People of the State of Illinois v. Eduardo Lerma, No. 118496.
Editor’s Note – This is an Illinois Supreme Court Opinion.
The issue is whether, in light of the specific facts and circumstances of this case, the circuit court of Cook County abused its discretion when it denied defendant’s motion to allow expert testimony concerning the reliability of eyewitness identifications. For the reasons that follow, we hold that it did.
The evidence of defendant’s guilt consists solely of two eyewitness identifications.
The first eyewitness identification was made by the victim, Jason Gill, and was admitted into evidence under the excited utterance exception to the hearsay rule.
The other eyewitness identification was made by Clark. Clark testified that, on the evening of the shooting, she was with Gill on the unlit front steps of Gill’s Chicago home. At approximately 11:20 p.m., a man dressed all in black approached Gill’s house, pulled a gun, and began shooting at Gill and Clark.
In anticipation of these eyewitness identifications, defendant filed a pretrial motion in limine to allow Dr. Solomon Fulero, an attorney and licensed psychologist, to testify as an expert on the topic of memory and eyewitness identification.
Defendant argued that Dr. Fulero’s testimony expert testimony would aid the jury by identifying and explaining several “common misperceptions” that exist concerning the accuracy and reliability of eyewitness identifications. According to defendant’s motion, which included a report authored by Dr. Fulero, Dr. Fulero’s expert testimony would include the following scientifically documented findings, all of which are beyond the common knowledge of the average layperson: that the witness’s level of confidence does not necessarily correlate to the accuracy of the eyewitness identification; that numerous factors can undermine the accuracy of an eyewitness’s identification, including the stress of the event itself, the presence of a weapon, the passage of time, the “forgetting curve,” the wearing of partial disguises such as hoods, exposure to postevent information, nighttime viewing, and suggestive police identification procedures; that eyewitnesses tend to overestimate time frames; and that cross-racial identifications tend to be less reliable than same-race eyewitness identifications.
Midway through trial, and after the State had presented the eyewitness identification expert testimony set forth above, defense counsel renewed defendant’s motion to call an eyewitness identification expert. Because Dr. Fulero had since passed away, defense counsel this time tendered to the trial court a report authored by expert wtness Dr. Geoffrey Loftus, a professor of psychology at the University of Washington and widely-published and globally-recognized expert in the field of human perception and memory. The data and conclusions contained in Dr. Loftus’s report largely tracked with the contents of Dr. Fulero’s report, with two significant exceptions.
First, Dr. Loftus’s report stressed that he would not issue judgments about whether a particular witness’s memory and assertions are correct. Second, and more importantly, unlike Dr. Fulero’s report, which was silent on the subject of acquaintance identifications, Dr. Loftus’s report specifically stated that “[i]t would seem intuitive to a jury that if a witness identifies a suspect with whom he or she is acquainted, the witness’s identification would likely be accurate. However, this is not necessarily true.” Rather, the report explained, “if circumstances are poor for a witness’s ability to perceive a person,” and “the situation fosters a witness’s expectations that he or she will see a particular acquaintance[,] * * * then the witness will tend to perceive the person as the expected acquaintance even if the person is in fact someone else.” According to Dr. Loftus’s report, such poor circumstances include low lighting; viewing longer distances in the dark; divided attention of the witness, including a focus on a weapon; time duration, with less time leading to less available information, and a witness’s tendency to overestimate time durations; cross-racial identification; stress; and a partially obscured face. Dr. Loftus stated such situations may lead to misidentification because:
“In such circumstances, the witness’s acquaintance with the expected—and hence perceived—person works against accurate identification for two reasons: First, it would be natural and easy for the witness to subsequently pick the acquaintance in an identification procedure * * * (because the witness already knows whom she is seeking in a lineup procedure, she could immediately rule out all the fillers, and zero in on the acquaintance/suspect). Second, the witness could use his or her prior knowledge of the acquaintance’s appearance to reconstruct his or her memory of the original events—the crime—such that the in fact poor original memory of the actual criminal is replaced with a stronger and more confidence-evoking memory of the acquaintance * * *.”
The issue in this case is whether the trial court abused its discretion in denying defendant’s request to allow Dr. Loftus’s expert testimony on the reliability of eyewitness identifications.
To begin with, there is no question that this is the type of case for which expert eyewitness testimony is both relevant and appropriate. The only evidence of defendant’s guilt in this case is the eyewitness identifications made by Clark and Gill. There is no physical evidence tying defendant to the crime, and defendant neither confessed nor made any other type of incriminating statement. In other words, the State’s case against defendant hangs 100% on the reliability of its eyewitness identifications.
In addition, of the several factors that both Dr. Fulero and Dr. Loftus identified as potentially contributing to the unreliability of eyewitness identification, most are either present or possibly present in this case. These include the stress of the event itself, the use and presence of a weapon, the wearing of a partial disguise, exposure to post event information, nighttime viewing, and cross-racial identification.
According to Dr. Loftus’s report, the factors impacting the reliability of eyewitness identifications can operate even when the witness is previously acquainted with the accused, and Dr. Loftus’s testimony would not include any opinion as to the credibility of any specific witness or any specific identification.
Abuse of discretion is a highly deferential standard of review, and we reiterate that we will find such abuse only when the trial court’s decision is “arbitrary, fanciful, or unreasonable to the degree that no reasonable person would agree with it.” We find that to be the case here. As discussed above, what we have in this case is the trial court denying defendant’s request to present relevant and probative testimony from a qualified expert that speaks directly to the State’s only evidence against him, and doing so for reasons that are both expressly contradicted by the expert’s report and inconsistent with the actual facts of the case. A decision of that nature rises to the level of both arbitrary and unreasonable to an unacceptable degree, and we therefore find that the trial court’s decision denying defendant’s request to admit Dr. Loftus’s expert testimony was an abuse of discretion.
For the foregoing reasons, we affirm the judgment of the appellate court, which reversed the judgment of the trial court and remanded the cause for a new trial with directions to allow expert testimony on eyewitness identification subject to the provisions of Rule 702 of the Illinois Rules of Evidence (eff. Jan. 1, 2011).
By: Chicago Criminal Defense Attorney Michael J. Petro