State of Idaho v. Sarah Kathleen Pearce Robbery, kidnapping, battery, and aiding and abetting attempted first degree murder
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IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 34491
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STATE OF IDAHO,
Plaintiff-Respondent,
v.
SARAH KATHLEEN PEARCE,
Defendant-Appellant.
Boise, April 2008 Term
2008 Opinion No. 106
Filed: August 28, 2008
Stephen W. Kenyon, Clerk
Appeal from the District Court of the Third Judicial District of the State of Idaho,
Canyon County. Hon. Juneal C. Kerrick, District Judge.
The judgment of conviction is affirmed.
Greg S. Silvey, Boise, for appellant.
Honorable Lawrence G. Wasden, Attorney General, Boise, for respondent.
Kenneth Jorgensen argued.
_____________________
J. JONES, Justice
Sarah Kathleen Pearce appeals from her conviction of conspiracy to commit robbery,
robbery, conspiracy to commit first degree kidnapping, first degree kidnapping, aggravated
battery, and aiding and abetting attempted first degree murder. She contends that the district
court (1) erred when it declined to allow her expert witness to testify on lineup procedures and
the effect of such procedures on identifications, (2) erred by failing to instruct the jury regarding
dangers inherent in eyewitness identification, and (3) violated her due process rights when it
failed to admit the prosecutor’s arguments from co-defendants’ trials. The Court of Appeals
concluded that the district court erred in failing to allow Pearce’s expert to testify, but that any
error was harmless. The Court of Appeals affirmed her conviction. Pearce petitioned this Court
for review and we granted it.
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I.
FACTUAL AND PROCEDURAL SUMMARY
In the early morning hours of June 15, 2000, as Linda LeBrane was driving eastbound on
Interstate 84, she was forced off the road by a vehicle carrying three men and one woman. The
woman, later identified as Pearce by LeBrane and other witnesses who saw the group either
before or after the attack, entered LeBrane’s vehicle and unlocked her driver’s side door. The
three men, since identified as John David Wurdemann (John), Kenneth Wurdemann (Kenneth),
and Jeremy Sanchez, along with Pearce, forced LeBrane from her vehicle and demanded money
and drugs. John, Sanchez, and Pearce punched, struck, stabbed, and cut LeBrane with their fists
and sharp instruments while Kenneth struck LeBrane with an aluminum baseball bat. The
assailants took money and property from LeBrane, including a credit card, and transported her to
a location on Farmway Road in Canyon County. LeBrane was again forced from the vehicle,
beaten, stabbed, cut, and struck repeatedly before John and Sanchez set fire to her vehicle. The
group left her lying in the dirt at the scene.
On March 13, 2003, Pearce was charged by indictment, which alleged that she was the
female assailant. At trial, Pearce steadfastly contended she was not the woman involved. Her
defense rested, in part, on the allegedly questionable ability of LeBrane to identify the female
perpetrator.
Evidence at trial indicated that prior to the attack LeBrane had smoked two
marijuana cigarettes and was “loaded” by the time her car reached the Caldwell area.
Additionally, LeBrane lost her glasses during the attack. Although the point at which she lost
them is not clear, she admitted being nearsighted and unable to see without them. In the course
of the investigation, LeBrane incorrectly identified two different women in two separate photo
lineups. Pearce was in neither of the photo lineups. When questioned at trial, LeBrane admitted
that the first woman she identified was the one most resembling the composite picture created
after the incident 1 and that the second was the woman most resembling the actress who portrayed
the female assailant in a television episode of America’s Most Wanted, which featured the crime.
LeBrane eventually identified Pearce in the third lineup – a video lineup that did not have any
persons from the two previous photo lineups.
1
Carrie Parks, the forensic artist who prepared the composite of Pearce, testified at trial that the eyes described to
her by LeBrane were too large for an adult due to LeBrane’s intense anger toward her attacker and that LeBrane’s
emotions were preventing her from giving an accurate description.
2
The methods employed in showing LeBrane the photo and video lineups were called into
question at trial. Robert Miles, a detective with the Canyon County Sheriff’s Office and the
primary investigator on the case, testified that he had never received any training on how to
conduct a photo lineup. In addition, when Miles instructed LeBrane regarding the photo lineup,
he told her to identify the person who “most closely resembled” the perpetrator rather than
telling her to pick the perpetrator if she was in the lineup. In one photo lineup, after LeBrane
identified one person who she was positive was the female assailant, Miles told LeBrane she had
picked the wrong person. With respect to the video lineup, Miles notified LeBrane prior to her
identification that the lineup contained a person of interest.
In addition to LeBrane, several other people who allegedly saw the four perpetrators near
the time and place of the attack identified Pearce as the female in the group, both in lineups and
eventually in court. Keith Mower, who encountered the group at a rest stop on the night of the
attack, identified Pearce as the female accompanying the Wurdemann brothers and Sanchez, both
in a video lineup and later at trial. Steve Rupert, a clerk at a motel where the perpetrators
allegedly stopped after the attack, also identified Pearce in the video lineup and in court, as
having been with the three men. Rupert’s son, Joseph, also identified Pearce in the video lineup
and at trial as having been at the motel.
LeBrane complained the photo lineups made identification difficult, but that the video
lineup was more helpful. During one of the photo lineups, she told the deputy, “I need to see
these people in person. I need to see height. I need to see body movements. I need to see body
language. I need to hear voices.” She repeated this concern during the investigation. Mr.
Mower also testified that the video lineup was “much, much better” than the photo lineups, and
that it was much easier to make an identification with the video lineup.
Pearce offered Dr. Charles Honts, a psychology professor at Boise State University, to
testify as an expert regarding the reliability of eyewitness identification, including commentary
on lineup procedures. The state moved to exclude the testimony of Dr. Honts prior to trial. The
district court allowed Dr. Honts to testify as an expert witness, but limited his testimony to the
characteristics of memory without relation to the identifications in Pearce’s case. Additionally,
the court did not allow Dr. Honts to testify regarding lineup procedures and resulting
identifications in general, finding he was not sufficiently qualified as an expert in this area, either
as to his background or his knowledge of the facts of Pearce’s case.
3
Pearce also called Kenneth as a defense witness. Kenneth, who had confessed to his
participation in the attack, had previously testified for the state at the trials of John and Sanchez,
who were both convicted for their involvement. During Sanchez’ first trial, 2 he testified that
Pearce was not the woman involved, but at Sanchez’ second trial he testified he did not know
whether she was the woman. At Pearce’s trial, Kenneth testified on direct examination that he
had never seen the female participant prior to the night of the attack and that he did not believe
the woman was Pearce. The state then impeached Kenneth’s credibility on cross-examination,
focusing on his dishonesty throughout the investigation of the crime and his potential motive to
lie.
Following the state’s cross-examination of Kenneth, Pearce brought a motion to dismiss.
She asserted a due process violation based on the state’s inconsistent treatment of Kenneth’s
testimony for different defendants charged with the same crime. Pearce also moved to admit as
admissions of a party opponent the closing arguments from Sanchez’ first trial, where the state
asserted that the jury should believe Kenneth’s testimony, specifically that regarding Pearce, as
well as the sentencing argument in Kenneth’s case. The district court denied both the motion to
dismiss and the motion to admit the arguments. The jury subsequently found Pearce guilty of all
charges except aiding and abetting arson.
On appeal to the Court of Appeals, Pearce asserted the district court erred in refusing to
allow Dr. Honts to testify as to lineup procedures and resulting identifications, failing to instruct
the jury about the weaknesses of eyewitness identifications, denying her motion to dismiss, and
excluding arguments from prior proceedings.
Finding the record insufficient to determine
whether the exclusion of certain expert testimony by Dr. Honts was erroneous or whether any
such error would have been prejudicial, the Court of Appeals issued an order for temporary
remand, directing the district court to receive an offer of proof by Pearce as to the specific
testimony that would have been proffered at trial by Dr. Honts if it had not been excluded by the
trial court on the state’s motion in limine. The district court held an evidentiary hearing on the
matter and such record was before the Court of Appeals for its consideration and for ours on
review.
2
Sanchez’ first trial ended in a mistrial.
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II.
