People v. Abney

Full title: THE PEOPLE OF THE STATE OF NEW YORK, v. QUENTIN ABNEY, Defendant

Court: Supreme Court of the State of New York, New York County

Date published: May 5, 2011

2011 N.Y. Slip Op. 50919 (N.Y. Sup. Ct. 2011)

Opinion

3314/05.

Decided May 5, 2011.

Kathleen Hardy, Staff Attorney, The Legal Aid Society, New York, NY, Appearing on behalf of the defendant.

Shanda Strain, Assistant District Attorney, Office of the District Attorney, New York County, Appearing on behalf of the People.

JILL KONVISER, J.

The defendant was convicted, after a jury trial, of placing a six inch knife to the throat of a thirteen year old girl and then ripping the chain off her neck.¹ The victim was the only eyewitness to the crime, which lasted only seconds. No other evidence, aside from the victim's later identification, connected the defendant to the crime. The defendant's principal contention on appeal was that the now retired trial judge abused his discretion by denying his application to elicit expert testimony with respect to the reliability of eyewitness identifications without first holding a hearing pursuant to Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). On October 14, 2008, the defendant's conviction was affirmed by a divided panel of the Appellate Division, First Department. See People v. Abney , 57 AD3d 35 (1st Dept. 2008). On October 27, 2009, the New York Court of Appeals unanimously reversed the defendant's conviction and ordered a new trial. See People v. Abney , 13 NY3d 251 (2009). A new trial was ordered as the trial judge abused his discretion by denying, without first holding a Frye hearing, the defendant's application to call an eyewitness identification expert to testify in the areas of "event stress, exposure time, event violence weapon focus, and cross-racial identification."² See People v. Abney, 13 NY3d at 268.

1 The defendant was convicted of robbery in the first degree under Penal Law § 160.15(3). He was sentenced as a persistent violent felony offender to a prison term of twenty years to life on March 20, 2006.

2 The Court of Appeals also held that the trial judge abused his discretion by refusing to permit the defendant's expert to testify in the area of "witness confidence" as expert eyewitness testimony in this area is "generally accepted within the relevant scientific community" and "beyond the ken of the average juror." People v. Abney, 13 NY3d at 268; see People v. LeGrand, 8 NY3d 374, 380 (2007).

Pursuant to the ruling in People v. Abney, 13 NY3d at 268, this Court conducted a Frye hearing on September 17, 2010, September 20, 2010, November 12, 2010, and November 22, 2010. The purpose of the hearing was to determine whether the defendant would be permitted to introduce at trial expert testimony on the reliability of eyewitness identification with respect to event stress, event violence, weapon focus, exposure time and cross-racial identification.³ The defendant called Dr. Nancy Franklin and the People called Dr. Barry Cooper. This Court finds both credible. At the conclusion of the hearing each party submitted lengthy motion papers, reply memoranda, and voluminous scientific studies related to the testimony elicited at the Frye hearing. For the reasons that follow, the defendant's motion to elicit eyewitness expert testimony at trial is granted in part and denied in part.

3 Event violence is a component of event stress. Accordingly, the factors of event stress and event violence have been referred to by the parties, and this Court, as "event stress." See Hearing Testimony at 324.

Factual and Procedural History

The facts underlying the alleged crime in this case were set forth by the Court of Appeals in People v. Abney, 13 NY3d at 257-258.

On June 2, 2005 at about 3:20 P.M., 13-year-old Farhana U., on her way home from school, was descending well-lit stairs into the subway station near the corner of Essex and Delancey Streets in Manhattan when a man whom she did not know approached her and asked for "some change." This man stood face-to-face with Farhana, about two feet away. She initially did not think he intended to harm her and was not afraid. Looking him squarely in the face, she said she had no change.

After Farhana "took a couple of steps forward," the stranger wheeled in front of her, placed a knife with a six-inch blade and "a big curve on the end" near her throat, and asked her "a couple of times" to hand over her necklace, a gold chain with a locket. As this man stood close by her, Farhana was "looking at his face"; she was "really scared" and "didn't know what to do." When Farhana refused his demand, screaming "No," he ripped the chain off her neck, and fled up the stairs. This entire encounter was fleeting.

Farhana continued down the stairs into the subway station and reported the robbery to a token clerk. At about 4:30 P.M., Detective Samuel DeJesus interviewed her at his desk in the transit station house at Columbus Circle. According to Detective DeJesus, Farhana seemed frightened; she told him that she had been robbed at knife-point by a stranger, a black man in his thirties who was over six feet tall, had "pinkish" lips, and wore a short-sleeved blue shirt and a blue bandana.

Farhana's physical description of the robber and how he carried out the crime prompted Detective DeJesus to suspect defendant Quentin Abney: he was familiar with defendant on account of his arrest for an earlier subway-related robbery. Telling Farhana that he would be "right back," the detective left his desk to put together an array of six photographs, including defendant's. When he returned, he told Farhana that he "was going to show her a group of photos and, if she recognized anyone, to let [him] know which one and what number." Pointing out defendant's photograph, she responded, "that's him, number six."

On June 22, 2005, Detective Ernest Dorvil telephoned Farhana at her home to ask her to view a lineup. Upon arrival at the station house, she waited in an office with the door shut while the lineup was being put together. From the office, Farhana could not see defendant, who was in a "cell area" on the other side of the building, or any of the "fillers" selected to participate in the lineup. Once the lineup was assembled, Detective Dorvil escorted Farhana to the viewing room, where they were joined by another police officer and defendant's attorney. She identified defendant, in position number four (there were six men in the lineup); Farhana was "sure" that he was the man who had asked her for change and then robbed her at knife-point.

Defendant was arrested and charged with one count of robbery in the first degree (Penal Law § 160.15). At the subsequent jury trial, Farhana testified on direct examination that the man who robbed her had a dark brown complexion, "puppy dog eyes," and "pinkish-purplish lips"; she did not remember whether he was wearing anything over his head, but thought his shirt was blue. Defense counsel cross-examined Detective DeJesus about the details of Farhana's initial description of the robber; Detective Dorvil about the lineup, eliciting testimony that he let Farhana know ahead of time that a suspect was included (which she contradicted, saying that the detective told her only that he wanted her to view "a couple of people"); and Farhana about the lineup and the appearance of the knife.

People v. Abney, 13 NY3d at 257-258.

Prior to jury selection the defendant filed a motion in limine to present expert testimony with respect to fifteen different factors related to the reliability of eyewitness identification.⁴ Id. at 259. The trial judge denied the motion with leave to renew at the conclusion of the People's direct case.

4 The fifteen factors included: "stress, exposure time, color perception under monochromatic light, event violence, cross-racial accuracy, similarity of lineup fillers, lineup instruction, rate of memory loss, postevent information, the wording of questions posed to an eyewitness, unconscious transference to the crime scene of someone seen in another situation or context, the witness's preexisting attitudes and expectations, simultaneous and sequential lineups, the lack of correlation of confidence and accuracy, and confidence malleability." People v. Abney, 13 NY3d at 259.

The trial judge observed that while he was aware that the People's case hinged on the eyewitness testimony of the 13-year-old victim "[a]t this [juncture], . . . [the trial judge], in the exercise of discretion, [did] not consider [the] case an appropriate one for an expert identification witness" for several reasons.

The trial judge reasoned that "[a]s a threshold matter," defendant's papers did not "appropriately narrow the scope of the expert's proposed testimony," which therefore threatened to turn into "a full-fledged seminar . . . which could lead to hours of academic discussion and speculation." Second, the proffered testimony about how police investigative techniques might influence a lineup identification was not relevant because the victim had previously picked out a photograph from an array, and so must have realized that a suspect would be included in the lineup. Third, two of the proposed subjects of testimony-postevent information and unconscious transference-"[had] not passed the Frye test" in other courts.⁵ Fourth, evidence about simultaneous versus sequential lineups was "unmanageable in a trial setting," because juries were "not experts on constitutional law and procedure and [could not] be educated about those topics during a trial."

5 At this point in the Abney decision the Court of Appeals noted that it had "subsequently decided in LeGrand that studies about the potential effect of postevent information on the reliability of any eyewitness identification are, in fact, generally accepted as scientifically valid." People v. Abney, 13 NY3d at 260, n. 2; see People v. LeGrand, 8 NY3d at 458.

Finally, the trial judge commented that "jurors know that, as a matter of common sense, a person's memory does fade as time passes." In his view, "[m]any" of defendant's concerns relative to the accuracy of Farhana's eyewitness identification could be adequately addressed by tailoring cross-examination and the jury charge. He indicated that defendant was "free to renew his motion at the close of the People's case, at which time he [should] narrow his proffer to the specific topics that he believes are relevant to the facts of this case."

Id. at 259-260.

At the conclusion of the People's case the defendant renewed his motion and sought to present expert eyewitness identification testimony with respect to a narrower range of topics. In particular, the defendant sought to elicit expert testimony in the areas of "event stress, exposure time, event violence and weapon focus, cross-racial identification, and lineup instructions, in addition to a new topic, double blind lineups." Id. at 260. The defendant also took exception to the trial judge's earlier ruling that the area of "witness confidence" could be addressed through the use of jury instructions. Id.

The trial judge denied defendant's renewed motion on the ground that "having had the benefit of the witness's testimony," there was "nothing unique about [the] case . . . present[ing] issues that are beyond the ken of the ordinary juror." In his view, the relevant issues had been explored adequately during cross-examination, and could be argued in summation and covered in the jury charge. Id. at 260-61.

The Appellate Division Decision

The Appellate Division, in a 3-2 decision, affirmed the defendant's conviction. People v. Abney , 57 AD3d 35 (1st Dept. 2008).As a threshold matter the Appellate Division observed that the "unusual fact pattern presented in LeGrand," which involved an identification made seven years after the crime and a retrial that took place 11 years after that crime, raised "a genuine question" as to whether the LeGrand rule with respect to the admissibility of expert testimony applied in a case such as this, "where the circumstances create[d] much less doubt about the reliability of the identification testimony."⁶ Id. at 42-43. The Appellate Division, however, declined to answer that question as it found evidence corroborating the defendant's guilt existed and, thus, under LeGrand, the trial court's exclusion of the expert eyewitness testimony proffered by the defendant was not an abuse of discretion. Id at 43. Furthermore, the Appellate Division ruled that any error "in refusing to permit the expert testimony when defendant renewed his application at the close of the People's case" was harmless.⁷ Id. at 45.

6 In People v. LeGrand , 8 NY3d 449, 452 (2007), the Court of Appeals held that "where [a] case turns on the accuracy of eyewitness identifications and there is little or no corroborating evidence connecting the defendant to the crime, it is an abuse of discretion for a trial court to exclude expert testimony on the reliability of eyewitness identifications if that testimony is (1) relevant to the witness's identification of defendant, (2) based on principles that are generally accepted within the relevant scientific community, (3) proffered by a qualified expert and (4) on a topic beyond the ken of the average juror[.]"

7 The dissenting opinion in the Appellate Division by Justice Moskowitz was joined by then Presiding Justice of the Appellate Division and now Chief Judge Lippman. See People v. Abney, 57 AD3d at 48. In that opinion, the dissent found, inter alia, that "no reasonable reading of LeGrand could engender the highly artificial notion that the Court intended to tether the application of its holding to the particular circumstances of that case. Rather, LeGrand recognizes that there is now persuasive scientific evidence that, under certain circumstances, eyewitness identification testimony, even while apparently convincing and certain, is fraught with error[.] . . . We should not limit LeGrand, then, to its facts, and thus effectively consign it to jurisprudential oblivion. Instead, we should apply LeGrand in accordance with its broadly articulated holding and remedial purpose, that is to enhance the quality of the deliberative process as well as the reliability of its outcome when a prosecution depends entirely on substantially uncorroborated eyewitness testimony and the introduction of expert testimony is otherwise warranted." Id. at 50. The dissent further found, unlike the majority, that aside from the identification, there was no corroborating evidence connecting the defendant to the crime. Id. at 51.

The Court of Appeals Decision

The Court of Appeals unanimously reversed the defendant's conviction. People v. Abney , 13 NY3d 251 (2009). Applying the principles that it adopted in LeGrand, as well as in the earlier cases of People v. Young , 7 NY3d 40 (2006) and People v. Lee, 96 NY2d 157 (2001), the Court held that:

[w]hile it was reasonable for the trial judge to deny defendant's pretrial motion in Abney as premature and overly broad, another outcome was called for when defendant renewed the motion at the close of the People's direct case. By that point, it was clear that there was no evidence other than Farhana's identification to connect defendant to the crime, and she did not describe him as possessing any unusual or distinctive features or physical characteristics.

Defendant asked to elicit testimony from . . . a qualified expert on the subject of eyewitness identification research findings, about the following topics: the effect of event stress, exposure time, event instructions and double-blind lineups, and witness confidence. All but two of these subjects — lineup instructions and double blind lineups — seem relevant to Farhana's identification of defendant, given the particular circumstances of the case. And as we stated in LeGrand, the principles related to witness confidence upon which . . . [the defense expert] proposed to testify are generally accepted within the relevant scientific community. They are also counterintuitive, which places them beyond the ken of the average juror.

Accordingly, the trial judge in Abney abused his discretion when he did not allow . . .[the defense expert] to testify on the subject of witness confidence. As for the remaining relevant proposed areas of expert testimony-the effect of event stress, exposure time, event violence and weapon focus, and cross-racial identification-the trial judge should have conducted a Frye hearing before making a decision on admissibility.

Finally, we do not consider the trial judge's error in Abney to have been harmless. . . .Accordingly, in People v. Abney, the order of the Appellate Division should be reversed and a new trial ordered[.]

People v. Abney, 13 NY3d at 268-269.

The Frye Hearing

Prior to the anticipated retrial in the instant case, the defendant, pursuant to the explicit ruling made by the Court of Appeals in People v. Abney, 13 NY3d at 268, requested that this Court hold a Frye hearing to determine the admissibility at trial of expert testimony on the reliability of eyewitness identification. Specifically, the defendant seeks to introduce expert testimony in the areas of: weapon focus, event stress, event duration and cross-racial identification.⁸ The defendant's request for a Frye hearing was granted and the hearing was held on September 17, 2010, September 20, 2010, November 12, 2010, and November 22, 2010. The defendant called Dr. Nancy Franklin, an Associate Professor of Psychology at the State University of New York at Stony Brook. The People called Dr. Barry Cooper, a clinical instructor in the Department of Psychology at the University of British Columbia, a contract psychologist with the Correctional Service of Canada, and a partner and the Director of Research and Development for the Pacific Alliance of Forensic Scientists and Practitioners.

8 The Court of Appeals also specifically ruled that the trial judge abused his discretion by prohibiting the defendant from eliciting expert testimony in the area of "witness confidence." People v. Abney, 13 NY3d at 268. The Court held that expert testimony on the subject of eyewitness identification research findings in the area of "witness confidence" is based upon principles that are "generally accepted within the relevant scientific community" and "beyond the ken of the average juror." Id.; see People v. LeGrand, 8 NY3d at 458. The defendant seeks to elicit during the retrial of this case expert testimony in the area of witness confidence as well as in the areas of "the effect of postevent information on accuracy of identification and confidence malleability." See People v. LeGrand, 8 NY3d at 458. The LeGrand Court found all three of these factors to be generally accepted in the scientific community and beyond the ken of the average juror. Id. This Court finds, and the People do not dispute, that such factors are relevant to the identification made in this case. As such, the defense will be permitted to call a qualified expert to testify with respect to the impact that these three factors may have on the reliability of an eyewitness identification. The definitions of these three factors are set forth in the LeGrand lower court opinion. See People v. LeGrand, 196 Misc 2d 179. 180-181 (Sup. Ct. N.Y.Co. 2002).

Where, as here, a case turns on the accuracy of an eyewitness identification and there is little or no corroborating evidence connecting the defendant to the charged crime, a four part test must be satisfied before a defendant will be permitted to introduce at trial expert testimony on the reliability of eyewitness identification.⁹ See People v. Abney, 13 NY3d at 267; People v. LeGrand, 8 NY3d at 452. Under this four part test, such expert testimony is admissible if it is: "(1) relevant to the witness' identification, (2) proffered by a qualified expert, (3) on a topic beyond the ken of the average juror and (4) based on principles that are generally accepted as reliable by the scientific community." People v. Banks , 16 Misc 3d 929, 935 (West. Cty. Co. 2007), aff'd, 74 AD3d 1214 (2d Dept.), lv. denied, 15 NY3d 849 (2010), citing People v. LeGrand, 8 NY3d at 452; see People v. Abney, 13 NY3d at 267.

9 The Court of Appeals explicitly held that this case turns on the accuracy of an identification made by a single eyewitness and that no other evidence connects the defendant to the charged crime. See People v. Abney, 13 NY3d at 268.

1.The Relevancy of the Proposed Testimony to the Witnesses's Identification

The defendant seeks to elicit expert testimony relative to the effect that event stress, weapon focus, exposure time, and cross-racial identification, have on the reliability of an eyewitness identification. See Defendant's Affirmation in Support of Motion at 2. The Court of Appeals has specifically ruled in this case that expert testimony in these four areas " seem relevant to Farhana's identification of defendant, given the particular circumstances of this case." See People v. Abney, 13 NY3d at 268. (emphasis added). To the extent that there is anything equivocal about the Abney Court's use of the word "seem," this Court finds that expert testimony in these four areas would in fact be relevant to the identification testimony likely to be elicited during the retrial of this case. See People v. LeGrand. 8 NY3d at 452.

An analysis of each of the four factors about which the defendant seeks to elicit expert testimony shows that they are relevant to the identification of the defendant made by the complainant in this case. The first factor about which the defendant seeks to elicit expert eyewitness identification testimony is "event stress." Event stress stands for the proposition that a stressful event impairs the ability of a person to recognize an unfamiliar face accurately. Franklin Frye Hearing Testimony at 43, 45, 85; see K.A. Deffenbacher, B.H. Bornstein, S.D. Penrod E. K. McGorty, A Meta-Analytic Review of the Effects of High Stress on Eyewitness Memory, 28 Law Hum. Behav. 687 (2004); C.A. Morgan, III et al., Accuracy of Eyewitness Memory for Persons Encountered During Exposure to Highly Intense Stress, 27 Int'l J.L. Psychiatry 265 (2004). As the allegations in this case show that the complainant was placed in a highly stressful situation as she was allegedly robbed in the subway at knife point by a complete stranger, the phenomenon of event stress is relevant to the circumstances under which the complainant identified the defendant.

