           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206
        ELECTRONIC CITATION: 2000 FED App. 0160P (6th Cir.)
                    File Name: 00a0160p.06


UNITED STATES COURT OF APPEALS
                  FOR THE SIXTH CIRCUIT
                    _________________


                                  ;
                                   
 UNITED STATES OF AMERICA,
                                   
           Plaintiff-Appellee,
                                   
                                   
                                      No. 98-1722
           v.
                                   
                                    >
 JAMES SMITHERS,                   
         Defendant-Appellant. 
                                  1
      Appeal from the United States District Court
     for the Eastern District of Michigan at Detroit.
      No. 97-80248—Avern Cohn, District Judge.
                    Argued: August 6, 1999
                Decided and Filed: May 8, 2000
    Before: BATCHELDER and COLE, Circuit Judges;
              MARBLEY, District Judge.*
                      _________________
                            COUNSEL
ARGUED:      Andrew N. Wise, FEDERAL PUBLIC
DEFENDERS OFFICE, Detroit, Michigan, for Appellant.
Kathleen Moro Nesi, ASSISTANT UNITED STATES

    *
     The Honorable Algenon L. Marbley, United States District Judge for
the Southern District of Ohio, sitting by designation.

                                  1
2    United States v. Smithers                  No. 98-1722

ATTORNEY, Detroit, Michigan, for Appellee. ON BRIEF:
Andrew N. Wise, FEDERAL PUBLIC DEFENDERS
OFFICE, Detroit, Michigan, for Appellant. Kathleen Moro
Nesi, ASSISTANT UNITED STATES ATTORNEY, Detroit,
Michigan, for Appellee.
  MARBLEY, D. J., delivered the opinion of the court, in
which COLE, J., joined. BATCHELDER, J. (pp. 21-46),
delivered a separate dissenting opinion.
                    _________________
                        OPINION
                    _________________
  ALGENON L. MARBLEY, District Judge. Appellant
James Smithers was convicted of bank robbery in violation of
18 U.S.C. § 2113(a). Smithers now appeals various aspects
of his trial, including the district court’s exclusion of the
testimony of an eyewitness identification expert, the
limitation of Smithers’s wife’s testimony, and the district
court’s response to questions posed by the jury after it began
deliberating. For the following reasons, we REVERSE the
conviction below and REMAND this case for a new trial
pursuant to the law set forth herein.
                             I.
  On the morning of November 12, 1996, a man walked into
the Monroe Bank and Trust in Terence, Michigan, and
presented bank teller Teresa Marino a note. The note read, “I
have a gun. Give me your large bills.” Ms. Marino complied
with the demand by turning over the money from her teller
drawer. The robber asked for more money, and Ms. Marino
unlocked her other drawer and gave him three packs of large
bills totaling $3,400. When the robber repeated his demand
for more money, Ms. Marino told him that was all she had,
and he ran from the bank. The entire incident lasted about
two minutes.
46    United States v. Smithers                    No. 98-1722      No. 98-1722                    United States v. Smithers      3

  understanding but for the particularized resolution of               Two other witnesses observed the robbery. The first, Debra
  legal disputes.                                                   White, was also working as a teller at the bank on November
                                                                    12, 1996. She was sitting at a desk behind Ms. Marino when
509 U.S. at 596-97. I fear that the majority’s opinion here         she noticed an unfamiliar customer standing at Ms. Marino’s
will only undermine the balance between truth-seeking and           teller station. Ms. White looked away for a moment and
fairness that the Rules have so carefully crafted, without          when she looked back, the man grabbed the money and
adding much at all to the efficacy—at least in this circuit—of      walked quickly out of the bank. Ms. White asked Ms. Marino
criminal justice. Indeed, the majority here holds that “Expert      if she had been robbed. Learning that she had, Ms. White
testimony regarding eyewitness identification must be               yelled that they had been robbed and went to lock the bank
recognized as scientifically commensurate with all other            doors. While doing so, she observed the robber getting into
psychological studies, and may often be a valid source of           the passenger side of a car parked in the parking lot.
information to help jurors understand the factors that effect
[sic] eyewitness identifications.” The effect of the majority’s       Timothy Wilson, the second witness, was a bank customer
opinion is to establish the district court as the gatekeeper with   who walked into the bank at the same time as the robber. The
discretion only to admit, but not to exclude, expert testimony      robber held the door open for him as they both entered the
relative to eyewitness identification.                              building. Mr. Wilson saw the robber go straight to the teller
                                                                    and then leave the bank quickly.
  For all of the foregoing reasons, I respectfully dissent.
                                                                       Investigators from the Monroe County Sheriff’s
                                                                    Department spoke to the witnesses that day. Ms. Marino,
                                                                    who was approximately three feet from the robber, described
                                                                    him as a white male in his late twenties wearing a Nike jacket,
                                                                    baseball cap and sunglasses, over 6' 2" tall, 180-185 pounds,
                                                                    with long bushy dark hair, a moustache and a thin beard. Ms.
                                                                    White described the robber as taller than average, with
                                                                    squinty eyes and wearing a bulky striped jacket. Ms. White
                                                                    described the car as a two-toned brown and black, late 1970's
                                                                    Monte Carlo, with a cream colored landau roof and an Ohio
                                                                    license plate. Mr. Wilson recalled the robber as a very tall
                                                                    man, with a moustache and partial beard, wearing a baseball
                                                                    cap, dark sunglasses and a winter jacket.
                                                                      The next day, officers of the Toledo Police Department
                                                                    noticed a vehicle fitting the description of the car used in the
                                                                    robbery at an apartment complex in Toledo. Monroe County
                                                                    Detective Thomas Redmond drove Ms. White to the vehicle,
                                                                    a 1976 Oldsmobile Cutlass, which she identified as the car
                                                                    used in the robbery. The car was registered to James
                                                                    Smithers.
4    United States v. Smithers                   No. 98-1722      No. 98-1722                     United States v. Smithers      45

   Officers then went to Smithers’s home, where his wife,         to be allowed to testify in every case in which eyewitness
Josette Smithers, informed them that he was at his parents’       testimony is relevant. This would constitute a gross
house. The officers searched Smithers’s apartment but found       overburdening of the trial process by testimony about matters
no incriminating evidence. They located Smithers at his           which juries have always been deemed competent to
parents’ home, and he accompanied the police to his               evaluate”); United States v. Thevis, 665 F.2d 616, 641 (5th
apartment. Smithers told the officers that he bought the          Cir. Unit B 1982) (“To admit such testimony in effect would
vehicle from his brother-in-law, Steve Dallas, who still          permit the proponent’s witness to comment on the weight and
retained a set of keys to the car. Smithers also stated that on   credibility of opponents’ witnesses and open the door to a
the morning of November 12, 1996, he had noticed his rear         barrage of marginally relevant psychological evidence”);
license plate was missing, so he had moved his front plate to     Sabetta, 680 A.2d at 933 (“it would effectively invade the
the rear. He also claimed to have noticed gas missing from        province of the jury and . . . open a floodgate whereby experts
the car on other mornings; later, Smithers said that there was    would testify on every conceivable aspect of a witness’s
a hole in the gas tank. Smithers consented to a search of the     credibility”). The logical conclusion of today’s holding—if
car, which produced no incriminating evidence. Smithers           not its implicit intent—is likely to be precisely this type of
voluntarily went to the sheriff’s department where he             snowball effect in our circuit.
provided handwriting samples and was photographed and
fingerprinted. When photographing him, Detective Redmond            Acutely aware of the dangers of permitting expert
noted Smithers’s height as 6' 6 ½".                               testimony without a rigorous performance of the gatekeeping
                                                                  function, Daubert observed:
  Detective Redmond prepared a photo spread of six
photographs, including a photo of Smithers. On November             It is true that open debate is an essential part of both legal
14, 1996, Detective Redmond showed the photo spread to Ms.          and scientific analyses. Yet there are important
Marino, Mr. Wilson and Ms. White. Ms. Marino and Mr.                differences between the quest for truth in the courtroom
Wilson could not identify the robber from the photo spread.         and the quest for truth in the laboratory. Scientific
Ms. White picked out Mr. Smithers. Immediately after her            conclusions are subject to perpetual revision. Law, on
identification, Ms. White told Ms. Marino that she had been         the other hand, must resolve disputes finally and quickly.
able to identify the robber from the photo spread.                  The scientific project is advanced by broad and
                                                                    wide-ranging consideration of a multitude of hypotheses,
  Smithers’s handwriting exemplars were submitted to the            for those that are incorrect will eventually be shown to be
FBI laboratory for analysis. The results were inconclusive.         so, and that in itself is an advance. Conjectures that are
The demand note was submitted to the Michigan State Police          probably wrong are of little use, however, in the project
Laboratory for fingerprint analysis. The analysis produced          of reaching a quick, final, and binding legal
one identifiable print. The government claims the print was         judgment--often of great consequence--about a particular
inconclusive; Smithers claims the analysis showed that the          set of events in the past. We recognize that, in practice,
print did not belong to him.                                        a gatekeeping role for the judge, no matter how flexible,
                                                                    inevitably on occasion will prevent the jury from learning
  Peter Smith, an FBI examiner who specializes in analyzing         of authentic insights and innovations. That, nevertheless,
exhibits in photographic form, performed a height analysis of       is the balance that is struck by Rules of Evidence
the robber depicted in the bank videotape. Mr. Smith                designed not for the exhaustive search for cosmic
concluded that the robber measured approximately 6' 5". Mr.
44   United States v. Smithers                   No. 98-1722      No. 98-1722                   United States v. Smithers      5

