                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 08a0720n.06
                           Filed: November 20, 2008

                                             No. 07-3809


                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

       Plaintiff-Appellee,

v.                                                       ON APPEAL FROM THE UNITED
                                                         STATES DISTRICT COURT FOR THE
LAWRENCE F. SMEAD,                                       NORTHERN DISTRICT OF OHIO

       Defendant-Appellant.

                                                 /


BEFORE:        CLAY, GILMAN, and ROGERS, Circuit Judges.

       CLAY, Circuit Judge. Defendant Lawrence F. Smead appeals his conviction for bank

robbery under 18 U.S.C. § 2113(a). Following a Daubert hearing, the district court permitted

Defendant’s expert to testify about psychological studies related to factors that affect the reliability

of eyewitness identifications, but excluded expert testimony regarding procedures that reduce errors

in photo-array identifications. Defendant argues that the district court abused its discretion in

excluding this testimony, and that the exclusion violated his constitutional right to present a

complete defense. For the reasons that follow, we AFFIRM.




                                                     1
                                            BACKGROUND

        On November 9, 2006, a man robbed a U.S. Bank office located in a Giant Eagle grocery

store in Tallmadge, Ohio. The man passed a note to the bank teller, Leah Morrow, demanding

money and stating that he had a gun. Morrow complied with the robber’s demands, and the robbery

lasted less than one minute. Within a few hours, law enforcement arrived at the bank, and Morrow

provided a written statement to the Tallmadge police department. FBI Agent Todd DeKatch also

obtained a statement from Morrow regarding the robbery.

        In her statements, Morrow indicated that the robber was a white male around the age of sixty-

five, of medium height and build. She told authorities that he was wearing blue jeans, a “grey

hoodie” pulled over his head, and a blue windbreaker on top of the hoodie. (J.A. 287.) Morrow also

indicated she was “80 [percent] sure” that the robber was wearing fingerless gloves. (J.A. 287.)

Neither her written statement to the Tallmadge authorities nor her statement to the FBI describes the

robber’s facial characteristics, such as the size of his nose, his eye color or shape, or his hair.1 After

further investigation, the FBI identified Defendant as a potential suspect. DeKatch then prepared

a photo-array lineup that included Defendant’s drivers’ license picture along with five other drivers’

license photographs retrieved from a law enforcement database. In selecting the photographs,

DeKatch relied on Morrow’s physical description of the robber as well as the physical characteristics

indicated on Defendant’s drivers’ license. DeKatch also explained that he attempted to find men

wearing collared shirts to match the clothing Defendant wore in his drivers’ license picture.




        1
        Morrow testified at trial, however, that she told Agent DeKatch during the initial interview that the
robber had a “wrinklier face and a bigger nose.” (J.A. 118.)

                                                     2
       On November 30, 2006, DeKatch, along with two other FBI agents, arrived at the U.S. Bank

office in Tallmadge and presented the photo-array lineup to Morrow. The lineup contained six

pictures, three in each row. Prior to showing her the lineup, DeKatch told Morrow that he was going

to “show [her] some photos” and that she should “take a quick look” to “see if [she] recognize[d]

anybody. If not, okay; if he is there, okay.” (J.A. 119.) DeKatch also stated that he and the other

agents were “not sure if the gentleman who . . . robbed [her]” was depicted in any of the

photographs. (J.A. 119.) Morrow, after first looking at four other photographs, identified Defendant

as the person who robbed the bank on November 9, 2006. The next day, authorities arrested

Defendant.

       Following Defendant’s arrest, the FBI continued to investigate the bank robbery. On

December 8, 2006, DeKatch interviewed Marilyn Smead, Defendant’s wife. Because Defendant

moved out in October 2006, Defendant no longer lived with Ms. Smead. DeKatch informed Ms.

Smead that he was an FBI agent, and that the FBI suspected Defendant of bank robbery. DeKatch

showed Ms. Smead surveillance photographs from the time of the robbery. Even though the robber’s

face was not visible in the photographs, Ms. Smead told DeKatch that she recognized the individual

in the photographs as her husband based on the clothing that the robber was wearing. She said that

she recognized the robber’s coat as the Nike coat that she had purchased for her husband. Ms.

