People v Santiago

[*1] People v Santiago 2012 NY Slip Op 51043(U) Decided on June 8, 2012 Supreme Court, New York County Kahn, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 8, 2012
Supreme Court, New York County

The People of the State of New York

against

Edwin Santiago, Defendant.



1133/10



For the defendant:Seth D. Gross, Esquire

Criminal Defense Division

The Legal Aid Society Of New York

49 Thomas Street

New York, New York 10013-3821

For the prosecution:Matthew Bogdanos, Esquire

Assistant District Attorney

New York County District Attorney's Office

One Hogan Place

New York, New York 10013

Marcy L. Kahn, J.

Defendant Edwin Santiago was charged by indictment with assault in the first degree (PL §120.10[1]).[FN1] Prior to his retrial, defendant sought to introduce at trial expert testimony as to ten [*2]factors which he maintained affect the reliability of the eyewitness identifications in the case, and he proffered an expert witness, Jennifer Dysart, Ph.D., from whom he sought to elicit such testimony. The prosecution conceded the admissibility of four of the factors, and another justice of this court ordered a Frye hearing on the remaining six areas of expert testimony to be conducted by this court immediately prior to trial.

During the hearing, the prosecution conceded that the entirety of defendant's proposed expert testimony was generally accepted in the relevant scientific community, and inquired of the witness solely as to the foundational basis of her testimony and of the social science studies on which she relied. In some instances, questions as to the relevance of the testimony were deferred until trial. Under the circumstances, this court deemed the hearing to have been a foundational proffer on the reliability of the studies underlying the expert's conclusions, rather than a Frye hearing on the general acceptance of the specific scientific theories in the relevant scientific community. At the conclusion of the presentation of evidence by the defense, the People additionally conceded the admissibility of virtually all of defendant's proposed evidence. For these and the reasons that follow, the court treated this proceeding as sui generis and approved the defendant's proffer of expert testimony, as set forth below.

I.FACTUAL AND PROCEDURAL BACKGROUND

A.The Trial and Appellate Proceedings

To the extent not set forth in this decision and order, knowledge of the factual and procedural background of the case, as set forth in People v. Santiago, 2 Misc 3d 652 (Sup. Ct. NY County 2003), People v. Santiago, 75 AD3d 163 (1st Dept. 2010) and People v. Santiago, 17 NY3d 661 (2011), is presumed.

On February 5, 2004, defendant was convicted after a trial before a jury and another justice of this court of assault in the first degree (PL §120.10), and, on April 28, 2004, received a sentence of 25 years' imprisonment followed by five years of post-release supervision. Defendant appealed his conviction on the ground that the trial court abused its discretion in denying his request to present expert testimony on eyewitness identification. On May 6, 2010, the Appellate Division, First Department affirmed the judgment of conviction. (People v. Santiago, supra, 75 AD3d at 163).

On appeal to the Court of Appeals, the Court reversed and ordered a new trial, holding that the trial court had abused its discretion by refusing to allow expert testimony on the subject of eyewitness identification evidence. Following the principles set forth in its seminal ruling in People v. LeGrand, 8 NY3d 449 (2007),[FN2] the Court held that the trial court had erred in refusing to admit expert testimony on eyewitness confidence as a poor predictor of identification accuracy, on eyewitness confidence malleability, and on the effects of post-event information on eyewitness memory. (People v. Santiago, supra, 17 NY3d 661, 673 [2011]). The Court of [*3]Appeals further held that

five other factors should have been given more consideration by the trial court, including, in some instances, the holding of a Frye hearing: Given that the People did not dispute that the victim is a non-Hispanic Caucasian, the proposed testimony on inaccuracy of identifications of Hispanic people by non-Hispanic Caucasians appears relevant, and is beyond the ken of the average juror. Supreme Court should also have given more adequate consideration to whether the proposed testimony concerning exposure time, lineup fairness, the forgetting curve, and simultaneous versus sequential lineups was relevant tothis case and beyond the ken of the average juror, and if necessary held a Frye hearing, to determine whether these factors are generally accepted as reliable within the relevant scientific community.

