KEVIN McNULTY, District Judge.
The defendant, Gregory A. Jones, is charged with two robberies of the same bank: one, unarmed, on May 6, 2014 ("Bank Robbery 1"); and another, armed, on September 19, 2014 ("Bank Robbery 2"). This Opinion decides the defendant's pretrial motions relating to bank employees' eyewitness identifications of Mr. Jones as the robber.
This matter was opened to the Court as part of the defendant's omnibus motions (ECF no. 25). The government filed a consolidated response. (ECF no. 27) I heard oral argument on February 21, 2017, and ruled orally on most of the motions. (See Order, ECF no. 29, reflecting oral rulings.)
Included in the omnibus motions were motions to exclude certain witnesses' eyewitness identifications of Mr. Jones, citing both constitutional and Rule 403 grounds. (I will call these the "Eyewitness ID Motion" and the "Rule 403 Motion".) At oral argument on February 21, 2017, defense counsel made an oral motion to introduce expert testimony as to factors bearing on the reliability of eyewitness identifications, and requested an adjournment of the trial date, currently scheduled for March 6, 2017. The extra time was required, he said, to permit retention of such an expert and related preparation for trial. (I will call this the "Expert Motion".) Counsel represented, in his client's presence, that the defendant consented to such an adjournment. The government requested the opportunity to respond in writing to the oral Expert Motion, and I set an accelerated briefing schedule. Believing that the Eyewitness ID and the Expert issues were intertwined, I reserved decision on both.
The following day, February 22, 2017, I had a brief telephone conference with counsel for the government and the defendant. They expressed agreement that the controlling authorities on the Expert Motion issues were United States v. Brownlee, 454 F.3d 131 (3d Cir. 2006), and United States v. Downing, 753 F.2d 1224 (3d Cir. 1984). The government generally agreed that the defense should be permitted to introduce the testimony of an eyewitness identification expert, but reserved its objections to the specific contents of such testimony. Both sides consented to an adjournment of the trial date because the current schedule would not allow for the defense's retention of such an expert, the preparation of a report, and other associated tasks.
I resolve the motions as follows:
The Eyewitness ID Motion to exclude the witnesses' testimony is denied.
The related Rule 403 Motion is denied, but certain safeguards will be required in connection with the presentation of the eyewitness testimony.
The Expert Motion is granted in part, insofar as the defendant is granted a continuance to obtain an expert report, and the Court grants leave to introduce expert testimony on the reliability of eyewitness identifications. Rulings as to particular portions of the expert opinion testimony may be required when the report is proffered and any objections are submitted; to that extent, the Expert Motion will remain pending.
Bank Robbery 1, on May 6, 2014, was accomplished by the robber's passing a threatening note to a teller ("Teller 1") demanding money. While Teller 1 was complying, the robber uttered a number of threats, which were heard by the occupants of the bank, including Teller 1 and the manager ("Bank Manager"). The witnesses were only able to observe the robber's general physical appearance; the robber's face was almost entirely obscured by a scarf, glasses, and a hat.
Witnesses saw the robber run from the bank and saw a dye pack explode in his hands, creating a red mist. The robber removed his scarf, glasses, and hat, and left them on the ground. He ran away.
Shortly thereafter, Newark Police officers and an FBI agent arrived at the bank and interviewed witnesses, including Teller 1 and the Bank Manager. They collected the items the robber had dropped. The scarf, glasses, and hat were swabbed for DNA analysis.
Bank Robbery 2 occurred about four months later, on September 19, 2014. This time, the robber was not wearing anything that obscured his face. He displayed a gun, which he pointed at bank employees and fired at the ceiling. The Bank Manager, Teller 1, and a second teller ("Teller 2") were present; all three saw the robber's face, and heard him speak.
After Bank Robbery 2, Newark Police officers and FBI agents again interviewed witnesses at the bank. Teller 1 and the Bank Manager stated that, based on the robber's physical appearance and voice, they believed he was the same person who had committed Bank Robbery 1.
In December 2014, lab results revealed a match between a data bank reference DNA sample obtained from Mr. Jones and the DNA collected from the glasses discarded after Bank Robbery 1. Further tests were performed. In February 2015, lab results confirmed a match between a second DNA sample taken from Mr. Jones and the DNA taken from the scarf, glasses, and hat dropped near the scene of Bank Robbery 1.
On April 7, 2015, the State charged Mr. Jones with Bank Robbery 1 (but not Bank Robbery 2). The record does not disclose any further effort to investigate either Bank Robbery, or any further interviews of the bank employees, in the two-month period between the final DNA results and the filing of those State charges.
