                IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                            AT NASHVILLE                        FILED
                                        JUNE 1998 SESSION
                                                                                October 13, 1998

                                                                              Cecil W. Crowson
                                                                             Appellate Court Clerk
STATE OF TENNESSEE,                               )
                                                  )        C.C.A. NO. 01C01-9707-CC-00270
                Appellee,                         )
                                                  )        WILLIAMSON COUNTY
VS.                                               )
                                                  )        HON. DONALD P. HARRIS,
EDDIE L. COLEY, JR.,                              )        JUDGE
                                                  )
                Appellant.                        )        (Aggravated Robbery)



                              SEPARATE CONCURRING OPINION



       I agree that the proffered expert testimony regarding eyewitness testimony

should have been excluded. I am unable, however, to join with the majority in

concluding that the admission or non-admission of expert testimony should be

exercised under a judicial discretion standard on a case by case basis. Although

clearly subject to varying interpretations, I believe the current state of the law in

Tennessee on this issue forbids the introduction of expert testimony regarding

eyewitness identification.1 See State v. Wooden, 658 S.W.2d 553 (Tenn. Crim. App.

1983); see also State v. Ward, 712 S.W.2d 485 (Tenn. Crim. App. 1986). Indeed,

Judge Byers, writing on behalf of this court, concluded that the evaluation of the

credibility of eyewitness testimony is a matter within the province of the jury and does

not require expert testimony. Wooden, 658 S.W.2d at 557. Because I believe this

reasoning sound, I would adhere to the position of a per se exclusionary rule regarding




        1
          In McM ullen v. State , 714 So .2d 368 ( Fla. 1998 ), reh’g denied, (June 10, 1998), cited by the
majority, a comprehensive review of various state and federal jurisdictional positions regarding the
admissibility of eyewitness expert testimony was presented. Although the majority in the present case
conclud es that T ennes see pe rmits, on a discretio nary bas is, expert e yewitness testimo ny, McMullen and
other legal treatises have, in interpreting Wooden , concluded that Tennessee has adopted a per se rule
of inadm issibility. See McMullen, 714 So .2d at 371 ; Annota tion, Experts on Eyewitness Testimony, 46
ALR 4th 1047, 1105 (1986).
eyewitness expert testimony. 2



       The introduction of expert testimony is controlled by Rule 702, Tenn. R. Evid.

This rule provides that “[i]f scientific, technical or other specialized knowledge will

substantially assist the trier of fact to understand the evidence or to determine a fact in

issue, a witness qualified as an expert . . . may testify in the form of an opinion or

otherwise.” (Emphasis added). Whether the proffered expert testimony will

substantially assist the trier of fact is the touchstone of Rule 702 and, thus, is the

ultimate factor in determining whether such eyewitness expert testimony is admissible.3



       It is conceded that expert testimony on eyewitness identification is introduced to

alert the jury to the fallibility, inaccuracies, and inconsistencies of human perception

based upon objective generalities adduced from controlled experiments.4 See

generally McMullen, 712 So. 2d at 377 (Anstead, J., concurring in part and dissenting

in part). Indeed, as noted in McMullen, one leading commentator on the subject

advances the argument “that the average juror actually knows little about factors


        2
         At the outset, it is prudent to note the three views on the admissibility of eyewitness expert
testimony that have emerged:
        (1) The discretionary view, whic h hold s tha t the a dm issio n of e xpe rt test imo ny is
        within the dis cretion of the trial judge . Curren tly this is the m ajority view am ong bo th
        federal and state courts;

        (2) The prohibitory view, which expressly prohibits the use of this type of expert
        testimo ny. See, e.g., United States v. Holloway, 971 F.2 d 675 (1 1th Cir. 19 92), cert.
        denied, Rudder v. United States, 507 U.S . 962, 113 S.Ct. 139 0 (1993 ); State v.
        Goldsby, 650 P.2d 952 (O re. Ct. App . 1982); Comm onwealth v. Simmons , 662 A.2d 621
        (Pa. 199 5), cert. denied, 516 U.S. 1128, 116 S.Ct. 945 (1996); and

        (3) The limited admissibility view, which co ncludes that the trial cou rt abuse s its
        discretion in excluding this evidence in cases where there is no substantial
        corrob orating ev idence. O nly two cou rts have a dopted this position. See, e.g., United
        States v. Downing, 753 F.2 d 1224 (3d Cir. 19 85); Peo ple v. M cDo nald , 690 P.2d 709
        (Cal. 1984).