The defendant also seeks to elicit expert testimony in the area of "weapon focus." Weapon focus "is the phenomenon which occurs when, during the course of a crime, a witness is exposed to a weapon, and the witness focuses his or her attention on the weapon and not on the perpetrator's face, which impairs the ability of the witness to make a subsequent identification of [a] perpetrator." People v. Banks, 16 Misc 3d at 931, n. 4; People v. Williams , 14 Misc 3d 571, 578 (Sup. Ct. King Co. 2006); see N.M. Steblay, A Meta-Analytic Review of the Weapon Focus Effect, 16 Law Hum. Behav. 413 (1992). In this case, a knife was used to commit the alleged robbery. As such, testimony with respect to the weapon focus factor is relevant to the circumstances under which the complainant identified the defendant.

Expert testimony is also sought in the area of "event duration." Event duration, also known as "exposure duration" or "increased exposure time" refers to "the phenomenon that [the] longer a person is exposed to a face the more likely that person will make a correct identification at a later time." People v. Banks, 16 Misc 3d at 931, n. 1; People v. Williams, 14 Misc 3d at 579. Likewise, it stands for the converse proposition that an identification is likely to be less accurate if the perpetrator is viewed only for a brief period of time. See B.L. Cutler, A Sample of Witness, Crime, and Perpetrator Characteristics Affecting Eyewitness Identification Accuracy, 4 Cardozo Pub.L. Pol'y Ethics J. 327 (2006).¹⁰ In this case, as the charged crime took only seconds to complete this Court finds that the phenomenon of event duration is relevant to the identification of the defendant.

10 Included within this phenomenon is also the notion that in connection with "particularly stressful events, we all tend to overestimate how long we were exposed to something." See Hearing Testimony at 52.; J. Epstein, The Great Engine that Couldn't: Science, Mistaken Identifications, and the Limits of Cross-Examination, 36 Stetson L. Rev. 727, 754 (2007).

Finally, the defendant seeks to elicit expert testimony in the area of cross-racial identification" Cross-racial identification, also known as "own-race basis," is a "cognitive processing bias that people have that allows them to differentiate members of their own race better than they can differentiate faces of another race." See Franklin Frye Hearing Testimony at 58; see People v. Banks, 16 Misc 3d at 942; People v. Williams, 14 Misc 3d at 579; see also C.A. Meissner J.C. Brigham, Thirty Years of Investigating the Own-Race Bias in Memory for Faces: A Meta-Analytic Review, 7 Psychol. Pub. Pol'y Law 3 (2001). As the parties have advised this Court that the complainant is of Asian/Indian descent and the defendant is of African-American descent, this Court finds that own-race bias is relevant to the complainant's identification of the defendant.

2. The Testimony Must Be Proffered by a Qualified Expert

To be qualified as an expert a witness "should be possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the information imparted or the opinion rendered is reliable." Mattot v. Ward, 48 NY2d 455, 459 (1979); see People v. Eckhardt, 305 AD2d 860 (3d Dept.), lv. denied, 100 NY2d 620 (2003). Stated another way "[a] witness may testify as an expert if it is shown that he [or she] is skilled in the profession or field to which the subject relates, and that such skill was acquired from study, experience, or observation." Karaski v. Bird, 98 AD2d 359, 362 (1st Dept. 1984); People v. Siu Wah Tse, 91 AD2d 350, 353-354 (1st Dept.), lv. denied, 59 NY2d 679 (1983); see Meiselman v. Crown Hgts. Hosp., 285 NY 389, 398 (1941); People v. Greene, 153 AD2d 439, 450 (2d Dept.), lv. denied, 76 NY2d 735, cert denied, 498 U.S. 947 (1990); McLamb v. Metropolitan Suburban Bus Authority, 139 AD2d 572, 573 (2d Dept. 1988); see also Prince, Richardson on Evidence § 7-304, at 463 (Farrell 11th Ed.) ("A witness may be qualified to testify from actual experience, from observation, or from study."). Moreover, "no precise rule has been formulated and applied as to the exact manner in which such skill and experience must be acquired." Meiselman v. Crown Hghts. Hosp, 285 NY at 398; People v. Norman , 6 Misc 3d 317, 332 (Sup. Ct. Kings Co. 2004); see Barker Alexander, Evidence in New York State and Federal Courts, § 702.1 at 516-517 (West Pub. 1996) ("[T]raining, or experience, or education, or any combination, can be taken into account by the judge in his [or her] threshold consideration whether to let the witness testify."). Indeed, "[a] sampling of the cases demonstrates the liberality with which [expert] qualifications are appraised." See Barker Alexander, Evidence in New York State and Federal Courts, § 702.1 at 517 n. 80 (citing and discussing New York State cases); see also People v. Norman, 6 Misc 3d at 332 (noting that the standard for evaluating whether a witness is qualified as an expert in New York is a "flexible" one). Thus, as the Court of Appeals noted in Caprara v. Chyrsler Corp., 52 NY2d 114, 121 (1981):

As may be true, for example, of a knowledgeable music critic who has never written a note, Burrill's competency could just as well have derived from the real world of everyday use as from that of the laboratory. As the court said in Meiselman v. Crown Hgts. Hosp., 285 NY 389, 398, 34 N.E.2d 367 [1941], "(l)ong observation and actual experience, though without actual study (may) qualify a witness as an expert" (see, also, Delair v. Gaudet, 4 AD2d 736, 737, 163 N.Y.S.2d 415 [3d Dept. 1957] (engineer qualified by education and experience to give expert testimony on the adequacy of the installation of a heating plant, despite having never installed one)).

The admissibility of expert testimony on a particular topic is addressed to the sound discretion of the trial court, see People v. Cronin, 60 NY2d 430, 433 (1983); Meiselman v. Crown Hgts. Hosp., 285 NY 389, 398-399 (1941); People v. Right, 180 AD2d 430, 431 (1st Dept.), lv. denied, 79 NY2d 952 (1992); People v. Minor, 169 AD2d 488 (1st Dept.), lv. denied, 77 NY2d 964 (1991). This Court finds that the witness proffered by the defendant, Dr. Nancy Franklin, is an expert in the field of human memory and is adequately qualified to provide expert testimony in the areas of event stress, weapon focus, event duration and own-race bias.¹¹

11 Expert testimony with respect to the reliability of eyewitness identifications is generally elicited from psychologists with expertise in the fields of memory and human perception. See People v. Williams, 14 Misc 3d at 572; People v. Beckford, 141 Misc 2d 71, 74 (Sup Ct. Kings Co. 1988); United States v. Brownlee, 454 F.3d 131, 142-143 (3d Cir. 2006); Brodes v. State, 279 Ga. 435, 438, 618 N.E.2d 766, 768 (Ga. Sup Ct. 2005); see also Thompson, Beyond A Reasonable Doubt? Reconsidering Uncorroborated Eyewitness Identification Testimony, 41 U.C. Davis L. Rev. 1487 (2008) ("Eyewitness identifications are notoriously subject to error. Most people believe that the human mind records' events in an accurate fashion, much like a video camera. Psychological research, however, proves human perception is selective in the details that it records,' and human memory reconstructs and fills in the missing details of the images stored in the mind."); A.B. Poulin, Credibility: A Fair Subject For Expert Testimony?, 59 Fla. L. Rev. 991, 1028 (2007) ("Experts on eyewitness identification can help jurors understand the psychological dynamics of identification and, most critically, can help them overcome erroneous assumptions that infect eyewitness identification. Specifically, an expert can help jurors understand the vagaries of perception and memory that undermine the accuracy of eyewitness identification."); R.S. Schmechel et al., Beyond the Ken? Testing Jurors' Understanding of Eyewitness Reliability Evidence, 46 Jurimetrics J. 177, 195 (2006) (The characteristics of human memory "have profound implications" on the reliability of eyewitness identifications.).

Dr. Franklin received a Ph.D. in Psychology from Stanford University in 1989. At Stanford she specialized in the area of human cognition and memory and was a National Science Foundation graduate fellow. For the past 21 years she has been an Associate Professor of Psychology at the State University of New York at Stony Brook where she has received an impressive array of teaching awards and, until recently, was the head of the Psychology Department's "cognitive experimental area." Dr. Franklin lectures on the topic of memory and eyewitness identification and teaches a variety of psychology courses at Stony Brook, including a course in human memory focusing on eyewitness identification. Her primary area of research is dedicated to "false memory" and, in particular, the manner in which memory is affected by emotions, threats and anger. Dr. Franklin is currently conducting laboratory research and collecting data on cross-racial identification and on the effect anger and emotion have on the ability of a person to identify and process facial features.

A member of the Society for Applied Research in Memory and Cognition,¹² the American Psychology Law Society, ¹³ and the Psychonomic Society, ¹⁴ Dr. Franklin is a peer reviewer for several scholarly journals, including the Journal of Memory and Language¹⁵ and the Journal of Applied Cognitive Psychology and Cognitive Psychology, ¹⁶ and has served on the editorial board of the Journal of Experimental Psychology: Learning Memory Cognition.¹⁷ Dr. Franklin was a grant reviewer for the National Science Foundation and the Air Force Grants Office, has published numerous articles and book chapters in the area of cognition of memory, ¹⁸ attends lectures and conferences on cognitive psychology, and keeps current regarding developments in the field of eyewitness identification by reading and studying applicable literature. Dr. Franklin has testified as an expert in the field of memory approximately fifteen times in New York County, Bronx County, Queens County and in Springfield, Massachusetts. She is listed as an eyewitness identification expert, specializing in eyewitness memory, identification and false memory, on the Verified Expert Roster of the Assigned Counsel Plan of the City of New York, of which this Court takes judicial notice. The Assigned Counsel Plan conducts background reviews of each expert on its roster, verifies the credentials of each expert and permits individuals to be included on the Verified Expert Roster only where he or she has met the Assigned Counsel Plan's minimum requirements.¹⁹

12 "The Society of Applied Research in Memory and Cognition is a non-profit professional organization that fosters applied research in memory and cognition. SARMAC primarily aims to promote the communication of high-quality research within and between the applied and basic research communities, and to other interested people and groups." See http:sarmac.org/

13 "The American Psychology Law Society, Division 41 of the American Psychological Association, is an inter-disciplinary organization devoted to scholarship, practice, and public service in psychology and law." See. www.ap-ls.org/

14 "The Psychonomic Society promotes the communication of scientific research in psychology and allied sciences. Its members are qualified to conduct and supervise scientific research, must hold the Ph.D. degree or equivalent, and must have published significant research other than the doctoral dissertation. Society membership, including associate members, is now around 2,650. The main function of the Society is to exchange information among scientists. To this end, it publishes six journals and annually hosts an international scientific meeting." See www.psychonomic.org.

15 "Articles in the Journal of Memory and Language contribute to the formulation of scientific issues and theories in the area of memory, language comprehension, and cognitive processes. Special emphasis is given to research articles that provide new theoretical insights based on a carefully laid empirical foundation. In addition, significant theoretical papers without new experimental findings may be published." See www.elsevier.com/wps/find/ journaldescription.cws-home/622807/description#description.

16 "Cognitive Psychology" is a journal "concerned with advances in the study of memory, language processing, perception, problem solving, and thinking. The journal presents original empirical, theoretical, and tutorial papers, methodological articles, and critical reviews." See www.elsevier.com/wps/find/ journaldescription.cws_home/622807/description#description.

17 As the defendant correctly notes in his motion papers, see Defendant's Memorandum of Law in Support of Motion To Admit Expert Identification Testimony at 7, the Journal of Experimental Psychology: Learning Memory Cognition "is a publication of the American Psychological Association publishing original experimental studies on basic processes of cognition, learning, memory, imagery, concept formation, problem solving, decision making, thinking, reading, and language processing." See www.apa.org/pubs/journal/xlm/.

18 Indeed, six pages of Dr. Franklin's curriculum vitae are devoted to the papers that she has published and presented at various conferences.

19 A copy of the Verified Assigned Counsel Roster for the City of New York Assigned Counsel plan can be accessed at https://a002-oomwap01.nyc.gov/18Bdocs/Expert%20Roster.pdf.

This Court had the opportunity to see and hear Dr. Franklin testify over the course of three days during the Frye hearing. Her testimony, nearly three hundred transcript pages, makes plain that she is adequately qualified to testify as an expert in the areas of event stress, weapon focus, event duration and own-race bias. Dr. Franklin demonstrated a satisfactory familiarity and understanding of the research, theories, terminology and applications that underlie each of the four areas about which the defendant seeks to introduce expert testimony and is familiar with the extent to which each of these areas of study are accepted as reliable in the relevant scientific community.²⁰

20 That Dr. Franklin has not written any articles or conducted extensive research in the areas about which she intends to testify does not disqualify her from being deemed a qualified expert as the People claim. Meiselman v. Crown Hghts. Hosp, 285 NY at 398; Caprara v. Chyrsler Corp., 52 NY2d at 121; see Martin, Capra Rossi, New York Evidence Handbook, § 7.2.1 at 631 ("an expert can be qualified by academic training even though she never published in the field in which she purports to testify"). See People v. Siu Wah Tse, 91 AD2d at 353-354, quoting Prince, Richardson on Evidence § 368(10th Ed) ("[t]here is no definite rule as to how an expert witness must have acquired his [or her] skill. The witness may be qualified to speak from actual experience, from observation, or from study."); see also Humphrey v. Jewish Hosp. and Medical Center of Brooklyn, 172 AD2d 494 (2d Dept. 1992) (A "general surgeon" was qualified to render an expert opinion in the areas of obstetrics and gynecology as a "physician need not be a specialist in a particular field in order to be considered a medical expert.").

Dr. Franklin is a long-tenured professor of cognitive psychology, teaches a university course on the subject of the reliability of eyewitness identification, lectures on memory and eyewitness identification, is familiar with the studies, research and articles dealing with each of the four areas about which she intends to testify, has been qualified on numerous other occasions as an expert, and is undeniably an expert in human memory, the very field upon which the criticisms of the reliability of eyewitness identifications are based. Thus, under the flexible and liberal standards applied to the qualifications of expert witnesses in New York, see e.g. Fuller v. Preis, 35 NY2d 425, 431 (1974); People v. Paun, 269 AD2d 546 (2d Dept. 2000); Payant v. Imobersteg, 256 AD2d 702 (3d Dept. 1998); People v. Norman, 6 Misc 3d at 332, the People's claim that Dr. Franklin is not qualified to testify in the four areas proffered by the defense is rejected. Moreover, the People's argument with respect to Dr. Franklin's alleged lack of skill and expertise goes to the weight and not admissibility of her testimony and may be explored at trial by way of cross-examination. People v. Miller, 91 NY2d 372, 380 (1998); Fuller v. Preis, 35 NY2d at 431; Meiselman v. Crown Hghts. Hosp, 285 NY at 398; Riccio v. NHT Owners, LLC , 79 AD3d 998, 1000 (2d Dept. 2010); People v. Garcia, 299 AD2d 493 (2d Dept. 2002); Payant v. Imobersteg, 256 AD2d at 705; People v. Yuan Lin You, 2002 WL 32076964 at *1 (Sup. Ct. App. Term 2d 1lth Dist. . November 27, 2002).²¹

21 The People also rely on two unpublished non-binding decisions from courts of coordinate jurisdiction to support their claim that Dr. Franklin is not a qualified expert. In People v. Tyrone Price, Queens Co. Ind. 2065/03 (Sup. Ct. Queens Co. January 20, 2010) (Hollie, J.), the Court ruled, after conducting a Frye hearing at which Dr. Franklin testified for the defense, that the defendant had not met his burden of proving that the factors he proffered were generally accepted in the relevant scientific community. At no point in the two page opinion issued by the Price Court, did it find that Dr. Franklin was unqualified to testify as an expert witness in the field of witness identification. Moreover, the Price opinion is of little precedential value as it declines to set forth even a single reason for its conclusion that the topics about which Dr. Franklin testified were not generally accepted in the scientific community. In People v. Devine Aguilar, Kings Co. Ind. 872/2009 (Sup. Ct. Kings. Co. December 16, 2010 (Mangano, J.), the court held, in its oral ruling during the course of a brief Frye hearing and without citing a single case, that Dr. Franklin was not qualified to testify as an expert in the field of eyewitness identification. This ruling is distinguishable from the present case as it is based on a record far less developed than the one here. Moreover, to the extent that Aguilar interpreted the expert witness qualification rules in an unduly restrictive manner, its holding is not followed by this Court.

Thus, in its discretion, this Court finds, based on Dr. Franklin's background, training and experience, as well as her Frye hearing testimony, that she is adequately qualified to testify as an expert in the field of memory and to offer opinions with respect to the four areas about which the defendant seeks to elicit expert testimony. People v. Cronin, 60 NY2d at 433; Caprara v. Chyrsler Corp., 52 NY2d at 121; Mattot v. Ward, 48 NY3d at 459; Meiselman v. Crown Hghts. Hosp, 285 NY at 398; People v. Siu Wah Tse, 91 AD2d at 353-354; People v. Norman, 6 Misc 3d at 332.

This Court also finds that the People's expert, Dr. Barry Cooper, is a qualified expert in the field of eyewitness memory and forensic psychology. Dr. Cooper has a Doctorate of Forensic Psychology from the University of British Columbia, is a Clinical Instructor in the Department of Psychology at the University of British Columbia, is a contract psychologist for the Correctional Service of Canada, and is a partner and Director of Research and Development for the Pacific Alliance of Forensic Scientists and Practitioners, which "is a corporation that provides research, training and consultation services to various facets of the criminal justice system." Cooper Frye Hearing Testimony at 370. Dr. Cooper is also a member of the American Psychology and Law Society, the Canadian Psychological Society, is a registrant of the College of Psychologists of British Columbia and has testified as an eyewitness memory expert on several occasions.

According to his hearing testimony and impressive curriculum vitae, Dr. Cooper has conducted research in the field of eyewitness memory "with victims and offenders of violent crime which directly relates to memory issues at trial," Cooper Frye Hearing Testimony at 366, has conducted two field studies with respect to eyewitness memory, and has written about two dozen peer-reviewed publications in the field of eyewitness memory. See Dr. Cooper's curriculum vitae, attached as Exhibit D to the People's Post-Frye Hearing Affirmation and Memorandum of Law.

Based on Dr. Cooper's background, training and experience as well as his hearing testimony, which demonstrated his familiarity and understanding of the literature, research, methodology and techniques associated with eyewitness identification accuracy and reliability, Dr. Cooper is qualified to testify as an expert in the field of eyewitness memory and forensic psychology. People v. Cronin, 60 NY2d at 433; Mattot v. Ward, 48 NY3d at 459; Karaski v. Bird, 98 AD2d at 362; People v. Siu Wah Tse, 91 AD2d at 353-354.