Fulero’s exclusion lies not with the district court’s legal       Smith also conducted a comparative analysis of the robber in
analysis but with Smithers’s inadequate production.               the bank photos with a photograph of Smithers. He could
                                                                  neither positively identify nor eliminate Smithers as the bank
   The cases holding that expert testimony regarding              robber.
eyewitness identification is too general and those finding that
it comments too directly on witness credibility delimit the         On June 16, 1997, a grand jury returned an indictment
narrow range of circumstances in which this testimony is          charging Smithers with one count of bank robbery in violation
properly admissible. Unless a very small number of                of 18 U.S.C. § 2113(a).
eyewitness identifications form the only evidentiary basis for
a conviction, and the proffered testimony relates directly to        On December 18, 1997, Smithers filed a ten-page motion
the facts of the case without commenting on the eyewitnesses’     in limine to determine the admissibility of certain expert
credibility, the need for this testimony will simply not be so    testimony regarding eyewitness testimony. The district court
great that alternative means of cautioning the jury on this       commenced Smithers’s jury trial on January 14, 1998. After
subject will not suffice. See, e.g, Rincon, 28 F.3d at 923-26.    the jury was empaneled, the district court heard argument on
The existence of other inculpatory evidence will usually          Smithers’s motion in limine, and denied the motion, noting
render any error in excluding the expert testimony harmless.      that everything an expert would have to say about eyewitness
See Smith, 736 F.2d at 1107; Hall, 165 F.3d at 1107-08;           identification was within the jury’s "common knowledge"
Smith, 156 F.3d at 1053-54; Blade, 811 F.2d at 465; Moore,        The court stated that it would give an instruction on
786 F.2d at 1313. Here, the fact that three witnesses             eyewitness testimony.       Smithers's attorney requested
identified Smithers adds to the probability of their accuracy.    permission to make a written proffer, which the court
Moreover, the Government presented the identification of          allowed.
Smithers’s car at the bank, the photo analysis showing that
Smithers and the robber shared the rare characteristic of being     The government presented its case, including eyewitness
over 6’5” tall, and a series of lies Smithers told police         testimony from Ms. Marino, Ms. White and Mr. Wilson.
regarding his whereabouts. While this is not overwhelming         Despite their prior inability to identify Smithers from a photo
evidence, it does alleviate considerably any concern that         spread, Ms. Marino and Mr. Wilson identified Smithers as the
Smithers was convicted solely on the basis of erroneous           robber in court. Ms. Marino and Ms. White testified that they
eyewitness testimony.                                             did not notice that the robber had any distinguishing features.
                                                                  The government rested on January 16, 1998.
   The various failings in Fulero’s proposed testimony
accentuate the jurisprudential danger posed by the majority’s       Smithers filed his renewed motion in limine and offer of
opinion. Its tangible eagerness to find that the district court   proof, regarding expert testimony, on eyewitness
abused its discretion in excluding this testimony is likely to    identification on January 20, 1998. This proffer described the
set a precedent requiring admission of evidence tending to        anticipated testimony of Dr. Solomon Fulero, a proposed
erode further the jury’s responsibility for making credibility    expert on eyewitness identification. It noted that Dr. Fulero
determinations. Other courts have recognized this danger and      would “educate the jury about the general factors that may
steered clear of it. See, e.g., Alexander, 816 F.2d at 169        affect eyewitness accuracy,” including the specific the issues
(“Requiring the admission of the expert testimony proffered       of: (1) “detail salience” (the fact that eyewitnesses tend to
in Moore would have established a rule that experts testifying    focus on unusual characteristics of people they observe); (2)
generally as to the value of eyewitness testimony would have      the relationship between the time that has passed since
                                                                  observing the event and the accuracy of recalling it; (3) the
6      United States v. Smithers                  No. 98-1722      No. 98-1722                    United States v. Smithers     43

effect of post-identification events on memory; (4) the fact       our legal system is the sole province of the jury. See
that when one person both prepares and administers a photo         Greenwell, 184 F.3d at 496; Gacy, 994 F.2d at 313-14;
spread, the likelihood of misidentification increases; (5) the     Murrian, supra, at 380. As illustrated above, a number of
“conformity effect” (the fact that witnesses’ memories are         courts have cited this tenet as a basis for excluding eyewitness
altered by talking about the event with each other after it        identification experts. That threat was also present in this
occurs); and (6) the relationship between a witness’s              case, as the majority points out, because Dr. Fulero proposed
confidence in her recollection and its accuracy. Regarding the     to testify, among other things, that the eyewitnesses “would
issue of detail salience, the proffer stated that “[h]ad Mr.       have observed and been able to recall the large scar on Mr.
Smithers been the robber, the eyewitnesses would have              Smithers’ neck. That deformity would have been more
observed and been able to recall the large scar on Mr.             memorable to the witnesses.” The majority opinion says that
Smithers’ [sic] neck.”                                             the solution to this admittedly inadmissible testimony is
                                                                   simply to excise the offending language. This ignores the fact
  After hearing oral argument on the Defendant’s renewed           that at the second hearing, Smithers identified the scar as “the
motion, the district court ruled that it would exclude the         key issue that [Fulero] would address.” Removing this aspect
expert testimony:                                                  of Fulero’s testimony would gut the remainder of the
                                                                   majority’s reasoning as to why Fulero’s testimony should
    [p]rimarily because it’s late in the day. It should have       have been admitted. Nor is this one sentence the only
    been done much earlier. On the other hand, I think             example of how Fulero’s testimony would have stepped over
    you’ve got a very good, if there’s a conviction, I think       the line. Smithers argued in his renewed motion that “Fulero
    you’ve made an excellent record that I’ve abused my            would testify regarding the perception of the bank robber by
    discretion in failing to allow it, and I think there’s a       [the witnesses] and how [various factors] are directly related
    certain – I prefer to see it that way.                         to the accuracy of their identification testimony.” (emphasis
                                                                   added). Again: “Fulero would thus testify that the photo
The court also opined that Dr. Fulero’s testimony was “not a       spread procedures, and the witness’ numerous meetings with
scientifically valid opinion,” “a jury can fully understand that   the police, FBI, and each other, would have directly
its [sic] got an obligation to be somewhat skeptical of            influenced the witness’ ability to recall the particular
eyewitness testimony,” and “admission of Dr. Fulero’s              characteristics of the bank robber with any degree of
testimony is in this case is almost tantamount to the Court        accuracy.” (emphasis added). Other portions of the motion
declaring the defendant not guilty as a matter of law. . . .       are phrased in a more appropriate form, indicating that Fulero
[A]bsent the eyewitness testimony I don’t think there’s            would testify to research data as it relates to particular
enough here to go to the jury.” Finally, the district court        conditions experienced by the witnesses, leaving the
remarked, “I’m also interested in seeing what a jury will do       application of that information to counsel and the jury. But
absent that expert testimony. It makes it a more interesting       these examples more than adequately justify the district
case. I recognize it’s the defendant’s fate that’s at stake, but   court’s conclusion that Fulero (who, incidentally, is also an
you can always argue for a new trial if he’s convicted.”           attorney) would have acted as more of an advocate than a
                                                                   scientific expert in this case. The majority’s decision merely
  After this ruling, Smithers presented a few witnesses,           to excise the offending portions of the testimony not only
including his wife, who attempted to establish an alibi            leaves very little testimony that is even arguably relevant, but
defense. Ms. Smithers testified that Smithers was sleeping in      relieves Smithers of his burden of proving that the testimony
their house from 3:00 a.m. to 11:30 a.m. the morning of            he proffered is admissible. Once again, the blame for
November 12, and that as a light sleeper she would have
42   United States v. Smithers                    No. 98-1722      No. 98-1722                    United States v. Smithers       7

   The presence of a person labeled an “expert” by the court       heard her husband leave the apartment. Ms. Smithers also
in the witness stand inevitably carries the risk of jurors’        spoke about her husband’s appearance, maintaining that
accepting that person’s testimony as scientifically irrefutable    Smithers weighed 245 pounds in November of 1996, is 6' 8"
truth. This simple fact underlies the special importance given     tall and has a four-inch long scar on the right front side of his
to the court’s gatekeeping function with expert testimony, and     neck.
it is in the majority’s flat rejection of this concept that its
reasoning is the shakiest. In its fifth footnote, the majority       The case was submitted to the jury on January 21, 1998.
observes: “it appears the trial court thought the expert nature    The next day, the jury returned a verdict of guilty. The
of the testimony would unduly impress the jury; this is an         district court sentenced Smithers on June 4, 1998, to a forty-
improper factor upon which to exclude expert testimony, for        one month term of imprisonment. Smithers timely filed a
if this were the test, no expert could ever testify.” While it     notice of appeal on June 8, 1998. Smithers now appeals
may be correct as a hypothetical matter that exclusion of a        various aspects of his trial, only one of which we address
witness solely because he was an expert would be an abuse of       today: the exclusion of Dr. Fulero as an eyewitness expert.
discretion, that is simply not what occurred here. Rather, the
court reasoned that cross-examination and a jury instruction                                     II.
were preferable to permitting the jury to hear testimony that
was only marginally relevant and demonstrably prejudicial to         Generally, a trial court’s evidentiary determinations are
the Government. The court was in good company in this              reviewed for an abuse of discretion. See United States v.
conclusion. Daubert itself observed that “[e]xpert testimony       Moore, 954 F.2d 379, 381 (6th Cir. 1992).
can be both powerful and quite misleading because of the
difficulty in evaluating it. Because of this risk, the judge in       Smithers argues that the district court’s denial of his motion
weighing possible prejudice against probative force under          to introduce testimony by an identification expert warrants the
Rule 403 . . . exercises more control over experts than over       reversal of his conviction. The crucial element of the
lay witnesses.” 509 U.S. at 595. A number of other courts          government’s case was eyewitness identification of the
addressing eyewitness identification expert testimony have         defendant and his car, Smithers argues, and Dr. Fulero’s
explicitly cited the expert’s “aura of reliability” as a           testimony involved a proper subject that would have been
prejudicial factor weighing against its admissibility. See         helpful to the jury in evaluating this issue. Smithers,
Lumpkin, 192 F.3d at 289; Brien, 59 F.3d at 276-77; Blade,         therefore, contends that the decision to exclude this expert’s
811 F.2d at 465; United States v. Purham, 725 F.2d 450, 454        testimony, to indulge the district judge in his rather eccentric
(8th Cir. 1984); Fosher, 590 F.2d at 383-84 (collecting cases      courtroom experiment, was improper. The government
referencing the “aura of reliability”); Downing, 609 F.Supp.       counters that the district court’s decision was well within its
784; United States v. Collins, 395 F.Supp. 629, 636-37 (M.D.       discretion. The district court properly excluded Dr. Fulero’s
Penn. 1975). The majority’s citation-free asseveration on this     testimony, the prosecution argues, based upon its lack of
subject is simply untenable.                                       scientific validity, invasion of the jury’s province, possibility
                                                                   of confusion and the tardiness of Smithers’s proffer.
  Expert testimony on eyewitness identifications can also be
unduly prejudicial when it is phrased so as to comment               Courts' treatments of expert testimony regarding eyewitness
directly on the credibility of the eyewitness. No court in any     identification has experienced a dramatic transformation in
context would allow one witness to testify to the credibility of   the past twenty years and is still in a state of flux. Beginning
another, because assessment of the credibility of witnesses in     in the early 1970's, defense attorneys began to bring expert
                                                                   testimony into the courtroom. Then, courts were uniformly
8     United States v. Smithers                    No. 98-1722      No. 98-1722                    United States v. Smithers      41

