                    IN THE SUPREME COURT OF TENNESSEE
                               AT NASHVILLE
                                    February 8, 2000 Session

                 STATE OF TENNESSEE v. EDDIE L. COLEY, JR.

                  Appeal by Permission from the Court of Criminal Appeals
                           Circuit Court for Williamson County
                         No. II-895-228   Donald P. Harris, Judge



                    No. M1997-00116-SC-R11-CD - Filed October 13, 2000



JANICE M. HOLDER, J., with whom E. RILEY ANDERSON, C.J., joins, dissenting.

       I respectfully dissent. The admission of expert testimony on the reliability of eyewitness
testimony is governed by our opinion in McDaniel v. CSX Transp., Inc., 955 S.W.2d 257 (Tenn.
1997), which established the test for admissibility of scientific evidence in Tennessee. McDaniel
requires a trial court to consider, based on a non-exclusive list of factors, “whether the evidence will
substantially assist the trier of fact to determine a fact in issue and whether the facts and data
underlying the evidence indicate a lack of trustworthiness.” Id. at 265. Accordingly, McDaniel
provides the trial court with a test to be applied on a case-by-case basis to admit or to exclude expert
testimony.

        In rejecting the expert testimony in this case, the trial court did not conduct a McDaniel
hearing. This Court, therefore, is without an adequate record upon which to judge the propriety of
the exclusion of the evidence under our own precedent. The effect of the majority’s decision is to
exclude from consideration under McDaniel one class of proffered scientific evidence. The
majority’s approach forecloses judicial recognition of future scientific advances in this area, a result
seemingly in conflict with our rationale for adoption of the McDaniel standard. Id. at 262 (stating
that formerly adopted Frye test for admissibility was criticized as “too restrictive of relevant
evidence, particularly new or ‘cutting edge’ scientific theory”). The majority opinion effectively
shuts the door to future legal development in this area by requiring a litigant to overturn Tennessee
Supreme Court precedent before his proffered evidence could even be considered by a trial court.

         I agree with the majority that our Dyle jury instruction adequately addresses those factors
affecting eyewitness testimony that are within jurors’ common understanding. The Dyle factors,
however, share one common characteristic not found in the testimony proffered in this case: they
relate to non-scientific factors affecting eyewitness testimony. I am unconvinced that the testimony
omitted in this case is within the “common understanding” of the jury.
        Most, if not all, of the proffered testimony is scientific in nature and therefore falls outside
the realm of common knowledge. Cf. State v. Murphy, 953 S.W.2d 200, 202-03 (Tenn. 1997)
(categorizing horizontal gaze nystagmus (“HGN”) sobriety tests as “scientific” because of necessity
of explanation of underlying scientific basis before test becomes meaningful to a jury). There are
many scientific and legal publications regarding eyewitness identification, and the body of work,
including case law, is growing. See generally Roger B. Handburg, Expert Testimony on Eyewitness
Identification: A New Pair of Glasses for the Jury, 32 Am. Crim. L. Rev. 1013 (1995); Robert J.
Hallisey, Experts on Eyewitness Testimony in Court – A Short Historical Perspective, 39 How. L.J.
237 (1995); Hon. D. Duff McKee, Challenge to Eyewitness Identification Through Expert
Testimony, 35 Am. Jur. Proof of Facts 3d 1 (1996 & Supp. 1999); Gregory D. Sarno, Annotation,
Admissibility, at Criminal Prosecution, of Expert Testimony on Reliability of Eyewitness Testimony,
46 A.L.R.4th 1047 (1986 & Supp. 2000). It is difficult to conclude that so much scientific study,
scholarly debate, and comment have been engendered by what is simply a matter of common
knowledge.

        Even assuming that these matters are truly within jurors’ common understanding, there still
exists the question of validity of that understanding. Authorities indicate that, in reality, many
commonly-held notions regarding the reliability of eyewitness testimony are wrong. See United
States v. Smithers, 212 F.3d 306, 312 n.1 (6th Cir. 2000) (noting “many of the factors affecting
eyewitness impressions are counter-intuitive”). Thus, the majority’s per se rule may actually serve
to sanction judicially and preserve for all time a common understanding that is, in fact, invalid.

        Finally, the majority’s contention that this evidence “may mislead and confuse, and it could
encourage the jury to abandon its responsibility as fact-finder” speaks to a risk present in every case
involving expert testimony. It does not warrant a per se rule. Accordingly, I would not adopt a per
se rule of inadmissibility and would remand for a determination of admissibility under McDaniel.

       I am authorized to state that Chief Justice Anderson joins in this dissenting opinion.



                                                        ___________________________________
                                                        JANICE M. HOLDER, JUSTICE




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