In April 2015, after the filing of the State charges relating to Bank Robbery 1, the Essex County Prosecutor's Office of Victim Witness Advocacy sent a standard letter (the "Victim/Witness Letter") to Teller 1. Although Teller 1 did not keep the Victim/Witness Letter, the government introduced a copy of the standard form of letter. The government concedes that the Letter, in addition to informing Teller 1 of her rights, would have identified Mr. Jones by name as the person charged with Bank Robbery 1.
Now aware of Mr. Jones's name, Teller 1, Teller 2, and the Bank Manager went online and found a website containing copies of mugshots (i.e., arrest photos). There is no dispute that this was a privately-run website, not a government website.
On April 30, 2015, FBI Special Agents returned to the bank. Before they had asked any identification-related questions, Teller 1 and the Bank Manager revealed their online search. They volunteered that they, along with Teller 2, had seen the mugshot photo online; that it depicted the man who committed Bank Robbery 2; and that they believed, based on his voice and general appearance, that the same man had committed Bank Robbery 1.
On January 8, 2016, federal charges were filed via a criminal complaint, Mag. No. 16-3504 (ECF no. 1). Those federal charges—bank robbery, armed bank robbery, and use of a firearm during a crime of violence—encompassed both Bank Robbery 1 and Bank Robbery 2. On January 25, 2016, the State complaint was dismissed; a State grand jury never voted on the charge.
On November 10, 2016, a federal grand jury returned the Indictment in this case. Count 1 of the Indictment (ECF no. 14), directed to Bank Robbery 1, charges bank robbery, in violation of 18 U.S.C. § 2113(a); Count 2, directed to Bank Robbery 2, charges armed bank robbery, in violation of 18 U.S.C. § 2113(a) & (d); and Count 3, also directed to Bank Robbery 2, charges brandishing and discharge of a firearm in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii).
The Eyewitness ID Motion asserts that the bank employees' eyewitness identification of Mr. Jones was irretrievably tainted by their exposure to the online mug shot. This, says the defendant, was the equivalent of a governmentarranged, suggestive identification procedure. He moves that all out-of-court and in-court identifications of him by Teller 1 and the Bank Manager be excluded from evidence on due process grounds.
The Constitutional argument has some novel features worthy of discussion, but in my view it does not succeed. In general, of course, the reliability of evidence is a matter for the judgment of the fact finder, within the confines of the Rules of Evidence. Due process, however, may prohibit the admission of evidence where fundamental unfairness would result. See, e.g., Dowling v. United States, 493 U.S. 342, 352-53, 110 S.Ct. 668, 674 (1990).
Such due process concerns are triggered by police-conducted, unnecessarily suggestive out-of-court identification procedures which create a substantial likelihood of irreparable misidentification. Two classic cases, synthesizing established principles, are Neil v. Biggers, 409 U.S. 188 (1972), and Manson v. Braithwaite, 432 U.S. 98 (1977). They require that where the police identification procedures flunk a due process analysis, the Constitution requires pretrial suppression of the identification evidence.
The Third Circuit has usefully summarized the background principles of law thus:
United States v. Shavers, 693 F.3d 363, 381-82 (3d Cir. 2012), cert. granted, judgment vacated, 133 S.Ct. 2877 (2013).
But hold on. As Shavers observed, there is a threshold prerequisite of police involvement which must be satisfied before the Neil/Manson due process analysis comes into play:
Id. at 382 (citing Perry, 565 U.S. at 244-45, 132 S. Ct. at 728). It is now clear that the pretrial due process analysis applies only to out-of-court identification procedures that are conducted or arranged by the police. That requirement, anticipated by the Third Circuit,
In Perry, a witness looked out her apartment window and saw a person breaking into cars in the building's parking lot. She reported the crime by telephone; a police officer promptly arrived and detained Mr. Perry. While a second officer minded Perry, the first officer went to the witness's apartment to interview her. When the officer asked her for a description of the thief, she went to the window and pointed to Perry, who was in the parking lot, still in the custody of the second officer. 565 U.S. at 233-34. The Court took it for granted that in general, a one-person "showup" of a person obviously in police custody would constitute an unduly suggestive identification procedure.