Smead also told DeKatch that Defendant owned a grey hooded sweatshirt from Old Navy similar to

the one the robber wore in the photograph.

       On December 19, 2006, the FBI received a phone call from Debra Golden, the employee in

charge of car sales at Auto King. Golden told the FBI that, on November 9, 2006, the day of the

bank robbery, Defendant purchased a van from Auto King. When Defendant defaulted on his


                                                 3
payments, Golden contacted Defendant’s wife in an attempt to locate Defendant. When Golden

spoke to Ms. Smead, Ms. Smead informed Golden that the FBI had taken Defendant into custody

on charges of bank robbery. Golden then contacted the FBI. On December 19, 2006, DeKatch

interviewed Golden. Golden informed DeKatch that, “about three days prior to” November 9, 2006,

Defendant “picked out the van and told [Auto King] he was expecting some money to come in and

he was going to come back once he got his money to get the van.” (J.A. 93.) When asked to

describe Defendant’s appearance on the day he purchased the van, Golden could not remember the

clothing Defendant was wearing.

       On January 17, 2007, DeKatch returned to the dealership. DeKatch informed Golden that

Defendant was a suspect in a bank robbery, and asked Golden to examine the surveillance

photographs. After looking at the photographs, Golden told DeKatch she remembered that

Defendant, on the day he purchased the van, wore a jacket with “a Nike sign hanging out from under

it” similar to the one worn by the robber in the surveillance photographs. (J.A. 96.) At trial, she

testified that, although she could not describe his clothing in her prior interview with DeKatch, “it

all came back[] because of the Nike sign.” (J.A. 103.)

       Subsequently, the government issued an indictment against Defendant, charging him with

armed bank robbery in violation of 18 U.S.C. § 2113(a). Defendant pled not guilty to the charges.

Following his plea, Defendant filed a motion to suppress Morrow’s identification from the photo-

array lineup, arguing that it violated Defendant’s due process rights because it was “unduly

suggestive.” The district court denied the motion, disagreeing that the lineup was impermissibly

suggestive. The district court reasoned that all of the individuals in the lineup had “features . . .

distinctive enough that one would remember them” if they had robbed a bank. (J.A. 53.) The court


                                                 4
also considered the five factors set forth in Neil v. Biggers, 409 U.S. 188 (1972), that this Court

considers in determining whether an identification is reliable, and concluded that the photo-array

lineup did not create a substantial likelihood of irreparable misidentification. Following the court’s

denial of his motion, Defendant filed a motion in limine to admit the expert testimony of Dr.

Solomon Fulero “to provide the jury with an explanation of the psychological aspects of making

eyewitness identification.” (J.A. 22.)

        On the first day of trial, the jury heard testimony from Morrow, Golden, DeKatch, and Ms.

Smead. At trial, Morrow testified that she was “positive” the Defendant was the person who robbed

the bank. In addition, she made an in-court identification of Defendant. She also testified that she

“couldn’t sleep for three days” following the robbery, and that she continually compared the face of

the robber to other faces “to see if [she] could recognize him from anything else.” (J.A. 143.)2

Morrow further stated that she believed the robber had a gun, and that she was able to look at the

robber’s face for “seconds.” She acknowledged, however, that certain details of her description of

the robber were mistaken. For example, she was eighty percent sure he wore fingerless gloves, when

he actually wore full gloves. In addition, the robber was not wearing blue jeans as she described;

instead, he wore beige pants.

