                                                             [PUBLISH]

           IN THE UNITED STATES COURT OF APPEALS

                  FOR THE ELEVENTH CIRCUIT
                                                             FILED
                                                    U.S. COURT OF APPEALS
                                                      ELEVENTH CIRCUIT
                                                          JUNE 8, 2012
                            No. 10-15877                   JOHN LEY
                                                            CLERK

             D. C. Docket No. 1:09-cr-00286-RWS-JKF-1

UNITED STATES OF AMERICA,

                                            Plaintiff-Appellee,

                               versus

DWIGHT DARYL OWENS,

                                            Defendant-Appellant.



             Appeal from the United States District Court
                for the Northern District of Georgia

                           (June 8, 2012)

        ORDER ON PETITION FOR REHEARING EN BANC

Before DUBINA, Chief Judge, TJOFLAT, EDMONDSON, CARNES,
BARKETT, HULL, MARCUS, WILSON, PRYOR, MARTIN and JORDAN,
Circuit Judges.
BY THE COURT:

      The court having been polled at the request of one of the members of the

Court and a majority of the Circuit Judges who are in regular active service not

having voted in favor of it (Rule 35, Federal Rules of Appellate Procedure), the

Suggestion of Rehearing En Banc and the Petition for Rehearing are DENIED.




                                       /s/ Joel F. Dubina
                                      Chief Judge




                                         2
BARKETT, Circuit Judge, dissenting from the denial of rehearing en banc:

       Having been given the opportunity to change our court’s position that

appellate courts are never permitted to review for abuse of discretion the exclusion

of expert testimony regarding the reliability of eyewitness identifications, we

should avail ourselves of it. That isolated position, established thirty years ago,

conflicts with all of the other circuits1 and all but five of the states2 that have

considered the question. I cannot think of any reason, legal or logical, why such a

ruling should not be subject to the same abuse of discretion standard as any other



       1
          See, e.g., United States v. Brien, 59 F.3d 274, 277 (1st Cir. 1995) (“We are unwilling to
adopt a blanket rule that qualified expert testimony on eyewitness identification must routinely be
admitted or excluded.”); United States v. Serna, 799 F.2d 842, 850 (2d Cir. 1986) (reviewing
decision to exclude expert testimony for abuse of discretion), abrogated on other grounds by United
States v. DiNapoli, 8 F.3d 909, 914 n.5 (2d Cir. 1993) (en banc); United States v. Stevens, 935 F.2d
1380, 1400-01 (3d Cir. 1991) (holding that it was an abuse of discretion to prohibit expert
testimony); United States v. Harris, 995 F.2d 532, 534-35 (4th Cir. 1993) (discussing circumstances
in which it may be an abuse of discretion to exclude expert testimony); United States v. Moore, 786
F.2d 1308, 1312-13 (5th Cir. 1986) (reviewing for abuse of discretion); United States v. Smithers,
212 F.3d 306, 317 (6th Cir. 2000) (“[E]xpert testimony should be admitted . . . when there is no
other inculpatory evidence presented against the Defendant with the exception of a small number of
eyewitness identifications.”); United States v. Hall, 165 F.3d 1095, 1106 (7th Cir. 1999) (reviewing
for abuse of discretion); United States v. Blade, 811 F.2d 461, 465 (8th Cir. 1987) (same); United
States v. Rincon, 28 F.3d 921, 926 (9th Cir. 1994) (emphasizing that decision to admit or exclude
expert testimony requires “an individualized inquiry” in each case); United States v. Rodriguez-
Felix, 450 F.3d 1117, 1124 (10th Cir. 2006) (reviewing for abuse of discretion and noting that “[t]he
majority of other circuits also reject per se exclusion of this type of expert testimony.”).
       2
         See George Vallas, A Survey of Federal and State Standards for the Admission of Expert
Testimony on the Reliability of Eyewitnesses, 39 Am. J. Crim. L. 97, app. B (2011) (reporting that
only five states–Kansas, Louisiana, Nebraska, Oregon, and Pennsylvania–continue to hold that
expert testimony is per se inadmissible, whereas the vast majority of states review the exclusion of
expert eyewitness testimony under some form of abuse of discretion standard).