ISSUES ON APPEAL
The following issues are presented for determination: (1) whether the district court erred
by declining to allow Pearce’s expert witness to testify about lineup procedures and the effect of
such procedures on identifications; (2) whether the district court erred by failing sua sponte to
instruct the jury as to the dangers inherent in eyewitness identifications; and (3) whether the
district court erred in denying the motion to dismiss and the related motion to admit prior
prosecution arguments.
A.
The district court did not abuse its discretion in excluding certain testimony of Dr.
Honts.
Pearce argues the district court abused its discretion in finding that Dr. Honts lacked the
necessary education, experience, and factual background, to testify about police lineup
procedures and the effect of procedures on identifications. A trial court’s decision regarding the
admission of expert testimony is reviewed for abuse of discretion. State v. Merwin, 131 Idaho
642, 645, 962 P.2d 1026, 1029 (1998). When determining whether the district court abused its
discretion, we consider: (1) whether the lower court rightly perceived the issue as one of
discretion; (2) whether the court acted within the boundaries of such discretion and consistently
with any legal standards applicable to specific choices; and (3) whether the court reached its
decision by an exercise of reason. McDaniel v. Inland Northwest Renal Care Group-Idaho,
LLC, 144 Idaho 219, 221-22, 159 P.3d 856, 858-59 (2007).
To give expert testimony, a witness must first be qualified as an expert on the matter at
hand.
State v. Trevino, 132 Idaho 888, 895, 980 P.2d 552, 559 (1999).
Idaho Rule of
Evidence 702 is the appropriate test for measuring the reliability of evidence for expert
testimony.
Merwin, 131 Idaho at 646, 962 P.2d at 1030. “If scientific, technical, or other
specialized knowledge will assist the trier of fact to understand the evidence or to determine a
fact in issue, a witness qualified as an expert by knowledge, skill, experience or specialized
knowledge may testify thereto in the form of opinion or otherwise.”
Idaho R. Evid. 702.
Otherwise stated, the rule provides that qualified experts may testify in the form of an opinion
only if their specialized knowledge will assist the trier of fact to understand the evidence or
determine a fact in issue. There must be some demonstration that the witness has acquired,
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through some type of training, education or experience, the necessary expertise and knowledge
to render the proffered opinion. State v. Eytchison, 136 Idaho 210, 213, 30 P.3d 988, 991 (Ct.
App. 2001). A witness may be qualified to render opinions about some things but not others.
West v. Sonke, 132 Idaho 133, 139, 968 P.2d 228, 234 (1998). Once the witness is qualified as
an expert, the trial court must determine whether such expert opinion testimony will assist the
trier of fact in understanding the evidence. State v. Hopkins, 113 Idaho 679, 680-81, 747 P.2d
88, 89-90 (Ct. App. 1987) (citing Sidwell v. William Prym, Inc., 112 Idaho 76, 80-81, 730 P.2d
996, 1000-01 (1986)). If the court concludes, as it did here, that the witness is not qualified to
testify as to a particular matter, it is irrelevant whether such testimony would assist the trier of
fact.
In this case, the district court first addressed whether the witness could testify about the
reliability of eyewitness testimony, citing Idaho Rules of Evidence 401, 403, 702 and 704, and
relying on numerous prior cases, including State v. Hoisington, 104 Idaho 153, 657 P.2d 17
(1983), State v. Alger, 115 Idaho 42, 764 P.2d 119 (Ct. App. 1988), and State v. Hester, 114
Idaho 688, 760 P.2d 27 (1988). Using these rules and cases, the district court properly identified
the legal standards applicable to this issue, and considered whether the proferred testimony
would “assist the trier of fact.” The court concluded that Dr. Honts’ testimony concerning the
various characteristics of memory and techniques related to memory was beyond the common
experience of the jury and therefore admissible. The court also found that “Dr. Honts possessed
the necessary qualifications, education, and experience to provide assistance and insight to the
jury concerning these characteristics of memory.”
The district court, however, concluded that Dr. Honts could not testify about photo
lineups, video lineups, and resulting identifications because it “was not persuaded,” based on the
offer of proof, that Dr. Honts was qualified to testify on these particular issues. The district court
applied the same legal standards on this issue as it did to the issue of whether Dr. Honts was
qualified to testify regarding the characteristics of memory, and the reliability of eyewitness
identifications generally.
The court examined Dr. Honts’ qualifications and performed a
thoughtful analysis of his ability to testify regarding the lineup issues:
The court further concludes, however, that Dr. Honts will not be permitted
to testify concerning photo line-ups and video line-ups and resulting
identification. First, the court is not persuaded, based on the offer of proof, that
Dr. Honts possesses the necessary qualifications to testify concerning these issues.
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He testified that he has never participated in a police line-up, that he has never
conducted a line-up, and that he has never interviewed or spoken with any of the
witnesses in this case whose testimony was relevant to those issues: Linda
LeBrane, Keith Mower, Janine Waggoner, Steven Rupert, Officer Bob Miles,
Officer Chris Smith, Officer Gary John, Dan Hally, or Carrie Parks. Further, he
acknowledged having viewed only two of the many composite drawings involved
in this case. Although he has viewed three video line-ups, he only did so for the
first time two days ago. The court is not persuaded that Dr. Honts has the
requisite factual information, background, and preparation concerning the
eyewitness identification issues in this case to provide expert testimony on those
matters. He has conducted no research in the area of photo line-ups or video
lineups, and has never been qualified before to testify as a witness on these issues.
Although he has testified previously in sixty-three (63) proceedings, the vast
majority of his training, expertise, and court testimony has been concentrated in
the area of polygraphs, an issue which is not presented in this case. The court is
mindful that Dr. Honts teaches an upper division psychology class at Boise State
University entitled “Psychology and the Law,” a course which covers a wide
variety of topics of psychology related to the legal profession and forensics;
however, the court is not persuaded that he possesses sufficient expertise or
experience in the area of photo line-up identification, video line-up identification,
and recommended procedures for conducting line-ups and photo spreads so as to
meet the threshold necessary to qualify him as an expert for the purpose of
analyzing the particular lineups in this case, the witness identifications arising
therefrom, and offering his opinion as an expert to the jury. Additionally, any
opinion Dr. Honts might offer concerning the particular witness identifications in
this case, including, e.g., suggestability or tainted memories, begins to tread into
impermissible ground: the credibility of the witness identification, which is the
absolute province of the jury as the finders of fact.
The record amply supports the court’s reasoning here. The judge acted within her
discretion in determining that Dr. Honts did not possess the necessary skill, experience, or
specialized knowledge specific to lineup procedures.
To the contrary, Dr. Honts’ area of
expertise is actually in the field of polygraph testing, which was not at issue in this case. Dr.
Honts had dealt only peripherally with lineup procedures and issues, having “talk[ed] about
eyewitnesses, how to do lineups, how to conduct interviews,” in his Psychology and the Law
class, and having heard about the issue at conferences put together by the American
Psychology-Law Society. Dr. Honts expressly admitted that he had not “specifically done”
research in the area of eyewitness identification. Although he located a Department of Justice
article entitled “Eyewitness Evidence Guide, A Guide for Law Enforcement,” he admitted he had
not read the entire article. As counsel for the state noted at trial, Dr. Honts merely “acted as
librarian” for the defense. The record reveals sufficient evidence to support the district court’s
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conclusion that Dr. Honts lacked academic or practical experience specific to the area of lineup
procedures.
Although there are grounds for concern regarding various aspects of the lineup
procedures, particularly the photo lineups, and though it would likely have been helpful to have
testimony from an expert on the matters the district court found Dr. Honts did not have the
proper credentials upon which to opine, we cannot find that the court abused its discretion in
excluding his testimony on these matters.
An examination of the court’s decision clearly
demonstrates the court viewed the issue as one of discretion, acted within the boundaries of its
discretion, and reached its decision by an exercise of reason. The record adequately supports the
court’s reasoning, which logically flows from the legal standards it expressly relied upon in its
decision.
B.
The district court did not err by failing sua sponte to instruct the jury as to the
dangers inherent in eyewitness identification.
Pearce asserts the district court erred in failing to instruct the jury on the dangers inherent
in eyewitness identification, arguing the jury should have been instructed on factors to consider
in determining the accuracy of eyewitness identifications. 3 Whether a jury has been properly
instructed is a question of law. State v. Gleason, 123 Idaho 62, 65, 844 P.2d 691, 694 (1992).