skeptical about admitting such testimony, elaborating a host        cross-examination to inquire into the witness’ opportunity for
of reasons why eyewitness experts should not be allowed to          observation, his capacity for observation, his attention and
testify. In the first case to address the issue, United States v.   interest and his distraction or division of attention” (internal
Amaral, 488 F.2d 1148 (9th Cir. 1973), the Ninth Circuit held       quotations and citations omitted)). The witness’s cross-
that the district court did not err in excluding expert testimony   examination testimony can then be framed as the defendant
regarding eyewitness identification because cross-                  chooses in closing argument to maximize its potential to
examination was sufficient to reveal any weaknesses in the          undermine the identification. See Currie, 515 S.E.2d at 339.
identifications. After that decision, a series of cases rejected    What the defendant is unable to establish by these
similar evidence for a variety of reasons. See, e.g., United        means—e.g., the counter-intuitive concept suggested by
States v. Purham, 725 F.2d 450, 454 (8th Cir. 1984) (finding        psychological research that confidence in one’s recollection
the question is within the expertise of jurors); United States      does not necessarily reflect accuracy—can be ably
v. Thevis, 665 F.2d 616, 641 (5th Cir. 1982) (reasoning that        communicated by the court in its jury instructions.
identification was adequately addressed through cross-              Instructions have an advantage over experts in that they can
examination); United States v. Sims, 617 F.2d 1371, 1375 (9th       be informed by advances in social science research while
Cir. 1980) (finding no general acceptance in scientific             communicating only those theories that are relevant to the
community); United States v. Fosher, 590 F.2d 381, 383 (1st         facts of the case, and avoiding the extra delay and expense of
Cir. 1979) (ruling that the testimony would be prejudicial).        producing and rebutting expert testimony, all without the
                                                                    imprimatur of scientific reliability that accompanies expert
   This trend shifted with a series of decisions in the 1980's,     testimony. Certainly the utility of jury instructions in these
with the emerging view that expert testimony may be offered,        situations was aptly demonstrated in this case, where the
in certain circumstances, on the subject of the psychological       district court skillfully addressed Smithers’s concerns by
factors which influence the memory process. See, e.g., United       adopting an instruction specifically tailored to explain the
States v. Moore, 786 F.2d 1308, 1313 (5th Cir. 1986) (finding       possible deficiencies of the identifications in this case. In any
that “[i]n a case in which the sole testimony is casual             event, given the utility of cross-examination and jury
eyewitness identification, expert testimony regarding the           instructions combined, it is little wonder that the vast majority
accuracy of that identification is admissible and properly may      of appellate cases have found the choice of these mechanisms
be encouraged . . . ”); United States v. Downing, 753 F.2d          over expert testimony, even if the expert may have some
1224, 1232 (3d Cir. 1985) (reasoning that “expert testimony         particular insight that would not be otherwise revealed, not to
on eyewitness perception and memory [should] be admitted            be an abuse of the district court’s broad discretion under
at least in some circumstances”); United States v. Smith, 736       Kumho Tire, Daubert, and Rule 702. See Moore, 882 F.2d at
F.2d 1103, 1107 (6th Cir. 1984) (“The day may have arrived,         1110-11; Hall, 165 F.3d at 1107; Smith, 122 F.3d at 1358-59;
therefore, when Dr. Fulero’s testimony can be said to conform       Hicks, 103 F.3d at 847; Kime, 99 F.3d at 884; Ginn, 87 F.3d
to a generally accepted explanatory theory.”). State court          at 370; Rincon, 28 F.3d at 925-26; Jordan, 983 F.2d at 938-
decisions also reflect this trend. See, e.g., State v. Buell, 489   39; Curry, 977 F.2d at 1051; Blade, 811 F.2d at 464-65;
N.E.2d 795 (Ohio 1986) (overruling per se rule and holding          Moore, 786 F.2d at 1311-12; Fosher, 590 F.2d at 382;
expert testimony admissible to inform jury about factors            McClendon, 730 A.2d at 1115-16; McMullen, 714 So.2d at
generally affecting memory process). Indeed, several courts         370; Gaines, 926 P.2d at 662-63; Buell, 489 N.E.2d at 803-
have held that it is an abuse of discretion to exclude such         04; Currie, 515 S.E.2d at 339.
expert testimony. See, e.g., United States v. Stevens, 935 F.2d
1380, 1400-01 (3d Cir. 1991) (reversing and remanding for
40   United States v. Smithers                   No. 98-1722      No. 98-1722                         United States v. Smithers           9

  might help jurors reach better decisions. Juries have a         new trial); Smith, 736 F.2d at 1107 (holding error harmless in
  hard time distinguishing "junk science" from the real           light of other inculpatory evidence); Downing, 753 F.2d at
  thing, but aside from some tinkering with the expert            1232 (holding error harmless in light of other inculpatory
  testimony admitted at trial, this shortcoming has been          evidence); State v. Chapple, 660 P.2d 1208 (Ariz. 1983)
  tolerated. Jurors reach compromise verdicts, although           (reversing and remanding for new trial). This jurisprudential
  they aren't supposed to. Juries return inconsistent             trend is not surprising in light of modern scientific studies
  verdicts, representing irrational behavior or disobedience      which show that, while juries rely heavily on eyewitness
  to their instructions. Juries act in ways no reasonable         testimony, it 1 can be untrustworthy under certain
  person would act. This is the standard for granting             circumstances.
  judgment notwithstanding the verdict in a civil case, or
  acquittal after verdict in a criminal case, or reducing an
                                                                      1
  award of damages, and there are plenty of occasions for               A plethora of recent studies show that the accuracy of an eyewitness
  these post-verdict correctives. Yet for all of this, courts     identification depends on how the event is observed, retained and
  do not discard the premises of the jury system, postulates      recalled. See generally Roger V. Handberg, Expert Testimony on
  embedded in the Constitution and thus, within our legal         Eyewitness Identification: A New Pair of Glasses for the Jury, 32 AM.
                                                                  CRIM. L. REV. 1013, 1018-22 (1995). Memory and perception may be
  system, unassailable. This shows up in a striking fact          affected by factors such as:
  about the Supreme Court's treatment of social science:              (1) the retention interval, which concerns the rate at which a
  of the 92 cases between 1970 and 1988 addressing issues             person’s memory declines over time; (2) the assimilation factor,
  of evidence and trial procedure, not one relied on the              which concerns a witness’s incorporation of information gained
  extensive body of evidence about jurors' conduct.                   subsequent to an event into his or her memory of that event; and
                                                                      (3) the confidence-accuracy relationship, which concerns the
                                                                      correlation between a witness’s confidence in his or her memory
(citations omitted).                                                  and the accuracy of that memory. Other relevant factors include:
                                                                      (4) stress; (5) the violence of the situation; (6) the selectivity of
  No psychological study will ever bear directly on the               perception; (7) expectancy; (8) the effect of repeated viewings;
specific persons making an eyewitness identification in court;        (9) and the cross-racial aspects of identification, that is where
psychological experts will always be forced to extrapolate            the eyewitness and the actor in the situation are of different
from studies done on other people and opine on the relevance          racial groups.
such data might have to the facts at hand. Cross-examination      Alan K. Stetler, Particular Subjects of Expert and Opinion Evidence, 31A
of the identifying witnesses, on the other hand, will always      AM. JUR. Expert § 371 (1989). Accordingly, “a jury should consider
provide more relevant testimony, because by definition the        several factors in judging the accuracy of an eyewitness identification.
inquiry is limited to what the eyewitnesses themselves saw        Social science data suggests, however, that jurors are unaware of several
and experienced. See Smith, 122 F.3d at 1359 (“defendants         scientific principles affecting eyewitness identifications.” Handberg,
                                                                  supra, at 1022. In fact, because many of the factors affecting eyewitness
who want to attack the reliability of eyewitness recollection     impressions are counter-intuitive, many jurors’ assumptions about how
are free to use the powerful tool of cross-examination to do      memories are created are actively wrong. See Downing, 753 F.2d at 1231
so”). Indeed, to a certain extent, lawyers are abdicating their   (finding that “[f]actors bearing on eyewitness identification may be
own roles when they seek to rely on experts instead of cross-     known only to some jurors, or may be imperfectly understood by many,
examination to discredit an eyewitness identification. See        or may be contrary to the intuitive beliefs of most”) (citations omitted).
                                                                       This ignorance can lead to devastating results. One study has
Amaral, 488 F.2d at 1153 (“Our legal system places primary        estimated that half of all wrongful convictions result from false
reliance for the ascertainment of truth on the test of cross-     identifications. See Elizabeth F. Loftus, Ten Years in the Life of an
examination. [...] It is the responsibility of counsel during     Expert Witness, 10 LAW & HUM. BEHAV. 241, 243 (1986) (citing a 1983
                                                                  Ohio State University doctoral dissertation). And “[i]t has been estimated
10     United States v. Smithers                           No. 98-1722        No. 98-1722                   United States v. Smithers     39

   Recognizing the dichotomy between eyewitness errors and                    reconstructionists or DNA experts) typically focus on the data
jurors’ reliance on eyewitness testimony, this Circuit has held               to which the scientific method is applied, which is subject to
that expert testimony on the subject of eyewitness                            objective analysis. The certainty of the testimony of social
identification is admissible. In United States v. Smith, 736                  scientists, however, is limited by the nature of their field.
F.2d 1103 (6th Cir. 1984), this Court held that a trial court                 They typically base their opinions on studies of small groups
abused its discretion in excluding such an expert. In Smith,                  of people under laboratory conditions; those studies are then
the defendant sought to introduce the testimony of                            interpreted and extrapolated to predict the likelihood that
psychologist Solomon Fulero – the same expert Smithers                        another person under similar but non-controlled conditions
attempted to introduce at his trial – as an expert in the field of            will manifest similar behavior.          Each step of this
eyewitness identification to shed light upon an eyewitness’s                  analysis—the choice of sample and control groups, the
testimony. The lower court excluded the testimony, finding                    conditions under which they are observed, the cause and
that it was inadmissible pursuant to Federal Rule of Evidence                 nature of the observed behavior, and the likelihood that the
403. On appeal, this Court applied the four prong test for                    observed behavior will be replicated by a different person in
expert testimony articulated in United States v. Green, 548                   a non-controlled setting—is influenced by the personal
F.2d 1261 (6th Cir. 1977): (1) that the witness, a qualified                  opinion of the individual expert. Nor will there be much
expert, (2) was testifying to a proper subject, (3) which                     similarity between the persons typically studied by social
conformed to a generally accepted explanatory theory, and (4)                 scientists and the witnesses in any given criminal trial. The
the probative value of the testimony outweighed its                           studies are virtually always based on college students or other
prejudicial effect.                                                           readily available test subjects in a controlled environment
                                                                              (which are the most easily measurable), not individuals
                                                                              involved in real world incidents such as actual robbery
                                                                              victims. See, e.g., United States v. Hines, 55 F.Supp.2d 62,
                                                                              72 (D. Mass. 1999) (assessing relevance of studies of college
that more than 4,250 Americans per year are wrongfully convicted due to       students); Brian L. Cutler and Steven D. Penrod, Assessing
sincere, yet woefully inaccurate eyewitness identifications.” ANDRE A.        the Accuracy of Eye-Witness Identifications, in HANDBOOK OF
MOENSSENS ET AL., SCIENTIFIC EVIDENCE IN CIVIL AND CRIMINAL CASES             PSYCHOLOGY IN LEGAL CONTEXTS 193 (R. Bull and D.
§ 19.15, at 1171-72 (4th ed. 1995) (citing United States v. Wade, 388 U.S.
218 (1967)). A principal cause of such convictions is “the fact that, in      Carson ed. 1995) (Attachment E to Smithers’s Motion in
general, juries are unduly receptive to identification evidence and are not   Limine) (“Most of what is known about the psychology of
sufficiently aware of its dangers.” PATRICK M. WALL, EYE-WITNESS              eye-witness memory has been acquired through laboratory
IDENTIFICATION IN CRIMINAL CASES 19 (1965). Many jurists agree that           experiments”). The limits of social science testimony were
eyewitness identifications are the most devastating and persuasive            aptly expressed in Gacy v. Welborn, 994 F.2d 305, 313-14
evidence in criminal trials. See, e.g., Watkins v. Sowders, 449 U.S. 341,
352 (1981) (stating that “[t]here is almost nothing more convincing than      (7th Cir. 1993):
a live human being who takes the stand, points a finger at the defendant,
and says ‘That’s the one!’”) (Brennan, J., dissenting) (citations omitted);     Social science has challenged many premises of the jury
Manson v. Brathwaite, 432 U.S. 98, 120 (1977) (stating that “juries             system. Students of the subject believe, for example, that
unfortunately are often unduly receptive to [identification] evidence”)         jurors give too much weight to eyewitness evidence and
(Marshall, J., dissenting); Hon. D. Duff McKee, Challenge to Eyewitness         not enough weight to other kinds. Still, the ability of
Identification Through Expert Testimony, 35 AM. JUR. POF 3d 1, § 1
(1996) (“Eyewitness testimony may be the least reliable, and yet the most       jurors to sift good evidence from bad is an axiom of the
compelling.”). Jurors tend to overestimate the accuracy of eyewitness           system, so courts not only permit juries to decide these
identifications because they often do not know the factors they should          cases but also bypass the sort of empirical findings that
consider when analyzing this testimony. See Handberg, supra, at 1022.
38     United States v. Smithers                   No. 98-1722      No. 98-1722                   United States v. Smithers     11