3.The Testimony Must be Beyond the Ken of the Average Juror

The Court of Appeals has held "[d]espite the fact that jurors may be familiar from their own experience with factors relevant to the reliability of eyewitness identification, it cannot be said that psychological studies regarding the accuracy of an identification are within the ken of the typical juror." People v. Lee, 96 NY2d 157, 162 (2001). This holding was reaffirmed by the Court of Appeals in People v. Young , 7 NY3d 40, 44 (2006) and People v. Abney , 13 NY3d 251. 266-267 (2009); see People v. Mooney, 76 NY2d 827, 832 (1990) (Kaye, J dissenting) ("The notion that jurors are generally aware from their everyday experience of the factors relevant to the reliability of eyewitness observation and identification has not only been properly condemned as makeshift reasoning' ( see McCormick, Evidence § 206, at 624 [Cleary 3d ed.]), but also has been refuted by research demonstrating a number of common and widely held misconceptions on the subject among laypersons" ( see, Brigham Bothwell, The Ability of Prospective Jurors to Estimate the Accuracy of Eyewitness Identifications, 7 Law Human Behav.19 ([1983]; Deffenbacher Loftus, Do Jurors Share a Common Understanding Concerning Eyewitness Behavior?, 6 Law Human Behav. 15 [1982]"); see also United States v. Brownlee, 454 F.3d 131, 142 (3d Cir. 2006) ("[W]hile science has firmly established the inherent unreliability of human perception and memory [in the context of eyewitness identifications] . . . this reality is outside the jury's common knowledge, and often contradicts jurors' common sense understandings." (internal quotations and citation omitted); United States v. Smithers, 212 F.3d 306, 316 (6th Cir. 2000) ("Today, there is no question that [in connection with eyewitness testimony] many aspects of perception and memory are not within the common experience of most jurors, and, in fact, many factors that affect memory are counter-intuitive."); United States v. Moore, 786 F.2d 1308, 1312 (5th Cir. 1986) ("Expert testimony on eyewitness reliability is not simply a recitation of facts available through common knowledge. Indeed, the conclusions of the psychological studies are largely counter-intuitive, and serve to explode common myths about an individual's capacity for perception.") (internal quotations and citation omitted); State v. Long, 721 P.2d 483, 490 (Utah 1986) ("Although research has convincingly demonstrated the weaknesses inherent in eyewitness identification, jurors are, for the most part, unaware of these problems. People simply do not accurately understand the deleterious effects that certain variables can have on the accuracy of the memory processes of an honest eyewitness. . . . Moreover, the common knowledge that People do possess often runs contrary to documented research findings."); People v. McDonald, 37 Cal.3d 351, 690 P.2d 709 (Cal. 1984), rev'd on other gds by People v. Mendoza, 23 Cal.4th 896, 4 P.3d 265 (2000) ("It is doubtless true that from personal experience and intuition all jurors know that an eyewitness identification can be mistaken, and also know the more obvious factors that can affect its accuracy, such as lighting, distance, and duration. It appears from the professional literature, however, that other factors bearing on eyewitness identification may be known to only some jurors, or may be imperfectly understood by many, or may be contrary to the intuitive beliefs of most.").²²

22 As an example, McDonald noted, inter alia, that "the length of time an eyewitness observes the person he later identifies is often given significant weight by the jury. But in virtually every such case the only evidence of that duration is the witness's own estimate. Studies show that witnesses consistently overestimate the length of a brief period of time, especially in the presence of stressful stimuli[.]" People v. McDonald, 690 P.2d at 720, n. 13.

Based on this authority, this Court finds that the proposed testimony of Dr. Franklin and Dr. Cooper, which is premised upon "psychological studies regarding the accuracy of an identification," see People v. Lee, 96 NY2d at 162, is beyond the ken of the average juror. See People v. Banks, 16 Misc 3d at 937 (held, inter alia, that proposed testimony in the areas of event stress, weapon focus, and own-race bias was beyond the ken of the average juror); People v. Williams, 14 Misc 3d at 586-587 (held, inter alia, that proposed testimony in the areas of weapon focus, own-race bias and event duration, was beyond the ken of the average juror); People v. Brooks, 128 Misc 2d 608, 609, 619 (West. Cty. Co. 1985) (held, inter alia, that event stress and own race bias was beyond the ken of the average juror).²³ 4. The Testimony Must be Based Upon Principles that are Generally Accepted as Reliable Within the Scientific Community.

23 Even the lower court in LeGrand held, inter alia, that weapon focus was beyond the ken of the average juror. See People v. LeGrand, 196 Misc 2d 179, 189 (Sup. Ct. NY Co. 2002).

New York law is well-settled that testimony based upon novel or innovative scientific theories or evidence is inadmissible at trial unless such theories or evidence are generally accepted as reliable within the relevant scientific community. People v. LeGrand , 8 NY3d 449 (2007); People v. Wesley, 83 NY2d 417, 422 (1994); People v. Taylor, 75 NY2d 277, 286 (1990). The general acceptance test followed in this State is premised on the seminal case of Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923). In Frye the Court stated:

[j]ust when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.

Accordingly, the Court of Appeals has held that "the Frye test asks whether the accepted techniques when properly performed, generate results accepted as reliable within the scientific community generally[.]" People v. LeGrand, 8 NY3d at 457 (internal quotations and citations omitted); see Parker v. Mobil Oil Corp , 7 NY3d 434, 446 (2006); People v. Wesley, 83 NY2d at 422; People v. Taylor, 75 NY2d at 286. The scientific principle or technique at issue need not be "unanimously endorsed' by the scientific community but must be generally accepted as reliable.'" People v. Wesley, 83 NY2d at 423; quoting, People v. Middleton, 54 NY2d 42, 49 (1981); see People v. Megnath , 27 Misc 3d 405, 411 (Sup. Ct. Queens Co. 2010).General acceptance of novel scientific evidence may be demonstrated through expert testimony, judicial opinions, and/or scientific and legal writings. Lahey v. Kelley, 71 NY2d 135, 144 (1987); People v. Middleton, 54 NY2d at 49-50; Leffler v. Feld , 51 AD3d 410 (1st Dept. 2008); People v. Scoon, 303 AD2d 525, 526 (2d Dept.), lv. denied, 100 NY2d 624 (2003); State v. Rosado, 25 Misc 3d 380, 385 (Sup. Ct. Bronx Co. 2009); Zafran v. Zafran, 191 Misc 2d 60, 63 (Sup. Ct. Nassau Co. 2002); People v. Yates, 168 Misc 2d 101 (Sup. Ct. NY Co. 1995); Cameron v. Knapp, 137 Misc 2d 373, 375 (Sup. Ct. NY Co. 1987).

The determination under the Frye test of whether a scientific principle or technique is generally accepted in the relevant scientific community "emphasizes counting scientists' votes, rather than . . . verifying the soundness of a scientific solution." Parker v. Mobil Oil Corp, 7 NY3d at 446, quoting People v. Wesley, 83 NY2d at 432 (Kaye, Ch. J., concurring); see People v. LeGrand, 8 NY3d at 457 (same); Alston v. Sunharbor Manor , LLC, 48 AD3d 600 , 602 (2d Dept. 2008) (same); People v. Banks, 16 Misc 3d at 937 (same); see also Martin, Capra Rossi, New York Evidence Handbook, § 7.2.3 at 586 (2d Ed.) ("[U]nder Frye, the trial judge does not determine whether a novel scientific methodology is actually reliable. Rather, the judge determines whether most scientists in the field believe it to be reliable.") (emphasis supplied). Thus, " Frye is not concerned with the reliability of a certain expert's conclusions, but instead, with whether the experts' deductions are based on principles that are sufficiently established to have gained general acceptance as reliable." Nonnon v. City of New York , 32 AD3d 91, 103 (1st Dept. 2006), aff'd 9 NY3d 825 (2007) (internal quotations and citations omitted); see People v. Wesley, 83 NY2d at 428; People v. Taylor, 75 NY2d at 286; Ellis v. Eng , 70 AD3d 887 (2d Dept. 2010); Lipschitz v. Stein , 65 AD3d 573 (2d Dept. 2009), Marsh v. Smyth , 12 AD3d 307 (1st Dept. 2004); Santos v. State Farm Fire and Cas. Co , 28 Misc 3d 1078 (Sup. Ct. Nassau Co. 2010);. State v. Rosado, 25 Misc 3d at 384; People v. Banks, 16 Misc 3d at 937; People v. Williams, 14 Misc 3d at 587; Collins v. Welch, 178 Misc 2d 107, 110 (Sup. Ct. Tompkins Co. 1998); see also People v. Brandon Hampson, 24 Misc 3d 1238(A), 2009 WL 2569058 at *3 (Sup. Ct. Nassau Co. 2009) (Fischer, J.) (In determining whether expert testimony is admissible a court should not look to see if the expert's testimony "is correct" but rather, whether it is based upon methods that are generally accepted as reliable in the relevant scientific community).

The Court of Appeals addressed the manner in which a trial court should evaluate the admission of novel scientific evidence in the area of eyewitness identification reliability in People v. LeGrand , 8 NY3d 449 (2007). In LeGrand, the defendant sought to call an expert witness to testify that the reliability of an eyewitness identification can be affected by: (1) the correlation between confidence and the accuracy of an identification;²⁴ (2) the effect of post-event information on the accuracy of an identification;²⁵ (3) confidence malleability;²⁶ and (4) weapon focus. The LeGrand trial court, while paying lip service to the Frye general acceptance test and its requirement that a court count scientists' votes rather than verify the reliability of a scientific conclusion, see People v. LeGrand, 196 Misc 2d 179, 186-187 (Sup. Ct. NY Co. 2002), nonetheless prohibited the defense from eliciting expert testimony in any of the four requested areas as it independently determined that the scientific methods underlying the proposed testimony were unreliable. The LeGrand trial court did not restrict its analysis to an assessment of whether the proposed testimony was generally accepted as reliable, but rather critiqued the methodology and research techniques underlying the proposed testimony. See People v. LeGrand, 196 Misc 2d 191-192, 195, 198, 200-209. That court found that the conclusions of the defense expert were based on flawed scientific techniques, that the results of laboratory studies upon which the proposed testimony was premised were not applicable to testimony given by "actual eyewitnesses in real life criminal events," and that a survey of eyewitness identification experts prepared by Dr. Saul Kassin, ²⁷ showing that the factors about which the defense expert intended to testify were generally accepted as reliable in the field of eyewitness identification, was methodologically flawed and, therefore, unreliable. People v. LeGrand, 196 Misc 2d at 191-192, 195, 198, 200-209. Notably, the LeGrand trial court based its findings primarily on the analysis of the People's expert witness in that case, Dr. Ebbe Ebbesen, a well known critic — oft hailed as a radical skeptic — of the research techniques employed in the field of eyewitness identification and the application of that research to real world events.²⁸

24 "Confidence-accuracy correlation refers to the relation between the accuracy of an eyewitness's identification and the confidence that [the] eyewitness expresses in the identification." People v. LeGrand, 196 Misc 2d at 180-181 (internal quotations and citations omitted).

25 "Postevent information refers to the propostion that [e]yewitness testimony about an event often reflects not only what the eyewitness' actually saw but information they obtained later on." People v. LeGrand, 196 Misc 2d at 181 (internal quotations and citations omitted).

26 "Confidence malleability refers to the proposition than an eyewitness can be influenced by factors that are unrelated to identification accuracy." People v. LeGrand, 196 Misc 2d at 181 (internal quotations and citation omitted).

27 See S.M. Kassin, et al, On the General Acceptance of Eyewitness testimony Research: A New Survey of the Experts, 56 Amer. Psychologist 405 (2001).

28 See e.g. People v. Williams, 14 Misc 3d at 575 (noting that Dr. Ebbesen is a critic of meta-analysis which is a "well-accepted technique" used by the "majority of researchers of eyewitness identification . . . to synthesize or pool large numbers of separate but related studies to determine if there is a general effect that can be reliably ascertained."); E.B. Ebbesen, Why We Cannot Generalize Conclusions from Source Misattribution (or Misleading Post-Event Information) Studies to Actual Crime Situations (September, 2001) (concluding that the results of laboratory studies based upon post-event information in the field of eyewitness identification research may not be applicable to actual crime victims), available at http://psy.ucsd.edu/~ eebbesen/misleading.html; E. B. Ebbesen, Some Thoughts About Generalizing the Role That Confidence Plays in the Accuracy of Eyewitness Memory (Nov. 3, 2000) (criticizing the design of the confidence-accuracy correlation studies employed in the field of eyewitness identification and questioning its applicability to real world events), available at http://psy.ucsd.edu/~ eebbesen/confidence.htm; see also D.M. Risinger, Inquiry, Relevance, Rules of Exclusion, and Evidentiary Reform, 75 Brook. L. Rev. 1349, 1361, n. 32 (2010) (noting that Dr. Ebbesen is a "radical[] skeptic[]" of the "external validity" of eyewitness identification research, "has been one of the main prosecution witnesses called in litigation across the country to resist the admissibility of testimony of eyewitness researchers on the weakness of eyewitness identification testimony under various conditions," and has been the "go-to guy for providing academic support for law enforcement resistance to changing the way the eyewitness identification procedures are conducted and presented in court."); R. Robinson, Daubert v. Merrell Dow Pharmaceuticals and the Local Construction of Reliability, 19 Alb. L.J. Sci. Tech. 39, 83 n. 95 (2009) (noting that Dr. Ebbesen is a critic of the "external validity" of laboratory research conducted in the field of eyewitness identification). J. Epstein, The Great Engine That Couldn't: Science, Mistaken Identifications and the Limits of Cross-Examination, 36 Stetson L. Rev. 727, 741 (2007) (noting that Dr. Ebbessen is a critic of the science underlying eyewitness identification research and contends "that laboratory experiments cannot replicate the reality of a crime and the encounter between a victim or witness and a perpetrator").

The defendant's conviction in LeGrand was reversed by the Court of Appeals on the ground that the trial court abused its discretion by prohibiting a defense eyewitness identification expert from offering testimony in the areas of: (1) the correlation between confidence and the accuracy of an identification; (2) the effect of post-event information on the accuracy of an identification; and, (3) confidence malleability.²⁹ See People v. LeGrand, 8 NY3d at 458. The Court of Appeals held that while the Kassin Survey, which showed that these factors were accepted by "an overwhelming majority of the experts in the field," was not "alone . . . dispositive of the Frye issue, it also held that the defense expert's Frye hearing "testimony contained sufficient evidence to confirm that the principles upon which the expert based his conclusions [with respect to these three factors] are generally accepted by social scientists and psychologists working in the field." Id. While the Court of Appeals did not specify the particular basis upon which it found these three factors to be generally accepted as reliable within the relevant scientific community, the trial court's Frye hearing opinion showed that the defense expert's opinion as to the general acceptance of these three factors was based upon: (1) the results of the Kassin Survey; (2) various laboratory studies and experiments evidencing how these factors affect the accuracy of eyewitness identifications; and, (3) the applicability of these laboratory studies and experiments to real-life crime victims. See People v. LeGrand, 196 Misc 2d at 189-198, 200-201. With respect to the external validity of laboratory studies, the Court of Appeals noted that "[a]lthough there may be risks associated with allowing an expert to apply research findings from experiments on the reliability of eyewitness identifications to real-life identifications, these findings — produced through sound, generally accepted experimentation techniques and theories, published in scholarly journals and subjected to peer review — have over the years gained acceptance within the scientific community." People v. LeGrand, 8 NY3d at 455.

29 The Court held that insufficient evidence was presented at the Frye hearing in LeGrand to show that the weapon focus factor is "generally accepted by the relevant scientific community." People v. LeGrand, 8 NY3d at 458.

Accordingly, in this case, where the Court of Appeals has already determined that only a single eyewitness identified the defendant as the perpetrator and that no other evidence connects the defendant to the charged crime, see People v. Abney, 13 NY3d at 268-269, this Court was required to hold a Frye hearing to determine whether the factors about which the defense expert intends to testify are generally accepted as reliable by the psychologists and social scientists who have conducted research in the area of eyewitness identification. See People v. LeGrand, 8 NY3d at 458; People v. Banks, 16 Misc 3d at 938. And, as was made by unmistakably clear by the Court in LeGrand, see 8 NY3d at 457, the general acceptance determination is to be based on counting scientists' votes rather than . . . verifying the soundness of a scientific conclusion." See Parker v. Mobil Oil Corp, 7 NY3d at 446; People v. Wesley, 83 NY2d at 432; Alston v. Sunharbor Manor, LLC, 48 AD3d at 602; Marsh v. Smyth, 12 AD3d at 311; Santos v. State Farm Fire and Cas. Co, 28 Misc 3d at 1078; People v. Banks, 16 Misc 3d at 937; see also Martin, Capra Rossi, New York Evidence Handbook, § 7.2.3 at 586 (2d Ed.).

The People, however, in what can be only characterized as an attempt to avoid the implications of LeGrand and the well-settled application of the Frye test in New York, argue that this Court is required not only to subject expert eyewitness reliability identification testimony to scrutiny greater than that which would be ordinarily applied to the evaluation of novel scientific evidence, but also to verify independently the validity of the scientific conclusions made by the defense expert. These arguments must be rejected.

First, wholly absent from the Court of Appeals's decision in LeGrand is any hint or suggestion that evidence with respect to the reliability of an eyewitness identification somehow should be more closely scrutinized than any other expert testimony "regarding research findings on patterns of human behavior." People v. LeGrand, 8 NY3d at 458; see e.g. People v. Taylor, 75 NY2d at 285; People v Torres, 128 Misc 2d at 134. Second, LeGrand applied the Frye general acceptance test to expert eyewitness identification testimony and made plain that the test does not involve a trial court's independent verification of the soundness or reliability of a scientific technique or principle. People v. LeGrand, 8 NY3d at 457. Indeed, the LeGrand trial court was reversed precisely because it misapplied the Frye general acceptance test and, instead, determined on its own, that the expert testimony was inadmissible as the methodology underlying the eyewitness identification research was flawed and inapplicable to real-life events. This abuse of discretion was compounded by the fact that, as in this case, eyewitness identification testimony was the only evidence connecting the defendant to the charged crime.