This Court exercises free review over questions of law. Id.
In charging the jury, the court must state to them all matters of law necessary for their
information. I.C. § 19-2132(a). Either party may present to the court any written charge and
request that it be given. Id. “A defendant is entitled to an instruction where ‘there is a
reasonable view of the evidence presented in the case that would support’ the theory.” State v.
Eastman, 122 Idaho 87, 90, 831 P.2d 555, 558 (1992). However, there is no duty for a trial court
sua sponte to instruct the jury on every theory the defendant may have. “It is incumbent upon
the defendant to submit a requested instruction or in some other manner apprise the trial court of
the specific instructions requested.” Id.
3
Pearce was tried prior to the amendment to Idaho Criminal Rule 30(b). Idaho Criminal Rule 30(b) now says “[n]o
party may assign as error the giving of or failure to give an instruction unless the party objects thereto before the
jury retires to consider its verdict, stating distinctly the instruction to which the party objects and the grounds of the
objection.” Prior to the amendment, a failure to object at trial did not constitute a waiver of an objection on appeal.
State v. Cuevas-Hernandez, 140 Idaho 373, 375, 93 P.3d 704, 706 (Ct. App. 2004).
8
Pearce failed to offer an instruction on the dangers inherent in eyewitness identification.
This Court will not allow a defendant to appeal an instruction which was never offered at the
trial level, unless that instruction constitutes a necessary matter of law whose omission would
constitute fundamental error. State v. Anderson, 144 Idaho 743, 748-49, 170 P.3d 886, 891-92
(2007) (holding that even though new Idaho Crim. R. 30 expressly requires objection to preserve
jury instruction issue on appeal, defendant may still appeal jury instructions, even without
objection, where fundamental error occurs in instructions).
It is the defendant’s obligation to present his theories to the trial court, and the trial court
is not under a duty to determine on which theories to instruct the jury. Eastman, 122 Idaho at 91,
831 P.2d at 559. A defendant may not claim error on appeal for a defense theory which does not
constitute a necessary matter of law and for which no instruction was requested. The trial court
did not err in failing sua sponte to instruct the jury on the inherent dangers of eyewitness
identification.
C.
The district court did not err in denying the motion to dismiss.
At trial, Pearce called Kenneth to testify in her defense. Kenneth had previously pleaded
guilty for his role in the attack and had testified as a state witness in the two trials of Jeremy
Sanchez. At Sanchez’ first trial, Kenneth testified John and Sanchez were the other male
assailants. Kenneth testified he did not know the female assailant, but that it was not Pearce.
During Sanchez’ second trial, Kenneth testified consistently as to the male assailants but then
stated that he did not know whether Pearce was the female involved. Finally, at Pearce’s trial,
Kenneth again testified that he did not believe Pearce was the female assailant. The state
attempted to impeach Kenneth’s credibility by using instances of his dishonesty throughout the
investigation of the crime. However, the state had defended Kenneth’s credibility during the
Sanchez trials, despite defense counsel’s similar attack on his veracity using essentially the same
instances of dishonesty. Pearce moved to dismiss at the close of Kenneth’s testimony, claiming
the state’s opposing positions about Kenneth’s credibility violated her constitutional right to due
process.
When an appellant asserts the violation of a constitutional right, we give deference to the
trial court’s factual findings unless those findings are clearly erroneous. State v. Henage, 143
Idaho 655, 658, 152 P.3d 16, 19 (2007).
We exercise free review over the trial court’s
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determination as to whether constitutional requirements have been satisfied in light of the facts
found. Id. The Due Process Clause guarantees every defendant the right to a trial comporting
with basic tenets of fundamental fairness. Lassiter v. Dept. of Soc. Servs., 452 U.S. 18, 24-25
(1981); Turner v. Louisiana, 379 U.S. 466, 471-72 (1965).
Pearce argues the state’s conduct in her trial is akin to that in Thompson v. Calderon, 120
F.3d 1045, 1058-59 (9th Cir. 1997) (en banc), vacated on other grounds, 523 U.S. 538 (1998),
where a plurality of the Ninth Circuit found the State of California violated a defendant’s right to
due process by arguing at his trial that he alone committed a murder, while arguing at a
subsequent trial that another defendant committed the same murder. The court held that the
prosecutor, by discrediting the evidence he had used in a previous trial that a different defendant
was the solitary offender, violated his prosecutorial duty to “vindicate the truth and to administer
justice.” Id. at 1058. Ultimately, the court held that “it is well established that when no new
significant evidence comes to light, a prosecutor cannot, in order to convict two defendants at
separate trials, offer inconsistent theories and facts regarding the same crime.” Id.; see also
Smith v. Groose, 205 F.3d 1045, 1052 (8th Cir. 2000) (use of witness’s first statement in trial of
one defendant and then use of witness’s second, contradictory statement against different
defendant in subsequent trial, in order to convict both defendants of same crime, violated due
process).
This case differs substantially from these federal cases. Those courts were guarding
against multiple defendants being convicted for committing the same crime, which the evidence
showed could only have been committed by one perpetrator. Here, the state changed its position
about the credibility of a witness. In the federal cases, the government changed its theory and
evidence about the perpetrator of the crime. This is a crucial distinction. The Calderon court
itself recognized the difference, citing to an opinion by then-Judge Kennedy wherein he
concluded that “reversal is not required when the underlying theory ‘remains consistent.’” 120
F.3d at 1058-59 (quoting Haynes v. Cupp, 827 F.2d 435, 439 (9th Cir. 1987)). Post-Calderon,
the Ninth Circuit and other courts have explicitly recognized that not every prosecutorial
variance amounts to a due process violation. See, e.g., State v. Sanchez, 142 Idaho 309, 322, 127
P.3d 212, 225 (Ct. App. 2005) (citing Groose, 205 F.3d at 1052) (“to violate due process, an
inconsistency must exist at the core of the prosecutor’s cases against defendants accused of the
same crime”). The Ninth Circuit distinguished Calderon in Nguyen v. Lindsey, 232 F.3d 1236,
10
1240 (9th Cir. 2000), where the defendant claimed a due process violation based on the
prosecutor’s differing arguments at co-defendants’ trials as to which of them shot first. The
court relied on the fact that the prosecutor “presented the same underlying theory of the case at
each trial – when a shot kills a third person in a voluntary gun battle, the initiator and those who
voluntarily took part in the mutual combat are responsible for the crime.” Id. (emphasis added).
Regarding who took the first shot, the court recognized the prosecutor made different arguments
at each trial but that “these arguments were consistent with the evidence actually adduced at each
trial.” Id. Unlike in Calderon, both defendants could be guilty of the same crime due to the
nature of the crime. Id.; see also State v. Moody, 94 P.3d 1119, 1134 (Ariz. 2004) (“[The
defendant] is only one person, and the theories offered are not necessarily inconsistent. Thus
[Calderon] is inapposite.”).
In this case, the prosecution was not advancing a different theory or inconsistent evidence
in challenging Kenneth’s credibility at Pearce’s trial. To the contrary, the state maintained
throughout each trial that Sanchez, Kenneth, John, and Sarah Pearce were all culpable in the
attack.
While a prosecutor, as the agent of the people and the state, has the unique duty to ensure
a fundamentally fair trial by seeking not only to convict, but also to vindicate the truth and to
administer justice, courts have largely recognized the limits of punishing prosecutors for
apparent inconsistencies in their approach to criminal trials absent a “core” inconsistency. See
Sanchez, 142 Idaho at 322, 127 P.3d at 225 (citing Groose, 205 F.3d at 1052). We also note
there is no evidence the prosecution in this case engaged in premeditated manipulation of
evidence. In the previous trials, the State had relied on Kenneth’s testimony that John and
Sanchez were the other male assailants – testimony from which Kenneth did not waver
throughout the trials. In contrast, during Pearce’s trial, the State was faced with Kenneth’s
fluctuating testimony regarding the identity of the female assailant. Forcing the prosecution to
simply accept his assertions and abstain from impeachment, simply because it had bolstered his
credibility when it previously used a different portion of his testimony, would essentially strip
the State of an important tool in its trial arsenal. We conclude Pearce did not suffer a violation of
her due process rights, and the district court did not err in denying Pearce’s motion to dismiss.