announce what facts about the testimony the court would have           Applying that standard, the Court noted that the offered
discovered in a hearing. Instead, we should follow the lead of      testimony would have been based on “a hypothetical factual
our sister circuits which, upon a finding that the district court   situation identical” to the facts of the case and would have
has not assessed an eyewitness identification expert’s              explained: (1) that a witness who does not identify the
relevance in a manner consistent with Rule 702, have                defendant in a first line-up may “unconsciously transfer” his
remanded the matter without further discussion. See, e.g.,          visualization of the defendant to a second line-up and thereby
Hall, 165 F.3d at 1102; United States v. Amador-Galvan, 9           incorrectly identify the defendant the second time; (2) that
F.3d 1414, 1417-18 (9th Cir. 1993); Downing, 753 F.2d at            studies demonstrate the inherent unreliability of cross-racial
1226. I take some comfort in the fact that the majority’s sua       identifications; and (3) that an encounter during a stressful
sponte application of Daubert and glowing praise for                situation decreases the eyewitness’s ability to perceive and
eyewitness identification expert testimony are dicta, since         remember and decreases the probability of an accurate
they exceed the actual holding that the court abused its            identification. See Smith, 736 F.2d at 1105-06. The Smith
discretion. To the extent, however, that the opinion as a           Court held that expert testimony on the reliability of
whole is seen as persuasive authority cementing the already-        eyewitness identification met the “helpfulness” test of Federal
extant impression that our circuit is among the most receptive      Rule of Evidence 702 and therefore had been excluded
to this type of testimony, see Murrian, supra, at 392, it does      improperly at trial. The Court explained that "[i]n reviewing
our jurisprudence a disservice.                                     a 403 balancing, the court must look at the evidence in the
                                                                    light most favorable to the proponent, maximizing its
     III. The Merit of Expert Testimony on Eyewitness               probative value and minimizing its prejudicial effect," id. at
                       Identifications                              1107, and concluded that “[s]uch testimony might have been
                                                                    relevant to the exact facts before the court and not only might
   The trepidation with which nearly all appellate courts have      have assisted the jury, but might have refuted their otherwise
treated this subject is representative of a broader reluctance,     common assumptions about the reliability of eyewitness
which I share, to admit the expert testimony of social              identification.” Id. at 1106. Further, the Smith Court
scientists with the same deference given to the testimony of        expressed its acceptance of psychological studies as a
those in the physical sciences. I do not seek to discredit the      scientifically sound and proper subject of expert testimony,
value of these researchers’ work; the ever-expanding                noting, “[t]he science of eyewitness perception has achieved
psychological disciplines have done much in the past several        the level of exactness, methodology and reliability of any
decades to explode commonly held misconceptions and                 psychological research.” Id. at 1107.
enrich our understanding of human behaviors. As even those
courts most opposed to admitting the testimony in court have          Smith’s conviction was nonetheless affirmed on the ground
acknowledged, those benefits include an enhanced insight            that any error by the district court in excluding the proffered
into the fallibility of eyewitness identification that can inform   testimony was harmless. The Smith Court noted that the
our trial procedures. See, e.g., Hall, 165 F.3d at 1104. The        government had not only presented three witnesses who
difficulty arises in treating psychological theories as if they     identified the defendant as the perpetrator, but that the
were as demonstrably reliable as the laws of physics.               defendant’s palm print was recovered at the scene of the
Conclusions reached by applying the laws of all but the most        crime, thus “wholly discrediting the defendant’s alibi”
theoretical of physical sciences to a particular set of facts are   defense. Id. at 1107-08. Because there was other significant
verifiable through replication; disagreements between dueling       inculpatory evidence, the trial court’s error was deemed
experts in the physical sciences (e.g., accident                    harmless, and the defendant’s conviction was affirmed.
12   United States v. Smithers                    No. 98-1722      No. 98-1722                          United States v. Smithers            37

  Smithers now argues that the proper standard for the             was not indifference to the law, but an assurance that she had
admission of eyewitness expert testimony is that set out in        done well in preserving a record of her objection for appeal.
Smith. We disagree. The significance of Smith in terms of          The observation that admitting Fulero’s testimony would have
evaluating expert testimony is questionable after the landmark     been “tantamount to the Court declaring the defendant not
decision of Daubert v. Merrell Dow Pharmaceuticals, 509            guilty as a matter of law” and that “absent the eyewitness
U.S. 579 (1993). In Daubert, the Supreme Court articulated         testimony I don’t think there’s enough here to go to the jury”
the test that trial courts must use in determining whether         correctly describes the severely prejudicial effect that Fulero’s
scientific evidence and testimony is admissible. According to      testimony likely would have had on the Government’s case.
Daubert, a district court must “ensure that any and all            Finally, the court’s “experiment” remark, while perhaps
scientific testimony or evidence admitted is not only relevant,    inappropriate, was made well after the motion had twice been
but reliable.” Id. at 589. Daubert thus requires trial courts to   denied and was the last statement made on the record before
perform a two-step inquiry. First, the court must determine        Smithers rested his case. It did not form the basis for the
whether the expert’s testimony reflects “scientific                court’s exclusion of Fulero, nor did it prejudice Smithers in
knowledge,” that is, the court must make “a preliminary            any other way. I do not agree that this single comment can
assessment of whether the reasoning or methodology                 justify the majority’s finding of a patent abuse of discretion.
underlying the testimony is scientifically valid and of whether
that reasoning or methodology properly can be applied to the          The majority ultimately concludes that this case must be
facts in issue.” Id. at 592-93. Second, the court must ensure      remanded for 7a new trial that, presumably, will include “a
that the proposed expert testimony is relevant to the task at      Daubert test,” whatever that may be. Were that the extent of
hand and will serve to aid the trier of fact. See id. The          our holding, my difference of opinion with the majority would
Supreme Court referred to this second prong as the “fit”           simply be a disagreement about what Daubert requires and
requirement. See id.                                               how the district court should have proceeded here. But the
                                                                   majority does not stop there. Instead, it proceeds into a
   Citing the concurring opinion of Justice Scalia’s in Kumho      lengthy explanation of what the court might have found had
Tire Co. v. Carmichael, 119 S. Ct. 1167 (1999), the Dissent        it applied Daubert to the majority’s liking. This, in my view,
proclaims that Daubert is not “holy writ” to evaluate              is wholly improper. Not only does this exceed our function
proffered experts under Rule 702. While it is true that the        as an appellate court, but it is anathema to the law that the
Daubert factors “do not constitute a ‘definitive checklist or      majority had theretofore laid out; if the gatekeeping function
test . . . ,’” Kumho Tire, 119 S. Ct. at 1175 (citing Daubert,     is truly in the district court’s discretion and requires a fact-
509 U.S. at 593), the Supreme Court did conclude that “[a]         finding hearing, and the district court in this case has failed to
trial court should consider the specific factors identified in     exercise that discretion as utterly as the majority concludes,
Daubert where they are reasonable measures of the reliability      then surely the record before us is inadequate to permit us to
of expert testimony.” Id. at 1176. The Court also stressed:
  We conclude that Daubert’s general principles apply to               7
  the expert matters described in Rule 702. The Rule, in                 Of course, in order to perform a more detailed inquiry next time, the
  respect to all such matters, ‘establishes a standard of          district court should have the discretion to require Smithers to present his
                                                                   witness for voir dire, or at least to make an effort to present a sufficiently
  evidentiary reliability.’ . . . It ‘requires a valid . . .       detailed proffer in a timely fashion. Unfortunately, the majority’s opinion
  connection to the pertinent inquiry as a precondition to         would appear to curtain that discretion considerably, if, indeed, the
  admissibility.’ . . . And where such testimony’s factual         majority’s opinion leaves any room for the district court to perform any
                                                                   further inquiry at all.
36    United States v. Smithers                    No. 98-1722      No. 98-1722                           United States v. Smithers       13

order to alleviate the genuine concerns that Smithers had             basis, data, principles, methods, or their application are
raised. The majority is resolute in its conviction that the           called sufficiently into question . . . the trial judge must
district court failed to “apply Daubert,” but it fails to explain     determine whether the testimony has ‘a reliable basis in
how that court could have done any better with no more                the knowledge and experience of [the relevant]
information than Smithers provided.                                   discipline.’
  This case presents very few of the “narrow circumstances”         Id. at 1175 (citations omitted) (emphasis added).
identified by other courts in which this kind of expert
testimony can be relevant. See Smith, 156 F.3d 1046, 1052;             The Supreme Court in Kumho indicated that the standards
Harris, 995 F.2d at 535-36. There was no problem of cross-          set forth in Daubert, depending on the “particular
racial identification. The passage of time has been found to        circumstances of the particular case,” id., should be flexibly
be a relevant factor when the recalled event occurred forty         applied. Contrary to the Dissent, the Supreme Court’s
years prior, see Krist v. Eli Lilly and Co., 897 F.2d 293, 297-     reasoning does not indicate that Daubert should be abandoned
98 (7th Cir. 1990), but not when the time lapse was a               totally. This Court finds that in the case sub judice, given the
“routine” one of “merely” six years. See Curry, 977 F.2d at         expert and the testimony that was proffered,    the standards of
1052. Here, the time between the robbery and Ms. White’s            Daubert should have been applied.2
positive identification of Smithers in the photo array was two
days; the time between the robbery and the trial was only one          While it is true that several post-Daubert eyewitness
and a half years. Moreover, although Smithers alleges that          identification cases have found that the exclusion of the
there was an unconscious transference of mistaken                   testimony was not an abuse of discretion, see, e.g., United
identifications among the witnesses, the court explicitly found     States v. Hall, 165 F.3d 1095 (7th Cir. 1999); United States
that all the evidence presented at the hearing appeared to          v. Smith, 156 F.3d 1046 (10th Cir. 1998); United States v.
suggest otherwise.                                                  Smith, 122 F.3d 1355 (11th Cir. 1997); United States v. Kime,
                                                                    99 F.3d 870 (8th Cir. 1996); United States v. Brien, 59 F.3d
   Furthermore, the majority identifies its primary basis for       274 (1st Cir. 1995); United States v. Rincon, 28 F.3d 921 (9th
finding an abuse of discretion as the court’s “experiment”          Cir. 1994), the lesson from these cases is not that expert
comment, explaining that “[b]asing an evidentiary decision on
personal curiosity rather than applicable case law and the
rules of evidence is a patent abuse of discretion.” The fact            2
                                                                            The Dissent finds that the Supreme Court’s Daubert decision is:
that these offhand statements were made is unfortunate. We
review them on the cold record, separated them from their                      [n]ot 'holy writ' that the district court must invoke by
context and texture, including the voice inflection and facial                 name in order to pass our scrutiny.
expressions of their delivery. But the proceedings described        Instead, the Dissent suggests that the district court should have instead
above make it clear that the district court did not base its        relied on a pre-Daubert Third Circuit precedent, United States v. Stevens,
exclusion of Fulero on the sinister whimsy that the majority        935 F.2d 1380 (3d Cir. 1991), and United States v. Downing, 753 F.2d
imputes to it. The statements were made at the close of the         1224 (3d Cir. 1985), as the standard for outlining the steps that Smithers
second hearing, after the court had again denied the motion         should have followed in making his proffer to the Court. Apparently, the
                                                                    Third Circuit has provided what the Dissent characterizes as “holy writ,”
and instead awarded Smithers a strongly worded instruction.         notwithstanding the fact that Stevens and Downing are pre-Daubert
The court’s comment to Smithers’s counsel that she had              authority and that the proffer of testimony that these Third Circuit cases
“made an excellent record that I’ve abused my discretion”           require does not meet Daubert's standard for determining whether
                                                                    scientific evidence is admissible.
14   United States v. Smithers                    No. 98-1722      No. 98-1722                    United States v. Smithers      35

