              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                   AT NASHVILLE                      FILED
                               JUNE 1998 SESSION
                                                                     October 13, 1998

                                                                    Cecil W. Crowson
STATE OF TENNESSEE,                 )                              Appellate Court Clerk
                                    )
              Appellee,             )      No. 03C01-9707-CC-00270
                                    )
                                    )      Williamson County
v.                                  )
                                    )      Honorable Donald P. Harris, Judge
                                    )
EDDIE L. COLEY, JR.,                )      (Aggravated Robbery)
                                    )
              Appellant.            )



                                  DISSENTING OPINION



              I respectfully disagree with both of my colleagues and believe that the

judgment should be vacated and the case remanded for a hearing for the proper

determination of the admissibility of Dr. Johnson’s testimony under Rule 702, Tenn. R.

Evid., and McDaniel v. CSX Transportation, Inc., 955 S.W.2d 257 (Tenn. 1997). The

trial court essentially held both that psychology has not reached the level of reliability to

permit testimony regarding eyewitness identification and that the expert would not be of

assistance to the jury. Unfortunately, though, the trial court made these rulings without

having heard any testimony by Dr. Johnson about the present extent of eyewitness

identification research and the extent of research findings that could contradict common

assumptions about factors that are thought to bear on the issue of reliability of

identification. In this respect, it is unfortunate that the information comes to us only as

a proffer as opposed to witness testimony subject to probing cross-examination.



              The defendant’s proffer reflects that Dr. Johnson’s expertise is based

upon substantial research by him and others into the mental processes that are

important to eyewitness identification. The proffer reflects that Dr. Johnson was
prepared to testify, among other things, that the level of the victim’s certainty or

confidence in his or her identification has no correlation to the level of accuracy in the

identification when the facts are similar to those in the present case. If this is true, it

directly contradicts the assumption, recognized by our supreme court, that the degree

of certainty expressed by the witness regarding the identification has a bearing on the

accuracy of the identification. See, e.g., State v. Dyle, 899 S.W.2d 607, 612 (Tenn.

1995); see also Neil v. Biggers, 409 U.S. 188, 199-200, 93 S. Ct. 375, 382 (1972).

Certainly, Dr. Johnson’s expertise would substantially assist the jury relative to its

assessment of this misconception that is not commonly understood by the public. The

remaining question, then, is whether the eyewitness expert testimony is based upon

trustworthy facts and data and upon sufficiently valid and reliable reasoning or

methodology. See McDaniel, 955 S.W.2d at 265 (Tenn. 1997).



              As Judge Peay’s opinion reflects, the state’s case rests solely upon the

eyewitness identification testimony of the two robbery victims. There is no other

evidence connecting the defendant to the crime. The defendant presented an alibi

defense. Under these circumstances, the thoughts of the United States Supreme Court

are significant:

              The vagaries of eyewitness identification are well-known; the
              annals of criminal law are rife with instances of mistaken
              identification. . . . The identification of strangers is proverbially
              untrustworthy. The hazards of such testimony are established
              by a formidable number of instances in the records of English
              and American trials.

United States v. Wade, 388 U.S. 218, 228, 87 S. Ct. 1926, 1933 (1967). This concern

has been expressed by our supreme court, as well. Dyle, 899 S.W.2d at 609 (Tenn.

1995). We should not lightly cast aside eyewitness identification expert testimony as

lacking value to our system of justice.




                                               2
              Also, given the fact that State v. Ward, 712 S.W.2d 485 (Tenn. Crim. App.

1986), analyzes the issue of the admission of eyewitness identification expert testimony

in the context of the discretion of the trial court, I question Judge Hayes’ statement that

current Tennessee law forbids the introduction of such evidence. Regardless, it is time

to revisit the issue based upon the additional research and studies that have been

conducted. However, we cannot do it on the record before us. Therefore, I would

remand the case for further hearing.



                                          ________________________________
                                          Joseph M. Tipton, Judge




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