(Id. [footnote omitted]). The Court also ruled that, as to the eyewitnesses other than the complainant, the trial court should "have given specific consideration to the proposed testimony concerning unconscious transference." (Id. at 673).[FN3]

B.The Instant Motion

On March 30, 2012, this case was referred to this court for

a Frye hearing, to be followed immediately by trial. The defendant sought to address at the hearing the admissibility of expert testimony on the three areas of expert testimony ruled admissible by the Court of Appeals (confidence accuracy, confidence malleability and post-event information); five of the areas as to which the Court had directed further consideration and possible Frye hearings (cross-cultural identification/own race bias, exposure time, line-up fairness, sequential versus simultaneous line-ups and unconscious transference as to the non-complainant eyewitnesses);[FN4] one area deemed irrelevant by the Court of Appeals, namely, weapons focus, conditioned on its relevance; and one area not previously raised in the case,

namely, high event stress. The People indicated their desire to comply with the Court of Appeals decision requiring the court to accord "more adequate consideration" to the proposed expert

testimony, and stated that they would likely not oppose the introduction of most, if not all, of the expert testimony sought to be introduced, provided that defendant made a proffer of the social science studies upon which the expert's opinion testimony would be based during which they could inquire of the expert as to the reliability of the methodology and findings of each of them. [*4]

At the hearing held before this court on March 30 and April 2, 2012, the defense proceeded to elicit from their proposed expert witness, Dr. Jennifer Dysart, a research forensic

psychologist and associate professor at John Jay College, her conclusions as to the effect on memory and perception of the ten areas sought to be introduced through her testimony. At the hearing, the prosecution had the opportunity to ask questions of Dr. Dysart as to the methodologies of the studies upon which she relied in arriving at her opinions. After the hearing was concluded, the People indicated that they would concede the admissibility of virtually all of the expert's proposed evidence.[FN5] This court permitted the defense to present its desired testimony, with the exceptions of the minimal aspects opposed by the prosecution. This written decision explains the court's rulings.

II.DISCUSSION

A.Legal Standards

Expert testimony may be elicited at trial in the discretion of the court where such testimony would help clarify an issue calling for professional or technical knowledge beyond the ken of typical jurors. (People v. Brown, 97 NY2d 500 [2002]; People v. Lee, 96 NY2d 152 [2001]; De Long v. County of Erie, 60 NY2d 296 [1983]). The court's exercise of discretion "depends in large part on whether the specialized knowledge' of the expert can give jurors more perspective than they get from their day-to-day experience, their common observation and their knowledge.'" (People v. Young, 7 NY3d 40, 45 [2006], quoting People v. Lee, supra, 96 NY2d at 162, and People v. Cronin, 60 NY2d 430, 433 [1983]). Where a party seeks to introduce expert testimony which is based upon new scientific principles or procedures, or which is founded upon new social and behavioral theories, the Frye test must be applied to determine whether the innovative principle, procedure or theory, when properly performed, generates results which are accepted as reliable within the relevant scientific community. (People v. LeGrand, 8 NY3d 449, 457 [2007]; Parker v. Mobil Oil Corp., 7 NY3d 434, 446-47 [2006]; People v. Wesley, 83 NY2d 417, 422 [1994]). The application of the Frye standard, the Court of Appeals has explained, " emphasizes "counting scientists' votes, rather than . . . verifying the soundness of a scientific conclusion."'" (Parker v. Mobil Oil Corp., supra, 7 NY3d at 447, quoting Wesley, supra, 83 NY2d at 439 [other citations omitted][Kaye, Ch. J., concurring]). "Once a scientific procedure has been proved reliable, a Frye inquiry need not be conducted each time such evidence is [*5]offered [and courts] may take judicial notice of reliability of the general procedure." (People v. LeGrand, supra, 8 NY3d at 458, quoting People v. Wesley, supra, 83 NY2d at 436 [Kaye, Ch. J., concurring]).

The court's examination of scientific evidence under Frye is "separate and distinct from the admissibility question applied to all evidence," (Parker, supra, 7 NY3d at 447), that being a determination by the trial court, "as a preliminary matter of law, whether an adequate foundation for the admissibility of [the] particular evidence has been established." (Wesley, supra, 83 NY2d at 429; see LeGrand, supra, 8 NY3d at 457; Parker, supra, 7 NY3d at 447).

The court's examination of the evidence in this second stage inquiry is a gatekeeping function, to assure that there is an adequate foundation of reliability demonstrated for the testifying expert's opinions in the particular case. As explained by the Court of Appeals in Parker:

As with any other type of expert evidence, we recognize the danger in allowing unreliable or speculative information (or "junk science") to go before the jury with the weight of an impressively credentialed expert behind it. But, it is similarly inappropriate to set an insurmountable standard that would effectively deprive toxic tort plaintiffs of their day in court. It is necessary to find a balance between these two extremes.