testimony on eyewitness identification is never appropriate;       indeed, is precisely the kind of proceeding that Kumho Tire
rather, the cases indicate that courts must consider whether       expressly gives the district courts the discretion to avoid.
the testimony would be helpful or confusing to the jury. The
cases also discuss whether this type of testimony touched on          The majority acknowledges that although the district court
the “ultimate issue” in the case and therefore usurped the         did not explicitly explain that it was doing so, it did conduct
jury’s role; whether there was other evidence against the          some inquiry into relevance when it decided that the jury was
defendant; and whether the jury could more properly evaluate       aware of its obligation to be skeptical of eyewitness
the reliability of eyewitness testimony through cross-             testimony. The record of the second hearing, however,
examination. In light of these cases, we believe that the          reveals that the district court in fact looked carefully at the
district court should have performed its analysis under the        issue of relevance. Even at this point, Smithers did not make
rule of Daubert, rather than, as Smithers argues, that of Smith.   Dr. Fulero available for voir dire by the Government, but the
In any event, the trial court did not analyze the admissibility    court initiated a lengthy discussion with Smithers’s counsel
of the expert testimony in this case under either of these         on Fulero’s familiarity with the facts of the case, including
cases.                                                             Smithers’s scar, the photo lineup procedure, and the stress of
                                                                   the robbery. These are precisely the questions the district
  We find that the district court abused its discretion in         court needed to ask to determine the relevance and “fit” of
excluding Dr. Fulero’s testimony, without first conducting a       Fulero’s testimony to the particular facts of the case. After
hearing pursuant to Daubert. There are several bases for this      hearing Smithers’s answers, the court concluded that Fulero
conclusion. As a threshold consideration, we address the           would have acted in this case as more of an advocate than a
district court’s “experiment” comment. The district court          neutral, scientific expert—a characterization borrowed from
explained that it was interested in seeing what a jury would do    Rincon. See 28 F.3d at 923. The majority fails to suggest any
absent the expert testimony because it would make the trial        means whatever by which the court could have conducted a
“more interesting.” The district court stated:                     better inquiry under the circumstances. Instead it flatly
                                                                   pronounces that the court’s conclusion was “simply wrong”
  I’m also interested in seeing what a jury will do absent         because it would lead to the “absurd” result of never allowing
  that expert testimony. It makes it a more interesting case.      such expert testimony.
  I recognize it’s the defendant’s fate that’s at stake, but
  you can always argue for a new trial if he’s convicted.             I suspect that the Seventh and Eleventh Circuits might take
                                                                   umbrage at the majority’s characterizing as “absurd,” their
This comment is gamesmanship at its worst and reveals a            strong presumptions against expert testimony regarding
troubling disregard for this Defendant’s rights, relegating        eyewitness identifications, see Hall, 165 F.3d at 1103; Smith,
those rights to mere abstractions. The district court’s            122 F.3d at 1357. More importantly, I think it is the
reasoning that it could indulge in this experiment because         majority’s conclusion that is simply wrong. The majority
Smithers could “always appeal” ironically turned this trial        fails to explain how this extreme result would follow from the
into a laboratory experiment where the judge felt free to play     district court’s observation. Indeed, if the district court meant
with evidentiary variables at the cost of the Defendant’s          flatly to disallow expert testimony concerning eyewitness
rights. Basing an evidentiary decision on personal curiosity       identifications, it would not have gone out of its way at this
rather than on applicable case law and the rules of evidence       hearing to replace sua sponte the pattern jury instruction on
is a patent abuse of discretion.                                   eyewitness identifications to which Smithers had already
                                                                   agreed with what it saw as “a much stronger instruction” in
34    United States v. Smithers                    No. 98-1722      No. 98-1722                    United States v. Smithers      15

28 F.3d 921 (9th Cir. 1994) and our decision in United States         We do not, however, base our decision on the district
v. Smith, 736 F.2d 1103 (6th Cir. 1984) (per curiam). The           court’s “experiment” comment alone. Even without this
Government’s brief went further to explain why the testimony        comment, the district court erred in its evidentiary analysis by
would be unhelpful and prejudicial in this case, and why            failing to apply the Daubert test to the proposed expert
cross-examination and jury instructions would better address        testimony. Although the decision of whether to admit a
Smithers’s concerns. The court demonstrated its reliance on         witness’s testimony is left to the sound discretion of the trial
these briefs when it began the relevant portion of the motion       court, a trial court cannot make an arbitrary decision. When
hearing by noting its belief that the Government’s arguments        a defendant’s liberty is at stake, it is incumbent upon the trial
were persuasive, informing Smithers that he could discredit         court to apply the correct law, follow the appropriate
the eyewitness identifications through cross-examination, and       decision-making steps and articulate the bases upon which its
asking for Smithers’s assistance in choosing an appropriate         decision rests. Here, the district court should have applied the
jury instruction. As recounted above, the court pressed             analytical principles set forth in Daubert, but it did not.
Smithers for additional details on how Fulero’s testimony
would relate to the facts of the case, but no such details were       Under Daubert, a trial court should consider: (1) whether
forthcoming. This left the court with little basis upon which       the reasoning or methodology underlying the expert’s
to conclude that the Government was in error in its contention      testimony is scientifically valid; and (2) whether that
that the testimony would only confuse the jury and invade its       reasoning or methodology properly could be applied to the
province by commenting directly on the credibility of the           facts at issue to aid the trier of fact. The district court, in
witnesses. Whether Smithers was unable to demonstrate the           neglecting to undertake a Daubert analysis, failed to take
relevance of the testimony at this hearing on the first day of      these factors into consideration. Indeed, the district court did
trial or was simply procrastinating, the onus should fall on        not make any determination as to this expert’s scientific
him; the court dealt appropriately with the information and         reasoning or methodology. We find that if the district court
arguments presented to it.                                          had given this issue proper consideration, it may have deemed
                                                                    Dr. Fulero’s testimony scientifically valid.
    The court also acted properly once Smithers—at the close
of his defense—finally proffered the details of Fulero’s               Following Kumho Tire, 119 S. Ct. at 1176, we next
testimony. At one point during the hearing on the renewed           consider the way the district court may have examined the
motion to permit Fulero to testify, the court— addressing the       Daubert factors in the present case. Tellingly, this Court has
prosecutor—explained its reliance on Rincon, and noted,             already accredited Dr. Fulero’s science and methodology. In
consistent with the “reliability” element of Daubert, that “the     Smith, this Court not only noted the jurisprudential movement
good professor in his affidavit and in his background and in        toward admitting psychological studies of eyewitness experts
the literature that was cited to me suggests that the fragility .   in general, but praised the qualifications and scientific
. . of eyewitness testimony has been established scientifically     methods of this same expert witness, Dr. Fulero. In addition,
and that he brings an expertise that may assist the jury.” How      the district court could have concluded that this testimony ––
the majority can hold, in light of this statement and the           describing psychological factors such as detail salience, the
Government’s decision not to challenge Fulero’s competence,         conformity effect, the dynamics of photo identifications and
that “the district court did not make any determination as to       the confidence-accuracy relationships –– could have been
this expert’s scientific reasoning or methodology” is puzzling.     applied to the facts at issue in this case. Information about the
And because reliability was never at issue, any further inquiry     effects of detail salience would bear on the witnesses’ failure
into the reliability of the testimony was unnecessary and,          to notice Smithers’s conspicuous scar; evidence about the
16    United States v. Smithers                     No. 98-1722      No. 98-1722                    United States v. Smithers     33

conformity effect would apply to Ms. Marino’s and Mr.                referenced the decision). Instead, our task is to review the
Wilson’s ability to identify Smithers only after they had            district court’s performance of its gatekeeping function in
spoken with Ms. White; the suggestibility of photo                   light of “the facts of [the] particular case,” Kumho Tire, 119
identifications created and administered by a single person          S.Ct. at 1175 (internal quotations omitted), granting “the trial
would apply to the procedures that Detective Redmond used;           judge [ ] considerable leeway in deciding in [this] particular
and explaining the lack of correlation between confidence and        case how to go about determining whether [this] particular
accuracy would bear upon the credibility of all of the               expert testimony is reliable.” Id. at 1176. In so doing, we
eyewitnesses. Had the district court conducted a proper              must be mindful of the principles behind Daubert, but “the
evaluation of this testimony, we believe it may have found           factors it mentions do not constitute a definitive checklist or
that Dr. Fulero’s testimony met the first requirement of the         test.” Id. at 1175 (internal quotations omitted).
Daubert test.
                                                                        I would hold that the way in which the district court
   The trial court should have next considered whether the           conducted its analysis of the admissibility of Dr. Fulero’s
proposed expert testimony was relevant to the task at hand           testimony was not abusive of the court’s discretion. The core
and would aid the trier of fact. The district court did, to some     holding of the Daubert decision was that admission of expert
extent, discuss this second Daubert prong (even if it did not        testimony is governed by the Federal Rules of Evidence and
explicitly note that it was doing so), by stating that “a jury can   not the theretofore majority rule of “general acceptance” by
fully understand” its “obligation to be somewhat skeptical of        the scientific community. See Daubert, 509 U.S. at 587. The
eyewitness testimony.” This point addresses whether the              primary “locus” of the court’s power to evaluate experts rests
testimony would “aid the trier of fact.” The court’s statement,      in Rule 702. See id. at 589. Rule 702 requires that the
however, is simply wrong, and the district court, on remand,         testimony be reliable and relevant to be admitted. Because
should reconsider this factor. As noted above, jurors tend to        the Government has chosen not to contest Dr. Fulero’s
be unduly receptive to, rather than skeptical of, eyewitness         qualifications as a psychologist or the abstract scientific
testimony. Further, accepting the district court’s analysis that     validity of the studies he proposes to testify from, either at
all jurors are aware of their obligation to be skeptical would       trial or on appeal, we may assume that Smithers has satisfied
lead to absurd results: expert testimony on eyewitness               the reliability requirement. See Greenwell, 184 F.3d at 498.
identification would never be admissible. As demonstrated            Instead, the Government has consistently focused its
by abundant case law, this is not the conclusion that has been       challenge on the relevance aspect of Rule 702, which “further
reached by courts addressing this issue. Today, there is no          requires that the evidence or testimony assist the trier of fact
question that many aspects of perception and memory are not          to understand the evidence or determine a fact in issue. [...]
within the common experience of most jurors, and in fact,            The consideration has been aptly described . . . as one of
many factors that affect memory are counter-intuitive. In            ‘fit.’” ‘Fit’ is not always obvious, and scientific validity for
Smith we recognized the expediency of expert testimony to            one purpose is not necessarily scientific validity for other,
address these complex issues and to inform jurors fully of the       unrelated purposes.” Daubert, 509 U.S. at 591 (internal
issues they must decide.                                             quotations omitted). The district court here examined briefs
                                                                     on the issue from both sides in preparation for the hearing on
  The Dissent counters by arguing that eyewitness                    Smithers’s limine motion. Both briefs recited the applicable
identification experts are not necessary because cross-              factors from Daubert and Rules 702 and 403. Both examined
examination and jury instructions should be the tools used in        the leading cases on this type of testimony, both before and
a trial to discredit and flush-out eyewitness testimony.             after Daubert, focusing especially on United States v. Rincon,
32   United States v. Smithers                   No. 98-1722      No. 98-1722                     United States v. Smithers      17