The People's argument that as a predicate to the admission of eyewitness identification expert testimony under Frye a finding must be made that the science underlying the proposed testimony has "a very high level of reliability, tantamount to. . .certainty" is based on a misreading of People v. Hughes, 59 NY2d 523, 542 (1983). In Hughes, the Court of Appeals held that in cases where the prosecution seeks to introduce expert testimony to assess the credibility of another witness, such as through the use of hypnosis or polygraph, that a higher level of scientific "reliability, tantamount to a certainty," is required. Id; see People v. Allweis, 48, NY2d 40, 50 (1979); People v. Leone, 25 NY2d 511 (1969). In this case, however, the eyewitness identification expert's testimony will not be offering any opinions with respect to the credibility of any witness or whether the victim's identification was accurate. Rather, the testimony will be "limited to setting forth the relevant psychological factors and interpreting the research data that demonstrate an effect on memory and perception." People v. Banks, 16 Misc 3d at 944; see People v. Drake, 188 Misc 2d 210, 215 (Sup. Ct. NY Co. 2001) (permitting expert eyewitness identification testimony but prohibiting the expert from giving opinion testimony regarding the credibility or reliability of any witness); People v. Beckford, 141 Misc 2d 71, 73 (Sup Ct. Kings Co. 1988) (permitting expert eyewitness identification testimony but prohibiting the expert from rendering an opinion with respect to the credibility of the identifying witness); People v. Lewis, 137 Misc 2d 84, 87 (Monroe Cty Co. 1987) (permitting expert eyewitness identification testimony but limiting such expert from rendering an opinion with respect to the "reliability and /or credibility" of the identifying witness); People v. Brooks, 128 Misc 2d 608, 617 (West. Cty. Co. 1985) (permitting eyewitness identification expert but limiting such expert from offering an opinion as to the reliability of the complainant's testimony). Moreover, neither in LeGrand nor in other cases concerning "research findings on patterns of human behavior,"³⁰ such as rape trauma syndrome, see People v. Taylor, 75 NY2d at 285 or battered woman syndrome, see People v. Torres, 128 Misc 2d 129, 134 (Sup. Ct. Bronx Co. 1985), have courts required an enhanced reliability finding as a condition for the admissibility of such evidence under Frye. Thus, the People's claim that a higher standard of reliability is required under Frye before eyewitness identification expert testimony may be received into evidence is rejected.

30 See People v. LeGrand, 8 NY3d at 458.

Equally without merit is the People's argument that even if the proposed eyewitness identification expert testimony passes muster under the Frye test, the foundational requirements for the admission of such evidence at trial require this court to verify independently the soundness and reliability of the expert's scientific conclusions. The law is well-settled that if a court determines that a scientific technique or principle is generally accepted as reliable in the relevant scientific community, Frye has been satisfied and the inquiry then moves to whether the moving party has laid a proper foundation for the admission at trial of such scientific evidence. Parker v. Mobil Oil Corp., 7 NY3d at 447; People v. Wesley, 83 NY2d at 428-29. This foundational inquiry "is the same as that applied to all evidence, not just to scientific evidence" and such inquiry "should not include a determination of the court that such evidence is true. That function should be left to the jury." People v. Wesley, 83 NY2d at 425, 429; see People v. Parker, 304 AD2d 146 (4th Dept.), lv. denied, 100 NY2d 585 (2003); People v. Brandon Hampson, 2009 WL 2569058 at *3. Thus, to lay a proper foundation for expert opinion based upon scientific evidence, the proponent of such evidence must establish that the qualified expert's opinion is derived from principles and techniques that are generally accepted as reliable within the particular field, that there is a nexus between the proffered opinion and the material facts in evidence at trial, and that such testimony would assist a jury in reaching a verdict.³¹ People v. Brown, 97 NY2d 500, 505 (2002); People v. Taylor, 75 NY2d at 284, 286; People v. Cronin, 60 NY2d 430, 433-434 (1983); People v. Allweiss, 48 NY2d 40, 50 (1979); Cassano v.Hagstrom, 5 NY2d 643, 646 (1959); Fraser v. 301-52 Townshouse Corp. , 57 AD3d 416 , 417-419 (1st Dept. 2008), lv. denied, 12 NY3d 847 (2009); People v. Terault, 53 AD3d 558, 559 (2d Dept.), lv. denied, 11 NY3d 835 (2008); BTN ex rel. Netti v. Auburn Enlarged City Sch. Dist, 45 AD3d 1339, 1340 (4th Dept. 2007); . . . People v. Hammond ,35 AD3d 905 (3d Dept. 2006), lv. denied, 8 NY3d 946 (2007); People v. Middlebrooks, 300 AD2d 1142 (4th Dept. 2002), lv. denied, 99 NY2d 630 (2003); People v. Kruglik, 256 AD2d 592, 593 (2d Dept. 1998), lv. denied, 93 NY2d 875 (1999); Hugelmaier v. Town of Sweden, 144 AD2d 934, (4th Dept. 1988), lv. denied, 74 NY2d 699 (1989); People v. Wilson, 133 AD2d 179 (2d Dept. 1987); In re Bausch Lomb Contact Lens Solution Product Liability Litigation, 25 Misc 3d 1244(A), 2009 WL 4893926 at *11 (Sup. Ct. NY Co. July 14, 2009); People v. Torres, 128 Misc 2d 129 (Sup. Ct. Bronx Co. 1985).

31 Of course, the expert opinion must also be beyond the ken of the average juror. People v. Cronin, 60 NY2d at 432.

If there is no other evidence aside from an eyewitness identification connecting the defendant to a crime and the expert eyewitness identification testimony under consideration: (1) satisfies the Frye general acceptance test; (2) is offered by a qualified expert; (3) is beyond the ken of the average juror; (4) is relevant to material facts at issue in the case; and, (5) would assist a jury in reaching a verdict, then a proper foundation for the admission of such expert testimony has been properly laid. People v. LeGrand, 8 NY3d at 452; People v. Lee, 96 NY2d 157, 162 (2001); People v. Wesley, 83 NY2d at 428-429; see People v. Taylor, 75 NY2d at 284, 286; People v. Cronin, 60 NY2d at 433-434; Cassano v.Hagstrom, 5 NY2d at 646; People v. Wilson, 133 AD2d at 179. Indeed, the New York cases that have permitted the introduction of expert eyewitness identification testimony have not required a trial court also to determine whether a proper foundation has been laid for the introduction of such testimony by independently verifying the soundness of the scientific techniques and principles underlying such testimony. See People v LeGrand, 8 NY3d at 457-458; People v. Banks, 16 Misc 3d 329; People v. Williams , 14 Misc 3d 571; People v. Smith, 191 Misc 2d 765, 76-769 (Sup. Ct. NY Co. 2002); People v. Beckford, 141 Misc 2d 71 (Sup. Ct. Kings Co. 1988); People v. Lewis, 137 Misc 2d 84, 85, 86 (Monroe Cty Co. 1987); People v. Brooks, 128 Misc 2d 608 (West. Cty. Co. 1985).³² Nor has such a foundational rule been imposed for the admission of other types of expert social science testimony concerning patterns of human behavior such as rape trauma syndrome, child sexual abuse accommodation syndrome or battered wife syndrome, all of which have been found to be generally accepted as reliable under Frye. See People v. Taylor, 75 NY2d at 286, 287; People v. Bassett , 55 AD3d 1434, 1436-1437 (4th Dept. 2008), lv. denied, 11 NY3d 922 (2009); People v. Torres, 128 Misc 3d at 135.

32 If this Court were to adopt the People's baseless argument with respect to the foundational requirements for the admission of eyewitness identification testimony this Court would be required to verify the soundness and reliability of the three eyewitness identification factors that LeGrand found to have been generally accepted as reliable in the scientific community. See People v. LeGrand, 8 NY3d at 458. This was most assuredly not the result that the Court of Appeals intended.

Moreover, where as here, the social science based expert testimony will be limited to, inter alia, a "discussion of the relevant psychological factors" see People v. Banks, 16 Misc 3d at 944, factors that this Court would have already found to have satisfied the Frye standard, it would be nonsensical for this Court to have to then verify for itself the soundness of the scientific techniques underlying these psychological factors as a prerequisite to the admission of the expert testimony. Indeed, such reasoning would render utterly superfluous the notion that a trial court should determine the general acceptance of a scientific principle by counting "scientists' votes" rather than by independently verifying the reliability of that principle. See People v. LeGrand, 8 NY3d at 457. Accordingly, the foundational requirements for the admission of expert testimony in the area of eyewitness identification are the very same ones that ordinarily apply to the admission of expert testimony and require no independent determination by a trial court regarding the reliability of the science underlying such testimony. See People v. Wesley, 83 NY2d at 425, 429.

The People's claim that the foundational requirements underlying the admission of scientific expert testimony mandate that a court verify the soundness of the conclusions underlying the proposed testimony notwithstanding that it concerns a subject matter that has been generally accepted as reliable under Frye is based on its reading of the toxic tort causation case of Parker v. Mobil Oil Corp. , 7 NY3d 434, 447-448 (2007).In Parker, the complainant, a gas station worker, claimed that he contracted leukemia due to his prolonged exposure to the benzene found in gasoline. Id. at 442. The issue before the Court in Parker did not concern a novel, scientific technique as it was clear that benzene causes leukemia. Rather, the issue in Parker was the manner in which a court should analyze novel theories of causation in a toxic tort case. Id. at 447-448. The Court held that this inquiry "is more akin to whether there is an appropriate foundation for the expert's opinions, rather than whether the opinions are admissible under Frye. Id. at 447. However, [c]ases considering the admissibility of a plaintiff's theory of causation, both before and after Parker, have adopted the formulation that the plaintiff's burden is to prove that her expert's theory is generally accepted' in the relevant scientific community." In the Matter of Bausch Lomb Contact Lens Solution Product Liability Litigation, 25 Misc 3d 1244(A), 2009 WL 4893926 at *11 (Sup. Ct. NY Co. July 14, 2009) (Kornreich, J.) (citing cases both before and after Parker). Thus, the same general acceptance as reliable in the scientific community test applies even in cases where causation and scientific techniques that are not novel are at issue. In any event, even if Parker could be read to show that the court in that case made its own reliability determination with respect to causation in the context of a toxic tort action, such analysis is wholly inapplicable to expert testimony from psychologists and social scientists based on patterns of human behavior that have been found to be generally accepted under Frye. Accordingly, the People's reliance on Parker is misplaced.

Thus, this Court will analyze the four proposed areas of expert testimony under the Frye test to determine whether each of them is generally accepted as reliable in the relevant scientific community. Giordano v. Market America, Inc. , 15 NY3d 590, 601 (2010); People v. LeGrand, 8 NY3d at 458; People v. Wesley, 83 NY2d at 422. And, in doing so, this Court will not independently verify the soundness of the scientific principles underlying each of these factors, but rather, will count "scientists' votes" in an effort to determine whether each of the factors is generally accepted as reliable in the relevant scientific community. People v. LeGrand, 8 NY3d at 458; Parker v. Mobil Oil Corp., 7 NY3d at 446; see Nonnon v. City of New York, 32 AD3d at 103.

With respect to determining the relevant scientific community, this Court is persuaded by the defendant's argument that the relevant scientific community includes psychologists who both study and conduct research in the specialized field of eyewitness identification. Such a definition is appropriate as it includes "scientists who would be expected to be familiar with the particular use of the evidence at issue, however, whether through actual or theoretical research." People v. Wesley, 83 NY2d at 439 (Kaye, J. concurring); see People v. Banks, 16 Misc 3d at 937-938; People v. Williams, 14 Misc 3d at 588; see also People v. LeGrand, 8 NY3d at 458; S.M. Kassin, et al, On the General Acceptance of Eyewitness testimony Research: A New Survey of the Experts, 56 Amer. Psychologist 405, 414 (2001). The People's claim that the relevant scientific community should be defined to include "all psychologists and psychiatrists" is overbroad and likely to include a large number of individuals wholly unfamiliar with the current research and literature regarding the study and analysis of eyewitness identification. See People v. Williams, 14 Misc 3d at 588; see also People v. Banks, 16 Misc 3d at 937-938.

This Court's findings of fact and conclusions of law with respect to the admissibility under the Frye general acceptance test relative to the four proposed areas of eyewitness identification expert testimony are set forth below.

Dr. Franklin's Frye Hearing Testimony

Dr. Franklin testified that human memory does not operate like a video camera — it does not provide a person with a "perfect recording" of what transpired. Hearing Testimony at 23. Rather, as a person experiences an event he or she selectively encodes only certain pieces of what has been observed. As such, when recalling the observed event at a later time a person uses inferences, expectations, prior knowledge and what other people may have said about the event to fill in missing details. These factors can lead to a distorted memory of the observed event. Hearing Testimony at 24.

Dr. Franklin testified that there are "different rates of accuracy for different types of memories" and that memories for unfamiliar faces are "particularly bad." Hearing Testimony at 24. Indeed, Dr. Franklin testified that research has shown, namely — P.N. Shapiro S. Penrod, Meta-Analysis of Facial Identification Studies, 100 Psychological Bulletin 139 (1986) — that even under optimal conditions when a witness has an unobstructed view of an unfamiliar person of the same race in a well lit, violence free environment, the rate of misidentification, is about fifty percent.

According to Dr. Franklin, research in the eyewitness identification field is conducted in three ways — laboratory studies, field studies and, archival studies. The great majority of research is conducted through laboratory experiments, which involve the deliberate manipulation of one variable while keeping all others constant. The purpose of doing so is to enable researchers to assess the extent to which the manipulated variable may have influenced the result being studied. Moreover, as the true identity of the observed subject is known to the researchers in a laboratory setting, the manipulated variable's impact on an identification can be more definitively stated than in situations outside of the laboratory where the true identity of the subject is often unknown.

Field studies involve an analysis and study of actions that take place outside of the confines of the laboratory. She explained that field studies are generally conducted in two ways. One type of field study involves conducting experiments with confederates in a setting outside of the laboratory to determine whether a manipulated variable, such as stress or own-race bias, can effect the accuracy of an eyewitness identification. As an example of such a controlled field study, Dr. Franklin discussed John C. Brigham's 1982 convenience store field study that tested the ability of convenience store clerks to identify customers who had visited the store two hours earlier, and who were members of different races.³³ A second type of field study involves the analysis of events outside of the laboratory where multiple variables may be at play and the true identity of the perpetrator may or may not be known. Dr. Franklin explained that such a situation may occur when a researcher interviews witnesses to an actual crime with respect to the circumstances under which an identification was made.

33 See J.C. Brigham, et al, Accuracy of Eyewitness Identification in a Field Setting, 42 J. Personality Soc. Psychol, 673, 681 (1982) (study concluded that the convenience store clerks were better at identifying members of their own race than other races).

The third way in which eyewitness identification is researched is through archival studies.

Dr. Franklin explained that:

[a]rchival studies don't involve an experiment or a researcher manipulating anything. What researchers do is go in and collect records, for example, from police departments, and then try to piece together comparisons for whether, for example, people were better at identifying members of their own race than members of another race, based on what you have from police records. The problem, of course, with archival studies is that witnesses are going to identify a suspect or not. We can never know whether they got the right answer the same way we can in a lab."

Hearing Testimony at 28.

Dr. Franklin testified that the vast majority of research in the field of eyewitness identification is conducted in the laboratory. Field and archival studies are of limited utility and of marginal statistical importance as the sample sizes are generally small, the true identity of the perpetrator is not always known and the inability to isolate variables makes it difficult to determine whether a particular variable had an effect on identification accuracy. By contrast, laboratory studies allow a hypothesis to be tested with a statistically significant number of subjects in an environment where the true identity of the perpetrator is known and variables can be isolated for the purpose of determining their effect on identification accuracy. Moreover, laboratory research permits scientists to test the veracity of their theories repeatedly under a variety of different scenarios and if the research results can be consistently replicated then there is a firm basis to believe that a particular variable's effect on the reliability of an eyewitness identification "is real." Hearing Testimony at 96.

Furthermore, while ethical constraints prohibit laboratory researchers from replicating the violence associated with actual crimes, Dr. Franklin testified that researchers, through the use of videos, photographs and other methods, have nonetheless been able to simulate variables such as stress or the presence of a weapon that are often experienced by individuals who observe an actual crime. By using the laboratory setting to isolate a particular variable's effect on the accuracy of an identification, researchers have determined that these variables, stress or the presence of a weapon, reduce the accuracy of eyewitness identifications, even though participants in these laboratory studies know that an actual real life crime is not unfolding before them. In fact, Dr. Franklin testified that the effect these variables have on the accuracy of an identification may be even greater in the real world as identification accuracy is impaired in the laboratory even though laboratory participants are obviously aware that the are merely participating in a study.

Dr. Franklin testified that the "vast majority" of scientists in the field believe that eyewitness identification laboratory research is applicable to real world events — such a proposition, she stated, is generally accepted in the scientific community. Hearing Testimony at 96, 99. She explained that there is no significant debate in the scientific community with respect to the applicability of eyewitness identification laboratory research to identifications made by witnesses to actual crimes. Indeed, Dr. Franklin testified that only a "small handful" of her colleagues, such as Dr. Ebbe Ebbessen and Dr. John Yuille, believe that eyewitness identification laboratory research cannot be generalized to real world events.³⁴ Hearing Testimony at 99, 311.

34 The People's expert, Dr. Barry Cooper, is a protégé of Dr. Yuille, has co-authored numerous articles with him and works with him in an enterprise called the Pacific Alliance of Forensic Scientists and Practitioners, Ltd. See Hearing Testimony at 511; Curriculum Vitae of Dr. Barry Cooper, attached as Exhibit D to the People's Post- Frye Hearing Affirmation and Memorandum of Law.

Dr. Franklin testified that scientists in the field of eyewitness identification use a "sophisticated" statistical technique known as meta-analysis, which involves combining data generated from a large number of separate studies on a given topic in order to determine the reliability of a particular result or effect. Hearing Testimony at 34-35. Dr. Franklin explained that meta-analysis is "heavily relied on" and is "the gold standard in the scientific domain" as it is a statistical method by which data from a large number of different studies on a related topic is weighed in a particular manner so as to allow scientists "to make a single overarching statement" about whether an effect is indeed reliable. Id. at 34-35, 38, 218. Thus, "instead of having several studies with a hundred subjects each, you may have a single meta-analysis of 10,000 subjects contributing. That would allow you to have a very reliable stable effect if it's there to be found." Id. at 35. She further explained that a person conducting a meta-analysis "casts a very wide net to look for all instances of studies that exist in the literature that meet those criteria," regardless of whether the studies demonstrate a particular effect, such as weapon focus. Id. at 35, 40, 219. Dr. Franklin also testified that:

[w]hat a meta-analysis provides is three important measures. One is overall reliability. So, that's a measure of does this phenomenon exist. That's really the most important thing a meta-analysis can tell you. It also gives you an estimate of overall effect size. So, that's direct and magnitude of effect. Then [the] third thing it does, which is really helpful in any scientific domain, is it gives you a number of failures to replicate that would need to be out there in order to overturn the meta-analysis conclusion. . . .[T]he techniques that are used are sophisticated involving pooling of data. If you take individual studies and you do basically a body count of how many found something, how many didn't find something, you can certainly do that when you are evaluating literature, and that's what you can do if you don't do meta-analysis. But it's sort of a blunt instrument for assessing the phenomenon you are interested in. What you want to do is look at pooled dated, weighted by number of observations that are contributing to get an overall proof of . . . what it is you are looking for [such as weapon focus or own-race bias, etc.]

