State v. Guilbert

STATE v. GUILBERT—CONCURRENCE

SC17948

Supreme Court of Connecticut

Dated: August 30, 2012

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ZARELLA, J., with whom McLACHLAN, J., joins, concurring in the judgment. I agree with the majority that expert testimony may assist the jury in understanding certain factors that may affect the reliability of eyewitness identifications. I further agree that, to the extent this court concluded in State v. Kemp, 199 Conn. 473, 477, 507 A.2d 1387 (1986), and State v. McClendon, 248 Conn. 572, 586, 730 A.2d 1107 (1999), that expert testimony regarding such factors is "disfavored" because they are within the common knowledge of the average juror, Kemp and McClendon should be overruled. The majority, however, does not simply remove expert testimony from its "disfavored" status, thus leaving trial courts free to admit the proffered testimony in the exercise of their discretion. Rather, the majority elevates expert testimony to a preferred status by suggesting that it is presumptively admissible except when the trial court intends to give focused jury instructions, the eyewitness was familiar with the defendant before the commission of the crime, or the testimony fails to satisfy the same threshold reliability and relevance requirements that are applied to any other expert testimony, including expert testimony based on scientific evidence.¹ I agree with the majority that expert testimony may be precluded in these circumstances. Indeed, I believe that focused jury instructions are the best method for assisting juries in understanding the factors that may affect the reliability of eyewitness identifications and that trial courts should be encouraged to give such instructions in all cases involving eyewitness identifications where specific issues have been raised regarding their unreliability. See, e.g., State v. Henderson, 208 N.J. 208, 296, 298, 27 A.3d 872 (2011) (directing trial courts to give enhanced jury instructions ''to guide juries about the various factors that may affect the reliability of an eyewitness identification in a particular case'' but leaving discretion with trial court as to when during trial to give instructions and whether to allow expert testimony). I do not agree, however, with the majority's presumption that expert testimony is otherwise admissible because such a presumption fails to recognize the value of cross-examination and closing argument as a means of bringing reliability issues to the jury's attention and does not allow consideration of strong corroborating evidence of the defendant's guilt, thus interfering with a trial court's broad discretion in determining whether expert testimony is admissible based on the totality of the circumstances.

In addition, I disagree with the majority that the trial court abused its discretion in precluding the expert testimony in this case but that the error was nonetheless harmless. The majority's harmless error analysis relies in part on its determination that the jury instructionswere "adequate," a ground on which the majority states that expert testimony may be precluded but that it deemed insufficient in concluding that the trial court had abused its discretion. Thus, the majority's inconsistent treatment of the jury instructions in its abuse of discretion and harmless error analysis is likely to bewilder many courts and cause unnecessary confusion. Indeed, some courts may feel compelled to admit expert testimony as a precautionary measure, regardless of whether they intend to give focused jury instructions, merely to avoid appellate review. Accordingly, although I agree with the majority that Kemp and McClendon should be overruled and that expert testimony should be restored to its rightful place as one of several tools available to assist juries in assessing the reliability of eyewitness identifications, my disagreement with other portions of the majority's analysis in part I of the opinion² leaves me no other choice but to respectfully concur in the judgment.

I

In removing expert testimony from the "disfavored" status to which it was consigned in Kemp and McClendon, the majority concludes that such testimony is presumptively admissible subject to the specified exceptions. I disagree for two reasons. First, the majority repeats the same mistake made by this court in Kemp and McClendon of relegating certain methods, namely, cross-examination and closing argument, to a ''disfavored'' status without acknowledging that both may be used with devastating effect in challenging a potentially unreliable identification. The majority's presumption in favor of expert testimony also is inconsistent with the recent decision of the United States Supreme Court in Perry v. New Hampshire, U.S. , 132 S. Ct. 716, 728-30, 181 L. Ed. 2d 694 (2012), which implicitly endorsed a more balanced approach when it concluded that cross-examination, opening and closing argument, expert testimony and jury instructions all have value in guarding against an unfair trial by assisting juries in assessing the trustworthiness of an eyewitness identification.

In Perry, the United States Supreme Court determined that the fallibility of eyewitness evidence, in the absence of improper state conduct, did not warrant a due process rule that would require a trial court to screen the evidence for reliability before allowing the jury to assess its creditworthiness. Id., 728, 730. In explaining its reasons for reaching this conclusion, the court noted that juries traditionally determine the reliability of evidence and that other protections are built into our adversarial system that caution juries against placing undue weight on eyewitness testimony of questionable reliability. Id., 728-30. These protections include (1) the defendant's right to confront the witness, (2) the defendant's right to the effective assistance ofcounsel, who can expose flaws in the eyewitness' testimony during cross-examination and focus the jury's attention on the fallibility of the testimony during opening and closing arguments, (3) eyewitness specific jury instructions warning the jury to take care in appraising identification evidence, (4) the constitutional requirement that the government prove the defendant's guilt beyond a reasonable doubt, (5) rules of evidence permitting trial judges to exclude relevant evidence if its probative value is substantially outweighed by its prejudicial impact or potential for misleading the jury, and, lastly, (6) expert testimony in appropriate cases on the hazards of eyewitness identification evidence. Id. Giving no particular weight to any of these methods, the court then examined the evidence and concluded that, among the safeguards at work in the petitioner's trial were a statement by his attorney during opening argument cautioning the jury as to the vulnerability of the disputed eyewitness identification, his attorney's effective cross-examination of the eyewitness and another witness, his attorney's frequent reference during cross-examination to the weaknesses of the identification, and the trial court's lengthy jury instructions on identification testimony and the factors that the jury should consider in evaluating that testimony. Id., 729-30.

The more balanced approach described in Perry is necessary because eyewitness identifications are made in widely differing circumstances, and a variety of potentially effective methods are available for bringing reliability issues to a jury's attention. Thus, each case should be considered on its own facts, and trial courts should be allowed broad discretion in deciding whether any particular combination of methods, including closing argument, cross-examination and jury instructions, both before and after an eyewitness has testified, as well as at the close of the evidence, is sufficient to assist juries in assessing the reliability of an eyewitness identification without expert testimony. In other words, although cross-examination and closing argument, in and of themselves, may be inadequate to bring the unreliability of an eyewitness identification to the jury's attention, trial courts should be allowed to consider the totality of the circumstances in deciding whether to admit or preclude expert testimony.³ Accordingly, to the extent the majority concludes that expert testimony is presumptively admissible unless the trial court gives focused jury instructions, the eyewitness was familiar with the defendant before the commission of the crime or the proposed testimony otherwise fails the test for the admission of expert testimony, the majority goes too far and repeats the mistake made in Kemp and...