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D.
The district court did not err in denying the motion to admit prior prosecution
arguments.
We next consider whether the district court erred in declining to allow Pearce to present
the prosecution’s arguments from Sanchez’ first trial and Kenneth’s sentencing hearing to the
jury as evidence of the inconsistency. 4 Pearce contended these statements should have been
allowed in as admissions of a party opponent. The trial court has broad discretion in the
admission of evidence at trial and its judgment will be reversed only where there is an abuse of
that discretion. State v. Howard, 135 Idaho 727, 731-32, 24 P.3d 44, 48-49 (2001); State v.
Zimmerman, 121 Idaho 971, 973-74, 829 P.2d 861, 863-64 (1992).
The question of whether a party may admit a prosecutor’s prior statements in related
cases as admissions of a party opponent is one of first impression in Idaho. Courts elsewhere
have varied in their treatment of the issue. 5 Historically, such statements were rarely admissible.
While some courts persist in refusing to admit such statements as party admissions under Federal
Rule of Evidence 801(d)(2), see, e.g., United States v. Zizzo, 120 F.3d 1338, 1351 n.4 (7th Cir.
1997), several federal courts have recently endorsed the use of counsel’s inconsistent statements
by concluding they are not per se inadmissible. For example, in United States v. McKeon, 738
F.2d 26 (2d Cir. 1984), the Second Circuit held that statements of the defendant’s attorney in a
criminal case are admissible in a subsequent trial as an admission of a party opponent where they
are: (1) assertions of fact equivalent to a testimonial statement by the client; (2) inconsistent
with similar assertions in a subsequent trial; and (3) not subject to an innocent explanation for the
4
The state contends this issue is not properly on appeal because Pearce did not challenge the district court’s actual
ruling. It asserts the district court denied the motion on the grounds that Pearce had failed to present any evidence of
an “admission” of a party opponent and, since Pearce does not specifically challenge this reasoning on appeal, she
has failed to show error in the court’s ruling. We disagree. The state’s brief implies the district court’s reasoning
for denying the motion was unequivocally a lack of proffer. However, we read the transcript differently and are
convinced the ruling is more ambiguous. While the court does mention it did not receive a specific presentation of
Pearce’s proposed evidence, it is not clear this was the reason for denying the motion; in fact, the court prefaced its
ruling by saying “based on what has been presented . . .” implying it was willing to (and did) deny the motion and
reserve ruling without a formal proffer. Furthermore, while the court expressed some dismay at the lack of evidence
before it, we note it would have been unreasonable to automatically deny the motion on this ground given that
Pearce had been afforded virtually no time to gather the evidence--the cross examination having occurred on Friday
afternoon and the motion having been filed Monday morning--and counsel’s assertion that he was in the process of
obtaining the necessary transcripts. We think it unlikely the court would have acted so cursorily and assume it was,
despite unclear articulation, actually a ruling on the merits. Therefore, we address the substance of Pearce’s claim.
5
See Anne Bowen Poulin, Party Admissions in Criminal Cases: Should the Government Have to Eat its Words?, 87
MINN. L. REV. 401, 406-08, 412-18 (2002).
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inconsistency. 6 Id. at 33. In United States v. Salerno, 937 F.2d 797, 811-12 (2d Cir. 1991),
rev’d on other grounds, 505 U.S. 317, 322 (1992), the Second Circuit specifically applied the
McKeon factors to prosecutorial statements. There, the court allowed the admission of certain
statements where the prosecutor, in a previous trial, had characterized the defendant contractor as
the victim of extortion by a RICO enterprise, but in a subsequent bid-rigging trial had attempted
to paint him as culpable in the scam. Salerno, 937 F.2d at 811-12; see also United States v.
DeLoach, 34 F.3d 1001, 1005-06 (11th Cir. 1994) (citing to McKeon and Salerno, the court
upheld exclusion of prosecutor’s statements from earlier trial of co-defendant where prosecutor
argued against defendant’s culpability in the first trial and for it in the second after finding the
prosecutor’s statements were not statements of fact and were not inconsistent with government’s
position in its prosecution of the defendant). 7
While Pearce relies on the reasoning of these cases, specifically Salerno, to support her
contention for admission, a closer examination shows they actually refute it. Both McKeon and
Salerno recognized that “serious collateral consequences could result from the unbridled use of
such statements.” Salerno, 937 F.2d at 811. In fact, the McKeon court carved out an explicit
limitation to admissibility saying that “[s]peculations of counsel, advocacy as to the credibility of
witnesses, arguments as to weaknesses in the [opponent’s] case or invitations to a jury to draw
certain inferences.” were excluded from its pronouncement admitting certain prosecuting
attorney statements. McKeon, 738 F.2d at 33 (emphasis added). The court implied these were
not statements of fact equivalent to testimonial statements by the client, but constituted advocacy
regarding witness credibility and inferences to be drawn from the evidence. Id.; accord Salerno,
937 F.2d at 811 (requiring prosecutor’s inconsistent statement to be one of fact if admission is to
be appropriate). This limitation recognizes and respects the prosecutorial role in the trial process.
As a California appellate court has articulated, “[t]he prosecutor, after all, [is] neither a
6
Furthermore, the court listed five factors to be considered when evaluating admissibility: (1) the prospect that free
use of attorney statements from prior trials will “consume substantial time to pursue marginal matters;” (2) the risk
of inviting unfair inferences from inconsistent positions; (3) the possibility of deterring “vigorous and legitimate
advocacy;” (4) the risk that forcing explanation of inconsistency may “expose work product, trial tactics, or legal
theories” thus compromising the client’s rights; and (5) the risk that admission will require the removal of the
attorney who made the prior statements. McKeon, 738 F.2d at 32-33.
7
Some courts have adopted a more permissive approach to the admission of prosecutorial statements by conducting
a simple Federal Rules of Evidence 801(d)(2) analysis without also applying the McKeon factors. See United States
v. Kattar, 840 F.2d 118, 130-31 (1st Cir. 1988); United States v. Bakshinian, 65 F. Supp. 2d 1104, 1106-09 (C.D.
Cal. 1999). We reject this approach as it fails to afford even minimal deference to prosecutorial statements which
have traditionally been inadmissible.
13
participant nor a witness, and has no knowledge of the facts other than those gleaned from the
witnesses and other available evidence.” People v. Watts, 76 Cal. App. 4th 1250, 1263 (Cal. Ct.
App. 1999).
Here, the evidence Pearce sought to admit concerns statements made while the prosecutor
was engaged in “advocacy as to the credibility of witnesses,” a circumstance under which
McKeon specifically stated an attorney’s comments should not be admissible in a subsequent,
related proceeding. McKeon, 738 F.2d at 33; see also DeLoach, 34 F.3d at 1005-06 (upholding
lower court’s exclusion of statements made by attorney during closing arguments); People v.
Cruz, 643 N.E.2d 636, 664-65 (Ill. 1994) (affirming exclusion of evidence of prosecution’s
strategy in earlier, related trial due to competing policy concerns); People v. Morrison, 532
N.E.2d 1077, 1088 (Ill. App. Ct. 1988) (refusing admission of prosecutor’s closing argument
given in co-defendant’s prior trial). Consequently, we conclude the district court did not err
when it barred admission of the prosecutor’s previous arguments.
III.
We find that the district court committed no error in the proceedings and therefore affirm
Pearce’s judgment of conviction.
Justices BURDICK and HORTON CONCUR.
Chief Justice EISMANN, specially concurring.
I concur in the majority opinion. My concurrence in Part II.A. is not an affirmation that
every factor mentioned by the district court in its analysis was relevant. However, I agree that
Pearce has not shown that the district court abused its discretion in ruling that Dr. Honts was not
qualified to express an expert opinion on lineup procedures, based upon what was presented to
the court at the time. In my opinion, the need for such testimony in this case does not enter into
the analysis of whether the district court abused its discretion in making its ruling. If additional
material should have been presented regarding Dr. Honts’s qualifications or another expert
selected, Pearce may have a claim for post-conviction relief.