Justice Ginsburg, writing for an eight-member majority of the U.S. Supreme Court, held that these circumstances, however suggestive, would not justify withholding this eyewitness identification evidence from the fact finder. Perry, the Court held, was not entitled to a pretrial suppression hearing to consider exclusion of the witness's identification of him. Absent police misconduct, the fallibility of eyewitness identification is fodder for crossexamination. Id. at 244-46. Viewed in this way, it is no different from bias, poor vision, or other impediments to reliability. Id. at 244. The Neil/Manson due process analysis is tied, "not to suspicion of eyewitness testimony generally, but only to improper police arrangement of the circumstances surrounding an identification"—and the need to deter it. Id. at 241-42. Therefore, wrote Justice Ginsburg, "we hold that the Due Process Clause does not require a preliminary judicial inquiry into the reliability of an eyewitness identification when the identification was not procured under unnecessarily suggestive circumstances arranged by law enforcement." Id. at 242 (emphasis added). Unless the police arranged the allegedly suggestive identification, the reliability of eyewitness identification testimony is to be tested by the ordinary processes of a criminal trial, such as cross-examination before a properly instructed jury. Id. at 232-33.
Counsel for Mr. Jones attempts to bring our facts within the Perry holding. He offers that the authorities, if they did not literally arrange the outof-court online photo identification, did permit these suggestive circumstances to arise. The State charged Mr. Jones with committing Bank Robbery 1, and the Prosecutor's office then sent Teller 1 a Victim/Witness Letter identifying Jones by name. Although the Teller and Bank Manager acted on their own, their actions were prompted by the inclusion of Mr. Jones's name in the Victim/Witness letter. It was foreseeable to the police, says counsel, that Teller 1 and other witnesses would talk amongst themselves and do some internet research. The mugshot, too, was a police creation, although the website displaying it was concededly private.
I am not persuaded that this was the equivalent of a police-arranged showup, or out-of-court identification. Of course, in any criminal case, the police will probably appear somewhere in the chain of but-for causation leading to an out-of-court identification. But it is only a police-arranged identification procedure that triggers the due process remedy of pretrial exclusion from evidence.
Nor can the police be held responsible for the witnesses' learning of the State charges against Mr. Jones. That Mr. Jones had been charged in connection with Bank Robbery 1 was public information. It might have been permissibly published in a newspaper or aired on the evening news. (The record does not reveal whether there was any news coverage.) As it happens, that now-public information was included in a routine Victim/Witness letter sent by the County Prosecutor's Office of Victim Witness Advocacy. The letter was not sent as part of a police plan to plant a suggestion in the minds of witnesses. It was sent in fulfillment of a legal duty under the Rights of Crime Victims and Witnesses Act. That Act gives a victim/witness the rights, inter alia, to "be informed about the criminal justice process" and to "be advised of case progress and final disposition and to confer with the prosecutor's representative so that the victim may be kept adequately informed." N.J. Stat. Ann. § 52:4B-36. A simple notice disclosing that criminal charges have been filed and informing victim/witnesses of their rights is routinely sent to meet the minimal obligations of the prosecutor's office under the Act.
Mr. Jones's counsel suggests that the police missed a two-month window of opportunity between February 2015, when the final DNA results came back, and April 2015, when Mr. Jones was charged. In that interlude, before the witnesses learned Mr. Jones's name, the police and FBI could have shown the bank employees a nonsuggestive photo spread. And that, says defendant, might have minimized the taint of the employees' later freelance investigation.
I accept for purposes of argument that the police could have done more to freeze the employees' out-of-court identifications in advance of the first State charge. That, in my view, is a far cry from the police having "arranged" an unnecessarily suggestive out-of-court identification procedure, as required by Perry. If defendant's suggested rule were accepted, then Perry itself would be impossible to explain. Surely the police in Perry, too, could have done better. It was more than foreseeable that the witness would look out her window; that, after all, is how she witnessed the theft in the first place. And the interviewing officer, instead of leaving Perry in custody in the parking lot, could have had the other officer whisk him out of sight. But Perry's presence in the lot, like the sending of a Victim/Witness Letter, was an ordinary incident of the investigation; these events did not rise to the level of a police-arranged identification procedure.
The February-April 2015 time lag, too, was an ordinary artifact of the investigation, not part of a police-arranged identification procedure. Mr. Jones asks that the Court apply Perry, not because the police arranged an identification, but because they didn't arrange an identification soon enough. That, in my view, is stretching the rule too far.