                                                 3
evidentiary ruling in a trial, especially in light of what we know today, thirty years

later, about eyewitness identification. Our continued adherence to a rule that

disfavors this form of testimony is indefensible in light of the science supporting

its usefulness. Our doing so is particularly unjustifiable given that we do review

the exclusion of polygraph evidence,3 which is widely condemned as unreliable by

courts and experts!4

       Dwight Owens was convicted of armed robbery based on the identifications

of the victims who picked him out of a photographic lineup. The court excluded

expert testimony about scientific evidence that undermined confidence in the

witnesses’ ability to correctly perceive and recall the appearance of the robbers.

This court held that it was barred from reviewing the decision to exclude the

expert’s testimony by our precedent in United States v. Thevis, 665 F.2d 616 (11th

Cir. 1982).

       Thevis was decided on the premise that “the problems of perception and

memory can be adequately addressed in cross-examination and . . . the jury can


       3
         See, e.g., United States v. Henderson, 409 F.3d 1293, 1301-04 (11th Cir. 2005) (reviewing
decision to exclude polygraph evidence for abuse of discretion under the analysis prescribed in
United States v. Piccinonna, 885 F.2d 1529, 1536 (11th Cir. 1989) (en banc)).
       4
          See United States v. Scheffer, 523 U.S. 303, 309-10 (1998) (“To this day, the scientific
community remains extremely polarized about the reliability of polygraph techniques. . . . This lack
of scientific consensus is reflected in the disagreement among state and federal courts concerning
both the admissibility and the reliability of polygraph evidence.”).

                                                 4
adequately weigh these problems through common-sense evaluation.” Thevis, 665

F.3d at 641. In the thirty years subsequent to Thevis, however, over two-thousand

studies on eyewitness memory have been published making clear that the premise

of Thevis does not justify a categorical rule of non-review.5 Indeed, the U.S.

Supreme Court recently cited the use of expert testimony in state courts as an

important “safeguard” against unreliable identifications. See Perry v. New

Hampshire, 132 S. Ct. 716, 729 (2012). The ten other circuits and forty-two state

courts6 that disagree with our approach have recognized that expert testimony can

be helpful to the jury precisely because “the conclusions of the psychological

studies are largely counter-intuitive, and serve to ‘explode common myths about



       5
           Report of the Special Master at 9, New Jersey v. Henderson, 27 A.3d 872 (N.J. 2011)
[hereinafter Special Master Rpt.] (reporting a “high degree of consensus” in the “over two thousand
studies on eyewitness memory [that] have been published in a variety of professional journals over
the past 30 years”). In 2009, the Supreme Court of New Jersey ordered that a plenary hearing be
held before a Special Master “to consider and decide whether the assumptions and other factors
reflected in [Manson v. Brathwaite, 432 U.S. 98 (1977)] . . . remain valid and appropriate in light
of recent scientific and other evidence” regarding the reliability of eyewitness identifications.
Special Master Rpt. at 3 (internal quotation marks omitted). At a ten-day hearing participated in by
the defendant, the State of New Jersey, the Innocence Project, and the Association of Criminal
Defense Lawyers of New Jersey, the Special Master received testimony from seven experts in the
fields of psychology, law, and law enforcement, and reviewed “[m]ore than 200 published scientific
studies, articles and books” selected from the extensive literature and entered in the record. Id. The
Supreme Court of New Jersey adopted the Special Master’s Report and revised the State’s
procedures for testing the reliability of eyewitness identifications under Manson to reflect the
scientific advances discussed in the Report. See Henderson, 27 A.3d at 919-926.
       6
         See Vallas, supra note 2, app. B (listing state courts that have adopted discretionary
standards for admitting expert testimony on eyewitness identifications).

                                                  5
an individual’s capacity for perception.’” United States v. Moore, 786 F.2d 1308,

1312 (5th Cir. 1986) (quoting United States v. Smith, 736 F.2d 1103, 1105 (6th

Cir. 1984)).

