                            STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     July 27, 2017
                Plaintiff-Appellee,

v                                                                    No. 331478
                                                                     Wayne Circuit Court
DEZMEN FAQUA,                                                        LC No. 15-006214-01-FC

                Defendant-Appellant.


Before: MARKEY, P.J., and METER and SHAPIRO, JJ.

SHAPIRO, J. (dissenting).

        The central issue in this case was the reliability of the identification of defendant by two
young boys who witnessed the murder of their father. Given the developing research concerning
the factors relevant to judging the reliability of identifications, a defense counsel’s failure to
consult an expert in this area can constitute ineffective assistance of counsel. Accordingly, I
would remand for a Ginther1 hearing where the trial court, which also acted as the trier-of-fact,
can consider whether under the circumstances of this case counsel’s performance was deficient
and, if so, whether there is a reasonable probability that had defense counsel sought expert
assistance the result of the proceeding would have been different. Strickland v Washington, 466
US 668, 687, 694; 104 S Ct 2052; 80 L Ed 2d 674 (1984).

        In support of his argument for reversal or remand, defendant has provided the affidavits
of two experts each of who avers that they would have been available to testify at defendant’s
trial and that they would have testified favorably to his defense. The first affidavit is from
Colleen M. Seifert, Ph.D., a cognitive psychologist, researcher, and professor at the University of
Michigan. She averred that after reviewing the preliminary exam transcript, trial transcripts, and
Kids Talk interviews it was her opinion that the children’s eyewitness identifications displayed
several problematic factors and that each of these factors had been shown in “scientific studies to
impair eyewitness accuracy and to affect decision-making by triers of fact.” Seifert’s affidavit
went on to explain in detail the relevant factors that she believed would have decreased the
accuracy of the children’s identification including, the viewing conditions, the children’s age, the
rapid decrease in memory over time, relevant post-event factors that could alter their memory,


1
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).



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and flaws in the identification procedure itself. The second affidavit is from David W.
Thompson, Ph.D., a clinical and forensic psychologist with experience in the review of child
forensic interviews. He averred that he would have testified about the various factors that
increase and decrease the reliability of eyewitness identification and that he would have
specifically testified that there were several factors present that decreased the reliability of the
children’s identifications. Specifically, Thompson pointed to inappropriate Kids Talk forensic
interview techniques, inconsistent statements by the children, admissions by the children that
some of their prior statements were not truthful, and exposure to post-event information and
influences.

       The record supports the presence of many of the factors that Seifert and Thompson
contend undermine the reliability of the identification. While defense counsel vigorously cross
examined both children, certain points made in the affidavits were not addressed, and expert
testimony could have served to explain the relevant science to the trier of fact.2

        I do not suggest that we should reverse defendant’s conviction on this record or that a
failure to consult an identification expert is necessarily ineffective assistance. However,
defendant has alternatively requested that we remand the case for a Ginther hearing and in my
view has demonstrated the need for one. Accordingly, I would remand the case for such a
hearing and retain jurisdiction so that we may review the issue on a proper record.



                                                             /s/ Douglas B. Shapiro




2
  I have previously summarized in more detail the extent of the scientific evidence in this area
and the importance it plays in cases where the sole evidence of a defendant’s guilt is eyewitness
identification testimony. People v Blevins, ___ Mich App ___, ___; 886 NW2d 456, 470-475
(2016) (SHAPIRO, J. dissenting) (Docket No. 315774), slip op at 2-8.



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