One case somewhat helpful to defendant's position is United States v. Shavers, 693 F.3d 363 (3d Cir. 2012). One of that case's multiple out-of-court identification issues involved the placement of a prisoner-witness in the same holding cell as three defendants in connection with a (cancelled) suppression hearing. The witness recognized the three and identified them as the perpetrators. The court found this to be impermissibly suggestive, although the trial court's error in admitting the witness's identification testimony was ultimately found harmless. Shavers relied on a pre-Perry case, United States v. Emanuele, 51 F.3d 1123 (3d Cir. 1995), in which a witness, who had previously failed to identify the defendant from a photo array, did identify him after seeing U.S. Marshals frog-march him to the courtroom in manacles.
Shavers, like Emanuele, is helpful to Mr. Jones's argument in that it did not require that law enforcement officers have intended the situation to be suggestive. Id. at 387. But under Perry, the suggestive situation must have been actively created by the officers; Shavers explicitly contrasted Perry, in which the witness, concededly in response to police questioning, nevertheless "spontaneously" walked to the window on her own and pointed out the defendant. Id. (citing Perry, 535 U.S. at 235, 132 S. Ct. at 722).
This case is like Perry, not Shavers. As to the employees' online identification of Mr. Jones, there is not only a lack of law enforcement intent, but a lack of law enforcement involvement. Of course, as in Perry, law enforcement played some role. There, the officer was questioning the witness; here, the Prosecutor's Office had sent the Victim/Witness Letter. But in both cases, the identification "procedure" was initiated by the witnesses themselves, not by the police.
The motion to suppress identification testimony by Teller 1 and the Bank Manager on due process grounds is therefore denied.
In the alternative, Mr. Jones argues that the bank eyewitnesses' identifications of him should be barred from evidence under the familiar Rule 403 balancing test:
Fed. R. Evid. 403. As grounds for finding "unfair prejudice," Mr. Jones cites the passage of time, weapons focus, stress, and the suggestive nature of the online mugshots.
Mr. Jones is correct to the extent he argues that it is not sufficient merely to find that an out-of-court identification does not violate due process. Perry itself contemplated that, even where the police did not arrange an identification, its reliability would be tested by the ordinary processes of a criminal trial. Id. at 232-33. Those processes include "the presence of counsel at post-indictment lineups, vigorous cross-examination, protective rules of evidence, and jury instructions on both the fallibility of eyewitness identification and the requirement that guilt be proved beyond a reasonable doubt." Id. at 232-33. One of those "protective rules of evidence," of course, is Rule 403, which requires the Court to balance the probativeness of the evidence against the danger of "unfair prejudice" from its admission.
The probativeness of the bank witnesses' identification of the defendant is clear. This is a whodunit, or an identity case. There is no dispute that a bank robbery occurred, and there is no significant issue of intent. The significant issue to be tried is the identity of the robber. The bank employees' identification of the person who robbed the bank, then, is critical to the case, and highly probative of the central issue.
On the other side of the balance is the danger of unfair prejudice.
The unreliability inheres in the suggestiveness of the identification. The bank witnesses saw online the defendant's mugshot, identified as such. A photo of a person in the context of arrest carries an implication of criminality. It is not hard to imagine that it might consciously or subconsciously influence a witness, or diminish the witness's salutary fear of identifying the wrong person. The procedural disadvantage is that defense counsel cannot crossexamine the witnesses about the suggestiveness of the identification without using, or at least referring to, the mugshot—thereby exposing the jury to the same prejudicial circumstances that surrounded the identification itself.
In performing the relevant balancing, however, I consider that the jury will not be exposed to these facts in the same context that the witnesses were. Rather, I assess the potential prejudice in the context of the safeguards available at a criminal trial. Those safeguards include the following.
Under the circumstances, I will grant the defense considerable latitude to cross-examine these witnesses about their online research and the effect it may have had on the reliability of their identifications. Assuming (as I do) that developments at trial warrant it, I will deliver instructions to the jury concerning the pitfalls of eyewitness identification and the care to be taken in considering it, particularly where the circumstances may have been suggestive.
Should a party seek to introduce the online photos, they will be suitably redacted to eliminate any reference to the criminal justice system. To the extent the jury surmises that these were arrest photos, it will not come as a surprise; they will necessarily know that, at the time the witnesses saw the photos, Mr. Jones had already been charged with Bank Robbery 1. The incremental prejudice, then, should be minimal. I will, however, prohibit any suggestion that these photos originated from an earlier arrest, unrelated to the Bank Robberies, to avoid the implication of a prior arrest or conviction.