14
Justice W. JONES, dissenting:
To the extent that the majority finds that the district court did not abuse its discretion in
excluding Dr. Honts’ testimony about photo lineups, video lineups and resulting identifications, I
respectfully dissent. The district court’s error in failing to find Dr. Honts sufficiently qualified to
testify on these matters constitutes reversible error. I have included in this dissent several crucial
facts that the majority has omitted from their opinion.
I.
FACTUAL AND PROCEDURAL SUMMARY
The first composite sketches were created immediately following the June 2000 attack
while Ms. Lebrane was still in the hospital and the first photo-spread was conducted in
December of 2000. The photo-spread was prompted when the Las Vegas police contacted
Canyon County with a person matching the description of the composite drawings for the female
in the Lebrane attack. The second was conducted in January of 2002, when Jeremy Sanchez’
girlfriend at the time of the attack was considered a person of interest. Ms. Lebrane identified
one person from each of the two photo-spreads, neither being Pearce. Repeatedly throughout the
process, Ms. Lebrane requested a video lineup because she was concerned about body language
and height specifically.
On numerous occasions, during the photo-spreads and during her
testimony at trial, she expressed concern about identifying a person without seeing their height
(in comparison to her height) and without seeing their body language. 8 Ms. Lebrane testified
that she was adamant about seeing a video lineup after she made the second incorrect
identification. Police officers did in fact make a video lineup at that time. However, no persons
from the previous photo-spreads were in the video, and it is disputed whether Ms. Lebrane was
told that a person of interest was in custody.
Ms. Lebrane identified Pearce in her third
identification, which was a video lineup, in April of 2002. 9
A viewing of the video lineup shows that it consisted of six females. All six of the
females are clothed in orange jumpsuits. Three of the six had their hair in a ponytail. Two of the
six (including Pearce) had short hair. One of the women (number 6) had hair that was styled
(hairspray and/or gel) and was the only one wearing visible make-up. Detective Miles testified
8
“I judge the height by how tall people were standing by me.” Ms. Lebrane is 5’1 or shorter.
Two video lineups of female suspects were created. However, only one was ever shown to the witnesses because
the detectives had begun to focus the investigation on Pearce (rather than an earlier suspect).
9
15
that all of the women in the lineup were from the general female inmate population at the
Canyon County Jail. The six all stood in a line against a white wall; height was not indicated on
the wall. The only reference to height is a comparison amongst other persons in the video
lineup. Next, each was individually instructed to say “give me the [expletive deleted] drugs;
give me the [expletive deleted] money.” [Emphasis added]. After speaking the instructed
phrase, the person was instructed to face each direction, allowing for two profile views and a
back view. When Pearce’s individual turn came, the instructed phrase was switched to “give me
the [expletive deleted] money; give me the [expletive deleted] drugs” and remained switched
throughout the remainder of the lineup. [Emphasis added]. Pearce was the fourth person in the
video lineup.
According to the presentence report, Sarah Kathleen Pearce (D.O.B. 11/01/1982) was
seventeen years of age on the date of the attack. Pearce, at the time of the presentence report,
was 5’6, weighing 130 pounds. She has red hair, brown eyes, and fair complexion. At the time
of arrest, Pearce was 5’6, weighing 112 pounds. She is listed as a white female with red hair and
brown eyes.
Ms. Lebrane has described the woman attacker as very pretty and attractive with freckles
and light Hispanic skin tones. The woman’s height has varied from shorter than 5’1 to around
5’4 and her age varied from mid to late twenties. Other witnesses have described the woman as
young with reddish-blond hair, blond hair with ash color, and brown hair. Her height has been
described as 5’0-5’6 and she weighs around 110-120 pounds. Her age varies from teens to
thirties. Some witnesses describe her as Hispanic specifically. All witnesses agree that she has
brown eyes. In addition to Ms. Lebrane’s account and eyewitness identification, the State
offered the following eyewitness testimony in the case:
Keith Mower: Mr. Mower witnessed four individuals at a rest stop around 1:15 a.m. on
June, 15, 2000. He described the group as strange, consisting of one woman and three men. The
woman was unique because she appeared to be too young to be with the men. She was young,
looked and dressed nice, wore tight jeans and a simple white shirt. The woman had reddishblond hair, was around 5’5 and weighed between 110-120 pounds. He only saw her face when
she turned and looked back before entering the restroom at the rest stop. Mr. Mower testified
that he paid the most attention to the woman out of the four at the rest stop because she did not
look like she belonged with the group and she walked really slowly to the bathroom. But on
16
cross-examination he admits that he did not get as good of a look at the woman as the men
because he was in the bathroom at the same time as the men. Mr. Mower testified that he did not
have problems verbalizing the images in his head to the composite artist because the images
were still fresh in his mind.
He admits that he could not view the woman’s face very well, but during the video line
up realized that he could recognize her. Mr. Mower also identified a woman in a photo-spread
conducted on November 28, 2000 (not Pearce). He was told to pick the person that looks most
like the woman at the rest stop. He chose a woman from the photos that looked most like the
woman from the rest stop, but he “didn’t think that that was her. [It] . . . was the one that looked
the closest to her.” Mr. Mower identified Pearce at trial as the woman from the rest stop that
night. He also identified a younger picture of her as the woman from the rest stop that night.
Mr. Mower did note that Pearce was wearing her hair darker and styled differently than the
woman at the rest stop. Several times before trial, Mr. Mower admitted to having seen pictures
of Pearce on television.
Jeanene Waggoner: Ms. Waggoner testified that she was driving home around midnight
on the night of the attack. While she was driving she saw a man standing in the middle of the
road waving his arms. Ms. Waggoner spoke with the man and noticed that two other men and a
woman were in the car. The woman had narrow shoulders, and was sitting in the front seat. The
woman had blond hair with an ash color to it and it might have been a little golden; it was styled
messy and spiked up. Ms. Waggoner did not identify Pearce as that woman. She was able to
identify John and Kenneth Wurdemann, and Jeremy Sanchez from the video lineup.
Steve Rupert: Steve Rupert testified that he was working at a motel off the Caldwell exit
on the night of the attack. A woman and man came in to rent a room around 3:30 am. They paid
cash for the room in the amount of $38.55.
Steve Rupert made a copy of the woman’s
Washington State driver’s license. He described the woman as being in her late teens to early
twenties. She was about 5’5 or 5’6 with brown hair. There were two more people waiting in the
car. After leaving for the room, the woman and man returned, stating that the room was dirty,
and asked for the return of the money and the copy of the driver’s license. Steve Rupert
complied. Steve Rupert believes he has seen the woman before the morning of June 15 and that
Pearce is the woman that he saw on June 15, 2000. On cross-examination he stated he had not
seen the woman before June 15, but had seen her later, in October or November of the same
17
year. He created a composite sketch of the woman with a composite sketch artist. Steve Rupert
also chose Pearce out of the video lineup.
Previously Steve Rupert had stated to the police and sketch artists that the woman was
light-colored Hispanic, about five-feet tall and 110 pounds. Her age varied from mid-twenties to
twenty-five to thirty. He has also described her hair as brown to red with dark brown eyes.
Joseph Rupert: Joseph works with his dad, Steve Rupert, at the motel in Caldwell. He
was nineteen-years-old at the time of trial and was sixteen-years-old at the time of the attack. He
saw the woman checking into the motel and described the woman as his age or a little older. He
recognized the woman from a mutual friend (Susan Davis), 10 but did not initially make a police
report. Joseph chose Pearce on the video lineup.
He also testified that he and his dad moved to Caldwell in May and that he had seen
Pearce before June 15, but doesn’t know when or where. Susan Davis, the alleged friend of
Pearce, was hired by the motel in July or August. Joseph definitely believes that he saw Pearce
with Susan Davis at some point.
The majority opinion fails to take sufficient note of evidence that Ms. Lebrane’s stolen
credit card was used in Jordan Valley 30 minutes after Pearce was allegedly checking into the
motel in Caldwell, which is inconsistent with the jury making a finding of guilt. Steve Rupert
testified that the woman and man entered the motel around 3:30 a.m. on June 15, and a credit
card statement shows that Ms. Lebrane’s credit card was used at 4:01 a.m. in Jordan Valley.
