Expert Testimony as to the Infirmity of Eyewitness Testimony

Last Thursday, November 15, 2007, The Wall Street Journal reported at page D1 an "alarming" increase in the number of home invasion robberies. In a related development, in a recent a 2 to 1 decision, Ferensic v. Birkett, 501 F.3d 469 (6th Cir. 2007), the Sixth Circuit overturned an armed robbery and home invasion conviction because of the exclusion of exclusion of expert testimony as to the unreliability of eyewitness identification:

[E]xpert testimony on eyewitness identifications, once thought to be unreliable and overly prejudicial to the prosecution, is now universally recognized as scientifically valid and of "aid [to] the trier of fact" for admissibility purposes.

As a matter of expert witness law, this is a reflection of the way that Daubert may lead to a different result than Frye, permitting the introduction of reliable expert evidence that may not be generally accepted. As a factual matter, you have a better chance of having your home broken into while you're there, and, if it happens in the Sixth Circuit, you can expect to be attacked on the stand when you identify the armed intruders. At least the second attack will be purely oral, the attacker will be unarmed, and no one on the jury is likely to be listening to his expert.

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