        Because the government did not present any physical evidence tying Defendant to the bank

robbery,3 Morrow’s eyewitness identification of Defendant from the photo-array lineup was a critical


        2
         Morrow previously stated that she had a dream about the robbery a week following the incident.
While she acknowledged this previous statement, she also told defense counsel on cross examination that
“it wasn’t necessarily a dream.” (J.A. 143.)
        3
        DeKatch testified that the FBI was unable to track any of the proceeds of the robbery, even though
Morrow had given the robber “bait bills” which tellers intentionally give bank robbers to help law
enforcement locate stolen funds. The FBI did not search Defendant’s house to locate money. DeKatch also

                                                    5
aspect of the government’s case. As a result, defense counsel extensively cross-examined both

DeKatch and Morrow regarding the lineup. For example, defense counsel asked both individuals

whether they believed the other photographs in the lineup depicted men who were better dressed or

less “disheveled” in appearance than Defendant, or had more pleasant expressions. Defense counsel

also questioned both witnesses regarding differences in the backgrounds of the pictures and the

relative distance from which the photographs were taken. In addition, defense counsel challenged

Morrow’s later addition of “wrinkly skin” and a prominent nose to her description of the robber, and

questioned her regarding the absence of those details in her initial statements to law enforcement.

        Following the conclusion of the government’s presentation, the district court conducted a

hearing to consider Defendant’s motion in limine to offer the expert testimony of Dr. Fulero. During

the hearing, Dr. Fulero explained the content of the testimony he would present to the jury. First,

Dr. Fulero described the “reconstructive theory of memory.” Because the district court found that

the theory was “well accepted and has been peer reviewed,” the district court concluded that the

theory was reliable. (J.A. 230.) The district court also found reliable the theory that the confidence

in an identification does not correlate to its accuracy, noting that “all the literature and all the studies

[show] a weak correlation between the confidence . . . and the accuracy of the identification.” (J.A.

230.)4 After evaluating reliability, the district court also found that these theories were “relevant for



admitted that the FBI recovered only a grey sweatshirt from Ms. Smead’s home. The FBI did not recover
the Nike jacket at Defendant’s home or in dumpsters outside of Giant Eagle. In addition, the FBI did not find
any fingerprints on the counter of the bank. DeKatch acknowledged that there was “no evidence that
[Defendant] actually possessed . . . clothing that was similar to the clothing depicted in the bank surveillance
photographs.” (J.A. 84.)
        4
         In response to questioning during the Daubert hearing, Dr. Fulero made clear that “there is
absolutely no doubt that the conclusions that I have drawn are the ones that are generally accepted.” (J.A.
214.)

                                                       6
the jury to know . . . and consider . . ., along with all the other factors in deciding how much weight

to give any particular witness . . .” (J.A. 230.) Thus, the district court concluded that the

reconstructive theory of memory and the testimony regarding the weak correlation between a

witness’ confidence in an identification and the accuracy of that identification were admissible under

Rule 702 of the Federal Rules of Evidence.

        With respect to the testimony regarding procedures used to create and administer the

photographic lineup, the judge was less sure. At the hearing, Dr. Fulero stated that, in previous

trials, he had explained that scientific research demonstrates that procedures used to administer a

photographic lineup can affect the accuracy of the identification.5 The court agreed to allow defense

counsel to “elicit testimony . . . that there is always a danger with any lineup that a witness has used

a lineup to fill in a gap [in the original memory of the crime.]” (J.A. 231, 234). However, the

district court excluded expert testimony as to “how this lineup could have led to a wrongful

identification” (J.A. 233) because such testimony would “only [be] relevant [to argue that the jury]

should give less weight to [Morrow’s] testimony” (J.A. 235) and would “invad[e] the province of

the jury.” (J.A. 236.) The district judge further reasoned that, although counsel could argue that law

enforcement could have done a better job selecting the lineup photographs, the jury did not need an

expert to testify that the photographs themselves might have contained suggestive hints affecting the

reliability of Morrow’s identification.




        5
          Dr. Fulero also indicated he would explain that “eyewitness evidence is only as good as the methods
that are used to collect it.” (J.A. 206.) For example, “sequential presentation, double blind presentation, the
appropriate instructions, and the construction of the spread itself” are all techniques that can reduce the
frequency of erroneous identifications. (J.A. 206.)

