State v. Chapple
135 Ariz. 281, 660 P.2d 1208 (1983)
 

FELDMAN, Justice.

Dolan Chapple was convicted on three counts of first degree murder, one count of unlawfully transporting marijuana and one count of conspiring to unlawfully transport marijuana.... The defendant appealed from this judgment and sentence....

FACTS

The instigator of this bizarre drama was Mel Coley, a drug dealer who resided in Washington, D.C., but who was also connected with dealers in Kansas City. Coley had a history of dealing with a supplier named Bill Varnes, who lived near Phoenix.

Coley had made a large number of drug deals through Malcolm Scott, a "middle-man" who lived near Phoenix....

Coley telephoned in early December 1977 and told Scott that he was interested in purchasing approximately 300 pounds of marijuana. He asked Scott to act as middleman in the transaction. Scott was to get $700 for his efforts. Scott testified that he called one or two of the Arizona suppliers ... and found they could not supply the necessary quantity. He then called his sister, Pamela Buck.... Scott asked Buck to contact her friend Varnes and see whether he could handle the sale. Buck talked to Varnes and reported to her brother that Varnes could supply the necessary amount of marijuana at an agreed upon price. Scott relayed this information to Coley. Scott instructed Buck not to tell Varnes that Coley or anyone from Washington, D.C. was involved in the deal.

On the evening of December 10 or the early morning of December 11, 1977, Coley arrived at the Phoenix airport from Washington, D.C. Scott met him at the airport and found that Coley was accompanied by two strangers who were introduced as "Dee" and "Eric." Scott drove the three men to a trailer located at his parents' farm near Higley in Pinal County, Arizona....

Coley, Dee and Eric spent the night at the trailer, while Scott returned to his residence in Mesa. The next morning Scott returned to the farm and took Coley to the airport where they picked up a brown leather bag. Back at the trailer, Scott observed Coley, Eric and Dee take four guns from the bag and clean them. Scott examined and handled one of the guns. Buck had also arrived at the trailer in Higley, and she and Dee were dispatched to Varnes' trailer in order to purchase a sample of the marijuana....

That evening, Scott and his sister met at the trailer with Coley, Eric and Dee. Varnes arrived with two companions, Eduardo Ortiz and Carlos Elsy. Ortiz and Elsy began to unload the marijuana and put it in the trailer. Buck was in the trailer with Coley, Eric and Dee at this time. Scott was some distance away, sitting on the porch of his parents' house. Buck was told by Dee or Coley that after the marijuana was unloaded she should lock herself in the bathroom.

After Ortiz and Elsy had finished unloading the marijuana and stacking it in the living room of the trailer, Dee suggested to Varnes that they go in the bedroom and "count the money." They started toward the bedroom and Buck went into the bathroom. A few moments later, Buck heard several shots, opened the bathroom door and ran out. Scott heard the shots while he was on the porch and saw a door of the trailer open. Elsy ran out, pursued by either Eric or Dee. After seeing Buck run out of the door at the other end of the trailer, Scott went back to the trailer and found Varnes dead in the bedroom of a gunshot wound to the head and Ortiz in the living room dead of a gunshot wound to the body. Subsequent ballistic tests showed they had been shot with different weapons. Elsy was outside, dead from a blow to the back of the head.

Dee and Eric then removed the marijuana from the trailer and loaded it into a car.... Scott, Eric and Dee loaded the three bodies into the trunk of Varnes' car. That car was driven out to the desert, doused with gasoline and set afire. The trailer was cleaned to remove evidence of the crime and the carpet in the trailer was burned. The parties then left the scene of the crime and returned to Scott's house in Mesa.... Coley gave Scott and Buck $500 each.... Scott returned to the trailer and completed the cleanup. Fear or remorse, or both, drove Scott to seek the aid of a lawyer, who succeeded in negotiating an immunity deal for Scott and in getting him to surrender to the sheriff.

Defendant does not contest any of the foregoing facts. Defendant is accused of being "Dee." He denies this. At his extradition hearing in Illinois, seven witnesses placed him in Cairo, Illinois during the entire month of December 1977, three of them testifying specifically to his presence in that town on December 11, the day of the crime. The same witnesses testified for him in the trial at which he was convicted. No direct or circumstantial evidence of any kind connects defendant to the crime, other than the testimony of Malcolm Scott and Pamela Buck, neither of whom had ever met the defendant before the crime and neither of whom saw him after the crime except at the trial. Defendant was apprehended and tried only because Malcolm Scott and Pamela Buck picked his photograph out of a lineup more than one year after the date of the crime; he was convicted because they later identified both the photographs and defendant himself at trial.