Jordan Valley, Oregon is in the same time zone as Caldwell and is 60 miles away by Highway
95. 11 A gas station attendant testified that the credit card was used by a Hispanic man in a
maroon car with one or two Hispanic men and a Hispanic woman passenger.
The Court of Appeals unanimously held that the exclusion of Dr. Honts’ testimony about
police lineup techniques and resulting identifications was an abuse of discretion and therefore
erroneous, but the court held any error was harmless. I agree with the Court of Appeals, that it
was error to exclude the testimony, but firmly believe such error constitutes reversible error
because of the importance of eyewitness identifications in this particular case.
10
It is unclear from Joseph’s testimony whether he recognized Pearce on the night of the attack as a person he
knew, or whether he recognized the woman from the night of the attack and later made the connection to Pearce as
that same woman.
11
Highway 95 is mostly a two lane road through mountainous terrain.
18
II.
ANALYSIS
I disagree with the majority’s holding that the district court did not err when it failed to
qualify Dr. Honts as an expert witness on lineup procedures. The crux of the prosecution’s case
against Pearce consists of eyewitness testimony that identified Pearce as the woman who
committed the attack. Pearce’s entire defense rested on the contention that she was not the
woman who committed the attack and that the identifications were made in error. Pearce offered
testimony in an attempt to rebut the state’s evidence against her, but the trial court refused that
testimony. Specifically, the trial court refused to qualify Dr. Honts as an expert to testify on
standardized procedures developed to ensure maximum accuracy in conducting lineups.
Although the trial court is generally the gatekeeper of admissibility of evidence, this Court
should not sit idly by and allow a clear and blatant abuse of that authority. Without this
testimony, Pearce was denied the opportunity to present evidence to refute the nucleus of the
state’s evidence against her. I find that this denied Pearce the opportunity to a fair trial. I,
therefore, respectfully dissent from the Majority’s opinion and find that the trial court abused its
discretion.
The trial court’s analysis suggests that an expert must be the best or most
experienced in a field, which is clearly not required by the Idaho Rules of Evidence. Any
shortcomings in Dr. Honts’ training, experience, knowledge or expertise go towards the weight
of his testimony, rather than the admissibility. The district court committed reversible error
when it failed to find that Dr. Honts surpassed the minimum hurdle required for expert
qualification.
A.
The district court abused its discretion by refusing to qualify Dr. Honts as an expert
witness to testify as to lineup procedures and any resulting effects on eyewitness
identifications.
This Court will not overturn an erroneous lower court decision unless it affects a
substantial right of the defendant. See I.C.R. 52. An error is harmless if the reviewing court
determines beyond a reasonable doubt that the jury would have reached the same result. State v.
Gomez, 137 Idaho 671, 673, 52 P.3d 315, 317 (2002). If the error concerns omitted evidence,
“the test for harmless error is whether there is a reasonable possibility that the lack of excluded
evidence contributed to the verdict.” Gomez, 137 Idaho at 673, 52 P.3d at 317 (citations and
19
internal quotations omitted). It is within the province of the jury to weigh conflicting evidence
and determine the credibility of witnesses. State v. Crea, 119 Idaho 352, 353-54, 806 P.2d 445,
446-47 (1991) (citations omitted). A jury verdict will not be overturned on appeal unless clearly
erroneous. Crea, 119 Idaho at 353-54, 806 P.2d at 446-47 (citations omitted). The state bears
the burden of proving that a crime has been committed, and that the party charged committed the
crime. State v. Avelar, 124 Idaho 317, 320, 859 P.2d 353, 356 (Ct. App. 1993) (citations
omitted). “The identification of the accused is an issue of fact for the jury, and may be proved
by direct or circumstantial evidence.” Avelar, 124 Idaho at 320, 859 P.2d at 356.
“[A]cademic training is not always a prerequisite to be qualified as an expert; practical
experience or specialized knowledge may be sufficient.” State v. Eytchison, 136 Idaho 210, 213,
30 P.3d 988, 991 (Ct. App. 2001) (citing State v. Konechny, 134 Idaho 410, 414, 3 P.3d 535, 539
(Ct. App. 2000)). Any weight given to the expert testimony is left to the jury. State v. Hopkins,
113 Idaho 679, 681, 747 P.2d 88, 90 (Ct. App. 1987) (citing IHC Hosp., Inc. v. Board of
Commissioners, 108 Idaho 136, 697 P.2d 1150 (1985)). A court may allow expert testimony
regarding the factors that affect eyewitness memory and the ability of the witness to testify. 31A
AM. JUR. 2d Expert and Opinion Evidence § 337 (2008). Most of the jurisdictions which have
rejected expert testimony regarding eyewitness memory and identification have done so on the
basis that it invades the province of the jury. Id. However, like all testimony, the jury is free to
accept or reject and assign weight to the testimony based on the witness’ credibility. Id.
Traditionally, this Court has found that the reliability of eyewitness testimony is not outside the
understanding of the average juror, and therefore, would not warrant expert testimony. State v.
Bingham, 116 Idaho 415, 420, 776 P.2d 424, 429 (1989). In Bingham this Court found that
although the reliability of eyewitness testimony is not typically outside the understanding of the
average juror, there may be a circumstance where the average juror is not equipped to understand
the reliability of eyewitness testimony without the use of an expert. Bingham, 116 Idaho at 42021, 776 P.2d at 430 (holding that it is not outside the understanding of the average juror to
recognize the ability of a mentally retarded twelve-year-old to correctly perceive and report
events).
In Hopkins, the court of appeals found that the refusal of the magistrate court to qualify
the defendant’s expert “deprived [the defendant] of the opportunity to present testimony
challenging the scientific hypothesis and physical theories of [the State’s evidence].” Hopkins,
20
113 Idaho at 681, 747 P.2d at 90. Additionally, the failure to qualify Hopkins’ expert left him
unable to present evidence as to the reliability of the particular procedures used by the State to
gather evidence (in this instance, the reliability of the specific breathalyzer machine).12 Id.
Ultimately, the court found that without the opportunity to testify as to the reliability of how the
State gathered evidence, the court was left with a reasonable doubt that the jury would have
reached the same result had the error not occurred. Id. That is, without the ability to challenge
the state’s primary evidence against him through expert testimony (the breathalyzer test), the
court was left with a reasonable doubt that the jury had enough evidence to continue to support
the verdict.
In the present case, Pearce offered Dr. Charles Honts as an expert witness to testify on the
inherent dangers of eyewitness testimony, standardized procedures for conducting lineups and
resulting effects on identifications if such procedures are not followed. The defense laid the
following foundation for Dr. Honts’ testimony: (1) Dr. Honts is a full-time professor of
psychology at Boise State University; (2) he received a Bachelor of Science in psychology, a
Master of Science in experimental psychology, and a Ph.D. in experimental psychology; (3) Dr.
Honts’ courses consist of Psychology and Law 13 , Research Methods, Theory Personality,
Introduction to Psychology, Statistics, Industrial Psychology and Physiological Psychology; (4)
Dr. Honts supervises student research projects; (5) most of Dr. Honts’ research is conducted on
credibility assessments (polygraph tests and ways of determining if people are telling the truth).
He has also researched jury behavior, human memory, susceptibility of eyewitnesses to postevent suggestion, creation of false memories, basic statistical issues, statement analysis (methods
for looking at a person’s statement) and child witnesses; (6) he regularly attends meetings for
American Psychology-Law Society, where a popular and frequent topic is eyewitness behavior
and conduct of lineups; (7) Dr. Honts keeps current on lineups and eyewitness behavior as part
of his professorial duties; however, Dr. Honts has never personally questioned a witness or
conducted a lineup; (8) he has supervised one dissertation on suggestibility of eyewitnesses and
12
I do not cite Hopkins because the reliability of eyewitness identification is as far outside the understanding of the
average juror as the workings of a breathalyzer machine, but because I find Hopkins helpful on two relevant points.
First, the court expressly states that hands-on experience with the specific breathalyzer machine is not necessary to
be qualified as an expert on breathalyzers, and second because the court notes that the expert testimony was the
defendant’s only means to challenge the gravamen of the state’s evidence.
13
This course examines the legal profession and forensics in general, insanity and how insanity and competency to
stand trial are assessed, how lineups, interviews, and polygraph tests are conducted, assessment of child witnesses
and jury behavior.