                                                      7
        Following the hearing, Dr. Fulero testified. The government stipulated to Dr. Fulero’s

extensive credentials in the field of the psychology of eyewitness identification. Dr. Fulero detailed

the basis of his research, and then explained the reconstructive theory of memory and the three

distinct phases of memory. He emphasized that “information people get about an event after it

happens can actually become part of their memory of the initial event.” (J.A. 248.) Dr. Fulero also

testified that, during the acquisition stage of memory, exposure time to a suspect’s face can affect

the accuracy of an eyewitness’ memory. He then discussed detail salience, explaining that human

attention “is geared toward things that somehow stand out” during complex events. (J.A. 252.) Dr.

Fulero explained to the jury that if salient details such as a prominent nose or a wrinklier face are

absent from initial descriptions but show up in later statements, post-event information might have

affected the witness’ memory of the initial event. In addition, if there is a salient feature in the

photograph of the individual that a witness identified as the perpetrator, that salient feature could be

“related back” to the original event.

        Dr. Fulero also stated that the implied presence of a weapon can reduce the accuracy of an

eyewitness identification. In addition, he testified that, even if an individual has special training to

look for certain details to later be able to describe a perpetrator to law enforcement, those individuals

are not better than untrained individuals at providing an accurate description or making an accurate

identification.6

        With respect to the retention stage of memory, Dr. Fulero explained that memory deteriorates

quickly, and it is very important to obtain eyewitness evidence as close in time to the event as


        6
         Morrow testified that, as a bank teller, she received security training regarding procedures
to follow in the event of a bank robbery, which included instructions “to look for distinct features”
so that the teller could later “give a good description” of the robber to law enforcement. (J.A. 117.)

                                                   8
possible. Dr. Fulero informed the jury that attempting to visualize a suspect can adversely affect the

accuracy of a witness’ later identification. In addition, he testified that “the manner in which a photo

spread is constructed and administered has a lot to do with the ultimate accuracy of the

identification.” (J.A. 261.) When Dr. Fulero mentioned that there are “specific things that can be

done to reduce error in photo spreads,” the government objected, and Dr. Fulero was unable to

discuss any of the procedures that affect the reliability of a photographic-lineup identification. (J.A.

263.)

        Dr. Fulero concluded his testimony by explaining the low correlation between a witness’

confidence in an identification and the accuracy of that identification. He also testified that, at the

retrieval stage, which occurs when the witness makes an in-court identification, a witness could be

identifying a face that is familiar from one place, such as a photo-array lineup, but not from another,

such as the initial crime.

        Following Dr. Fulero’s testimony, the defense rested, and the district judge instructed the jury

regarding the evaluation of expert testimony. The jury found Defendant guilty of bank robbery.

                                           DISCUSSION

                                         Standard of Review

        Defendant argues that the district court abused its discretion in excluding a portion of Dr.

Fulero’s testimony, and that his inability to present this aspect of Dr. Fulero’s testimony violated his

constitutional right to present a complete defense.

        This Court reviews a district court’s evidentiary rulings, “including rulings on witness

testimony under Rule[] . . . 702 of the Federal Rules of Evidence,” for abuse of discretion. United

States v. White, 492 F.3d 380, 398 (6th Cir. 2007). Even when a defendant argues that a district


                                                   9
court’s decision violated his constitutional rights, “the abuse of discretion standard is not at odds

with de novo interpretation of the Constitution” because a “district court does not have the discretion

to rest its evidentiary decisions on incorrect interpretations of the Constitution.” United States v.

Blackwell, 459 F.3d 739, 752 (6th Cir. 2006). In reviewing a decision for abuse of discretion, this

Court will reverse the district court’s decision “only where the district court renders a manifestly

erroneous ruling.” Surles ex rel. Johnson v. Greyhound Lines, Inc., 474 F.3d 288, 293 (6th Cir.

2007) (quoting Gen. Elec. Co. v. Joiner, 522 U.S. 136, 142 (1997)).