Id. at 38, 218.

Event Stress

Dr. Franklin testified that stress has a complex effect on memory. While stress and fear may heighten the ability of a person to remember the "central aspects" or the "gist" of an event, it impairs the ability of a person to remember an unknown or unfamiliar face. Id. at 41, 136. Dr. Franklin explained that the stress created by a threat instinctively focuses a person's attention on finding ways to resolve the threat, such as by escaping, and not on memorizing the features of an unfamiliar person. Thus, a person's ability to identify a perpetrator accurately is impaired in a highly stressful environment, a proposition that is generally accepted as reliable in the scientific community, according to Dr. Franklin.

According to Dr. Franklin, the general acceptance of this proposition is supported by the findings of a peer-reviewed 2004 meta-analysis conducted by Kenneth Deffenbacher, et al., which examined thirty years of laboratory research in the area of stress and eyewitness identification. See K.A. Deffenbacher, et al., A Meta-Analytic Review of the Effects of High Stress on Eyewitness Memory, 28 L. Hum. Behav. 687 (2004). After analyzing 27 independent laboratory studies, which involved more than 1700 participants, the Deffenbacher meta-analysis concluded that high levels of stress impair identification accuracy. Id. at 692, 694. The Deffenbacher meta-analysis showed that individuals in a low-stress environment were able to identify a perpetrator accurately in a target-present identification procedure 59 percent of the time while individuals in a high-stress environment were able to identify a perpetrator accurately in a target present identification procedure only 39 percent of the time. Id. at 695.

Dr. Franklin testified that the event-stress phenomenon was also demonstrated in a peer-reviewed study conducted in 2004 by Yale University psychologist Dr. Charles A Morgan (hereinafter referred to as the "Morgan Study."). See C.A. Morgan, III, et al, Accuracy of Eyewitness Memory for Persons Encountered During Exposure to Highly Intense Stress, 27 Int'l J. L. Psychiatry 265 (2004). The Morgan Study, which Dr. Franklin referred to as a "flagship study," investigated the effect of extreme stress on eyewitness identification accuracy. Hearing Testimony at 46, 213. The study examined the eyewitness accuracy of more than 500 active-duty soldiers who were participants in a survival and interrogation training exercise. Morgan received permission to observe a military training exercise and then, at the conclusion of the exercise, tested the soldiers' ability to remember their interrogators.

Each soldier went through an initial period of food and sleep deprivation and tried to avoid being captured. Hearing Testimony at 47. All of the soldiers were eventually captured and subjected to a twelve hour period of confinement in separate cells Id. at 47; Morgan Study at 268. Following their confinement, the soldiers were subjected either to high or low-stress forty minute interrogations in well-lit rooms. In the high-stress interrogations the soldiers were exposed to extremely violent acts such as waterboarding or having a loaded gun placed to their heads.³⁵ The low stress interrogations consisted of verbal confrontations. Hearing testimony at 47-48. The next day, after the soldiers recovered from their food and sleep deprivation, identification procedures were conducted and they were asked to identify their interrogators. The soldiers who were interrogated in the low-stress environment were able to identify their interrogators accurately in a target-present identification procedure 62 percent of the time while those soldiers interrogated in the high-stress environment were able to identify their interrogators accurately in a target-present identification procedure only 30 percent of the time. Thus, Dr. Morgan concluded that extreme stress reduces eyewitness identification accuracy. See Morgan Study at 274 ("Contrary to the popular conception that most people would never forget the face of a clearly seen individually who had physically confronted them and threatened them for more than 30 minutes, a large number of subjects in this study were unable to correctly identify their perpetrator. These data provide robust evidence that eyewitness memory for persons encountered during events that are personally relevant, highly stressful, and realistic in nature may be subject to substantial error.").

35 Although the Morgan Study did not specifically mention the manner in which the high stress was induced or that the soldiers were trained to look their interrogators in the eye, Dr. Franklin testified that she learned this information from a telephone conversation she had with Dr. Morgan. Hearing Testimony at 47, 174, 178.

Dr. Franklin testified further that her conclusion that the event stress phenomenon is generally accepted as reliable in the scientific community is also supported by three additional studies. M. Leuthi, B. Meier, C. Sandi, Stress Effects on Working Memory, Explicit Memory and Implicit Memory for Neutral and Emotional Stimuli in Healthy Men, Fron. Behav. Neurosci, vol. 2, num. 5 doi: 10.3389/neuro.08.005.2008 (2009) (concluding that exposure to stress impairs working memory); B.R. Clifford C.R. Hollin, Effects of the Type of Incident and the Number of Perpetrators on Eyewitness Memory, 66 Journal of Applied Psychology, 364-370 (1981) (eyewitness identification accuracy reduced by exposure to filmed violence); R. Buckhout, et al., Determinants of Eyewitness Performance on a Lineup, 4 Bulletin of the Psychonomic Society, 191-192 (1974).

Weapon Focus

The presence of a weapon impairs an eyewitness's ability to identify a perpetrator accurately, according to Dr. Franklin. Beginning in the 1970's, research has shown that when a weapon or an otherwise unusual object is present, a person's attention is drawn to the weapon or unusual object rather than to the facial characteristics of the person holding such weapon or object. Hearing Testimony at 85. Dr. Franklin testified that the weapon focus phenomenon is generally accepted as reliable in the scientific community. To support this proposition she relied on a 1992 peer reviewed meta-analysis performed by Dr. Nancy Steblay . See N.M. Steblay, A Meta-Analystic Review of the Weapon Focus Effect, 16 L. Hum. Behav. 413 (1992) (hereinafter referred to as the "Steblay meta-analysis"). The Steblay meta-analysis reviewed 19 laboratory studies that contained more than 2000 participants. Dr. Steblay concluded that a meta-analytic review of these studies showed that the presence of a weapon reduces identification accuracy. See Steblay meta-analysis at 413. The meta-analysis also concluded that "[t]he weapon focus effect does reliably occur, particularly in crimes of short duration in which a threatening weapon is visible." Id. at 421 Although only six of the 19 studies analyzed by the Steblay meta-analysis showed clear support for the weapon focus effect, Dr. Franklin explained that when each of the studies was appropriately weighed, as per the meta-analytical review, and the relevant data was pooled, the weapon focus phenomenon had a statistically significant effect on eyewitness identification accuracy.³⁶ Hearing Testimony at 218-22; Steblay meta-analysis at 413, 414.

36 None of the studies included in the meta-analysis showed that the presence of a weapon increased identification accuracy. See Steblay meta-analysis at 414.

As further support for the general acceptance of the weapon focus phenomenon, Dr. Franklin referred to a 1987 study from Cutler, Penrod and Martens, which concluded that identification accuracy is decreased by the presence of a weapon. See B.L. Cutler, et al, The Role of System and Estimator Variables, 11 L. Hum. Behav. 233 (1987). She also cited to an archival study by Professor Tim Valentine, which showed that the presence of a weapon "was significantly associated with witnesses being more likely to identify a foil." See T. Valentine, et al., Characteristics of Eyewitness Identification that Predict the Outcome of Real Lineups, 17 Applied Cognitive Psychology 969, 980 (2003).

Event Duration

Dr. Franklin testified that the amount of time that a witness has to view a perpetrator affects identification accuracy. Thus, "with longer exposure, you have a greater opportunity to lay down a stable memory" and an identification tends to be more accurate. Hearing Testimony at 52. By contrast, an identification is likely to be less accurate if the perpetrator is viewed for only a brief period of time as such information cannot be properly encoded by the brain. Id. at 52, 102. While the event duration phenomenon may seem like common sense, Dr. Franklin testified that people tend to overestimate the amount of time they have viewed an event, especially when the viewing took place under stressful conditions. Id. at 52, 58.

Dr. Franklin explained that the event duration phenomenon, which is generally accepted as reliable in the scientific community, is supported by a 1986 peer reviewed meta-analysis from Shapiro and Penrod, See P.N. Shapiro S. Penrod, Meta-Analysis of Facial Identification Studies, 100 Psychological Bulletin 139 (1986) (hereinafter referred to as the "Shaprio Penrod meta-analysis"). The Shapiro Penrod meta-analysis reviewed "128 eyewitness identification and facial recognition studies, involving 960 experimental conditions and 16,950 subjects" and concluded, inter alia, that "with longer encoding time, you have greater ability to identify a perpetrator." Hearing Testimony at 56; Shapiro Penrod meta-analysis at 139, 148.

Own-Race Bias

Dr. Franklin testified that own-race bias is a cognitive process by which people are better at identifying members of their own race than members of another race. To support this proposition, Dr. Franklin cited to a peer reviewed 2001 meta-analysis from Meissner and Brigham, which reviewed data from "39 research articles, involving 91 independent samples and nearly 5,000 participants." See C.A. Meissner J.C. Brigham, Thirty Years of Investigation the Own-Race Bias in Memory for Faces, 7 Psychol. Pub. Pol'y Law 3 (2001) (hereinafter referred to as the "Meissner Brigham meta-analysis"). The Meissner Brigham meta-analysis concluded, inter alia, that a person was "1.56 times more likely to falsely identify a novel other-race face when compared with performance on own-race faces." Id. at 15. The meta-analysis also concluded that a person was 2.2 times as likely to identify accurately an own-race face as opposed to the face of a person from another race. Id. at 16.

Dr. Franklin testified that the overwhelming majority of the participants studied in the Brigham Meissner meta-analysis were Caucasian and African-American. Hearing Testimony at 247 Dr. Franklin was not aware of any study that reviewed the extent to which the own-race bias phenomenon applied to persons of Asian/Indian descent, but as own-race bias has been found with every race that had been studied, Dr. Franklin opined that the own-race bias phenomenon extended to persons of Asian/Indian descent.³⁷ Id. at 87. She acknowledged that she was unable to point to any specific scientific studies to support her conclusion. Id. at 88. Moreover, Dr. Franklin conceded that she did not know the extent to which the own-race basis phenomenon applied to persons of Asian/Indian descent. Id. at 259.

37 In response to this Court's question regarding whether there are "any studies demonstrating a bias between South Asians, those who hail from the areas in and around India, and that of African-Americans," Dr. Franklin replied that the only study she was aware of involved "Middle Eastern faces." Hearing at 258.

The Kassin Survey

Dr. Franklin testified about the results of a 2001 peer reviewed study from Professor Saul M. Kassin, et al., which surveyed a "blue ribbon group" of 64 leading experts in the field of eyewitness identification research with respect to the reliability of various factors that tend to affect the accuracy of eyewitness identifications. See S.M. Kassin, et al, On the General Acceptance of Eyewitness Testimony Research: A New Survey of the Experts, 56 Amer. Psychologist 405, 407 (2001). Sixty two of the sixty four Kassin Survey respondents had doctoral degrees in psychology and, on average, each of the 64 "had authored or edited 2.15 books, 6.54 chapters, 13.22 scientific journal articles, 1.42 law review articles, and 5.38 magazine or newsletter articles . . . on the psychology of eyewitness identification." Kassin Survey at 407, 409. Moreover, 78 percent of the respondents had been asked to testify as an expert in the area of eyewitness identification on at least one occasion. With respect to the respondents who had testified in court as eyewitness identification experts, they did so an "average of 33.38 times." Id. at 409.³⁸

38 The Kassin Survey questionaire was sent to 197 prospective respondents throughout the world. Kassin Survey at 407. These experts were chosen from the membership rosters of "the American Psychology-Law Society, the Society of Applied Research on Memory and Cognition; and the attendee lists of the 1995 and 1997 European Association of Psychology and Law biennial meetings" Id. Questionaires were also sent to individuals "who had published an article, book chapter or other paper on eyewitness identification during the previous 10 years." Id. Of the 197 recipients of the questionaire, six returned it "saying they did not have time to complete it or no longer considered themselves experts," and "[i]n 5 other instances, the envelopes were sent to the wrong name, to an incorrect address, or to individuals who had died." Id. From the remaining "186 prospective participants, 64 returned data in usable form, yielding a 34 percent response rate." Id.

The Kassin Survey respondents were asked to comment on the reliability of thirty propositions that related to the accuracy of eyewitness identifications, including the four factors that were the subject of the Frye hearing in this case, event stress, weapon focus, event duration and own-race bias. Id. at 408, Table 1. The survey provided seven response alternatives for each of the factors being evaluated: (1) the reverse is probably true; (2) no support; (3) inconclusive; (4) tends to favor; (5) generally reliable; (6) very reliable; and, (7) I don't know. Id. at 411, Table 3.

With respect to the event stress phenomenon, the Kassin Survey respondents were asked to comment on the proposition that "[v]ery high levels of stress impair the accuracy of eyewitness testimony." Id. at 408, Table 1. The survey showed, inter alia, that 60 percent of the respondents found this proposition to be reliable³⁹ and 98 percent stated that there was a "research basis" for this phenomenon. Id. at 412, Table 4.

39 Reliability appears to be based upon the perception of the respondents. See Kassin Survey at 414.

In the area of weapon focus, the Kassin Survey respondents were asked to comment on the proposition that "[t]he presence of a weapon impairs an eyewitness's ability to accurately identify the perpetrator's face." Id. at 408, Table 1. The survey showed, inter alia, that 87 percent of the respondents found this proposition to be reliable and 98 percent stated that there was a research basis for this phenomenon. Id. at 412, Table 4.

With respect to event duration, the Kassin Survey respondents were asked to comment on the proposition that "[t]he less time an eyewitness has to observe an event, the less well he or she will remember it." Id. at 408, Table 1. The survey showed, inter alia, that 81 percent of the respondents found this proposition to be reliable and 93 percent stated that there was a research basis for this phenomenon. Id. at 412, Table 4.

In the area of own-race bias, the Kassin Survey respondents were asked to comment on the proposition that "[e]yewitnesses are more accurate when identifying members of their own race than members of other races." Id. at 408, Table 1. The survey showed, inter alia, that 90 percent of the respondents found this proposition to be reliable and 97 percent stated that there was a research basis for this phenomenon. Id. at 412, Table 4.⁴⁰ Dr. Cooper's Frye Hearing Testimony

40 Dr. Franklin also testified about a 2007 unpublished survey conducted by Daftary-Kapur and Steven Penrod entitled, "General Acceptance among Experts of Eyewitness Research Findings: Sources of Influence." Hearing Testimony at 73-77. This survey, which was apparently undertaken in effort to update the Kassin Survey, is unpublished, does not appear to have been peer reviewed and appears only in draft form. Due to these infirmities it has not been considered by this Court in determining whether the defendant has met his burden under the Frye general acceptance test.

Dr. Cooper, the People's witness, testified as an expert in the area of eyewitness memory and forensic psychology. Dr. Cooper testified that 99 percent of the research in the field of eyewitness memory and identification has been conducted in the laboratory. He testified that laboratory experiments are favored by the overwhelming majority of the researchers in the field as such research permits scientists to keep all but one variable constant in order to determine whether the single variable being studied has an effect on identification accuracy. Thus, laboratory studies have "high internal validity" in that the absence of confounding variables permit scientists to make cause and effect determinations. Moreover, unlike field and archival studies, the true identity of the perpetrator is known to the researchers thus enhancing the internal validity of the laboratory findings. Laboratory research also permits a hypothesis to be tested on a large number of subjects in contrast to field and archival studies where only a relatively small number of subjects can be studied.

Dr. Cooper testified that in a controlled laboratory environment, event stress, weapon focus and own-race bias have been found to effect eyewitness identification accuracy.⁴¹ With respect to event stress, Dr. Cooper testified that laboratory research has shown that stress has a negative impact on event memory. Id. at 422-423; see J. C. Yuille, M. Ternes B.S. Cooper, Expert Testimony on Laboratory Witnesses, 10 Journal of Forensic Psychology Practice 238, 243-244 (2010) (noting that laboratory studies have generally "found that the induction of stress results in an impairment of the accuracy and/or detail of laboratory witness recall.") Indeed, Dr. Cooper characterized the peer reviewed Morgan Study on event stress as an "excellent, beautifully designed study," which "has been well cited in terms of how stress impacts memory." Id. at 410.

41 Dr. Cooper did not offer any testimony with respect to the laboratory studies concerning event duration. He testified, however, that he agreed with the "common sense" notion that memory accuracy can be affected by the amount of time a person has to view a event. Id. at 496. He testified that most scientists share the view that a person's memory for an event will be enhanced by the amount of time that that person had to view the event.

With respect to weapon focus, Dr. Cooper testified that he agreed with the findings of Dr. Steblay's 1992 meta-analysis that laboratory research shows that the presence of a weapon reduces eyewitness identification accuracy. Id. at 449, 526. Indeed, Dr. Cooper testified that he "whole heartedly . . . one hundred percent" agrees that the weapon focus phenomenon has been found to exist in laboratory studies and that laboratory studies occurring after the Steblay meta-analysis have supported the weapon focus effect. Id. at 453, 459; see J. C. Yuille, M. Ternes B.S. Cooper, Expert Testimony on Laboratory Witnesses, 10 Journal of Forensic Psychology Practice 238, 243 (2010) ("The presence of a weapon in a laboratory witness study generally has a negative effect on performance[.]"). He also stated that there are no laboratory studies showing that the presence of a weapon increases identification accuracy. Id. at 488.

Dr. Cooper also testified that the own-race bias phenomenon has been studied within the confines of the laboratory for "at least 50 years" and that the majority of those studies concerned Caucasians and African-Americans . Id. at 462. He testified that the laboratory research has shown that people are better at identifying members of their own race than members of another race. Dr. Cooper further stated that two meta-analyses of laboratory research have been conducted on own-race bias and have confirmed the existence, in the laboratory, of the own-race bias phenomenon. Id. at 466. Dr. Cooper is unaware of any research concerning whether the own-race bias phenomenon applies to identifications of African-Americans made by persons of Indian or Pakistani descent. Id. at 477.⁴²

42 Dr. Cooper, in response to the prosecutor's questions, testified that unless persons of Indian (or Pakistani) descent were the subjects of a research study it could not be determined whether the own-race phenomenon applies to identifications of African-Americans made by persons of Indian (or Pakistani) descent.