The State's position was that the identification was correct, while the defendant argued at trial that the identification was erroneous for one of two reasons. The first reason advanced by defendant is that Scott and Buck were lying to save themselves by "fingering" him. To buttress this contention, defendant established that Scott and Buck had made a "deal" with the State whereby they were granted complete immunity for their part in the crime unless the facts showed that they had knowingly participated in the killings....

Defendant further argued at trial, and urges here, that even if Scott and Buck are not lying, their identification was a case of mistaken identity. The argument is that Scott and Buck picked the wrong picture out of the photographic lineup and that their subsequent photographic and in-court identifications were part of the "feedback phenomenon" and are simply continuations or repetitions of the same mistake. To support this contention of mistaken identification, defendant offered expert testimony regarding the various factors that affect the reliability of identification evidence. For the most part, that testimony was rejected by the trial court as not being within the proper sphere of expert testimony.

EXPERT TESTIMONY REGARDING EYEWITNESS IDENTIFICATION

... The detectives ... showed Scott and Buck various photographs and lineups containing pictures of known acquaintances of Mel Coley.... One of the photographic lineups displayed to Scott, but not to Buck, contained a picture of the defendant, Dolan Chapple, but Scott did not identify him as Dee....

The police continued to show the witnesses photographic lineups in an attempt to obtain an identification of Dee. Police efforts were successful on January 27, 1979, when Scott was shown a nine-picture photo lineup. For the first time, this lineup included photos of both Eric Perry, who had already been tentatively identified by Scott and Buck, and of the defendant.... Upon seeing this lineup, Scott immediately recognized Eric's picture again. About ten minutes later, Scott identified defendant's picture as Dee. Scott was then shown the picture of defendant he had failed to identify at a previous session and asked to explain why he had not previously identified it. He stated that he had no recollection of having seen it before. After Scott had identified Dee and before he could talk to his sister, the police showed Buck the same lineup. Buck identified the defendant as Dee and then re-identified Eric.

Defendant argues that the jury could have found the in-court identification unreliable for a variety of reasons. The defendant argues that the identification of Dee from photographic lineups in this case was unreliable because of the time interval which passed between the occurrence of the event and the lineup and because of the anxiety and tension inherent in the situation surrounding the entire identification process.(1)

9 The defendant also argues that since Scott and Buck had smoked marijuana on the days of the crime, their perception would have been affected, making their identification through photographs less reliable. Further, defendant claims the January 27, 1979 identification of Dee by Scott and Buck from the photographic lineup was the product of an unconscious transfer. Defendant claims that Scott picked the picture of Dolan Chapple and identified it as Dee because he remembered that picture from the previous lineup (when he had not been able to identify defendant's picture). Defendant urges that the in-court identifications were merely reinforcements of the initial error. Defendant also argues that Eric's presence in the lineup heightened the memory transfer and increased the chance of an incorrect photographic identification.... Further, defendant claims that the identification was made on the basis of subsequently acquired information which affected memory. Finally, defendant argues that the confidence and certainty which Scott and Buck displayed in making their in-court identification at trial had no relation whatsoever to the accuracy of that identification and was, instead, the product of other factors.

It is against this complicated background, with identification the one issue on which the guilt or innocence of defendant hinged, that defense counsel offered the testimony of an expert on eyewitness identification in order to rebut the testimony of Malcolm Scott and his sister, Pamela Buck. The witness called by the defense was Dr. Elizabeth Loftus, a professor of psychology at the University of Washington. Dr. Loftus specializes in an area of experimental and clinical psychology dealing with perception, memory retention and recall. Her qualifications are unquestioned, and it may fairly be said that she "wrote the book" on the subject. The trial court granted the State's motion to suppress Dr. Loftus' testimony. Acknowledging that rulings on admissibility of expert testimony are within the discretion of the trial court, defendant contends that the court erred and abused its discretion in granting the motion to suppress Dr. Loftus' testimony.