                                              Analysis

       The United States Constitution guarantees criminal defendants “a meaningful opportunity”

to present a complete defense. Crane v. Kentucky, 476 U.S. 683, 690 (1986) (internal quotation

marks omitted). In the context of a criminal trial, an accused’s right to present a defense derives

from the Sixth Amendment. Ferensic v. Birkett, 501 F.3d 469, 475 (6th Cir. 2007). A central

component of a defendant’s right to present a defense is the right to offer the testimony of witnesses.

Taylor v. Illinois, 484 U.S. 400, 409 (1998). Because expert testimony often forms a critical part

of a defendant’s presentation of evidence, “[i]n rare instances,” a district court’s exclusion of

testimony under Rule 702 might violate a defendant’s Sixth Amendment right to present a defense.

United States v. Vasilakos, 508 F.3d 401, 410 (6th Cir. 2007). A defendant’s right to present a

complete defense, however, “is not unlimited, but rather is subject to reasonable restrictions.”

United States v. Scheffer, 523 U.S. 303, 308 (1998); Ferensic, 501 F.3d at 475. Further, “federal

rulemakers have broad latitude . . . to establish rules excluding evidence from criminal trials . . . .

so long as [the rules] are not ‘arbitrary’ or ‘disproportionate to the purposes they are designed to

serve.’” Scheffer, 523 U.S. at 308 (quoting Rock v. Arkansas, 482 U.S. 44, 56 (1987)). Thus, “well-


                                                  10
established rules of evidence [that] permit trial judges to exclude evidence” under certain

circumstances are unlikely to violate a defendant’s constitutional rights. Holmes v. South Carolina,

547 U.S. 319, 326 (2006).

        Federal Rule of Evidence 702 provides that, “[i]f scientific, technical, or other specialized

knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue,”

then “a witness qualified as an expert . . . may testify . . . if (1) the testimony is based upon sufficient

facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness

has applied the principles and methods reliably to the facts of the case.” Fed. R. Evid. 702. The

Supreme Court has concluded that Rule 702 requires a district court, when presented with potential

scientific expert testimony, “to determine whether the evidence ‘both rests on a reliable foundation

and is relevant to the task at hand.’” United States v. Langan, 263 F.3d 613, 620 (6th Cir. 2001)

(quoting Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 597 (1993)). This Court has

interpreted Daubert to require district courts to engage in a two-step inquiry. United States v.

Smithers, 212 F.3d 306, 313 (6th Cir. 2000). A district court first must determine “‘whether the

reasoning or methodology underlying the testimony is scientifically valid and . . . whether that

reasoning or methodology properly can be applied to the facts in issue.’” Id. (quoting Daubert, 509

U.S. at 592-93). In the second step, a district court should ensure that the “proposed expert

testimony is relevant . . . and will serve to aid the trier of fact,” and also determine whether the

testimony “fit[s].” Id.

        In conducting its hearing on Defendant’s motion in limine, the district court focused on the

second prong of the analysis for admissibility of expert testimony—whether the expert’s “reasoning

or methodology properly could be applied to the facts at issue to aid the trier of fact.” Smithers, 212


                                                    11
F.3d at 315. To support the decision to exclude the expert’s testimony regarding lineup procedures

that increase the reliability of an eyewitness’ identification, the district judge stated that he was “not

going to allow expert testimony on the details of this particular lineup. I don’t see anything—you

have not shown me anything which shows that that kind of testimony is relevant and admissible, and

I have not heard it from this witness.” (J.A. 234.)

        The court further stated:

        I’m not going to allow [an explanation of what science has shown about the manner
        in which photos are presented in a photo spread] because that . . . is only relevant so
        you can say well, because this [procedure] wasn’t done, you should give less weight
        to this witness’ testimony. . . . I don’t think that’s a permissible subject for expert
        testimony.
        ....
        I’m not going to allow testimony on general lineup procedures. I think we’ve had
        testimony about that. The parties can argue that. But I don’t . . . find that that would
        be helpful, and I think that is invading the province of the jury, and tying a lot of
        general theories to a very specific procedure here.