(Parker v. Mobil Oil Corp., supra, 7 NY3d at 447). The concerns so articulated by the Court of Appeals in addressing the toxic tort claims in Parker are equally applicable in a criminal case founded on eyewitness identification evidence.[FN6] The Sixth Amendment right of the defendant to present a defense, coupled with the significant role mistaken eyewitness identifications have been shown to play in wrongful convictions, dictate that in appropriate cases, courts must permit defendants to offer expert testimony on the subject of eyewitness identification. (See People v. Santiago, supra, 17 NY3d at 669). Nonetheless, the court has an obligation to the jury and to our jurisprudence to exercise its authority to prevent unreliable or speculative expert testimony on the subject from coming before the jury.

"A trial court may, in its discretion, admit, limit, or deny the testimony of an expert on the reliability of eyewitness identification, weighing a request to introduce such expert testimony against other relevant factors, such as the centrality of the identification issue and the existence of corroborating evidence.'" (Id., quoting People v. Lee, supra, 96 NY2d at 163). The two-stage standard governing a trial court's exercise of discretion with respect to the admission of expert testimony on eyewitness identification set forth by the Court of Appeals in the LeGrand case involves first, determining whether the case "turns on the accuracy of eyewitness identifications and there is little or no corroborating evidence connecting the defendant to the crime," and if so, determining whether the proposed expert testimony is (1) relevant to the witness' identification; (2) based on principles which are generally accepted in the scientific community; (3) proffered by a qualified expert; and (4) on a topic beyond the ken of the average juror. (LeGrand, supra, 8 [*6]NY3d at 452).

B.Application

In accordance with the directive of the Court of Appeals, on remand and defendant's renewal of his application to introduce expert eyewitness identification testimony, this court held a two-day hearing at which it received the testimony of Dr. Dysart, as well as the cross-examination by the prosecution, and gave "more adequate consideration" to the topics sought to be covered by the expert's testimony. Notwithstanding the contemplation of the Court of Appeals, however, traditional litigation of the issue was avoided, both by the prosecution's decision not to oppose the bulk of the defense application and by the prior ruling of the Court of Appeals.[FN7]

Principal among the issues not in dispute was that the principles regarding memory, perception and recall of eyewitness identification testimony subsumed within the ten proffered areas of the expert's testimony had attained general acceptance in the relevant scientific community. Accordingly, the People's concession of this issue rendered a Frye inquiry unnecessary in this case.

Second, the Court of Appeals has held that this case turns on eyewitness identification evidence, with insufficient corroborating evidence to avoid requiring a second stage analysis under LeGrand (Santiago, 17 NY3d at 672, 673), obviating the need for this court to make the stage one determination under LeGrand. Additionally, the People conceded that the proposed expert, Dr. Dysart, was qualified to offer expert testimony on the reliability of eyewitness identification, and that the ten proffered subject areas on which she would testify were beyond the ken of the typical juror. Thus, in the unusual posture of this case, the issues remaining to be determined by this court were first, the issue of law as to whether an adequate foundation for the admissibility of the particular evidence has been established, demonstrating its reliability for purposes of its introduction at this trial (the gatekeeping/reliability assessment) (LeGrand; [*7]Parker; Wesley); and second, the remaining discretionary determination under stage II of LeGrand as to whether the particular subject of the expert's testimony is relevant to the identification testimony in the case (the relevance assessment). Having heard the testimony of Dr. Dysart during the two-day hearing, having reviewed the studies on which her proposed testimony is based, applying the legal principles already discussed, and having considered the position of the prosecution on the motion, this court now offers its reasoning in resolving those two issues as with respect to each of the proffered areas of testimony.

1.Eyewitness confidence

2.Confidence malleability

3.Post-event information

With respect to the issues of eyewitness confidence and its poor correlation to accuracy of identification, confidence malleability and the effect of post-event information on memory, the Court of Appeals expressly stated that expert testimony on these subjects was relevant to the identification of defendant by the complainant. (Santiago, 17 NY3d at 672). As to these issues, the People conceded both reliability and relevance.

In the particular posture of this case, therefore, there being no issue presented as to the admissibility of these areas of testimony, this court held that they could be presented to the jury.

4.Own-group bias

With respect to the issue of own-race bias, or cross-ethnic identification, the Court of Appeals determined that "the proposed testimony on inaccuracy of identifications of Hispanic people by non-Hispanic Caucasians appears relevant . . . ." (Santiago, 17 NY3d at 672). The issue of relevance was thereby resolved for present purposes.