The admissibility of expert testimony is governed by Rule 702, Ariz. R. of Evid. That rule states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

In what is probably the leading case on the subject, the Ninth Circuit affirmed the trial court's preclusion of expert evidence on eyewitness identification in United States v. Amaral, 488 F.2d 1148 (9th Cir. 1973). In its analysis, however, the court set out four criteria which should be applied in order to determine the admissibility of such testimony. These are: (1) qualified expert; (2) proper subject; (3) conformity to a generally accepted explanatory theory; and (4) probative value compared to prejudicial effect. Id. at 1153. We approve this test and find that the case at bar meets these criteria.

We recognize that the cases that have considered the subject have uniformly affirmed trial court rulings denying admission of this type of testimony. However, a careful reading of these cases reveals that many of them contain fact situations which fail to meet the Amaral criteria or are decided on legal principles which differ from those we follow in Arizona.

Applying the Amaral test to the case at bench, we find from the record that the State has conceded that the expert was qualified and that the question of conformity to generally accepted explanatory theory is not raised and appears not to be a question in this case. The two criteria which must therefore be considered are (1) determination of whether the probative value of the testimony outweighs its possible prejudicial effect and (2) determination of whether the testimony was a proper subject.

(1) PROBATIVE VALUE VS. PREJUDICE

The State argues that there would have been little probative value to the witness' testimony and great danger of unfair prejudice. The latter problem is claimed to arise from the fact that Loftus' qualifications were so impressive that the jury might have given improper weight to her testimony. We do not believe that this raises the issue of unfair prejudice. The contention of lack of probative value is based on the premise that the offer of proof showed that the witness would testify to general factors which were applicable to this case and affect the reliability of identification, but would not express any opinion with regard to the accuracy of the specific identification made by Scott and Buck and would not express an opinion regarding the accuracy percentage of eyewitness identification in general.

We believe that the "generality" of the testimony is a factor which favors admission. Witnesses are permitted to express opinions on ultimate issues but are not required to testify to an opinion on the precise questions before the trier of fact.

Most of the literature assumes that experts testify only in the form of opinions. The assumption is logically unfounded. [Rule 702] accordingly recognizes that an expert on the stand may give a dissertation or exposition of scientific or other principles relevant to the case, leaving the trier of fact to apply them to the facts. Since much of the criticism of expert testimony has centered upon the hypothetical question, it seems wise to recognize that opinions are not indispensable and to encourage the use of expert testimony in non-opinion form when counsel believes the trier can itself draw the requisite inference.

Fed. R. of Evid. 702 advisory committee note.

(2) PROPER SUBJECT

The remaining criterion at issue is whether the offered evidence was a proper subject for expert testimony. Ariz. R. of Evid. 702 allows expert testimony if it "will assist the trier of fact to understand the evidence or to determine a fact in issue." Put conversely, the test "is whether the subject of inquiry is one of such common knowledge that people of ordinary education could reach a conclusion as intelligently as the witness...." State v. Owens, 112 Ariz. 223, 227, 540 P.2d 695, 699 (1975). Furthermore, the test is not whether the jury could reach some conclusion in the absence of the expert evidence, but whether the jury is qualified without such testimony "to determine intelligently and to the best possible degree the particular issue without enlightenment from those having a specialized understanding of the subject...." Fed. R. Evid. 702 advisory committee note (quoting Ladd, Expert Testimony, 5 Vand. L. Rev. 414, 418 (1952)).

In excluding the evidence in the case at bench, the trial judge stated:

I don't find anything that's been presented in the extensive discussions that I have read in your memorandum with regard to the fact that this expert is going to testify to anything that isn't within the common experience of the people on the jury, that couldn't really be covered in cross-examination of the witnesses who made the identification, and probably will be excessively argued in closing arguments to the jury.

This basis for the view that eyewitness identification is not a proper subject for expert testimony is the same as that adopted in United States v. Amaral, supra, and in the great majority of cases which have routinely followed Amaral....

However, after a careful review of these cases and the record before us, we have concluded that although the reasons cited by the trial judge would correctly permit preclusion of such testimony in the great majority of cases, it was error to refuse the testimony in the case at bench. In reaching this conclusion, we have carefully considered the offer of proof made by the defense in light of the basic concept of "proper subject" underlying Rule 702....

Even assuming that jurors of ordinary education need no expert testimony to enlighten them to the danger of eyewitness identification, the offer of proof indicated that Dr. Loftus' testimony would have informed the jury that there are many specific variables which affect the accuracy of identification and which apply to the facts of this case. For instance, while most jurors would no doubt realize that memory dims as time passes, Dr. Loftus presented data from experiments which showed that the "forgetting curve" is not uniform. Forgetting occurs very rapidly and then tends to level out; immediate identification is much more trustworthy than long-delayed identification....