At-trial safeguards, Perry pointed out, have in recent years increasingly included the admission of "expert testimony on the hazards of eyewitness identification evidence." 535 U.S. at 247. As discussed in the following section of this Opinion, such testimony should generally be permitted, within the strictures of Article VII of the Federal Rules of Evidence. Lay jurors may well be unfamiliar with the psychological and other factors that can influence the reliability of identification testimony. Expert testimony, however, can help them form an educated judgment about the weight to be given such testimony under the circumstances of this case.
I add a word about the out-of-court identification, as opposed to in-court identification. I do not believe that it is possible to separate the two. It would be misleading to present in-court identification testimony without reference to the possible taint of the witnesses' online research, and I expect that the suggestive effect of the out-of-court identification would be a major theme of the defense case. Like most issues, this is one for the jury to decide, with the benefit of full cross-examination and expert opinion testimony.
In the context of the safeguards of a trial, I conclude that the probativeness of this eyewitness identification testimony is not substantially outweighed by the danger of unfair prejudice. The defendant's motion to exclude eyewitness identification testimony on Rule 403 grounds is therefore denied.
I briefly discuss the defendant's application, made at oral argument, for an adjournment of the trial date to permit him to secure an expert regarding the reliability of eyewitness identifications, and to admit such expert testimony. The government agrees in principle, reserving the right to object to particular portions of such opinion testimony under Federal Rule of Evidence 702 et seq.
The parties agree that one key relevant authority is United States v. Brownlee, 454 F.3d 131 (3d Cir. 2006). There, the police presented the defendant to the witnesses at the scene of the crime—in essence, a suggestive one-man showup, a procedure widely considered to create a danger of misidentification. The Court of Appeals upheld the denial of a motion to suppress on due process grounds. It held, however, that the district court erred when it excluded expert testimony as to certain factors affecting the reliability of identifications: the comparison between showups and other procedures; the suggestive effect of the showup; confidence malleability; post-event suggestiveness; and confidence as to accuracy. Id. at 140-41. It is far too late in the day to ignore the known tricks our minds can play: our susceptibility to suggestion, the lack of correlation between certainty and accuracy, the consensus effect of making an identification in a group setting, the distracting effect of a deadly weapon, and many others. See id. (discussing some of the now extensive literature and case law authority on unreliability of eyewitness identifications); Def. Br. 8-11. The Court requires no persuasion on that point.
The parties also agree that United States v. Downing, 753 F.2d 1224 (3d Cir. 1984), cited in Brownlee, remains good law and is pertinent. There, the court held that Rule 702 may permit a criminal defendant "to adduce, from an expert in the field of human perception and memory, testimony concerning the reliability of eyewitness identifications." Id. at 1226. Once the defendant has proffered such testimony, the Court is to balance two factors:
Id.
Such testimony must also meet the test of "fit": that is, it must involve the characteristics of the particular eyewitness identification in the case, and address how those characteristics bear on reliability. Id. at 1242; see also Brownlee, 454 F.3d at 141 (citing United States v. Sebetich, 776 F.2d 412, 419 (3d Cir. 1985)).
Facially, this case presents the kind of facts that would make it appropriate for the jury to hear expert testimony on the reliability of eyewitness identifications. I hold generally that such testimony is appropriate and admissible. Absent a specific proffer, however, I can go no farther. I will therefore grant the defendant's application for a continuance of the trial date so that he can obtain the report of such an expert. Once the content of such testimony has been proffered in detail, I will consider any objections to particular items under the Rule 702 standards identified above.
Accordingly, IT IS this 27th day of February, 2017
ORDERED as follows:
1. The defendant's Eyewitness ID motion is denied. The related Rule 403 motion is denied, subject to the at-trial procedures outlined above.
2. The Expert Motion is substantially granted, although the Court reserves decision in part as to objections to particular items of testimony. The date of trial, currently scheduled for March 6, 2017, is adjourned until May 1, 2017. The government shall immediately submit a standard 60-day consent continuance order.
3. Within 21 days, the defense shall furnish the prosecution and the Court a report of its expert on eyewitness identification, summarizing that witness's proposed testimony in detail. Within 10 days thereafter, the government shall submit in writing its objections, if any, to the proffered expert opinion testimony. At that time, counsel will set up a telephone conference with the Court to determine what further procedures or submissions, if any, are necessary to resolve any such issues and ready the case for trial.
Id at 244, 132 S. Ct. at 727-28. Such circumstances, however "suggestive," do not implicate the due process rule of Neil and Manson, because they do not involve policeinitiated identification procedures. See id.