  The trial court must have the same kind of latitude in          Unfortunately, the Dissent’s homage to trial procedures does
  deciding how to test an expert's reliability, and to decide     not extend to expert witness testimony. The same argument
  whether or when special briefing or other proceedings are       can be made for the admission of expert testimony: cross-
  needed to investigate reliability, as it enjoys when it         examination and jury instructions can be used to question the
  decides whether or not that expert's relevant testimony is      qualifications of the proffered expert, undermine the basis of
  reliable. Our opinion in Joiner makes clear that a court        the expert’s theories, explain the limits of social science’s
  of appeals is to apply an abuse-of-discretion standard          validation studies and pick apart research methods. The only
  when it reviews a trial court's decision to admit or            reason given by the Dissent for why cross-examination and
  exclude expert testimony. That standard applies as much         jury instructions can serve these goals for eyewitness
  to the trial court's decisions about how to determine           testimony, but not for expert testimony, is that the jury may
  reliability as to its ultimate conclusion. Otherwise, the       take the expert’s testimony as “scientifically irrefutable truth.”
  trial judge would lack the discretionary authority needed       The Dissent's selective faith in the collective intelligence,
  both to avoid unnecessary "reliability" proceedings in          common sense and decision-making ability of the jury is
  ordinary cases where the reliability of an expert's             disheartening, and is also inconsistent with the Dissent’s
  methods is properly taken for granted, and to require           deference to the jury on other matters, including judging the
  appropriate proceedings in the less usual or more               credibility of eyewitness identifications.
  complex cases where cause for questioning the expert's
  reliability arises. Indeed, the Rules seek to avoid               Further, based on the comment that Smithers’s proffer of
  unjustifiable expense and delay as part of their search for     Dr. Fulero’s testimony was “too late in the day,” the Dissent
  truth and the just determination of proceedings. Thus,          crafts a legal basis for the district court’s exclusion based on
  whether Daubert's specific factors are, or are not,             Federal Rule of Evidence 403. The Dissent concludes that
  reasonable measures of reliability in a particular case is      Rule 403 permits the exclusion of relevant evidence based on
  a matter that the law grants the trial judge broad latitude     “delay.” FED. R. EVID. 403. The Dissent misquotes and
  to determine. And the Eleventh Circuit erred insofar as         misconstrues the meaning of “delay” in Rule 403. Not all
  it held to the contrary.                                        delay authorizes the exclusion of relevant evidence – only
                                                                  “undue delay.” Moreover, the term “delay” does not connote
Kumho Tire, 119 S.Ct. at 1176 (internal citations, quotations     delay in the submission of motions or proffers; rather, it
and alterations omitted). The court’s failure specifically to     encompasses the prolonging of the length of the trial, and can
cite Daubert as its basis for excluding Dr. Fulero does not       be read properly in conjunction with the other exclusionary
itself mandate remand. See Greenwell v. Boatwright, 184           factors: “waste of time, or needless presentation of
F.3d 492, 498 (6th Cir. 1999) (“Although the trial court is not   cumulative evidence.” See, e.g., John McShain, Inc. v.
required to hold an actual hearing to comply with Daubert,        Cessna Aircraft Co., 563 F.2d 632 (3d Cir. 1977);
the court is required to make an initial assessment of the        United States v. International Bus. Mach., 87 F.R.D. 411
relevance and reliability of the expert testimony. Because the    (S.D.N.Y. 1980); SCM Corp. v. Xerox Corp., 77 F.R.D. 10
district court did not hold a Daubert hearing we must review      (D. Conn. 1977).
the record to determine whether the district court erred in its
assessment of the relevance and reliability of the expert           “Delay” is a consideration of efficiency and is not readily
testimony”); see also Hall, 165 F.3d at 1102 (approving of the    distinguishable from “waste of time.” CHARLES ALAN
district court’s evaluation of the testimony in a hearing that    WRIGHT & KENNETH W. GRAHAM JR., FEDERAL PRACTICE
did not explicitly cite the two Daubert prongs but frequently     AND PROCEDURE: EVIDENCE § 5218 (1978); see also
18       United States v. Smithers                       No. 98-1722        No. 98-1722                    United States v. Smithers     31

CHRISTOPHER B. MUELLER & LAIRD C. KIRKPATRICK,                              “a criminal defendant’s relevant evidence may generally not
EVIDENCE § 4.5 (1995) (concluding that “undue delay, waste                  be excluded on the basis of a discovery sanction.” The
of time or needless presentation of cumulative evidence” are                Collins court expressly distinguished the case from one
concerns for the “concessions to the shortness of life,” “the               determining whether such evidence was admissible pursuant
limited resources of the judicial system,” and the presentation             to our then-recent Smith decision. In fact, the Collins court
of cumulative evidence) (footnote omitted). “Delay” in Rule                 followed Smith in declining to rule that the testimony was
403 does not mean “filed late” as the Dissent concludes.                    admissible as a matter of law, and proceeded to find the error
                                                                            harmless in light of other evidence. See id. at **2. Collins,
  Furthermore, the cases cited by the Dissent to support the                then, is completely inapposite to this case, which involves an
contention that the basis for the district court’s exclusion of             admissibility determination and not a discovery sanction.
Dr. Fulero’s testimony was a consideration of “delay” under                 Moreover, reliance on unpublished cases in a subsequent
Rule 403 do not explicitly cite to the Rule nor do they                     written opinion for purposes other than establishing
mention delay as a factor. See United States v. Curry, 977                  preclusion or law of the case, unless the prior case is truly of
F.2d 1042, 1052 (7th Cir. 1992); United States v. Dowling,                  such precedential value that it probably should have been
855 F.2d 114, 118 (3d Cir. 1988).                                           published, does violence to the policy we have promulgated
                                                                            in 6. Cir. R. 28(g). This dubious use of Collins will only have
  The exclusion of Dr. Fulero’s testimony because the                       the unfortunate side effect of encouraging lawyers to cite
evidence was presented “late in the day,” contrary to the                   other unpublished decisions to us in the future, despite the
Dissent’s assertion, was not a proper basis for exclusion.                  clear intent of the rule.
First, the Defendant filed his ten-page motion in limine
requesting a ruling on this issue a full month before trial. At                  II. The District Court’s Application of Daubert
the beginning of trial, Smithers renewed his motion orally. A
week later, he submitted an additional seven-page brief on the                 The majority finds that the district court abused its
subject. Thus, it is impossible to say that either the court or             discretion by failing to apply the evidentiary gatekeeping
the government did not have adequate notice of the issue.                   principles of Daubert. I am not convinced that the court
Second, “a criminal defendant’s relevant evidence may                       committed this error, or that remand would be necessary even
generally not be excluded on the basis of a discovery sanction.             if it did.
The defendant’s Sixth Amendment right to an effective
defense will usually outweigh the interest served by pretrial                  The majority pays passing obeisance to the abuse of
discovery orders.” United States v. Collins, No. 87-5077,                   discretion standard by which we review a district court’s
1988 WL 4434, at *2 (6th Cir. Jan. 25, 1988). Given the                     decision to exclude expert testimony, but wholly fails to apply
importance of eyewitness testimony in this case, the district               in this case the deference that standard requires. The factors
court should not have excluded   Dr. Fulero’s testimony based               listed in Daubert were meant to suggest to federal courts the
on its supposed tardiness.3                                                 relevant subjects of analysis when evaluating proffered
                                                                            experts under Rule 702, but they are “not holy writ” that the
                                                                            district court must invoke by name in order to pass our
     3                                                                      scrutiny. Kumho Tire Co. Ltd. v. Carmichael, 119 S.Ct. 1167,
      The government argues additionally that Smithers’s proffer            1179 (1999) (Scalia, J., concurring). The Supreme Court has
demonstrates that the expert testimony would have invaded the jury’s
province. Specifically, the government points to the sentence in the        recently instructed that
proffer which states, “Had Mr. Smithers been the robber, the eyewitnesses
would have observed and been able to recall the large scar on Mr.
30       United States v. Smithers                       No. 98-1722        No. 98-1722                        United States v. Smithers           19

notice given); United States v. Dowling, 855 F.2d 114, 118                     Finally, we find that the trial court’s error was not harmless.
(3d Cir. 1988) (upholding exclusion when 5 days notice given                The complexion of the proceedings likely would have
in trial held in the Virgin Islands); see also Hon. Robert P.               changed had the district court conducted a Daubert hearing
Murrian, The Admissibility of Expert Eyewitness Testimony                   and determined that Dr. Fulero's testimony was admissible.
Under the Federal Rules, 29 CUMB. L. REV. 379, 395-96                       And, as the Dissent properly points out, expert testimony
(1998-99) (instructing practitioners that “The offer of proof               should be admitted in the precise situation presented to the
should establish the factors in the particular case which call              trial court in this case –– that is, when there is no other
for expert testimony, such as the extreme stress of the                     inculpatory evidence presented against the Defendant with the
witness, differences in age or race of the defendant and the                exception of a small number of eyewitness identifications.
eyewitness, and suggestive line up techniques. If the factors               See Smith, 736 F.2d at 1107;         Moore, 786 F.2d at 1313;
necessitating expert testimony are not established, and the                 Downing, 753 F.2d at 1226.4 Here, eyewitness testimony was
court excludes the expert testimony, the decision will likely               the crucial, if not the sole basis for Smithers’s conviction.
be upheld on appeal”). These decisions and commentary
contradict the majority’s blanket statement that delay is “not
a proper basis for exclusion.”6                                             Smithers’s neck.” We agree with the government that this was poorly
                                                                            chosen wording, and that no expert may testify as to what witness did or
  It is important to note that the majority relies solely on                did not see. In a case heavily dependent upon eyewitness identification,
United States v. Collins, No. 87-5077, 1988 WL 4434 (6th                    such testimony could usurp the jury’s function and produce an improper
Cir. Jan. 25, 1988) (per curiam) (unpublished), for the                     comment on the ultimate issue to be decided in the case. The district
                                                                            court, however, did not even mention, much less base its decision on the
proposition that tardiness is not a proper basis for exclusion              language in this sentence. Even if it had, the proper solution would have
of expert testimony. This use of Collins is both misleading                 been to excise the inappropriate portion of the proffer rather than to
and inappropriate. In Collins, which is not only unpublished                exclude all of the testimony, the remainder of which dealt only with the
but is pre-Daubert, the defendant proffered a psychologist                  psychological factors which may have impacted the perception and
who would testify that the tendency to fill in gaps in                      memory of the witnesses in this case. This evidence would have been
                                                                            both relevant and helpful to the jury.
perception made the eyewitness identifications in the case
unreliable. See id. at **1. The district court excluded the                     4
                                                                                    As one commentator has indicated:
witness for only one reason—he had not been listed as a
witness as instructed by a pretrial order. No admissibility                     [t]here are some indications of a compromise position that would
determination of any kind was made. The witness was                             be more favorably inclined toward [eyewitness identification]
therefore excluded solely to punish the defendant for                           testimony when specific factors of need arise. Where
noncompliance with a discovery order. It was in this context                    identification rests on testimony by someone who knew the
that the court made the statement quoted by the majority here:                  defendant well and was in a good position to see the crime, or
                                                                                where the identification seems strongly established for other
                                                                                reasons (like physical evidence connecting defendant to the
                                                                                crime), there is little reason to admit such testimony. Where
     6                                                                          identity is a crucial and closely contested issue, however, and
     As I believe my discussion here makes clear, I understand “delay”          where critical testimony is given by people who did not know the
to mean “prolonging of the length of the trial,” and not, as the majority       perpetrator and had only a short time to see him or were limited
suggests I mean, merely “filed late.” This certainly appears to have been       or distracted by other factors, expert testimony seems more
the district court’s understanding as well, since its ruling was made           clearly warranted.
immediately before Smithers rested his case, and granting the motion
would have required a “lengthy voir dire,” more preparation by the          CHRISTOPHER B. MUELLER & LAIRD C. KIRKPATRICK, EVIDENCE, § 6.37,
Government, and the direct and cross-examination of Dr. Fulero.             at 601 (1995).
20       United States v. Smithers                          No. 98-1722         No. 98-1722                     United States v. Smithers      29