(J.A. 235-36.) Finally, the district judge added a further explanation for his “ruling on the photo

spread procedures.” He stated:

        The issue about the photo spread in this case is the argument that the photographs
        themselves created a more suggestive photo spread than necessary. I already ruled
        that there was no constitutional infirmity, but that doesn’t mean that a better job
        couldn’t have been done selecting the photographs, and counsel are certainly free to
        argue that one way or another, and we’ve already had a lot of cross-examination on
        that. I don’t think that that is a basis for expert testimony, because the issue that’s
        been identified in this case was that the photographs themselves, I guess the features
        of the other five and the manner in which they were dressed and the background
        made the photograph of Mr. Smead stand out, and we don’t need an expert to testify
        to that. So that’s the basis of my ruling.

(J.A. 237.) Thus, the district judge believed Dr. Fulero’s testimony was not “helpful” to the jury

because the issue of how the lineup was presented to the witness had not been a basis for challenging

the reliability of Morrow’s identification. Instead, the defense had argued that the backgrounds of


                                                   12
the photographs and the appearances of the individuals in the other photographs in the lineup had

made Morrow’s identification unreliable. As a result, the district court ruled that Dr. Fulero would

not be permitted to testify regarding lineup procedures. We conclude that the district court did not

abuse its discretion because it properly “appl[ied] the correct law, follow[ed] the appropriate

decision-making steps[,] and articulate[d] the bases upon which its decision rest[ed].” Smithers, 212

F.3d at 315.

        This Court has noted that expert testimony regarding eyewitness identifications “inform[s]

the jury of why the eyewitnesses’ identifications were inherently unreliable” and, thus, provide a

“scientific, professional perspective that no one else [can] offer[] to the jury.” Ferensic, 501 F.3d

at 477. The significance of an expert’s testimony “cannot be overstated” because, without it, a jury

has “no basis beyond defense counsel’s word to suspect the inherent unreliability” of an eyewitness

identification.” Id. at 482. As a result, in Smithers, this Court held that the district court abused its

discretion in precluding the defense from presenting the testimony of Dr. Fulero regarding the

reliability of eyewitness identifications and factors that affect the reliability of an identification.

Smithers, 212 F.3d at 314.

        In Smithers, however, the district court excluded the entirety of Dr. Fulero’s testimony

regarding eyewitness identifications. Id. at 310. Further, the district court did not evaluate the

content of the proffered testimony prior to excluding it, and offered no reason to support its decision

to exclude the evidence.7 Id. In contrast, before limiting the scope of Dr. Fulero’s testimony, the


        7
         The district judge did, however, note that it would be interesting to see what the jury would do
without expert testimony since the government’s case was based entirely on an eyewitness identification.
Smithers, 212 F.3d at 310. He brushed aside the “defendant’s fate” by telling counsel that they could always
appeal or move for a new trial. Id. This Court found the district court’s actions to be “gamesmanship at its
worst.” Id. While expressing its extreme disapproval of the judge’s “experiment” rationale, this Court’s

                                                    13
district court in this case conducted a hearing to assess the reliability and relevance of Dr. Fulero’s

testimony under Rule 702. The district judge did not preclude Dr. Fulero from testifying entirely but,

instead, excluded only the portion of his testimony relating to lineup procedures that can increase

the reliability of an eyewitness’ identification.

        Further, the jury in this case had a basis “beyond counsel’s word” to suspect that Morrow’s

identification of Defendant from the photo-array lineup was unreliable or inaccurate. See Ferensic,

501 F.3d at 482. The jury heard substantial testimony regarding the reconstructive theory of memory

and the possibility that post-event information, such as a photographic lineup, might have affected

Morrow’s original memory of the bank robbery. The jury also had a basis to doubt the accuracy of

Morrow’s identification based on Defendant’s cross-examination of Morrow and DeKatch. Both

witnesses admitted that Defendant’s photograph would stand out for reasons unrelated to his

involvement in the bank robbery. Although this Court has acknowledged that “‘other means’ of

attacking eyewitness identifications do not effectively substitute for expert testimony on their

inherent unreliability,” Ferensic, 501 F.3d at 481, the testimony excluded in this case did not relate

to the inherent unreliability of the identification. Instead, the testimony addressed the procedures,

unrelated to “aspects of perception and memory . . . not within the common experience of most

jurors,” that law enforcement can follow to increase the reliability of an eyewitness identification.