Another variable in the case is the effect of stress upon perception. Dr. Loftus indicated that research shows that most laymen believe that stressful events cause people to remember "better" so that what is seen in periods of stress is more accurately related later. However, experimental evidence indicates that stress causes inaccuracy of perception with subsequent distortion of recall.

Dr. Loftus would also have testified about the problems of "unconscious transfer," a phenomenon which occurs when the witness confuses a person seen in one situation with a person seen in a different situation. Dr. Loftus would have pointed out that a witness who takes part in a photo identification session without identifying any of the photographs and who then later sees a photograph of one of those persons may relate his or her familiarity with the picture to the crime rather than to the previous identification session.

Another variable involves assimilation of post-event information. Experimental evidence, shown by Dr. Loftus, confirms that witnesses frequently incorporate into their identifications inaccurate information gained subsequent to the event and confused with the event. An additional problem is the "feedback factor." We deal here with two witnesses who were related and ... engaged in discussions with each other about the identification of Dee.... Dr. Loftus would have explained that through such discussions identification witnesses can reinforce their individual identifications. Such reinforcement will often tend to heighten the certainty of identification. The same may be said of the continual sessions that each witness had with the police in poring over large groups of photographs.(2)13

The last variable in this case concerns the question of confidence and its relationship to accuracy. Dr. Loftus' testimony and some experimental data indicate that there is no relationship between the confidence which a witness has in his or her identification and the actual accuracy of that identification. Again, this factor was specifically tied to the evidence in the case before us since both Scott and Buck indicated in their testimony that they were absolutely sure of their identification. Evidently their demeanor on the witness stand showed absolute confidence.(3)

14

We cannot assume that the average juror would be aware of the variables concerning identification and memory about which Dr. Loftus was qualified to testify.

Depriving [the] jurors of the benefit of scientific research on eyewitness testimony force[d] them to search for the truth without full knowledge and opportunity to evaluate the strength of the evidence. In short, this deprivation prevent[ed] [the] jurors from having "the best possible degree" of "understanding the subject" toward which the law of evidence strives.

Note, [Did Your Eyes Deceive You? Expert Psychological Testimony on the Unreliability of Eyewitness Identification, 29 Stan. L. Rev. 969, 1017-1018 (1977)]. Thus, ... we believe that Dr. Loftus' offered evidence was a proper subject for expert testimony and should have been admitted.

Of course, the test is not whether we believe that under these facts the evidence was admissible, but whether the trial court abused its discretion in reaching the contrary conclusion.... As indicated above, the key to this issue is whether the testimony might assist the jury to resolve the issues raised by the facts. In making this determination, the trial court must first consider those contentions of ultimate fact raised by the party offering the evidence and supported by evidentiary facts in the record. It must then determine whether the expert testimony will assist in resolving the issues.

... In effect, the trial judge ruled that all of the information necessary to resolve the conflicting factual contentions on these issues was within the common experience of the jurors and could be covered in cross-examination of the identification witnesses and argued to the jury.

It is difficult to support this conclusion. For instance, while jurors are aware that lapse of time may make identification less reliable, they are almost certainly unaware of the forgetting curve phenomenon and the resultant inference that a prompt tentative identification may be much more accurate than later positive identification. Similarly, cross-examination is unlikely to establish any evidentiary support for argument that eyewitnesses who have given similar nonfactual descriptions of the criminal may have been affected by the feedback phenomenon. Again, experimental data provides evidentiary support to arguments which might otherwise be unpersuasive because they seem contrary to common "wisdom."

Thus, while we have no problem with the usual discretionary ruling that the trier of facts needs no assistance from expert testimony on the question of reliability of identification, the unusual facts of this case compel the contrary conclusion. The preclusion ruling here was based upon a determination that the jury would not be assisted by expert testimony because the subjects embraced by that testimony could be elicited on cross-examination and argued without the evidentiary foundation. Preclusion here was not predicated upon a balancing of conflicting factual contentions or equitable considerations; it was based upon the court's own conclusion that scientific theory regarding the working of human memory could be developed on cross-examination and effectively argued without evidentiary foundation. The examples listed above demonstrate that under the facts here this conclusion was incorrect; there were a number of substantive issues of ultimate fact on which the expert's testimony would have been of significant assistance. Accordingly, we hold that the order precluding the testimony was legally incorrect and was unsupported by the record. It was, therefore, an abuse of discretion.