The district court in this case concluded that “[a]dmission of                  “Admittedly, Your Honor.” A lengthier conversation on the
Dr. Fulero’s testimony is in this case is almost tantamount to                  merits of the testimony ensued, followed by the court’s
the Court declaring the defendant not guilty as a matter of                     decision to continue to exclude the testimony, primarily
law. . . . absent the eyewitness testimony I don’t think there’s                because of the delay.
enough here to go to the jury.” The lower court did not seem
to realize that eyewitness  expert testimony is most appropriate                   Federal Rule of Evidence 403 permits relevant evidence to
in such situations.5                                                            be excluded "if its probative value is substantially outweighed
                                                                                by the danger of unfair prejudice, confusion of the issues,
   The district court should have conducted a hearing under                     delay, waste of time, or needless presentation of cumulative
Daubert and analyzed the evidence to determine whether Dr.                      evidence." (emphasis added). A district court has "very
Fulero's proffered testimony reflects scientific knowledge, and                 broad" discretion in making this determination. See United
whether the testimony was relevant and would have aided the                     States v. Hawkins, 969 F.2d 169, 174 (6th Cir.1992). A
trier of fact. Based on its failure to perform the correct legal                Daubert analysis includes a consideration of Rule 403, see
analysis––the Daubert analysis––as well as its “experiment”                     Daubert, 509 U.S. at 595; Rincon, 28 F.3d at 925, and several
rationale for excluding the testimony, we find that the district                courts have held that Rule 702’s “helpfulness” inquiry
court abused its discretion. We therefore REVERSE                               incorporates Rule 403’s concern for undue prejudice. See
Smithers’s conviction and REMAND this                 case for                  Hall, 165 F.3d at 1104; Kime, 99 F.3d at 884; Curry, 977 F.2d
proceedings in accordance with this decision.6                                  at 1051. The district court was well within its discretion to
                                                                                refuse to require the Government to prepare a response to an
                                                                                expert witness when the first inkling of what the witness
                                                                                would testify to was not given to the Government until the
                                                                                middle of the trial, after the Government had rested its own
                                                                                case. There is no basis for the majority’s holding that
                                                                                Smithers’s initial motion—which did little more than
     5
      Presumably, the district court was trying to express that the expert      introduce Dr. Fulero and his field of study—or his renewed
testimony would be unduly prejudicial. This conclusion is flawed. First,        motion at the start of trial, or his mid-trial brief, put the
as the Smith Court noted, "in reviewing a 403 balancing [in a criminal          Government on sufficient notice of the substance or
case], the court must look at the evidence in the light most favorable to the   foundation of Fulero’s testimony so as to permit the
proponent, maximizing its probative value and minimizing its prejudicial        Government to prepare a rebuttal, either to the motions or the
effect." 736 F.2d at 1107. The district court did not apply this standard
here. Second, it appears the trial court thought the expert nature of the       testimony. The consequences of Smithers’s procrastination
testimony would unduly impress the jury; this is an improper factor upon        should rest on him, not on the Government. Other courts
which to exclude expert testimony, for if this were the test, no expert         have held that initial notice of the intent to call an eyewitness
could ever testify. The court erred in concluding that merely because           identification expert witness only a few days before trial is
testimony is given by an expert, it must be excluded.                           grounds for exclusion. See Dorsey, 45 F.3d at 816 (remarking
     6                                                                          “the case law is clear that it is not an abuse of discretion . . .
      Smithers also appealed his conviction on two other grounds: (1) the       to disallow expert testimony where a late proffer of evidence
district court’s exclusion of a portion of the testimony of Smithers’s wife     by the defense substantially prejudices the government in its
on relevancy grounds, and (2) the district court’s response to questions
posed by the jury after it began deliberating. Because we have remanded         ability to find its own expert and conduct similar testing” and
this case for a new trial based on the district court’s failure to conduct a    upholding exclusion when notice given on first day of trial);
Daubert test before excluding the eyewitness expert's testimony, these          Curry, 977 F.2d at 1052 (upholding exclusion when 4 days
additional issues are moot.
28       United States v. Smithers                        No. 98-1722        No. 98-1722                     United States v. Smithers       21

me his curriculum vitae . . . . I’d be happy to entertain [an                                      _______________
instruction.]” It was after this exchange that Smithers
asserted for the first time that Fulero would “testify to the                                         DISSENT
specifics of the case and explain to the jury that there are                                       _______________
scientific studies that have shown that eyewitness
identification is flawed.” Smithers still did not, however, cite                ALICE M. BATCHELDER, Circuit Judge, dissenting. I
a specific theory or fact in the case to which these “scientific             would hold that the district court’s decision to exclude Dr.
studies” would relate. The court then concluded that “[none                  Fulero’s testimony should be affirmed on the basis of
of the cases] cited to me . . . suggests that this is admissible             Smithers’s delay in proffering it in its specifics to the court
evidence. The government’s brief is very persuasive, and I                   and Government. If we are to reach the merits of the
don’t have a report from the expert. No, I think . . . you’re                decision, however, I am not nearly so certain as the majority
asking him to comment upon Debra White’s credibility.”                       is that the court did not perform the proper legal analysis.
(emphasis added). Smithers conceded the motion and asked                     Certainly we should make that decision on the basis of a
permission to proffer the evidence. The court agreed, and                    review of the entire record and not, as does the majority,
although it offered several times to accept an oral proffer at               largely on the basis of a handful of unfortunate but irrelevant
that time, Smithers insisted on delivering it in writing.                    remarks by the district court. In any event, once we have
                                                                             decided, as the majority has, that the court did not perform the
   It was in the written proffer, which was not filed until after            proper Daubert analysis, our response should be to remand
the Government had rested its case and immediately before                    the issue for a proper hearing. We should not proceed to do
Smithers rested his, that Smithers first made any colorable                  that analysis ourselves, nor should we issue what is essentially
attempt to tie Dr. Fulero’s testimony to the facts of the case.              a blanket endorsement of expert testimony on a subject
Smithers identified the stress of the robbery, “detail salience”             deserving of, at best, our careful and skeptical scrutiny,
relating to Smithers’s scar, the length of time between the                  effectively warning the district courts in this circuit that in the
robbery and the trial, the “conformity effect” of subsequently               future it will be an abuse of discretion not to accept such
received information, the photo spread methodology,5 and the                 experts. For these reasons, I must dissent.
relationship between the witnesses’ confidence and accuracy
as relevant subjects for Fulero’s testimony. Smithers also                                               I. Delay
took issue with the adequacy of a jury instruction in
counteracting the fallibility of eyewitness identifications.                    As the majority noted, the district court’s primary reason
Smithers had made none of these arguments before this point                  for denying the renewed motion to permit Fulero to testify
in the proceedings, either orally or in writing, despite several             was that it was made “too late in the day.” In reasoning that
opportunities to do so. It was in this context that the court                Smithers’s initial motion in limine put the Government on
held another hearing on the motion, and remarked, “you                       sufficient notice of Fulero’s testimony, the majority makes no
finally got your act together with this latest filing . . . . Much           mention of the paucity of detail which that motion contained.
different from the first filing,” to which Smithers responded,               Furthermore, the legal foundation of the majority’s reasoning
                                                                             is, in my view, erroneous.
     5
      Smithers now proposed to have Fulero testify to the efficacy of the
                                                                               A brief overview of the appellate courts’ reception of expert
photo spread, despite having no response to the Government’s                 testimony on the fallibility of eyewitness identifications is
observation in its prior brief that Smithers had thus far proposed no such   necessary in order to explain the inadequacy of Smithers’s
thing.
22    United States v. Smithers                    No. 98-1722      No. 98-1722                          United States v. Smithers           27