Id. at 482 (quoting Smithers, 212 F.3d at 315-16); cf. United States v. Rodriguez-Felix, 450 F.3d

1117, 1126 (10th Cir. 2007) (noting that the fundamental inquiry in determining whether expert

testimony on the reliability of eyewitness identifications will “assist the trier of fact” is “whether



decision in Smithers was based on the district court’s failure to conduct a Daubert hearing prior to excluding
the testimony in full. Id. at 314.

                                                     14
such testimony fell outside the juror’s common knowledge and experience” and finding that

exclusion was not an abuse of discretion because “cross-examination amply exposed the common-

sense deficiencies in the prosecution’s identification case”).8

        Further, Defendant was not denied his Sixth Amendment right to present a complete

defense.9 “Exclusion of evidence only raises constitutional concerns if it has ‘infringed upon a

weighty interest of the accused.’” Baze v. Parker, 371 F.3d 310, 324 (6th Cir. 2004) (quoting

Scheffer, 523 U.S. at 308). Thus, “even where a district court erroneously excludes defense

evidence, ‘[w]hether the exclusion of [an expert’s] testimony violated [Defendant’s] right to present

a defense depends upon whether the omitted evidence [evaluated in the context of the entire record]

creates a reasonable doubt that did not otherwise exist.’” Blackwell, 459 F.3d at 753 (first and fourth

alterations in original) (quoting Washington v. Schriver, 255 F.3d 45, 57 (2d Cir. 2001)).

        Defendant argues that, because the government’s case rested almost entirely on an eyewitness

identification, the failure of the district court to allow Defendant to present all possible grounds to

challenge the reliability of that identification denied him the right to present a complete defense. The

exclusion of testimony related to lineup procedures, however, did not infringe a “weighty interest”



        8
         Defendant also argues that the district court erred because it “focused on the possible effect Dr.
Fulero’s conclusions might have on the jury—not solely the principles and methodology underlying those
conclusions.” Pet’r Br. 36. While there are portions of the district judge’s statements that could support this
argument, the district judge made clear that the basis for excluding the evidence was that the testimony was
not helpful to the jury because it was not closely related to the dispute over the photographic lineup, and
because it would invade the jury’s province as the judge of witness credibility. In addition, the district judge
made these statements in addressing the relevance of the testimony, rather than its reliability.
        9
         We also note that, although Defendant argues that Ferensic found reversible error even under the
harmless error standard, the court in Ferensic emphasized that it was “particularly persuaded” by a jury note
expressing an inability to reach a conclusion and asking to review the police report containing the sketches
serving as the basis of the eyewitness’ identification.” Ferensic, 501 F.3d at 483. In reaching its conclusion,
the court again “emphasize[d] just how significant the jury’s note [was] to [its] analysis.” Id.

                                                      15
of Defendant. See Baze, 371 F.3d at 324. While this Court in Ferensic concluded that exclusion of

similar expert testimony infringed on a weighty interest of the accused, the trial court in that case

excluded the entirety of the expert’s testimony. Ferensic, 501 F.3d at 477 (agreeing that the court

should not have precluded the expert from testifying and that, without the expert’s testimony, “there

was no evidence to support counsel’s argument” that eyewitness identifications are inherently

unreliable). Further, because the jury heard substantial testimony from Dr. Fulero regarding several

potential problems with eyewitness identifications, and also heard cross-examination regarding the

suggestiveness of the photo-array lineup, it is unlikely the additional testimony of Dr. Fulero

regarding lineup procedures would create a “reasonable doubt that did not otherwise exist.”

Blackwell, 459 F.3d at 753. Thus, we conclude that the “exclusion of portions of [Dr. Fulero’s]

testimony was not an abuse of discretion, and accordingly, did not deny Defendant the right to

present a [complete] defense.” Id. As a result, the decision of the district court is AFFIRMED.




                                                 16
