipated testimony by the end of the day. (R. 148.) Defendant did not file this proffer. Then, at an October 7, 2016 hearing, the Court ordered Defendant to file a response to the government's Daubert motion by October 14, 2016. (R. 156.) Defendant filed that response on October 17, 2016 — just seven days before the trial commences. The Court has been willing to forgive the occasional missed deadline, but at some point the deadlines are essential for effective preparation, especially as trial rapidly approaches. See United States v. Winbush, 580 F.3d 503, 508 (7th Cir. 2009) ("It is well settled that issues of trial management are left to the district judge, and `we intervene only when it is apparent that the judge has acted unreasonably.'" (quoting Brooks v. United States, 64 F.3d 251, 256 (7th Cir. 1995))); N.D. Ill. Local R. 78.3 ("Failure to file a supporting or answering memorandum shall not be deemed to be a waiver of the motion or a withdrawal of opposition thereto, but the court on its own motion or that of a party may strike the motion or grant the same without further hearing."); see also United States v. Ali, 735 F.3d 176, 192 (4th Cir. 2013) ("On the untimeliness issue, the court clearly had broad discretion to manage the docket and to impose binding time limits on the disclosure of evidence.").
For the foregoing reasons, the Court grants the government's motion to exclude the testimony of Dr. Paller under Rules 702 and 403. Additionally, the Court denies Defendant's Criminal Justice Act request for expert assistance. See 18 U.S.C. § 3006A(e).