       This overwhelming body of scientific research, which has “established

beyond any doubt that eyewitness testimony has the potential to be dangerously

unreliable,” and that “eyewitness misidentification remains the leading cause of

false convictions in the United States,”7 was unavailable when Thevis was

decided. The unreliability of eyewitness testimony is now widely recognized in

the psychological literature and by law enforcement.8 Studies conducted in both

experimental and real-world settings have revealed eyewitness misidentification

       7
           Id. at 98.
       8
          See Brandon L. Garrett, Convicting the Innocent: Where Criminal Prosecutions Go Wrong
48-49 (2011) (discussing criticism of eyewitness identification procedures in psychological
literature); Special Master Rpt. at 51-58 (surveying responses of law enforcement agencies and
organizations to psychology studies); Tanja Rapus Benton et al., Eyewitness Memory is Still Not
Common Sense: Comparing Jurors, Judges and Law Enforcement to Eyewitness Experts, 20 Applied
Cognitive Psychol. 115, 115 (2006) (observing that “eyewitness identification errors are the principal
cause of wrongful convictions in the United States” and citing additional studies); Gary L. Wells et
al., Eyewitness Identification Procedures: Recommendations for Lineups and Photo Spreads, 22 Law
& Hum. Behav. 603, 605 (1998) (“[E]yewitness identification evidence is among the least reliable
forms of evidence and yet is persuasive to juries.”). In recognition of the threat posed by biased
lineup procedures to the accuracy of eyewitness identifications, the Florida Department of Law
Enforcement recently required all state and local law enforcement agencies to adopt policies intended
to address many of the flaws in lineup identifications that have been demonstrated in the psychology
literature. See Florida Dep’t of Law Enforcement et al., Standards for Florida State and Local Law
Enforcement Agencies in Dealing With Photographic or Live Lineups in Eyewitness Identification
3 (June 15, 2011), available at
http://www.fdle.state.fl.us/Content/getdoc/327876c5-0464-4ecb-832a-79962c5e09a9/Guidelines
EyewitnessID.aspx (last visited June 4, 2012).

                                                  6
rates varying between one-quarter and one-half of all identifications, depending on

the factors being tested. See Special Master Rpt. at 15-18. At the same time,

jurors remain uninformed of these causes of eyewitness errors and therefore are

unable to evaluate their impact on the reliability of eyewitness testimony.9

        These studies have also undermined the notion that cross examination is an

effective instrument to educate the jury about the limitations of eyewitnesses’

capacity to make accurate identifications. Witnesses are often unaware of the

contextual factors that may have skewed their perception toward identifying a

particular suspect as the culprit and therefore are unable to explain the influence of

these factors to the jury on cross examination.10 Even when eyewitnesses are

subjected to intensive cross examination about the circumstances surrounding




       9
         See Benton et al., supra note 8, at 119-20 (reporting results of survey finding that jurors and
experts agreed on the influence of tested factors in only 13% of issues surveyed); Saul M. Kassin &
Kimberly A. Barndollar, The Psychology of Eyewitness Testimony: A Comparison of Experts and
Prospective Jurors, 22 J. of Applied Soc. Psychol. 1241, 1245 (1992) (reporting significant
disagreement between scientific opinion and lay witness opinion about factors affecting eyewitness
identification accuracy in 13 of 21 areas tested); see also Vallas, supra note 2, at pt. III.F (reporting
findings from additional studies).
       10
           See Gary L. Wells & Lisa E. Hasel, Eyewitness Identification: Issues in Common
Knowledge and Generalization, in Beyond Common Sense: Psychological Science in the Courtroom
170 (Eugene Borgida & Susan T. Fiske, eds., 2008) (“[P]eople do not have the kind of introspective
access that would permit reliance on their response to such questions [about the reliability of their
identifications.] People often report that a variable did not influence them when it actually did, as
well as reporting that a variable influenced them when it actually did not.”).

                                                   7
their identifications, research has shown only a marginal improvement in jurors’

ability to distinguish erroneous identifications from accurate ones.11

       The scientific literature in this field has demonstrated that expert testimony

is especially valuable in cases where the eyewitness identification has been

influenced by one of several factors that undermine accuracy and these factors are

typically unknown to jurors and cannot be explained through examination of a lay

witness. See United States v. Rodriguez-Felix, 450 F.3d 1117, 1125 (10th Cir.