While Dr. Cooper acknowledged that 99 percent of the research in the eyewitness identification field is conducted in the laboratory and that the phenomenon of event stress, weapon focus and own-race bias have been found to exist within the confines of the laboratory, he testified that there is a debate in the scientific community regarding the extent to which the results of eyewitness identification laboratory research are applicable to identifications made by eyewitnesses to actual crimes. Although a majority of the researchers in the field believe that laboratory research findings are transferrable to identifications made by victims and witnesses to actual crimes, Dr. Cooper testified that he and other psychologists, including his mentor, John Yuille, do not believe that the results of eyewitness identification laboratory research in areas of event stress, weapon focus and own-race bias can be applied to identifications made by eyewitnesses to actual crimes.

According to Dr. Cooper, the state of the debate is the same as it was over one hundred years ago when "there was research conducted all over Europe in Germany, for example, using the reality experiment where they subjected unsuspecting observers to a simulated crime and then tested their memory." Hearing Testimony at 394. Harvard professor Hugo Munsterberg sought to apply this psychological research to the courtroom and suggested in his 1908 book, "On the Witness Stand," that "[c]ourts open their doors to listen to psychological experts on how memory works."⁴³ Id. at 394-395. Munsterberg's book, however, was not met with "enthusiasm" by the legal community as the quantity and quality of his research was insufficient to support his conclusions.⁴⁴ Id. at 395, 500. Indeed, a scathing criticism of Munsterberg's book was published in the Illinois Law Review by the most preeminent evidence scholar of the time, John Henry Wigmore.⁴⁵ Wigmore's 1909 article was written in the form of a satire and challenged Munsterberg's research methods and suggested that he "come up with different more applied ways to study eyewitness behavior." Id. at 395.⁴⁶ See J.C. Yuille, M. Ternes, B.S. Cooper, Expert Testimony on Laboratory Witnesses, 10 Journal of Forensic Psychology Practice, 238, 239, 245 (2010).

43 "Munsterberg was the first to apply psychological principles to legal matters, thus creating forensic psychology. Among other things, he pointed out that eyewitness testimony could be unreliable because sensory impressions could be illusory, suggestion and stress could affect perception, and memory is not always accurate. Munsterberg would often stage traumatic events in his classroom to show that even when witnesses were attempting to be accurate, there were wide differences in the individual accounts of what had actually happened." See B.R. Hergenhahn, An Introduction to the History of Psychology at 349 (6th ed. 2009).

44 See G.A. Wells et al., Eyewitness Evidence: Improving It's Probative Value, 7 Psychol. Sci. Pub. Int. 45, 47 (2006) (noting, inter alia, that Munsterberg's writings "were extremely perceptive and well reasoned" but "rather short on data by modern standards").

45 See John Henry Wigmore, Professor Muensterberg and the Psychology of Testimony: Being A Report of the case of Cokestone v. Muensterberg, 3 Ill. L. Rev. 399 (1909). (Wigmore intentionally misspelled Munsterberg's name.)

46 "Wigmore presented his critique as a transcript from a libel trial: Cokestone v. Muensterberg. At once tongue-in-cheek, and vitriolic, Wigmore's critique, a "cross examination" of Muensterberg' focused on, among other things, that ". . .the state of knowledge in [the] psychological literature was far from conclusive; . . .[and] that psychology had not yet proceeded to the point where it would be helpful to the law; and . . . where empirical research existed, it often addressed a legally irrelevant question." See J.A. Blumenthal, Law and Social Science in the Twenty-First Century, 12 S. Cal. Interdisc. L.J. 1, 9-10 (2002); see also J. Epstein, The Great Engine that Couldn't: Science, Mistaken Identifications, and the Limits of Cross-Examination, 36 Stetson L. Rev. 727, (2007) (Wigmore also focused on the inability of the scientist to assess whether a witness was inaccurate on a particular occasion, noting that the "science" does not indicate whether a particular witness is in fact reliable.); W.E. Craighead C.B. Nemerhoff, The Corsini Encylopedia of Psychology and Behavioral Science Volume 1 at 541 (2001) ("Wigmore confronted Munsterberg with the lack of published evidence to support the claim that the law was ready for psychology, as Munsterberg had cited no references in his pioneer[ing] text.")

Dr. Cooper testified that in his "mind the field hasn't heeded Wigmore's call" as the overwhelming majority of research conducted in the field of eyewitness memory and identification is still based on laboratory studies, the results of which are simply not transferable to identifications made by eyewitnesses to actual crimes Id. at 395, 405. Dr. Cooper explained that the laboratory studies conducted in the areas of events stress, weapon focus and own-race bias have "low external validity" in that they are conducted in controlled settings and, thus, do not account for the multiple variables that are often encountered by witnesses and victims to actual crimes. Id. at 402-403. Thus, he noted that the accuracy of an identification made by a victim or witness to an actual crime could be affected by multiple simultaneously occurring variables such as: (1) the duration of the crime; (2) the lighting; (3) the opportunity the witness had to look at the perpetrator; (4) the distance between the perpetrator and the witness; (4) the stress associated with the event; (5) whether others, such as the witness's child, were present at the time of the event; (6) whether a weapon was present; (7) the number of times the witness spoke to others about the event; (8) the manner in which the witness was questioned "after the fact" regarding the event; (9), the nature of any identification procedure conducted in connection with the crime as well as other factors Id. at 420-421, 424 450; see Y. Chae, Application of Laboratory Research on Eyewitness Testimony, 10 Journal of Forensic Psychology Practice 252, 258, 259 (2010). By contrast, laboratory research takes place in a controlled environment where all but one of the variables are kept constant in order to assess whether the single manipulated variable impacts identification accuracy. Id. at 402, 524. As the victims of actual crime encounter multiple variables, the circumstances under which observations are made in the laboratory cannot be fairly compared to the conditions under which an actual crime is viewed.

Dr. Cooper further testified that psychologists have used laboratory research results to conclude that principles such as event stress or weapon focus are generally applicable to all eyewitness identifications. These laboratory findings, however, are based solely upon the answers given by the research subjects to questions regarding the single variable being studied. No effort is made to consider the individual background and characteristics of the observers, which are factors relevant to the accuracy of identifications made by eyewitnesses to actual crimes. Dr. Cooper explained that there is an "individual difference variable that has been studied" which shows that "one witness to a criminal event or one victim can have a detailed and vivid and accurate recollection of what happened to him or her, but someone else placed in the exact same context can have the complete opposite type of memory pattern." Id. at 408. Thus, "[w]hat people focus on is entirely based on individual differences" in that "some people have a good memory for their emotion, poor memory for the events," whereas other people may "have excellent memory for certain parts of the events to the detriment of others," Id. at 417, 420. Moreover, he noted that [w]hat's stressful for one person may not necessarily be for someone else and it's likely a fact that differential impact on stress is one of the reasons why we see such variability in people's memories."⁴⁷ Id. at 443. Dr. Cooper testified that additional research is needed to explain the individual difference variable instead of simply using laboratory research results to make blanket statements "that all memory is good for eyewitnesses or all memory is bad." Id. at 409, 412.

47 In essence, Dr. Cooper testified that because people, in real-life, handle stress in different ways, expert testimony with respect to how stress impairs identification in the laboratory should not be introduced at criminal trials.

Moreover, Dr. Cooper testified that laboratory research results are not transferable to real world events as the subjects of laboratory experiments — typically college students — are aware that they are participating in an experiment and not witnessing an actual crime. Thus, the laboratory research subjects are nothing more than uninvolved bystanders who are viewing events that are unimportant to them as opposed to actual violent crime victims who have had their physical well-being threatened and, presumably, have a greater interest in insuring that the perpetrator is correctly identified. See J.C. Yuille, M. Ternes B.S. Cooper, Expert Testimony on Laboratory Witnesses, 10 Journal of Forensic Psychology Practice 238, 240 (2010). Dr. Cooper further elaborated on the differences between laboratory research subjects and actual crime victims and how those differences impact the application of laboratory research results to real world events.

People participate in research in psychology experiments because they have to in a sense. They have to get a certain number of course credits, for example, and this is one of the reasons why research happens is that undergraduates have to do this, you know, in the name of science. But they get to pick and choose what happens, what experiment they want to participate in as opposed to a real victim or witness doesn't get to choose to be victimized or to be watching someone else being victimized . . . Of course . . . [actual crime victims] have choices of whether they want to participate in the criminal justice process. And then within that process there are significant consequences. If someone made a faulty identification, that could risk someone going to jail unjustly or if someone was victimized and made an accurate identification about who victimized them, then . . . justice would prevail. There is significant consequences for a number of people involved including the larger society in the actual real world when we're looking at identification.

Id. at 436, 437.

Dr. Cooper also testified that while event stress, weapon focus and own-race bias have been found to exist in the laboratory, field and archival research have not shown that these factors reduce identification accuracy. Dr. Cooper testified that only a small number of psychologists conduct field and archival research as such research has low internal validity in that the true identity of the perpetrator is often unknown and the presence of multiple variables makes it difficult to ascertain whether a particular variable may have impaired identification accuracy. See Valentine, et al., Characteristics of Eyewitness Identification that Predict the Outcome of Real Lineups, 17 App. Cognit. Psychol. 969, 985 (2003); B.W. Behrman S.L. Davey, Eyewitness Identification in Actual Criminal Cases: An Archival Analysis, 25 L. Hum. Behav. 475, 478 (2001). Nonetheless, Dr. Cooper testified that due to the inconsistencies between the laboratory research and the field and archival studies, he is unable to render an opinion regarding whether event stress, weapon focus and own-race bias are generally accepted as reliable in the relevant scientific community.

Event Stress

With respect to event stress, Dr. Cooper testified that the field and archival studies are inconsistent with the laboratory findings that event stress has "a negative impact on memory." Id. at 423. Dr. Cooper testified that the following archival studies demonstrate that event stress memory does not have a negative impact on identification accuracy. B.S. Cooper, et al., Weapon Focus in Sexual Assault Memories of Prostitutes, 25 Int'l Journal of Law Psychiatry 181 (2002); S.A. Christiansen, et al, Hands Up! A Study of Witnesses' Emotional Reactions and Memories Associated with Bank Robberies, 7 Applied Cogntive Psychology 365 (1993); J. Thompson et al. Memory for the Marchioness, 5 Memory 615-638 (1997); W. Wagenaar et al, The Memory of Concentration Camp Survivors, 4 Applied Cognitive Psychology 77 (1990); see also J. C. Yuille, M. Ternes B.S. Cooper, Expert Testimony on Laboratory Witnesses, 10 Journal of Forensic Psychology Practice 238, 244 (2010) (noting that studies of actual eyewitnesses have shown "that the impact of stress on eyewitness performance can vary all the way from improving memory to causing considerable disruption in memory.").In addition, Dr. Cooper testified that:

John Yuille was one of the first to conduct a study of an actual eyewitness situation where people were interviewed by the police and then by the research team after the event.⁴⁸ What they found was high rates of accuracy. 80 something percent accuracy for certain types of details that didn't decay significantly with the passage of time. These results were in stark contrast to the results of the laboratory. They tend to be wrong. When stress is high in terms of eyewitness memory then the other research, the results are complex, but the take home message for most of this research, stress doesn't necessarily have a negative impact on memory. Under ceratin situations people could have a detailed accurate memory when they are under certain levels of stress.

48 See J.C. Yuille J. L. Cuthsall, A Case Study of Eyewitness Memory of a Crime, 71 Journal of Applied Psychology 291 (1986).

Id. at 423.

Moreover, while Dr. Cooper testified that the Morgan Study was a "fantastic study" that "elicited arousal levels that can't be examined in the control[led] circumstances of the laboratory" he noted that the results of that study were not transferable to real life events as the soldiers who participated in the Morgan Study knew that there were not actually prisoners of war and knew they would be returning to their families. Id. at 409-410. He also maintained that the Morgan Study findings were not transferable to actual crimes as the study failed to disclose the manner by which the high and low stress conditions were imposed as such information had been deemed classified by the military.

Weapon Focus

Dr. Cooper also testified that field and archival studies have not shown that the presence of a weapon reduces identification accuracy. He cited the following studies to support this proposition. Valentine, et al., Characteristics of Eyewitness Identification that Predict the Outcome of Real Lineups, 17 App. Cognit. Psychol. 969, 980 (2003) (archival study analyzed data from "640 attempts by eyewitnesses to identify the alleged culprit in 314 lineups organized by the Metropolitan Police in London" and concluded, inter alia, that "the presence of a weapon had no effect on the likelihood of identifying a suspect.");⁴⁹ B.S. Cooper, et al., Weapon Focus in Sexual Assault Memories of Prostitutes, 25 Int'l Journal of Law Psychiatry 181 (2002) (study of 24 female prostitutes found no weapon focus effect); B.W. Behrman S.L. Davey, Eyewitness Identification in Actual Criminal Cases: An Archival Analysis, 25 L. Hum. Behav. 475, (2001) (archival study of 271 actual police cases" found no weapon focus effect); see also J. C. Yuille, M. Ternes B.S. Cooper, Expert Testimony on Laboratory Witnesses, 10 Journal of Forensic Psychology Practice 238, 243 (2010) ("[T]he few studies that have examined the impact of the presence of a weapon on actual eyewitnesses have provided little to no empirical support for the weapon focus effect[.]").Dr. Cooper testified, however, that if a weapon focus effect did in fact exist in the real world it would occur only in "crimes of relatively short duration." Id. at 449.

49 Dr. Cooper acknowledged on cross-examination that the Valentine study also found that the presence of a weapon "was significantly associated with witnesses being more likely to identify a foil." Id. at 522; see Valentine Study at 980.

Own-Race Bias

Dr. Cooper testified that there is "mixed support" in the "real world" relative to the own-race bias phenomenon. Id. at 470 Thus, Dr. Cooper noted that while the Valentine archival study found no support for the phenomenon, see Valentine, et al., Characteristics of Eyewitness Identification that Predict the Outcome of Real Lineups, 17 App. Cognit. Psychol. at 969, 988, he testified that the Behrman and Davey archival study found that own-race bias did affect eyewitness identification accuracy, see B.W. Behrman S.L. Davey, Eyewitness Identification in Actual Criminal Cases: An Archival Analysis, 25 L. Hum. Behav. at 481, 484. Hearing Testimony. at 470-471.

Dr. Cooper further explained that laboratory studies show that own-race bias has only a small impact on identification accuracy and that the methodology used in the laboratory to reach these conclusions relies heavily on showing undergraduate students pictures of "a number of different faces" from photographs as opposed to studying whether this phenomenon is present in a mock eyewitness paradigm where the participants view a simulated crime. Id. at 462, 466. Due to these infirmities, the own-race bias laboratory research cannot be extrapolated to observations made by eyewitnesses to actual crimes. Moreover, Dr. Cooper noted that the laboratory research fails to account for the "contact hypothesis," which is premised on the notion that the own-race bias is not as strong with people who grew up in a diverse environment and were routinely exposed to members of other races. Id. at 469. Finally, Dr. Cooper testified that the majority of laboratory research in the area of own-race bias had been conducted with African-Americans and Caucasians and he is unaware of any laboratory, field or archival research that has specifically studied whether the own-race bias phenomenon applies to identifications of African-Americans made by persons of Indian or Pakistani descent. In the absence of such research, Dr. Cooper testified that there is no scientific basis to conclude that the own-race bias phenomenon would apply in the circumstances set forth above. Id. at 477, 479.⁵⁰

50 Dr. Cooper also testified that he could not testify whether it was generally accepted in the scientific community that there was a negative correlation between witness confidence and accuracy of an identification as the majority of research with respect to this phenomenon was conducted in the laboratory. Hearing Testimony at 499.

The Kassin Survey

Dr. Cooper testified that the Kassin survey had only a thirty-four percent response rate and, as such, was not a proper gauge of whether a particular phenomenon or factor was generally accepted as reliable in the field of eyewitness identification, but acknowledged, that it was peer reviewed and published in "American Psychologist," a well-respected journal. He further acknowledged that the Kassin Survey is widely cited and that he was not aware of any published survey contradicting its findings.

Conclusions of Law

This Court finds the testimony given by Dr. Franklin and Dr. Cooper to be credible and makes the following conclusions of law with respect to the four factors that were the subject of the Frye hearing. The proponent of the disputed expert testimony, in this case the defendant, has the burden of proving that the four factors about which he seeks to introduce expert testimony are generally accepted within the relevant scientific community. People v. LeGrand, 8 NY3d at 458; Zito v. Zabarasky, 28 AD3d 42, 44 (2d Dept. 2006); People v. Williams, 14 Misc 3d at 587.

Event Stress

This Court finds that the defendant has met his burden of showing that the event stress phenomenon is generally accepted as reliable in the community of psychologists who study and conduct research in the eyewitness identification field. People v. LeGrand, 8 NY3d at 458; Zito v. Zabarasky, 28 AD3d at 44; People v. Williams, 14 Misc 3d at 587. The 2004 peer-reviewed Deffenbacher meta-analysis, which analyzed 27 independent laboratory studies involving more than 1700 participants, concluded that high levels of stress impair identification accuracy. See K.A. Deffenbacher, et al., A Meta-Analytic Review of the Effects of High Stress on Eyewitness Memory, 28 L. Hum. Behav. 687 (2004).Likewise, the 2004 peer-reviewed Morgan Study of 500 active-duty military soldiers, which created a degree of stress akin to that found outside the laboratory, also found that high levels of stress affect identification accuracy. See C.A. Morgan, III, et al, Accuracy of Eyewitness Memory for Persons Encountered During Exposure to Highly Intense Stress, 27 Int'l J. L. Psychiatry 265 (2004). While only 60 percent of the 2001 Kassin survey respondents found the event stress phenomenon to be reliable, See S.M. Kassin, et al, On the General Acceptance of Eyewitness Testimony Research: A New Survey of the Experts, 56 Amer. Psychologist at 412, Table 4, those findings predate the results of the Deffenbacher meta-analysis and the Morgan Study. "The addition of these publications to the existing literature should further increase the level of expert agreement on the reliability of research on stress and eyewitness identification." See B.L. Cutler, A Sample of Witness, Crime, and Perpetrator Characteristics Affecting Eyewitness Identification Accuracy, 4 Cardozo Pub.L. Pol'y Ethics J. 327, 338 (2006); see also J. Epstein, The Great Engine that Couldn't: Science, Mistaken Identifications, and the Limits of Cross-Examination, 36 Stetson L. Rev. 727, 739 n. 50 (2007).