21
one dissertation on the creation of false memory; (9) Dr. Honts testified that he is familiar with
the topics of weapons-focus phenomenon, 14 the forgetting curve, 15 the phenomenon of
unconscious transference, 16 the tendency to assimilate post-event information, 17 and the
feedback factor; 18 (10) Dr. Honts has read and familiarized himself with two articles at the
request of defense counsel, addressing basic principles of lineups and accuracy, addressing
controversial areas and widely accepted areas, and lineup procedures and recommended
procedures for conducting accurate lineups (based on scientific research); (11) he has read the
sections addressing lineups and photo-spreads of the Eyewitness Evidence Guide, a Guide For
Law Enforcement, which is published by the United States Department of Justice; and (12)
finally, Dr. Honts has viewed the photo-spread and video lineup used in this case and is able to
discuss quality in relation to suggested procedures, without addressing any individual lineups.
The district court ruled that Dr. Honts’ testimony would be partially excluded. The court
allowed Dr. Honts to testify regarding the characteristics, changes and storage of memory, but
suppressed any testimony regarding lineups and eyewitness identification. During the hearing on
the motion, defense counsel for Pearce, in arguing for Dr. Honts as a witness, stated that Dr.
Honts would be “an expert [to] testify as to the fallacies [in lineups] and the explanation. Now
[Dr. Honts is] not going to get into each individual identification and the background. That, the
jury can decide.” It is clear from counsel’s statements that the defense clearly understood the
line between permissible expert testimony which would aid the average juror’s understanding,
and impermissible expert testimony that would invade the province of the jury’s fact-finding
ability. Counsel never intended for Dr. Honts to testify as to the accuracy of the individual
identifications.
The lower court’s decision expressly stated that this Court has traditionally ruled that
expert testimony on the reliability of eyewitness testimony is not admissible because it invades
the province of the jury in determining the credibility of witnesses. Although that statement may
be true if an expert is proffered to vouch for or refute the accuracy of a particular identification, I
find that it was an abuse of the district court’s discretion when it excluded Dr. Honts’ testimony
14
Where a weapon interferes with a person’s ability to observe
Period of time between observance and identification
16
Condition where information from one situation will be attributed to another
17
Interactions that may create new information into the memory
18
Where two or more witnesses discuss observations
15
22
as it relates to accepted procedures for eyewitness identification, whether the lineups in this case
comport with those procedures, and any scientific data which may affect the result of eyewitness
identification when the procedures are not followed.
A lower court does not abuse its discretion if (1) the court recognizes the issue as one of
discretion, (2) the court acts within the bounds of that discretion and applies the appropriate legal
standards, and (3) the court exercises reason in reaching the decision. State v. Moore, 131 Idaho
814, 819, 965 P.2d 174, 179 (1998) (citing Sun Valley Shopping Ctr., Inc. v. Idaho Power Co.,
119 Idaho 87, 94, 803 P.2d 993, 1000 (1991)). Here, the district court recognized the decision as
one of discretion. However, the court did not apply the appropriate legal standards within the
bounds of that discretion. The lower court’s decision found that Dr. Honts was not qualified to
testify on standardized procedures for lineups and eyewitness identifications because (1) Dr.
Honts had never participated in a lineup; (2) Dr. Honts had not spoken with the witnesses who
participated in the photo-spreads and lineups; (3) Dr. Honts had not viewed all of the composite
sketches; (4) Dr. Honts had only viewed the video lineups three days ago; and (5) Dr. Honts had
never testified as an expert on standardized lineup procedures. I believe that the failure to
qualify Dr. Honts on the preceding grounds was an abuse of the district court’s discretion.
The entire decision of the lower court, although citing the rules of evidence, relied
heavily on previous decisions of this Court, most of which found that the particular trial court
had not abused its discretion. The bounds of discretion authorize a lower court to reach a
decision based on the merits of the individual case presently in front of the court. Specific
academic training in a particular field has never been required to qualify an expert. “Idaho has
interpreted the five qualification areas as disjunctive, holding that academic training is not
always necessary and that practical experience or special knowledge or training in a related
field . . . might suffice.” Hopkins, 113 Idaho at 747, P.2d at 90 (emphasis added) (citing IHC
Hosp., Inc. v. Board of Commissioners, 108 Idaho 136, 697 P.2d 1150 (1985); IDAHO
EVIDENCE COMMITTEE REPORT TO THE IDAHO STATE BAR, C 702 at 2-3 (1984)). Dr.
Honts may not have been the best expert to testify on this matter, but the rules do not require an
expert to be the best witness in that particular field. The rules of evidence establish a floor of
who qualifies as an expert, not a ceiling. They require the expert to have “scientific, technical, or
other specialized knowledge” and that the expert is qualified to testify by “knowledge, skill,
experience, training, or education.” I.R.E. 702 (emphasis added).
23
Here, it is clear that Dr. Honts has attended numerous seminars relating to eyewitness
identification and is well-read on the subject. The majority states that “[t]he record reveals
sufficient evidence to support the district court’s conclusion that Dr. Honts lacked academic or
practical experience specific to the area of lineup procedures.” However, the rules of evidence
do not limit an expert’s “scientific, technical, or other specialized knowledge” to persons with
“academic or practical experience.” Dr. Honts’ training and research in the area, especially in
light of his educational background and experience, sufficiently qualify him to testify on lineup
procedures and resulting identifications. The district court’s emphasis on Dr. Honts failure to
interview all eyewitnesses and to view all composite sketches is also analytically flawed. Dr.
Honts’ lack of case-specific knowledge is largely irrelevant. Expert testimony on general lineup
procedures does not require case-specific knowledge. For example, in Hopkins, it was held that
direct experience with a particular breathalyzer machine goes to the weight of the testimony,
rather than the admissibility. Hopkins, 113 Idaho at 681, 747 P.2d at 90. However, Dr. Honts
had gathered the information necessary to determine whether the correct lineup procedures were
used during the video lineup. Therefore, requiring Dr. Honts to view the composite sketches
prior to testifying on the video lineup seems unnecessary due to their unrelated nature. As stated
in Hopkins, any lack of case specific knowledge would go towards the weight the jury assigns
the testimony, rather than the admissibility. Id.
I find that Dr. Honts is qualified, through his research, training and experience, to testify
on (1) standardized and accepted modes of lineups; (2) whether, in Dr. Honts’ opinion, the
procedures employed in this case conformed with the standardized procedures and accepted
modes of lineups, and if not, why not; (3) any studies which show that the accuracy in
eyewitness identification is decreased when the accepted lineup procedures are not used; and (4)
the aspects of memory and how different environmental stimulus may affect the retention of
memory and perception. 19
The failure of the trial court to qualify Dr. Honts as a witness was a clear abuse of
discretion. The district court misconstrued previous decisions of this Court and incorrectly
applied the standard of law. Direct and in-depth research of the immediate case is not required to
testify on general procedures and whether they were employed in this specific instance. Further,
19
Dr. Honts was previously qualified and allowed by the trial court to testify on the aspects of memory. I do not
mean to limit Dr. Honts’ testimony from the previous trial, but to state that the trial court correctly found that Dr.
Honts was qualified to testify on those matters.
24
the fact that Dr. Honts has never testified as an expert on this particular matter is of virtually no
significance. At most this means that Dr. Honts has not made a career out of providing expert
testimony; in other words, he is not a professional witness for hire. Additionally, few cases
warrant expert testimony on lineup procedures, and as stated previously, courts typically find
that expert testimony on witness perception invades the province of the jury. Unless a case falls
into extraordinarily narrow circumstances, such as this case, it would seem that very few experts
may have the opportunity to testify on lineup procedures.
However, I do not disagree with the district court’s exclusion of expert testimony
regarding whether Pearce was or was not the woman involved in the attack on Ms. Lebrane.
Any testimony by an expert which states whether any particular eyewitness identification is in
fact correct or incorrect invades the province of the jury. The district court correctly found that
any statements regarding the witness’ credibility would invade the province of the jury. If Dr.
Honts, in his testimony, stated whether a person was, in his opinion, speaking truthfully, then the
province of the jury would be invaded. However, testimony that relates to the proper procedures
to conduct an accurate lineup, whether or not those procedures were employed in this instance
and the potential effects of non-compliance does not invade the province of the jury.