2006) (“[A]n expert’s testimony describing how certain factors, falling outside a

typical juror’s experience, may affect a eyewitness’s identification is the very type

of scientific knowledge to which Daubert’s relevance prong is addressed.”);

United States v. Stevens, 935 F.2d 1380, 1400 (3d Cir. 1991) (reversing where

misidentification was the key issue at trial and expert’s proposed testimony was

outside the realm of typical juror knowledge); United States v. Moore, 786 F.2d

1308, 1313 (5th Cir. 1986) (“In some cases casual eyewitness testimony may make



       11
          Jennifer L. Devenport & Steven D. Penrod, Eyewitness Identification Evidence: Evaluating
Commonsense Evaluations, 3 Psychol. Pub. Pol’y & L. 338, 348 (1997) (reporting that, in a study
of 201 mock jurors evaluating the accuracy of identifications by forty-two eyewitnesses, only 27%
were able to identify the inaccurate identifications when those witnesses were exposed to leading
cross examination, as opposed to 14% who were able to identify when exposed to non-leading cross
examination); see also Garrett L. Berman & Brian L. Cutler, Effects of Inconsistencies in Eyewitness
Testimony on Mock-Juror Decision Making, 81 J. Applied Psychol. 170, 174-75 (1996) (reporting
that there is little correlation between the existence of inconsistencies in witnesses’ testimony that
might be exposed on cross examination and the accuracy of their identifications).

                                                  8
the entire difference between a finding of guilt or innocence. In such a case expert

eyewitness identification testimony may be critical.”); United States v. Smith, 736

F.2d 1103, 1106 (6th Cir. 1984) (recognizing that expert testimony on eyewitness

identification “might have refuted [jurors’] otherwise common assumptions about

the reliability of eyewitness identification”). In such cases, “[i]t will not do to

reply that jurors know from their daily lives that memory is fallible. The question

that social science can address is how fallible, and thus how deeply any given

identification should be discounted.” United States v. Bartlett, 567 F.3d 901, 906

(7th Cir. 2009).

      Many of the characteristic flaws of eyewitness identification that can be

highlighted and explained only by an expert are implicated in this case. For

example, Owens’ conviction depended heavily upon the eyewitnesses’

identification of him in a photo array conducted by an officer who was involved in

the investigation as opposed to one conducted by an officer without knowledge of

the suspect’s identity. According to a “broad consensus” in the scientific

literature, “the reliability of eyewitness testimony is highly dependent on the

police procedures used in conducting lineups.” Special Master Rpt. at 19. When

the lineup or photo array administrator knows who the suspect is, it is virtually

inevitable that the administrator’s behavior will influence the witness’s choice in

                                           9
making an identification. See New Jersey v. Henderson, 27 A.3d 872, 896 (N.J.

2011) (citing analysis of 345 studies concluding that “[t]he overall probability”

that administrator expectations do not influence the subject “is near zero”). Thus,

the rate of accurate identifications in comparison to inaccurate identifications

doubles when a blind procedure is used instead of a non-blind identification.

Special Master Rpt. at 20-21. Despite the strength of the lineup administrator’s

influence, “neither the administrator nor the witness is ordinarily aware of either

the unintentional suggestions or their impact; accordingly, neither is in position to

report or dissipate the taint.” Id. at 20.

      Contrary to our assumptions in Thevis, it is not a subject of everyday

knowledge that “even the best-intentioned[] non-blind administrator can act in a

way that inadvertently sways an eyewitness.”12 See generally John S. Shaw et al.,

A Lay Perspective on the Accuracy of Eyewitness Testimony, 29 J. of Applied

Soc. Psychol. 52, 65 (1999) (reporting that jury-eligible research subjects tend to

be less aware of biasing effects of police activity than contextual influences). But

the biasing effects of non-blind lineup administration cannot be exposed on cross

examination because both the witness and the administrator are often unaware that

these cues have been given. See Henderson, 27 A.3d at 896-97 (citing studies).

      12
           Henderson, 27 A.3d at 897.

                                             10
Nor is a non-expert witness qualified to testify to the impact of these cues, even if

the witness is aware of them.

      Indeed, in Owens’ case, there was evidence of overt biasing signals.