That event stress is generally accepted as reliable in the field of eyewitness identification is underscored by the number of New York courts that have permitted expert witnesses to testify with respect to this phenomenon. Lahey v. Kelly, 71 NY3d at 144; see People v. Smith, 191 Misc 2d 765 (Sup. Ct. NY Co. 2002) (defense expert witness permitted to testify, inter alia, that event stress can effect the reliability and accuracy of an eyewitness identification); People v. Drake, 188 Misc 2d 210, 214 (Sup. Ct. NY Co. 2001) (defense expert permitted to testify, inter alia, that extreme stress may impact the reliability of an eyewitness identification); People v. Lewis, 137 Misc 2d 84 (Monroe Cty. Co. 1987) (defense expert permitted to testify in case where victim was robbed at knife point in an incident that less lasted than one minute that event stress may effect the reliability of an eyewitness identification); People v. Brooks, 128 Misc 2d 608 (West. Cty. Co. 1985) (defense expert permitted to testify that stress and violence can effect the reliability of an eyewitness identification).⁵¹

51 The Court in People v. Banks, 16 Misc 3d at 940, declined to permit expert testimony on event stress primarily because the defendant in that case, unlike the instant case, neglected to introduce into evidence and provide that Court with copies of the studies upon which he relied in support of the phenomenon — the Deffenbacher meta-analysis and the Morgan Study.

Other jurisdictions have also permitted expert eyewitness testimony in the area of event stress. See e.g. United States v. Stevens, 935 F.2d 1380, 1400 (3d Cir. 1991) (trial court permitted expert testimony with respect to event stress; Bryan v. Hubbard, ___ F. Supp.2d ___, 2010 WL 282533 at *4 (C.D. Cal. January 21, 2010) (state trial court permitted eyewitness identification expert to testify that "studies have revealed that eyewitness observations made under stress tend to be highly inaccurate."); United States v. Smith, 621 F.Supp.2d 1207 (M.D. Ala. 2009), aff'd, 370 Fed. Appx. 29 (11th Cir. 2010) (court held that reliable psychological research supported the event stress phenomenon and permitted expert witness to testify that stress impairs perceptions and memory); United States v. Lester, 254 F.Supp.2d 602, 613 (E.D. Va. 2003) (court permitted defense expert to testify that event stress may effect the reliability of an eyewitness identification); United States v. Ronald Oliver, 2000 WL 35610160 (D. Utah April 18, 2000) (Stewart. J.) (defense expert could testify that stress can effect the reliability of an eyewitness identification and that it was generally accepted "among the experts" that "the impact of fear or arousal" may effect the reliability of a person "to identify the person causing the fear"); United States v. Hines, 55 F. Supp.2d 62 (D. Mass. 1999) (defense expert testified that stress may effect the reliability of an eyewitness identification); United States v. Norwood, 939 F. Supp. 1132, 1137-38 (D. N.J. 1992) (defense expert permitted to testify that intense levels of stress impair the reliability of an eyewitness identification); United States v. Jordan, 924 F. Supp. 443, 448 (W.D.NY 1996) (defense expert permitted to testify that "stress impacts a witness' sensory perception and/or subsequent recollection."); State v. Ismail Hassan, 158 Wash. App. 1029, 2010 WL 4409691 at *7 (Wash. App. Div. 1, Nov. 8, 2010) (expert testimony permitted with respect to, inter alia, event stress) State v. Paul Richardson, 2010 WL 3791973 at *4 (Tenn Ct. App. Sept. 29, 2010) (expert witness testified, inter alia, "that high levels of stress tend to decrease [an individual's] ability to recall and remember details of an event later on."); State v. Clopten, 223 P.3d 1103, 1117 (Utah 2009) (trial court abused its discretion by failing to allow defense expert to testify, inter alia, about the effect that stress can have upon the reliability of an eyewitness identification); People v. Campbell, 847 P.2d 228, 233 (Colo App. 1992) (defense expert testified that stress decreases rather than increases the reliability of an eyewitness identification); People v. McDonald, 37 Cal.3d 351, 375, 690 P.2d 709, 726 (Cal. 1984), rev'd on other grounds by People v. Mendoza, 23 Cal.4th 896, 4 P.3d 265 (Cal. 2000) (In a case where the only evidence connecting the defendant to the charged crimes were eyewitness identifications, trial court abused its discretion by prohibiting defendant from eliciting expert eyewitness testimony that the accuracy of an identification can be affected by, inter alia, "fear and other stress at the time of perception" and "the suddenness and unexpectedness of the event[.]"); People v. Brown, 110 Ill. App. 3d 1125, 1129, 443 N.E.2d 665, 668 (Ill App. 1st Dist. 1982) (defense expert permitted to testify that "the observations and memory of people in stressful situations are unreliable."); State v. Sellars, 52 N.C. App. 380, 400, 278 S.E.2d 907, 921 (N.C. App. 1981) (defense expert permitted to testify that stress "influence[s] a person's identification of another person."); see also United States v. Moore, 786 F.2d 1308, 1312 (5th Cir. 1986) ("[I]t is commonly believed that witnesses remember better under stress. The data indicate that the opposite is true.").⁵²

52 Although there are cases from other jurisdictions that have refused to permit expert testimony with respect to the event stress phenomenon, see e.g., Commonwealth of Pennsylvania v. Robinson, 2010 Pa. Super. 159, 5 A.3d 339 (Pa. Super. 2010); State v. Young, 35 So.3d 742 (La.), cert. denied, 131 S. Ct. 597 (2010), the fact that courts from several different jurisdictions have permitted testimony with respect to this phenomenon is one of several factors that this Court may consider in determining whether a scientific technique is generally accepted as reliable under Frye. See Lahey v. Kelly, 71 NY3d 134, 144 (1987); People v. Scoon, 303 AD2d 525 (2d Dept.), lv. denied, 100 NY2d 624 (2003).

Support for the general acceptance of the event stress phenomenon can also be found in studies and legal writings. See e.g. T. Valentine J. Mesout, Eyewitness Identification Under Stress in the London Dungeon, 23 Applied Cognitive Psychology 151, 159-160 (2009) (A study analyzing the effect that high levels of stress had on the ability of visitors to the Horror Labyrinth exhibit of the London Dungeon in England to identify correctly an actor encountered during the course of their visit found that eyewitness identification accuracy was "dramatically impaired" by high levels of stress. The study also concluded that laboratory studies have underestimated the impact that stress has on the reliability of eyewitness identification and "that the potential for error associated with eyewitness identification evidence is even greater than laboratory studies have suggested."); K.A. Findley, Innocence Protection in the Appellate Process, 93 Marq. L. Rev. 591, 625 (2009) ("Research also reveals that laypeople, relying solely on common sense, typically believe that stress sharpens a witness's observational skills and therefore makes them more reliable. But the research shows that high levels of stress — like experienced during a crime — seriously impairs a witness's ability to take in data and to make accurate identifications after the event"); R.A. Wise, C.S. Fishman, M.A. Safer, How To Analyze the Accuracy of Eyewitness Testimony in a Criminal Case, 42 Conn. L. Rev. 435, 505 (2009) ("Very high levels of stress during a crime impair eyewitness accuracy. Scientific research shows that different levels of stress can have multiple, sometimes subtle, effects on eyewitness memory. As stress increases, a tunnel memory effect is likely to occur. . . .high levels of stress tend to substantially impair eyewitness memory because the stress activates the eyewitness's fight or flight response, which interferes with the eyewitness's ability to pay attention and process information.").

The People argue that expert testimony with respect to the event stress phenomenon is inadmissible at trial on the ground that the dynamics of an actual crime scene cannot be recreated in the laboratory. Laboratory results, they argue, showing that stress reduces identification accuracy, are not transferable to identifications made by eyewitnesses to actual crimes. To support this premise, they rely, as they did in LeGrand, on testimony from a psychologist who subscribes to the minority view in the scientific community that laboratory research results in the area of eyewitness identification reliability are not transferrable to identifications made by eyewitnesses to actual crimes. See People v. LeGrand, 196 Misc 2d at 201-208. That precise strategy, however, proved unsuccessful in LeGrand, as the Court of Appeals found that three of the four factors about which the defense sought to elicit expert eyewitness identification testimony satisfied the Frye standard.⁵³ By overruling the lower court in LeGrand, the Court of Appeals rejected the People's claim, as espoused by their expert Dr. Ebbessen, that laboratory research results in the area of eyewitness identification are not applicable to identifications made by witnesses to actual crimes. Id.; see People v. LeGrand, 8 NY3d at 454-455, 458 ("Although there may be risks associated with allowing an expert to apply research findings from experiments on the reliability of eyewitness identifications to real-life identifications, these findings — produced through sound, generally accepted experimentation techniques and theories, published in scholarly journals and subjected to peer review — have over the years gained acceptance within the scientific community.").

53 The Court of Appeals found that three of the four factors about which the defense sought to elicit expert eyewitness identification testimony satisfied the Frye standard: confidence malleability; the effect of post-event information on accuracy of identification; and, the correlation between confidence and accuracy of identification. See People v. LeGrand, 8 NY3d at 458.

The foregoing notwithstanding, the People, relying on Dr. Cooper, still argue that laboratory research results in the area of eyewitness identification are not applicable to identifications made by witnesses to actual crimes. Dr. Cooper testified that in his view, which he admitted was subscribed to by only a minority of psychologists in the field, laboratory research is not transferable to identifications made by witnesses to real-life crimes. Dr. Cooper, like Dr. Ebbessen of LeGrand fame, testified that this lack of transferability is attributable to: (1) the methodology employed by scientists in the artificial confines of the laboratory; (2) the fact that participants in laboratory research are different than real life crime victims as they know they are merely participating in an experiment and, thus, are akin to uninterested bystanders whereas real-life crime victims are aware that serious consequences could ensue both for themselves and the perpetrator in the event an identification is made; and, (3) the discrepancy between the laboratory and the field and archival studies with respect to the effect that various factors may have on the reliability of eyewitness identifications.⁵⁴ See Hearing at 402, 409-410, 420-421, 423, 424, 36, 437, 450, 524; People v. LeGrand, 196 Misc 2d at 204-208 Indeed, Dr. Cooper so firmly believes that laboratory experiments cannot replicate the realities of actual crime, he testified that the confidence-accuracy phenomenon is also not transferable to identifications made by eyewitnesses to actual crimes as it is premised upon laboratory research results. Notably, the Court of Appeals has already held that this phenomenon is generally accepted as reliable in the relevant scientific community under Frye. See People v. LeGrand, 8 NY3d at 458.

54 Dr. Cooper admits that 99 percent of research in the eyewitness identification field is conducted in the laboratory.

Dr. Cooper goes even further than did Dr. Ebbessen in LeGrand, however. He contends that the debate today regarding whether psychological testimony with respect to eyewitness identification accuracy should be admissible at criminal trials is no different than it was in 1909 when J. H. Wigmore ridiculed Hugo Munsterberg in a scathing law review article for suggesting in his 1908 book "On the Witness Stand" that psychological evidence should be introduced at criminal trials to assist in the evaluation of eyewitness testimony. See J.H. Wigmore, Professor Muensterberg and the Psychology of Testimony: Being A Report of the case of Cokestone v. Muensterberg, 3 Ill. L. Rev. 399 (1909).⁵⁵ But times have changed. Today, more than 100 years later, psychologists have conducted thousands of studies and experiments with respect to eyewitness identification accuracy. Hearing Testimony at 503, 506.⁵⁶ The results of these studies and experiments have been consistently replicated and a scientifically accepted meta-analytic framework is now used to combine the results of a large number of separate but related studies so as to allow scientists "to make a single overarching statement" about whether an effect, such as event stress, is in fact reliable.⁵⁷ Hearing Testimony at 34-35, 38, 96, 218; see People v. Banks, 16 Misc 3d at 933; People v. Williams, 14 Misc 3d at 456. Indeed, the Deffenbacher meta-analysis analyzed 27 independent laboratory studies involving more than 1700 participants and concluded that high levels of stress impair identification accuracy. See K.A. Deffenbacher, et al., A Meta-Analytic Review of the Effects of High Stress on Eyewitness Memory, 28 L. Hum. Behav. 687 (2004).Moreover, scientific methods have advanced to such a degree since Munsterberg's time that the Morgan Study was able to conclude authoritatively that the event stress phenomenon reduces identification accuracy even under levels of stress much higher than those that can be simulated within the confines of the laboratory. See C.A. Morgan, III, et al, Accuracy of Eyewitness Memory for Persons Encountered During Exposure to Highly Intense Stress, 27 Int'l J. L. Psychiatry 265 (2004).

55 Wigmore's criticisms of Munsterberg centered on the lack of data to support his assertions that psychological evidence could be used in a courtroom to explain the vagaries of eyewitness identifications. In connection with the satirical nature of his article, Wigmore deliberately misspelled Munsterberg's name.

56 See R.S. Schmechel, et al, Beyond the Ken? Testing Jurors' Understanding of Eyewitness Reliability Evidence, 46 Jurimetrics 177, 180 (2006); D.M. Risinger J.L. Loop, Three Card Monte, Monty Hall, Modus Operandi, and "Offender Profiling:" Some Lessons of Modern Cognitive Science for the Law of Evidence, 24 Cardozo L. Rev. 193, 194 (2002).

57 Hearing Testimony at 96; see State v. Clopten, 223 P.3d 1103, 1114, 1117 (Utah 2009); (In a case where court permitted, inter alia, expert testimony with respect to even stress, event duration and weapon focus, court stated that the testimony of eyewitness experts are generally accepted in the relevant scientific community and "[t]he phenomena that eyewitness experts seek to explain have been reviewed and replicated many times in recent decades."); E.F. Loftus, Eyewitness Testimony at 203 (1979) (Professor Elizabeth Loftus, in her seminal 1979 book, "Eyewitness Testimony" wrote "It has been seventy years since [the Munsterberg] trial' took place. Now the methods of psychology are substantially more precise, and it is reasonable to apply them to the American judicial system. Research efforts are widely published, and almost invariably in English-language journals. The legal profession seems to be paying them a good deal of attention, so times have changed. Munsterberg would have smiled.").

In addition, with the advent of DNA testing, a scientific method unavailable to Munsterberg in 1909, it has been demonstrated that "[e]yewitness misidentification is the single greatest cause of wrongful convictions nationwide, playing a role in more than 75 percent of convictions overturned through DNA testing." B.L. Cutler, Expert Testimony on the Psychology of Eyewitness Identification at 5 (Oxford University Press 2009) (citation omitted); see United States v. Brownlee, 454 F.3d 131, 141-142 (3d Cir. 2006) ("The recent availability of post-conviction DNA tests demonstrate that there have been an overwhelming number of false convictions stemming from uninformed reliance on eyewitness misidentifications."). Thus "[b]efore the DNA exoneration cases, some people believed that the results of eyewitness experiments in psychology were mere academic exercises, games played with people's memories that would not apply to real witnesses and real crimes. At the very least, the DNA exonerations have proved that eyewitnesses can be absolutely positive and yet absolutely mistaken, just as was found in the experiments." G.A. Wells et al., Eyewitness Evidence: Improving It's Probative Value, 7 Psychol. Sci. Pub. Int. 45, 48 (2006).

Moreover, courts in New York and throughout the country have rejected the claims embodied in Wigmore's 1909 criticisms of Munsterberg, i.e., that there is insufficient data to support the application of psychological principles to eyewitness identification accuracy and that such data is not applicable to identifications made by eyewitnesses to actual crimes. See e.g. People v. LeGrand, 8 NY3d at 458; People v. Williams, 14 Misc 3d at 579; People v. Smith, 191 Misc 2d 765 (Sup. Ct. NY Co. 2002); People v. Drake, 188 Misc 2d 210, 212 (Sup. Ct. NY Co. 2001); United States v. Stevens, 935 F.2d 1380, 1400 (3d Cir. 1991); United States v. Moore, 786 F.2d 1308, 1312 (5th Cir. 1986); United States v. Charles Burton, 1998 U.S. Dist. LEXIS 18730 at *58 (E.D. Tenn. Nov. 17, 1998) (Murrian, M. J); State v. Clopten, 223 P.3d 1103, 1117 (Utah 2009); People v. Campbell, 847 P.2d 228, 233 (Colo App. 1992); see also State of New Jersey v. Larry Henderson, Report of the Special Master at 75 (June 21, 2010) (Gaulkin, J.) (finding that laboratory studies in the area of eyewitness identification accuracy, including those related to event stress, weapon focus and event duration were sound and generalizable to identifications made by witnesses to actual crimes).⁵⁸

58 In State of New Jersey v. Larry Henderson, 2009 WL 510409 (Sup. Ct N.J. February 26, 2009), the New Jersey Supreme Court appointed a Special Master to hold a plenary hearing to "test the current validity of our state law standards on the admissibility of eyewitness identification" and "to consider and decide whether the assumptions and other factors reflected in the two-part Manson/Madison test as well as the five factors outlined in those cases to determine reliability, remain valid and appropriate in light of recent scientific and other evidence." Id.; see State of New Jersey v. Christopher Romero, 2011 WL 557053 (N.J. Superior Court Feb. 18, 2011); State of New Jersey v. Jason Farley, 2010 WL 2794275 at *1 (N.J. Superior Court July 6, 2010). At the hearing, more than "200 published scientific studies" were made part of the record and seven expert witnesses testified: (1) Gary L. Wells, "Distinguished Professor of Liberal Arts and Sciences, Department of Psychology, Iowa State University;" (2) James M Doyle, Director, Center for Modern Forensic Practice, John Jay College of Criminal Justice;" (3) John Monahan, "John S. Shannon Distinguished Professor of Law, University of Virginia Law School;" (4) Steven Penrod, "Distinguished Professor of Psychology, John Jay College of Criminal Justice;" (5) Jules Epstein, "Associate Professor of Law, Widener University School of Law;" (6) Roy Malpass, "Professor of Psychology, University of Texas, El Paso;" and, (7) James M. Gannon, former Deputy Chief of Investigations, Office of the Morris County [New Jersey] Prosecutor." See Report of the Special Master at 3-4, http://www.judiciary.state.njus/ pressrel/HENDERSON%20FINAL%20BRIEF%20.PDF%20(00621142).PDF. The report concluded, inter alia, that the event stress, weapon focus and even duration phenomena were scientifically reliable and that the laboratory research underlying these and other phenomena in the eyewitness identification field were generalizable to real world events.