initial motion. The majority correctly observes that for            confidence relationship, etc.) may be applicable in the
approximately the first decade or so in which such testimony        situation at hand. The memorandum’s attachments—Fulero’s
was submitted, courts were “uniformly skeptical . . . for a host    vita and a selection of journal articles on the topic—plainly
of reasons.” These reasons included distrust of the science         did nothing to provide the needed specificity. The
behind the testimony, a concern that the majority goes to           Government made       precisely this point in its response
considerable lengths to dispel. But this was hardly the only        memorandum,4 and cited a number of authorities suggesting
reason given for disallowing the testimony, and that                that cross-examination and jury instructions were better
skepticism rightly continues in the appellate courts today.         alternatives. At the hearing, the court began the discussion by
The majority opinion in this case acknowledges some of these        opining that “the government writes a pretty persuasive brief.
decisions, but sidesteps the unanimous hesitancy among              You can argue to the jury people make mistakes all the time.
appellate courts to open the door too far to this testimony. In     You can bring out the discrepancies [through cross-
many cases, the excluded testimony is either a generic,             examination and a jury instruction].” Smithers responded by
scholarly exploration of psychological theory, bearing little       defending the scientific validity of the testimony. The court
relation to the facts of the particular case, see, e.g., United     asked, “Has [the expert] rendered a report?” Receiving a
States v. Brien, 59 F.3d 274, 277 (1st Cir. 1995); United           negative response, the court continued: “I would have to go
States v. Rincon, 28 F.3d 921, 925 (9th Cir. 1994); Jordan v.       through a long voir dire ahead of time. I think if you’re going
Ducharme, 983 F.2d 933, 939 (9th Cir. 1994); United States          to have an expert you’ve got to have a report. You’ve given
v. Blade, 811 F.2d 461, 464-65 (8th Cir. 1987); United States
v. Fosher, 590 F.2d 381, 382-83 (1st Cir. 1979), or else so
specifically directed at the validity of a particular witness’s
testimony as to usurp the jury’s role in determining                clearly inapplicable in this case. Daubert cited as an example of scientific
credibility, see, e.g., United States v. Lumpkin, 192 F.3d 280,     testimony the Seventh Circuit’s treatment of spectrographic voice
289 (2d Cir. 1999); United States v. Hall, 165 F.3d 1095,           identification technique. One method of examining this technique’s
                                                                    reliability was to ask how often it produced an erroneous result. Here, the
1107 (7th Cir. 1999); United States v. Kime, 99 F.3d 870, 884       proposed “technique” is of the exactly opposite type; it seeks not to make
(8th Cir. 1996); United States v. Dorsey, 45 F.3d 809, 812          an identification, but to explain the reasons why an identification may be
(4th Cir. 1995); United States v. Moore, 786 F.2d 1308, 1311-       incorrect. Hence, a proper analogy to this Daubert observation might be
12 (5th Cir. 1986); United States v. Langford, 802 F.2d 1176,       to ask how often this technique correctly ascertains that an identification
1179 (9th Cir. 1986); State v. Gaines, 926 P.2d 641, 645            is wrong.
(Kan. 1996); State v. Sabetta, 680 A.2d 927, 933 (R.I. 1996).              Nevertheless, Smithers continued: “[T]he question of known rate of
                                                                    error is addressed by the [Handberg] article included as Attachment C
In either situation, even though the testimony may have             . . . . This article analyzes in detail the effect that certain variables are
provided some measure of insight that the jury otherwise            likely to have on the ability of eyewitnesses to correctly identify persons
would not have possessed, the risk of the jury’s being unduly       they have previously seen, pointing out the rate of error in making
swayed by testimony with the imprimatur of scientific               identifications. [This] forms parts of the scientific basis of Dr. Fulero’s
expertise has been deemed significant enough that the               testimony.” This passing reference was Smithers’s entire treatment of the
                                                                    “rate of error” issue, and does not provide the needed specificity.
decision to exclude it could not be considered an abuse of the
trial court’s considerable discretion with regard to evidentiary        4
                                                                          The Government noted that “Fulero’s testimony . . . would likewise
matters. This is especially so in light of the fact that the more   be of dubious assistance to the jury. His testimony does not relate to a
traditional methods of exposing the fallibility of eyewitness       specific fact in this case, such as the efficacy of the photo spread.
identifications—cross-examination, jury instruction and             Instead, defendant will offer his testimony regarding the general problems
closing argument—are more efficacious and far less risky            arising from eyewitness identification, in contrast to the specific issues
                                                                    that were presented in the Smith case.”
26       United States v. Smithers                          No. 98-1722         No. 98-1722                    United States v. Smithers      23

Stevens,   935 F.2d at 1397 (quoting Downing, 753 F.2d at                       than expert testimony that can at best be only marginally
1242).1 The Downing court remanded its case for a proper                        relevant to the facts at hand. See Moore v. Tate, 882 F.2d
Rule 702 hearing on the proposed expert testimony, because                      1107, 1110-11 (6th Cir. 1989); Hall, 165 F.3d at 1107; United
the district court had merely held a brief sidebar on the issue                 States v. Smith, 122 F.3d 1355, 1358-59 (11th Cir. 1997);
on the tenth day of trial without a voir dire of the witness or                 United States v. Hicks, 103 F.3d 837, 847 (9th Cir. 1996);
any time for either   party to present its view. See Downing,                   Kime, 99 F.3d at 884; United States v. Ginn, 87 F.3d 367, 370
753 F.2d at 1228.2 Here, however, the district court properly                   (9th Cir. 1996); Rincon, 28 F.3d at 925-26; Jordan, 983 F.2d
held a pretrial hearing on various motions in limine, including                 at 938-39; United States v. Curry, 977 F.2d 1042, 1051 (7th
this one, but the content of Smithers’s supporting                              Cir. 1992); Blade, 811 F.2d at 464-65; Moore, 786 F.2d at
memorandum was woefully inadequate to enable the court to                       1311-12; Fosher, 590 F.2d at 382; State v. McClendon, 730
exercise its discretion in an informed manner. The 10-page                      A.2d 1107, 1115-16 (Conn. 1999); McMullen v. State, 714
supporting memorandum recited the applicable standards of                       So.2d 368, 370 (Fla. 1998); Gaines, 926 P.2d at 662-63; State
Daubert and Rules 702 and 403, defended the legitimacy of                       v. Buell, 489 N.E.2d 795, 803-04 (Ohio 1986); Currie v.
Dr. Fulero’s field of study and academic qualifications, and                    Commonwealth, 515 S.E.2d 335, 339 (Ct. App. Va. 1999).
included a few paragraphs indicting the reliability of                          The grounds on which these courts have explained their
eyewitness identifications in general. It contained absolutely                  rulings vary—the testimony was unhelpful, the subject was
no attempt to explain how the testimony would relate to the                     within the jury’s common knowledge, the subject was not a
facts of 3the case or which of the psychological theories on                    proper one for expert testimony under Evidence Rule 702 or
memory (e.g., stress, “forgetting curve,” accuracy-                             some analogous test, or the prejudice substantially
                                                                                outweighed the probative value pursuant to Rule 403—but the
                                                                                results were the same.
     1
      Contrary to the majority’s characterization of this citation, I do not
offer this quotation as a “holy writ” or rigid “test” that the district court      I will concede that the concept of expert testimony on the
should have adhered to, but rather as a common-sense explanation of             subject of eyewitness identification, and the scientific
Smithers’s burden to establish the relevance of his proffered testimony to      research behind the testimony, has gained some acceptance
the case. For this reason, the Stevens court’s reasoning—or, for that           and respect in our courts since it was introduced. But the
matter, the identical emphasis on specificity in our Smith decision— is         majority’s own recounting of the case law on this subject
made no less valid by the fact that it pre-dates Daubert.
                                                                                reveals that the appropriateness of using such testimony in
     2                                                                          court—instead of its traditional alternatives—to counteract
      Tellingly, the district court on remand again dismissed the
testimony, this time as unhelpful to the jury and more prejudicial to the       the deficiencies of eyewitness identifications is still very
prosecution than it was probative to the defense. See 609 F.Supp. 784           much in controversy, for all of the reasons detailed above.
(E.D. Pa. 1985). The judgment was affirmed without opinion. See No.             The recent trend has been towards allowing the testimony in
85-1359, 780 F.2d 1017 (3d Cir. Nov. 25, 1985) (table).                         a limited number of “narrow circumstances,” but this merely
     3
                                                                                reflects the liberality of Rule 702 and the gradual maturing of
       The only assertion made in this memorandum that could arguably be        the research, not the “dramatic transformation” of judicial
considered “specific” to Fulero’s testimony in this case is the reference       attitudes that the majority claims. See United States v. Smith,
to the “known rate of error.” This brief discussion actually originated         156 F.3d 1046, 1052 (10th Cir. 1998) (holding that cross-
from Smithers’s recitation of the Daubert analysis. Smithers was
“unclear how the third step in the Daubert analysis, reviewing the rate of      examination and common sense will presumptively suffice
known error, would apply to this form of scientific testimony.” Not only        outside the “narrow circumstances [of] cross-racial
is this rate-of-error inquiry not a “step”mandated by Daubert but simply        identification, identification after a long delay, identification
one of its “general observations,” Daubert, 509 U.S. at 593-94, it is also
24    United States v. Smithers                    No. 98-1722      No. 98-1722                    United States v. Smithers      25

[...] under stress, and [...] the feedback factor and unconscious   representative of the cases finding expert testimony too
transference”); United States v. Harris, 995 F.2d 532, 535-36       removed from the particular facts to be helpful. See id. The
(4th Cir. 1993) (same); Currie, 515 S.E.2d at 338 (same);           lack of specificity in Smithers’s proffer likens this case to
Brien, 59 F.3d at 277 (“a door once largely shut is now             Fosher far more than to Smith. Apart from this distinction,
somewhat ajar”). Some of our sister circuits expressly retain       the majority opinion’s characterization of Smith’s holding is
their jaundiced view of this type of testimony. See Hall, 165       troubling. At most, this court said in Smith that Dr. Fulero’s
F.3d at 1104 (“This Court has a long line of cases which            testimony on the reliability of eyewitness testimony might
reflect our disfavor of expert testimony on the reliability of      meet the Green criteria, and might have been improperly
eyewitness identification”); Smith, 122 F.3d at 1357 (“This         excluded. We did not, as the majority opinion claims, express
Court has consistently looked unfavorably on such                   our “acceptance of psychological studies as a scientifically
testimony”). Every court to address the issue has left the          sound and proper subject of expert testimony, noting, ‘[the]
admissibility of the testimony to the sound discretion of the       science of eyewitness perception has achieved the level of
district court on a case-by-case basis, either on the authority     exactness, methodology and reliability of any psychological
of Daubert, Rule 702, or an analogous state rule. No                research.’” What we noted is that Dr. Fulero had testified to
appellate court has adopted a presumption or per se rule in         that effect, see id., and, in the final analysis, held that “even
favor of admitting eyewitness identification expert testimony,      if it were error to exclude the expert’s testimony, such error
something the majority’s opinion comes dangerously close to         was ‘harmless.’” Id. at 1106-07 (emphasis added). It is also
doing. Many courts have expressly disavowed such a rule.            worth noting that the analysis in Smith was not unanimous;
See Smith, 122 F.3d at 1359; United States v. Alexander, 816        the concurring judge did not find an abuse of discretion.
F.2d 164, 169 (5th Cir. 1987); Blade, 811 F.2d at 465;              Since the Smith case, no Sixth Circuit decision has reversed
Langford, 802 F.2d at 1179; Sabetta, 680 A.2d at 933.               a district court’s exclusion of expert testimony on eyewitness
                                                                    identifications as an abuse of discretion.
   Moreover, the only federal appellate decisions finding the
exclusion of this type of expert testimony to be an abuse of          I will address in a later segment of this dissent my view of
discretion are readily distinguishable from the instant case. In    this testimony’s utility, but for now it suffices to say that
United States v. Stevens, 935 F.2d 1380, 1397 (3d Cir. 1991),       because the range of circumstances in which this testimony
the Third Circuit reviewed a district court’s decision to admit     should be admitted is so narrow, the party offering it should
the expert’s testimony as to some psychological theories but        be required as a threshold matter to make
not others. The dangers of the expert’s testimony in general,
then, were not at issue. The panel reversed because it found          an on-the-record detailed proffer to the court, including
no reason why the excluded theories did not “fit” the facts of        an explanation of precisely how the expert’s testimony is
the case as much as those that were admitted. In United               relevant to the eyewitness identifications under
States v. Downing, 753 F.2d 1224, 1242 (3d Cir. 1985), the            consideration. The offer of proof should establish the
district court erroneously excluded the testimony per se              presence of factors (e.g., stress, or differences in race or
instead of performing its gatekeeping function. In this               age as between the eyewitness and the defendant) which
circuit’s Smith decision, the Government conceded Dr.                 have been found by researchers to impair the accuracy of
Fulero’s expertise, see 736 F.2d at 1105, and the proffer there       eyewitness identifications.
specifically tied the theories of transference and cross-racial
identification to the facts of that case. See id. at 1106. We
used this specificity to distinguish Fosher, which was