As for the reliability foundation, the studies underlying Dr. Dysart's testimony present a more checkered picture. The evidence at the hearing included the results of the seminal survey by Professor Saul Kassin and colleagues indicating that 90 percent of experts surveyed agreed that "[e]yewitnesses are more accurate when identifying members of their own race than members of other races," and that 97 percent of those surveyed agreed that there was a research basis for that conclusion. (Kassin, S.M., Tubb, V.A., Hosch, H.M., Memon, A., "On the General Acceptance' of Eyewitness Testimony Research," American Psychologist, 56:5, 405-416, 412 [May 2001]). Although Dr. Dysart agreed that most of the research in this area has focused on African-American/Caucasian identifications, she testified that social scientists in her field generally agreed that the results of such studies could readily be applied to other "ingroup versus outgroup" situations. She cited a single study by Professors Platz and Hosch, which showed that in a small field study, Mexican-Americans, like members of other groups, were most comfortable identifying members of their own group, and that non-Hispanic Caucasian study subjects correctly identified Mexican-Americans 34 percent of the time, while correctly identifying non-Hispanic Caucasians in 53 percent of cases. (Platz, S.J. and Hosch, H.M., "Cross-Racial/Ethnic Eyewitness Identification: A Field Study," Journal of Applied Psychology, 18:11, 972-984, 978 [1988]). The figures for the Hispanic study subjects were comparable, at 36 and 54 percent, respectively. (Id.).

On the other hand, the meta-analysis cited by Dr. Dysart, done by Professors Christian Meissner and John Brigham, reviewing 39 studies involving almost 5000 subjects, and [*8]concluding that participants were more than twice as likely to accurately identify own-race faces as other-race faces, was based on a cohort which was 56 percent Caucasian, 32 percent African-American and 12 percent Arab/Turkish, Asian and Hispanic in origin. It did not specifically address the phenomenon at issue in this case, and involved a very small number of Hispanic study subjects and an unspecified number of non-Hispanic Caucasian to Hispanic Caucasian contacts. (Meissner, C.A. and Brigham, J.C., "Thirty Years of Investigating the Own-Race Bias in Memory for Faces: A Meta-Analytic Review," Psychology, Public Policy and Law, 7:1, 3-35, 14, 26 [2001]).

Further, in New Jersey, a state requiring the use in appropriate cases of jury instructions warning of the potential for misidentification of other-race persons (State v. Cromedy, 158 NJ 112 [1999]), the Supreme Court held in a case involving a Caucasian complainant and a Hispanic defendant that "[s]ocial science research does not tie identification unreliability directly to ethnic differences in the same way that racial differences can affect identification reliability." (State v. Romero, 191 NJ 59, 63 [2007]).

Nonetheless, in this case, the People neither offered their own expert testimony on own-group bias (cf. People v. Abney, 31 Misc 3d 1231(A), 932 NYS2d 762, 2011 NY Slip Op 50919(U) [Sup. Ct. NY County 2011][citing prosecution expert and rejecting as without reliable scientific basis defense own-race bias testimony involving South Asian identifications of African Americans, despite proffer of the Meissner and Brigham meta-analysis]), nor did they challenge the admission of the proffered defense testimony on foundational reliability grounds. Instead, they conceded the admissibility of the testimony on this factor. Accordingly, given the nearly unique posture of the case, the absence of any challenge to the evidence and the fact that the defense was able to point to some evidence supporting its theory, this court held that the defense could offer expert witness testimony on own-group bias/cross-ethnic identification.

5.Exposure time

In this case, where the victim viewed her attacker's partially obscured face for no more than 25 seconds, the subject of exposure time is certainly relevant. The People again conceded both relevance and foundational reliability as to this factor. Therefore, the defendant's application to introduce expert testimony as to this factor was granted.

6.Line-up fairness

With respect to lineup fairness, the defense sought to introduce expert testimony that double-blind administered line-ups are more probative of accuracy than non-double-blind procedures. The People conceded the relevance and foundational reliability of such evidence. Accordingly, the court permitted the defense expert to testify to the significant decrease in accuracy from the use of line-up procedures which are not double-blind.

7.Simultaneous versus sequential line-ups

Defendant next offered testimony that sequential lineups help reduce the risk of false identification present in simultaneous line-ups when the culprit is absent, that the effects of poor fillers on identification reliability are increased with a simultaneous procedure, and that experts agree that studies show that a sequential procedure reduces both accurate and inaccurate identifications. The People conceded the relevance and reliability of such testimony, and, accordingly, no issue having been presented for the court's resolution, it was permitted at trial.

On the other hand, the People challenged the expert testimony as to the effect of making a [*9]relative judgment in a simultaneous line-up in those circumstances where the witness immediately and unequivocally selects an individual from the line-up. Their objection was based on foundational reliability, and the fact that Dr. Dysart had been unable during the hearing to identify any instance in which a person made an unhesitating selection and then acknowledged having merely "chosen the best."

(Tr. of hearing, Mar. 30, at 92).