Instructing the witness to “pick one” of the photographs from a lineup, as was

done in this case, has been shown to encourage witnesses to assume that the police

have arrested the actual perpetrator and that it would be incorrect to respond that

they do not recognize any of the individuals in the lineup. See Brandon L. Garrett,

Convicting the Innocent: Where Criminal Prosecutions Go Wrong 60 (2011).

      The initial description given to the police by one of the eyewitnesses in

Owens’ case differed substantially from the description given during a suppression

hearing conducted after the eyewitness had identified Owens. The change in the

witness’s description of the perpetrator before and after seeing Owens implies the

effect of what researchers refer to as “confirmatory feedback,” which is the

process by which a witness’s memory of an event changes to conform to

suggestions made after witnessing the event. See Special Master Rpt. at 37

(discussing various examples of this effect); Henderson, 27 A.3d at 253-54. The

literature suggests that such a change could be caused by the witness viewing a




                                          11
suspect’s image in a photo array.13 However, this phenomenon cannot be

explained by cross examining a lay witness, nor is it a matter of common intuition

that viewing the suspect’s image in more than one photo array can distort an

eyewitness’s actual memory of events.

       Moreover, the robber whom the witnesses later identified as Owens

brandished and fired a weapon during the course of the robbery, which was, by all

accounts, a high-stress experience for both witnesses.14 Both the high levels of

stress experienced by the witnesses and the display of a weapon tend to undermine

the accuracy of an eyewitness’s identification. Although jurors may believe, and

prosecutors may argue, that a witness to a traumatic event will “never forget the

face” due to the trauma the witness experienced, high levels of stress actually

undermine the witness’s ability to record and recall accurate memories of crime-

related details. See Henderson, 27 A.3d at 904. The problem is exacerbated when

the perpetrator brandishes a weapon because the weapon “diverts a witness’s


       13
           This type of feedback also inflates a witness’s confidence in the accuracy of his or her
identification. Although there is widespread agreement among psychologists that confidence is not
an indicator of accuracy, lay jurors tend to believe just the opposite. See Benton et al., supra note
8, at 119-20 (reporting disagreement between psychologists and sampled lay jurors); see also Kassin
& Barndollar, supra note 8, at 1245 (same).
       14
          After one of the robbers fired a gun into the air, one witness was grabbed by one of the
robbers and both witnesses were forced to kneel on the ground. The robbers fled the store after
taking money from the cash register and several items on display in the store. See United States v.
Owens, No. 10-15877, slip op. at 6-7 (11th Cir. Oct. 13, 2011).

                                                 12
attention away from the face of the perpetrator and reduces the witness’s ability to

encode, describe and identify the face.” Special Master Rpt. at 44; see also

Garrett, supra note 8, at 72 (discussing effect of weapon focus in exoneration

cases). The effect of a brandished weapon is particularly pronounced in crimes of

short duration, such as the robbery of which Owens was convicted. See Special

Master Rpt. at 44. Moreover, most jurors remain unaware that the presence of a

weapon, by itself, reduces the chances of an accurate identification. See Benton et

al., supra note 8, at 120 (reporting that only 39% of sampled jurors understood the

effect of weapon focus). But without expert testimony, the jurors in Owens’ trial

remained unable to consider whether these significant perceptual limitations may

have affected the accuracy of the eyewitnesses’ identifications.

      In short, scientific research reveals that, in particular circumstances, an

eyewitness’s testimony suffers from intrinsic flaws that are unknown to most

jurors and undetectable through the typical modes of examining lay witnesses.

Accordingly, our assumptions in Thevis that “the problems of perception and

memory can be adequately addressed in cross-examination and . . . the jury can

adequately weigh these problems through common-sense evaluation” no longer

support a categorical exemption from appellate review. Thevis, 665 F.2d at 641.




                                          13
      Although the majority of trial judges have recognized the value of expert

testimony on the reliability of eyewitness identification and permit it where useful,

our court has not revised its isolated position today prohibiting review of the

exclusion of such testimony even when it constitutes an abuse of discretion. I

believe en banc review is warranted to restore appellate consideration and ensure

the fairness and reliability of our trial procedures in this important context.




                                          14