McMullen, 712 So .2d 368, 3 70 (Fla. 19 98), reh’g denied, (June 10, 1998). Again, the majority in the
present case adopts the majority discretionary position. However, I find that this position is inconsistent
both with prior holdings of this court and with Tenn. R. Evid. 702.

       3
         It should be noted that both Wooden and W ard were decided prior to the adoption of the
Tennessee Rules of Evidence (effective date January 1, 1990).

        4
         As illustration, in the present case, the appellant’s expert was “prepared to provide testimony
about the areas of the process of eyewitness identification, the relationship between stress and m emory
for an event, cross-racial identification, the relationship between the confidence that a witness has in the
accuracy of his or her identification and the accuracy of that identification, and the effect time has on the
accura cy of rem emb ering som ething se en.”

                                                     2
affecting the accuracy of eyewitness identifications” and “[w]hile most people are

satisfied in believing they have ‘common sense,’ the memory process involves factors

that are often counterintuitive.”5 Id. at 377 (citing Cindy J. O’Hagan, When Seeing is

Not Believing: The Case for Eyewitness Expert Testimony, 81 GEO .L.J. 741, 760-61

(1993) (footnotes omitted)). Such generalizations do not apply to every witness’ ability

of perception and do not substantially assist the trier of fact as the trustworthiness of

eyewitness observations is not generally beyond the common knowledge and

experience of the average juror. Moreover, if indeed the purpose of the expert

testimony is to contradict “common sense,” the testimony would appear to be more

akin to impeachment testimony than substantial assistance. In sum, expert testimony

on eyewitness identification is not needed to explain “common sense.” The making of

judgments of identification and the awareness of the factors bearing on the reliability of

such judgments are so much a part of the day to day experiences of ordinary

laypersons that it must be concluded that the jury is capable of making an intelligent

assessment of the reliability of the identification testimony without need for expert

testimony as to the human perceptional processes. See Wooden, 658 S.W.2d at 557;

see, e.g., People v. Kelley, 631 N.Y.S.2d 926 (N.Y. App. Div. 1995), appeal denied,

664 N.E.2d 515 (N.Y. 1996). Accordingly, it is not appropriate for the trial judge to take

from the jury their own determination as to what weight or effect to give to the evidence

of the eyewitness and the identifying witnesses, and to have that determination put

before them on the basis of the expert testimony as proffered. See, e.g., United States

v. Daniels, 64 F.3d 311 (7th Cir. 1995), cert. denied, 516 U.S. 1063, 116 S.Ct. 745

(1996); State v. Coleman, 486 So.2d 995 (La. Ct. App.), cert. denied, 493 So.2d 633

(La. 1986); Simmons, 662 A.2d at 621; People v. Anderson, 630 N.Y.S.2d 77 (N.Y.

App. Div.), appeal denied, 661 N.E.2d 1383 (N.Y. 1995).




         5
              For e xam ple, s om e psyc holog ists in this fie ld arg ue th at the ir res earc h rev ealed com mo nly held
misc oncep tions of the genera l public, e.g., (1) “The more confident a witness is, the more accurate the
testimony is likely to be,” and (2) “Police officers mak e better witnesses than ordinary citizens.” See
McMullen, 712 So .2d at 377 (citing Elizabe th F. Loftu s and J ame s M. Do yle, E YEWITNESS T E S T IM O N Y :
C I V IL A N D C RIMINAL (3d ed. 19 97)).

                                                            3
        The adversarial system of justice has traditionally relied upon cross-

examination as a mechanism to alert the jury as to any inaccuracies or inconsistencies

in the testimony of an eyewitness and, when coupled with proper cautionary

instructions regarding eyewitness testimony, the jury is presumed to be able to assess

the credibility and reliability of each witness. It is the responsibility of counsel, during

cross-examination, to inquire into the witness’ opportunity for observation, capacity for

observation, attention, interest, and distraction or division of attention. Accordingly, I

conclude that the problem of potentially unreliable eyewitness testimony is not resolved

by the introduction of expert testimony, but rather, the problem is alleviated by proper

cautionary instructions setting forth the factors to be considered in evaluating

eyewitness testimony and other existing safeguards such as cross-examination,

closing argument, and the trial court’s power to suppress testimony if the identification

procedure rendered it unreliable. The use of expert testimony could not only lengthen

the time and increase the cost of trials, but could also divert the jurors from the true

issues or cause them to abdicate their role as the arbiter of credibility in the court room.



       As such, I adhere to the per se rule of exclusion pronounced in State v.

Wooden.




                                     ____________________________________
                                     DAVID G. HAYES, Judge




                                               4