Based both upon relevance grounds, as the complainant in this case did not hesitate in selecting defendant from the line-up, and foundational reliability grounds, given Dr. Dysart's response to the prosecutor's inquiry, this court held that no expert testimony could be offered on the effect of sequential viewing as inhibiting the eyewitness's resort to relative judgment with respect to identifications which were unhesitating.

8.Unconscious transference

The Court of Appeals held that expert testimony on the subject of unconscious transference would have been relevant as to the two non-victim eyewitnesses in the case, resolving the relevance issue for this court. The People conceded the admissibility of this subject, including the commitment effect, and, accordingly, this court held that expert testimony on unconscious transference, including the commitment effect, would be admissible at trial.

9.Weapon focus

Although the Court of Appeals found the subject of weapon focus to have been irrelevant, both parties acknowledged the possibility that the victim's testimony at trial might make such testimony relevant, should she testify to having seen the boxcutter while viewing the perpetrator's face. The People consented to the admission of expert testimony on weapon focus, to the extent that the testimony at trial demonstrated its relevance. On that basis, therefore, this court ruled that expert testimony on weapon focus could be introduced.

10.High event stress

Finally, with respect to the introduction of evidence that high stress negatively impacts the accuracy of eyewitness identification and recall of crime details, the prosecution did not oppose the defense proffer. This court found the testimony relevant, and there having been no challenge as to its admissibility, the court ruled that it could be introduced.

III.CONCLUSION

Having considered defendant's proffer of expert testimony on eyewitness identification during the two-day hearing on the ten factors he sought to introduce at trial, and the People having agreed, with one exception, to the admissibility of such evidence, and in view of the particular procedural posture and circumstances of this case, this court granted defendant's motion to present expert eyewitness identification evidence as indicated in this opinion.

The foregoing constitutes the decision and order of this court.

E N T E R:

___________________________

Marcy L. Kahn, J.S.C. [*10]

Dated: New York, New York

June 8, 2012 Footnotes

Footnote 1: Defendant was previously tried and found guilty in 2004. On the appeal of his conviction, the Court of Appeals held that the trial court abused its discretion in summarily denying defendant's requests to admit expert testimony on numerous factors affecting eyewitness identification, and ordered a new trial, directing the trial court on remand to give "more adequate consideration" to the admissibility of the specified areas of expert testimony, and, to the extent necessary as to each such factor, to conduct a Frye (Frye v. United States, 293 F 1013 [D.C. Cir. 1923]) hearing to determine whether the particular factor is generally accepted as reliable within the relevant scientific community. (People v. Santiago, 17 NY3d 661 [2011]).

Footnote 2: See discussion infra, at 9.

Footnote 3:On the other hand, the Court of Appeals found that testimony concerning weapon focus and unconscious transference as to the complainant would have been irrelevant. (Id., at 672).

Footnote 4:The defense withdrew at the start of the hearing its request for evidence as to the forgetting curve.

Footnote 5: The People objected to any testimony referring to relative judgment in the context of a simultaneous lineup where, as occurred with the complainant here, the witness immediately and unequivocally selects a person. The People also conceded the possible admissibility of weapons focus, conditioned on its relevance in light of the testimony of the complaining witness as to whether she had been distracted from looking at the perpetrator's face by the display of the boxcutter.

Footnote 6: The Court of Appeals has made clear that "expert opinion testimony regarding the reliability of an eyewitness identification should be treated in the same manner as testimony offered by other experts." (LeGrand, supra, 8 NY3d at 458).

Footnote 7: As courts continue to recognize the general acceptance within the relevant scientific community of an increasing number of factors governing the reliability of eyewitness identifica-tion (see, e.g., People v. LeGrand, supra, 8 NY3d at 458 [lack of correlation between confidence and accuracy of identifica-tion, confidence malleability, effect of post-event information on eyewitness memory]; People v. Abney, 31 Misc 3d 1231(A), 2011 slip op. 509199(U) [Sup. Ct. NY County May 5, 2011], at *29, *34, *36 [event stress, weapon focus, event duration]; People v. Williams, 14 Misc 3d 571, 586, 589 [Sup. Ct. Kings County 2006] [cross-racial identification]; People v. Banks, 16 Misc 3d 929, 930 [County Court, Westchester County 2007][exposure time]), given that courts need not revisit such determinations once made (see People v. LeGrand, supra, 8 NY3d at 458, quoting People v. Wesley, supra, 83 NY2d at 436 [Kaye, Ch. J., concurring]), the need to conduct Frye hearings in those cases where parties seek to introduce expert testimony on the reliability of eyewitness identification will logically diminish.