In reaching this conclusion, we do not intend to "open the gates" to a flood of expert evidence on the subject. We reach the conclusion that Dr. Loftus should have been permitted to testify on the peculiar facts of this case and have no quarrel with the result reached in the vast majority of cases which we have cited above. The rule in Arizona will continue to be that in the usual case we will support the trial court's discretionary ruling on admissibility of expert testimony on eyewitness identification. Nor do we invite opinion testimony in even the most extraordinary case on the likelihood that a particular witness is correct or mistaken in identification or that eyewitness identification in general has a certain percentage of accuracy or inaccuracy.

The judgment below is reversed and the case remanded for a new trial.

HOLOHAN, C.J., GORDON, V.C.J., and CAMERON, J., concur.

HAYS, Justice, concurring in part and dissenting in part:

I cannot agree with the majority's position that the trial court abused its discretion in excluding the testimony of an expert witness on eyewitness identification. With a view to preserving the integrity of the jury as finders of fact, I dissent in part.

It is the jury's task to determine the weight and credibility of a witness' testimony. What this court addresses is whether it is appropriate to have that determination put before the jury on the basis of expert witness testimony. Rule 704, Arizona Rules of Evidence, permits opinion testimony which embraces an ultimate issue if that testimony is otherwise admissible. However, rule 704 does not resolve all worry about invading the province of the jury. Testimony which is of such common knowledge that persons of ordinary education and background could reach as intelligent a conclusion as the expert shall be excluded. State v. Williams, 132 Ariz. 153, 644 P.2d 889, 896 (1982).

Courts have consistently held that expert testimony relating to eyewitness identification constitutes an invasion of the jury's province.(4)

1 While I recognize the problems in eyewitness testimony, I am unable to distinguish the case at bench from the wealth of cases where identification is in issue.

Identification of a criminal defendant is always crucial, notwithstanding the number of issues in a case. The fact that identification was defendant Chapple's sole defense should not compel us to carve out an exception to our rule against such testimony.

Our rules of evidence provide that a witness shall be impeached through cross-examination. "It is the responsibility of counsel during cross-examination to inquire into the witness' opportunity for observation, his capacity for observation, his attention and interest and his distraction or division of attention." United States v. Amaral, 488 F.2d 1148, 1153 (9th Cir. 1973). A defense attorney can properly expose through cross-examination of the witness the time interval which passed between the occurrence of the event and the line-up and, through probing questions, the effects of stress and drugs on the witness' perception. Allowing an expert to testify on the factors affecting the reliability of identification by an eyewitness is merely a guise for impeaching that witness. We cannot permit an expert to disparage the memory of a witness in order to impeach him. The ability of a person to make accurate observations is to be considered by the jury when assessing that witness' credibility.

I also disagree with the majority's conclusion that the average juror does not know that immediate identification is much more trustworthy than long-delayed identification. The average juror may not know the technical terms for this phenomenon, but that is not relevant to his ability to assess a witness' credibility.

My concern here goes beyond the borders of this case. Once we have opened the door to this sort of impeaching testimony, what is to prevent experts from attacking any real or supposed deficiency in every other mental faculty? The peculiar risk of expert testimony with its scientific aura of trustworthiness and the possibility of undue prejudice should be respected. I have great reluctance to permit academia to take over the fact-finding function of the jury. Although clothed in other guise, that will be the practical effect. With little to distinguish this case from the general rule against admitting expert testimony on eyewitness identification, we are left with no guidelines to decide the deluge of similar issues which are sure to result.

I dissent in part.

1. 9. Buck and Scott both said they were frightened for their lives during the events. Since they are the only witnesses, one might assume they were also frightened and apprehensive during the time period when Eric and Dee were both at liberty.

2. 13. We do not suggest that the police attempted to prejudice the identification procedure. The facts show that the police were careful to avoid the possibility of prejudice. However, as Dr. Loftus pointed out, it is not possible to discuss identification of photographs with witnesses on seven different occasions, comprising a total of over 200 pictures, without giving the witness some "feedback" with respect to what the officers anticipate or expect the witness to find.

3. 14. We base this conclusion on statements the prosecutor made in closing argument and in defense counsel's attempts to argue that the jurors should not be misled by the confidence which the witnesses displayed in their identification testimony.

4. 1. See n.10 of majority opinion.

 


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