The present issue is whether Pearce was afforded a fair opportunity to present a defense
in this case. Without the ability to present expert testimony which may help a jury assign weight
towards the state’s case against her, she was deprived of the opportunity to present her case fully
and fairly. A fair trial requires a fair lineup, and in instances such as the present case where
“fair” would be a far stretch from reality, a defendant should be afforded the chance to present to
the jury, through expert testimony, how and why eyewitness identifications may be flawed.
However, it remains within the province of the jury to assign weight to that evidence and under
no circumstance should expert testimony be allowed to express a direct opinion on whether a
particular witness is credible. Additionally, expert testimony on eyewitness identification should
only be available in the most extreme cases. Regardless if a witness is qualified as an expert, a
trial court is free to limit testimony in an instance where the information will not help the jury
understand or determine a fact in issue. See generally Bingham, 116 Idaho at 421, 776 P.2d at
430.
I further find that any such error was reversible error. In this case the issue of eyewitness
identification was crucial because there was very little other evidence connecting Pearce to the
25
crime. In fact, there appears to be direct evidence inconsistent with a finding of guilt. 20 The
state bore the burden of proving every fact beyond a reasonable doubt, including that a crime
was committed and that the defendant committed that crime. Avelar, 124 Idaho at 320, 859 P.2d
at 356. The Court of Appeals found that the exclusion of Dr. Honts’ testimony was harmless
error because “[f]rom a scientific standpoint, the generic concerns in regard to lineups and
subsequent identifications were sufficiently covered by other testimony offered by Dr. Honts and
other witnesses.” Although I fully support the Court of Appeals conclusion that the exclusion of
Dr. Honts’ testimony was error, I cannot support a finding that the error was harmless. Under
the unique circumstances of the present case, in which there is a paucity of incriminating
evidence other than the eyewitness identifications, and substantial exculpatory evidence, some of
which the jury never heard, it is simply impossible for me to find that it was harmless error to
exclude the testimony of Dr. Honts.
Several of the witnesses addressed memory and how people perceive, how people forget,
and any external factors that would have an effect on perception. The investigating officers also
testified to the lineup and photo-spread procedures they specifically used, and that there were no
instructions or standardized program for conducting procedures which were available to them.
However, no witness testified regarding the correct procedures, whether correct procedures were
used in this instance and how incorrect procedures may affect the ultimate outcome of the
eyewitness identification. An offer of proof was made of Dr. Honts’ excluded testimony on
temporary remand from the Court of Appeals. Dr. Honts testified that the Department of Justice
has released a publication on eyewitness procedures which contains four standards for
conducting eyewitness identification through photo-spreads and lineups.
Those principles
specify that, (1) the lineup should be double-blind; 21 (2) the witness should not have knowledge
of whether a person of interest is in the lineup; (3) persons in the lineup should match the
description given by the witness; and (4) a statement of confidence should be made and recorded.
20
For as much time as I have spent on this case, I have yet to find a reconcilable answer to Steve and Joseph
Rupert’s identification of Pearce and the use of Ms. Lebrane’s credit card in Jordan Valley, Oregon less than 30
minutes later. Further, on a post trial Motion for New Trial, facts were presented to the trial court (but not to the
jury) regarding one of the previous suspects who had been identified through a photo-spread by Ms. Lebrane as the
female attacker. The other suspect had been identified by a third party as visiting his home with Jeremy Sanchez
and the Wurdenmann brothers in the early morning hours on the night of the attack. The third party filed a
statement with Pearce’s lawyer that Mr. Sanchez and the female suspect used a hose to wash blood off of them and
they stated that they were going to California that night, which would take them through Jordan Valley, Oregon.
21
That is, the person conducting the lineup does not know who the suspect is in the lineup or whether any of the
persons in the lineup are suspects.
26
Dr. Honts then walked through different identifications and confirmed that the four principles
were not followed, and further, how the failure to follow the principles may have influenced the
witness in his or her choice.
For example, the video lineup was conducted by Sergeant Miles, who knew that Pearce
was the person of interest and that she was in custody, so it violated the first principle because it
was not double-blind. If the lineup is not double-blind, the interviewer may subconsciously
guide a witness to the “correct” choice. That is, through body language or subtle clues, the
witness may choose the answer that the interviewer seeks. 22 Additionally, the second principle
was violated when Ms. Lebrane was not given a warning that the person of interest may not be in
the video lineup and it is disputed whether she was told to choose the person who looks most like
her attacker. When a witness is told to make a relative judgment, the witness no longer recalls
the memory of the attacker, but makes a comparative judgment of which person in the lineup
most closely matches the attacker, rather than choosing the correct person from their memory.
Dr. Honts further stated that the third principle was violated because of the discrepancy in hair
length 23 and that there was no reference to height. Because Ms. Lebrane’s initial descriptions of
the female attacker focused on the hair and height, all the lineups should have been conducted
based on that description and included a reference to height. Dr. Honts further testified that by
making the reference to height only relative to other persons in the lineup, none of whom had an
expressed height, it might lead the witness to believe that all the persons are 5’1 or shorter.
Therefore, any reference to comparative height in the lineup is actually flawed, if all the suspects
are actually around 5’6. 24 Ms. Lebrane, without a reference to height, could have been led to
believe that she was viewing women 5’1 or shorter, and among that group, Pearce stood about
5’1 or shorter, when in reality Pearce is 5’6. And finally, Dr. Honts stated that the fourth
principle was violated because no statement was made or recorded of Ms. Lebrane’s confidence
in her choice. This principle is important because a person has a tendency to become more
confident in their choice as time progresses. Therefore, any resulting identifications at trial will
be overly confident in comparison to the initial identification. Taking into account the testimony
22
Recall that the statement switched during the video lineup at Pearce’s turn from drugs/money to money/drugs. It
is absolutely undeterminable whether this switch was a subconscious subtle clue resulting from the violation of
principle one, but it is a prime example of the importance of the principles.
23
Recall that four of the six women had long hair in ponytails, and Pearce was one of two women with short hair.
24
It is assumed that because in the video lineup Pearce was of average height comparatively, that all the other
people were about the same height as Pearce, which is 5’6.
27
by Dr. Honts during his offer of proof, I can definitively say that I am left with more than a
reasonable doubt that the exclusion of Dr. Honts’ testimony contributed to the jury’s verdict.
The overwhelming majority of the state’s evidence consisted of eyewitness testimony as
to whether Pearce was the woman involved in the attack. Although the jury had the benefit of
Dr. Honts’ testimony in regard to memory and perception, there is no bridge to mend the
proverbial gap of how a flawed memory will effect a resulting identification. This jump is
deceptive because it is seemingly logical. Although it is intuitive that a flawed memory may
create a flawed identification, it is not intuitive that a flawed lineup will consistently produce
flawed results. As stated by Pearce’s counsel in oral arguments, the repetition factor weighs
heavily in this case. The jury hears from four people that Pearce is the alleged perpetrator, but
most of the memories created were likely flawed. 25 Therefore, the jury hears that a flawed
memory is created, but also hears that four people have identified Pearce. What the jury doesn’t
hear is that a flawed lineup will consistently produce flawed results, regardless if the identifier
has any knowledge of the crime. To the jury the repetition factor may reduce the significance of
any flawed memories. However, if the flaw is in the underlying process for identification, the
flaw is superimposed on any subsequent identification. A flawed lineup will cause a person with
no memory or knowledge of the underlying crime to be able to correctly identify the person of
interest. It is that information of which the jury was deprived. Without such information, I am
left with a substantial doubt that the jury would have reached the same conclusion.
I am unable to say beyond a reasonable doubt that the exclusion of Dr. Honts’ testimony
did not affect the verdict. In fact, I strongly believe that it did affect the verdict. This error was
not harmless.
Without such testimony, Pearce was denied the ability to present scientific
evidence which rebutted the majority of the state’s evidence against her, constituting reversible
error.
III.
For the foregoing reasons, I would reverse Pearce’s conviction and remand to the district
court for a new trial.
25
During the trial, Dr. Honts was qualified and permitted to testify on the process of memory creation and
depletion, and how different factors will contribute to the creation of a false memory.
28
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