Wigmore also attacked Munsterberg on the ground that the psychological testimony he sought to introduce at trial was imprecise in that it could not be used to show that a witness had in fact been inaccurate or unreliable on a particular occasion. Dr. Cooper echoed this argument when he testified that the laboratory research demonstrating the presence of the event stress phenomenon was not applicable to identifications made by witnesses to actual crimes as such research failed to account for the "individual difference variable that has been studied," which shows that "one witness to a criminal event or one victim can have a detailed and vivid and accurate recollection of what happened to him or her, but someone else placed in the exact same context can have the complete opposite type of memory pattern." Hearing at 408. Thus, he noted that [w]hat's stressful for one person may not necessarily be for someone else and it's likely a fact that differential impact on stress is one of the reasons why we see such variability in people's memories." Id. at 443. But, this argument is flawed. The law is well-settled that "expert testimony need not be conclusive but only must assist the trier of fact in understanding evidence." J. Epstein, The Great Engine That Couldn't: Science, Mistaken Identifications and the Limits of Cross-Examination, 36 Stetson L. Rev. 727, 741 (2007) (internal quotations omitted); see People v. Lee, 96 NY2d 157, 162 (2001); People v. Taylor, 75 NY2d 277, 288 (1990); People v. Colon, 238 AD2d 18, 21 (1st Dept. 1997), lv. denied, 92 NY2d 909 (1998); People v. Maymi, 198 AD2d 153 (1st Dept. 1993), lv. denied, 82 NY2d 927 (1994). Thus, courts have permitted expert testimony in areas such as rape trauma syndrome, ⁵⁹ child sexual abuse accommodation syndrome⁶⁰ and battered wife syndrome⁶¹ to assist the jury in understanding the conduct or actions taken by various individuals even though the particular individual being evaluated by the jury at trial may not have in fact acted in accord with the syndrome about which expert testimony was elicited. See e.g. People v. Taylor, 75 NY2d 277, 286 (1990) (court permitted expert testimony with respect to the rape trauma syndrome while acknowledging that "there is no single profile of a rape victim and that different victims express themselves and come to terms with the experience of rape in different ways[.]"); see also J. Epstein, The Great Engine That Couldn't: Science, Mistaken Identifications and the Limits of Cross-Examination, 36 Stetson L. Rev. at 741.

59 See People v. Taylor, 75 NY2d 277, 287, 288 (1990).

60 See People v. Bassett , 55 AD3d 1434, 1436-1437 (4th Dept. 2008), lv. denied, 11 N.Y3d 922 (2009).

61 See People v. Torres, 128 Misc 3d 129, 135 (Sup. Ct. Bronx. Co. 1985).

Expert testimony with respect to the event stress phenomenon in this case will assist the jury in evaluating the complainant's ability to identify the perpetrator of the robbery. People v. Taylor 75 NY2d at 288.

Finally, the People argue that the defendant has not met his burden under Frye as some field and archival studies do not support the event stress phenomenon and a minority of experts in the field believe that laboratory research is not generalizable to identifications made by eyewitnesses to actual crimes. The law is well-settled, however, that to satisfy the Frye test, the scientific principle at issue need not be "unanimously endorsed' by the scientific community but must be generally accepted as reliable'" in the particular scientific field. People v. Wesley, 83 NY2d at 423; quoting, People v. Middleton, 54 NY2d 42, 49 (1981). In this case, Dr. Franklin's hearing testimony, the Deffenbacher meta-analysis, the Morgan Study, and the case law from New York and other parts of the country conclusively establish that the event stress phenomenon is generally accepted as reliable in the scientific community. Thus, the defendant may present expert testimony at trial with respect to the event stress phenomenon. The People, if they so choose, are free to call their own expert to rebut the defense expert's testimony.

Weapon Focus

This Court finds that the defendant has met his burden of proving that the weapon focus phenomenon is generally accepted as reliable in the relevant scientific community. Both Dr. Franklin and Dr. Cooper testified that the Steblay meta-analysis, which examined more than 2000 subjects, found that the presence of a weapon reduces eyewitness identification accuracy. See N.M. Steblay, A Meta-Analystic Review of the Weapon Focus Effect, 16 L. Hum. Behav. 413, 421 (1992).⁶² In addition, 87 percent of the Kassin Survey respondents found the weapon focus factor to be reliable and 98 percent stated that there was a research basis for this phenomenon. See S.M. Kassin, et al, On the General Acceptance of Eyewitness testimony Research: A New Survey of the Experts, 56 Amer. Psychologist 405, 412, Table 4 (2001); see also People v. LeGrand, 8 NY3d at 458 (while the Kassin Survey alone is not "dispositive" on the Frye issue it is a factor that can be considered in determining general acceptance). Significantly, at least two New York courts have held, after conducting Frye hearings, that the weapon focus effect was generally accepted as reliable in the relevant scientific community. People v. Banks , 16 Misc 3d 929, 943-944 (West Cty. Co. 2007), aff'd, 74 AD3d 1214 (2d Dept.), lv. denied, 15 NY3d 849 (2010); People v. Williams , 14 Misc 3d 571 (Sup. Ct. Kings Co. 2006); see also People v. Drake, 188 Misc 2d 210, 214 (Sup. Ct. NY Co. 2001) (court permitted expert witness to testify regarding weapon focus as studies have demonstrated, inter alia, that weapon focus may impact an eyewitness's ability "both to perceive and recall information); People v. Beckford, 141 Misc 2d 71 (Sup. Ct. Kings Co. 1988) (holding that defendant could call expert witness to testify at trial to "the effect of stress on identification which scientific research has demonstrated affects a person's ability to remember, (this occurs . . . when the criminal encounter is characterized by violence or a weapon and the witness tends to focus on the weapon rather than the physical characteristics of the perpetrator.").

62 The People's attempt to dilute the significance of the Steblay meta-analysis by pointing out that only six of the nineteen studies analyzed found the presence of the weapon focus effect represents a fundamental misunderstanding of the statistical computations underlying meta-analysis and is an argument that has been repeatedly rejected by the courts. See People v. Banks , 16 Misc 3d 929, 943-944 (West. Cty. Co. 2007), aff'd 74 AD3d 214 (2d Dept.), lv. denied, 15 NY3d 849 (2010); People v. Williams , 14 Misc 3d 571, 578 (Sup. Ct. Kings Co. 2006).

The general acceptance as reliable of the weapon focus phenomenon is also demonstrated by cases from other jurisdictions that have permitted expert testimony in this area. See United States v. Brownlee, 454 F.3d 131, 140, n. 5 n. 13 (3d Cir. 2006) (holding that defendant was permitted to elicit expert testimony with respect to impact weapon focus effect had on reliability of eyewitness identification); United States v. Mathis, 264 F.3d 321, 338 (3d Cir. 2001), cert. denied, 538 U.S. 908 (2002) (holding, inter alia, that trial court abused its discretion in refusing to allow a defendant to elicit expert testimony with respect to the weapon focus effect); Pugh v. Hedgpeth, ___ F. Supp.2d ___, 2010 WL 3475599 at *6 (C.D. Cal. July 27, 2010) (noting that state trial court permitted eyewitness identification expert to testify at trial, inter alia, that "[w]eapon-focus [in the context of an eyewitness identification] is a dominant influence that affects memory of other things"); United States v. Lester, 254 F. Supp.2d 602 (E.D. Va. 2003) (holding that a defense expert testify that weapon focus impairs the reliability of an eyewitness identification); United States v. Charles Burton, 1998 U.S. Dist. LEXIS 18730 at *58 (E.D. Tenn. Nov. 17, 1998) (Murrian, M. J). (ruling that the defense could present expert testimony with regard to various factors that effect the reliability of eyewitness identifications including weapon focus).; United States v. Jordan, 924 F. Supp. 443, 448 (W.D.NY 1996) (holding that defense expert could testify regarding the phenomenon of weapon focus and that "a witness will tend to focus not upon the perpetrator but upon the weapon."); State v. Ismail Hassan, 158 Wash. App. 1029, 2010 WL 4409691 at *7 (Wash. App. Div. 1, Nov. 8, 2010) (noting that trial court permitted expert testimony with respect to, inter alia, the weapon focus effect); State v. Paul Richardson, 2010 WL 3791973 at *4 (Tenn. Crim. App. September 29, 2010) (noting that trial court permitted expert testimony with respect to, inter alia, the weapon focus effect); State v. Clopten, 223 P.3d 1103, 1117 (Utah 2009) (holding that trial court abused its discretion by refusing to permit expert testimony with respect to, inter alia, the weapon focus effect); State v. Lewis Moorehead, 1997 WL 65716 at *5 (Ohip App. 10th Dist. Feb. 13, 1997) (noting the trial court, inter alia, permitted the defendant to introduce expert testimony with respect to the weapon focus effect); Lee Brown v. State, 2006 WL 2198064 at *17 (Alaska App. Aug. 2, 2006) (noting that trial court, inter alia, permitted the defendant to introduce expert testimony with respect to the weapon focus effect); People v. Campbell, 847 P.2d 228, 233 (Colo. App. 1992) (permitting expert testimony "that the presence of a gun or other weapon does not consciously assist but rather tends to distract a witness such that it could impair his or her memory."); see also State v. Henderson, Report of the Special Master at 44 ("[T]he presence of a weapon at the observed event has been demonstrated to impair eyewitness memory and identification accuracy. . . . The studies find that the visible presence of a weapon diverts a witness's attention away from the face of the perpetrator and reduces the witness's ability to encode, describe and identify the face.").⁶³

63 But see e.g. Commonwealth of Pennsylvania. v. Robinson, 2010 Pa. Super. 159. 5 A.3d 339, (Pa. . Super. 2010); State v. Day, 898 A.2d 698 (R.I. 2006).

Support for the general acceptance in the scientific community of the weapon focus phenomenon is also shown by other studies and legal writings. See e.g. L. Hope et al., Beyond Unusual? Examining the Role of Attention in the Weapon Focus Effect, 21 Appl. Cognit. Psychol. 951 (2007); C.A. Meissner, et al, Person Descriptions as Eyewitness Evidence, 2 Handbook of Eyewitness Psychology Memory for People at 10 (Rod. C.L. Lindsay et al eds. 2007); K. L. Pickel, Do Weapons Automatically Capture Attention? 20 Appl, Cognit. Psychol. 871 (2006); B.L. Cutler, A Sample of Witness, Crime, and Perpetrator Characteristics Affecting Eyewitness Identification Accuracy, 4 Cardozo Pub.L. Pol'y Ethics J. 327, 333 (2006); K.L. Pickel, The Influence of context on the "weapon focus" effect, 23 L. Hum. Behav. 299 (1999); K.L. Pickel, Unusualness and Threat as Possible Cause of "Weapon Focus" 6 Memory 277 (1998); K.J. Mitchell, et al, The weapon focus effect revisited: The role of novelty, 3 Legal and Criminological Psychology 287 (1998); P. Tollestrup, et al, Actual victim and witnesses to robbery and fraud: an archival analysis, in D.F. Ross, et al, Adult eyewitness testimony: Current trends and development, 144-160 (Cambridge University Press1994); B.L. Cutler, et al, The reliability of eyewitness identificaiton: the role of system and estimator variables, 11 L. Hum. Behav. 223 (1987); E.F. Loftus et al, Some Facts About Weapon Focus, 11 L. Hum. Behav. 55 (1987).

This Court finds, based upon Dr. Franklin's testimony, the Steblay meta-analysis, the Kassin Survey results, the case law from New York and other parts of the country, and the additional studies and legal writings with respect to the reliability of the weapon focus effect factor, that the defendant has met his burden under Frye of proving that the weapon focus effect is generally accepted as reliable in the scientific community.⁶⁴ See People v. LeGrand, 8 NY3d at 457. Thus, the defendant may present expert testimony at trial with respect to the weapon focus phenomenon. The People, if they so choose, are free to call their own expert to rebut the defense expert's testimony.

64 For the reasons set forth in the discussion with respect to event stress, the People's claim that the weapon focus effect is not generalizable to identifications made by witnesses to actual crimes is similarly rejected.

Event Duration

This court finds that the defendant has met his burden of proving that the event duration phenomenon is generally accepted as reliable in the relevant scientific community. Both Dr. Franklin and Dr. Cooper testified that an eyewitness identification is more likely to be accurate if the eyewitness had a prolonged as opposed to a brief opportunity to view the perpetrator. Moreover, the Shapiro and Penrod meta-analysis, which analyzed 128 studies involving approximately 17,000 subjects, thoroughly demonstrated the existence of the event duration phenomenon. See P.N. Shapiro S. Penrod, Meta-Analysis of Facial Identification Studies, 100 Psychological Bulletin 139 (1986). The general acceptance of the event duration phenomenon is also shown by the results of the Kassin Survey, which found that 81 percent of the respondents found the event duration proposition to be reliable and 93 percent stated that there was a research basis for this phenomenon. See S.M. Kassin, et al, On the General Acceptance of Eyewitness testimony Research: A New Survey of the Experts, 56 Amer. Psychologist 405, 412, Table 4 (2001).

That event duration is generally accepted as reliable in the field of eyewitness identification is also shown by the number of New York courts that have permitted expert witnesses to testify with respect to this phenomenon. See e.g. People v. Harris , 74 AD3d 984 (2d Dept.), lv. denied, 15 NY3d 920 (2010) (noting that trial court permitted defense to elicit expert testimony, inter alia, with respect to the phenomenon of event duration); People v. Banks, 16 Misc 3d at 934 (court permitted expert testimony with respect to event duration); People v. Williams, 14 Misc 3d at 570-580, 589-590 (court held, inter alia, that event duration was generally accepted as reliable in the scientific community and permitted expert witness to testify at trial regarding this phenomenon); People v. Smith, 191 Misc 2d 765 (Sup. Ct. NY Co. 2002) (defense was permitted to call expert witness to testify that event duration time can impact the reliability and accuracy of an eyewitness identification).

The general acceptance as reliable of the weapon focus phenomenon is also demonstrated by cases from other jurisdictions that have permitted expert testimony in this area. See United States v. Graves, 465 F.Supp.2d 450 (E.D. Pa. 2006) (holding, inter alia, that event duration, namely, that "the longer the witness has to view the face, the more accurate the identification is" and that especially in stressful events or complex events, people tend to overestimate lengths of time . . .is based upon sufficient data and is the product of reliable principles and methods") (internal quotations omitted)

United States v. Jordan, 924 F. Supp. 443, 448 (W.D.NY 1996) (holding that defense expert could testify regarding the phenomenon of event duration in that "the time in which the witness is exposed to the perpetrator will positively correlate to the accuracy of the identification" and that [m]ost eyewitnesses overestimate how much time they had to identify an individual."); State v. Clopten, 223 P.3d 1103, 1117 (Utah 2009) (holding, inter alia, that trial court abused its discretion by prohibiting defense expert from testifying about the event duration phenomenon); People v. McDonald, 37 Cal.3d 351, 375, 690 P.2d 709, 726 (Cal. 1984), rev'd on other grounds by People v. Mendoza, 23 Cal.4th 896, 4 P.3d 265 (Cal. 2000) (In case where only evidence connecting the defendant to the charged crimes were eyewitness identifications, trial court abused its discretion by preventing defendant from eliciting expert eyewitness testimony that the accuracy of an identification can be impacted by, inter alia, "overestimation of the duration of the event[.]"); see also State v. Henderson, Report of the Special Master at 44 ("The scientific studies demonstrate that the reliability of an identification is related to the duration of the witness's exposure to the perpetrator: while there is no minimum time required to make an accurate identification, a brief or fleeting contact is less likely to produce an accurate identification than a more prolonged exposure.").⁶⁵

65 But see e.g. United States v. Curry, 977 F.2d 1042 (7th Cir. 1992), cert. denied, 507 U.S. 947 (1993); Commonwealth of Pennsylvania v. Bormack, 2003 Pa. Super 228, 827 A.2d 503 (Pa. Super. 2003).

Support for the general acceptance in the scientific community of the event duration phenomenon is also shown by other studies and legal writings. See G.L. Wells, Eyewitness Identification, in D.L. Faigman, M.J. Saks, J. Sanders E.K. Cheng (eds.), Modern Scientific Evidence: The Law and Science of Expert Testimony, § 16:32 at 542-543 (West Pub. 2010) ("The amount of time that a person is in view affects the quality of the eyewitness' memory of the person and, consequently, the accuracy of the identification attempt." Moreover, "[r]esearch indicates, for instance, that eyewitnesses tend to overestimate short temporal durations and this tendency is especially pronounced when the eyewitness is feeling stress or anxiety. Hence, the eyewitness who described his or her view of a culprit lasting two or three minutes may in fact have had the culprit in view for 30-35 seconds.") (footnotes omitted); A. Memon, et al., Exposure Duration: Effects on Eyewitness Accuracy and Confidence, 94 British J. of Psychol. 339, 342 (2003) (Study in which participants viewed videotaped reconstruction of a robbery in which the perpetrator's face could be seen for either 12 seconds or 45 seconds concluded that the rates of misidentification were substantially higher when the participants were limited to viewing the perpetrator's face for 12 seconds as opposed to 45 seconds).

The People do not seriously dispute the general acceptance of the event duration phenomenon. Rather, they argue that the defendant should be precluded from introducing such testimony as it is within the ken of the average juror. The Court of Appeals, however, has held that "despite the fact that jurors may be familiar from their own experience with factors relevant to the reliability of eyewitness observation and identification it cannot be said that psychological studies regarding the accuracy of an identification are within the ken of the typical juror[.]" People v. Lee, 96 NY2d 157, 162 (2001); see People v. Abney, 13 NY3d at 266; People v. Mooney, 76 NY2d 827, 832 (1990) (Kaye, J dissenting); see also De Long v. Erie County, 60 NY2d 296, 307-308 (1983). While at some level the event duration phenomenon appears to be based on nothing more than common sense, the average juror is unlikely to be aware of the interrelationship between this phenomenon and the weapon focus factor. See N.M. Steblay, A Meta-Analystic Review of the Weapon Focus Effect, 16 L. Hum. Behav. 413, 421 (1992) ("The weapon [focus] effect does reliably occur, particularly in crimes of short duration in which a threatening weapon is visible."); Hearing Testimony at 449. Nor is the average juror likely aware that eyewitnesses tend to overestimate the amount of time they have viewed an event, especially when the viewing took place under stressful conditions. Hearing Testimony at 52, 58; see J. Epstein, The Great Engine that Couldn't: Science, Mistaken Identifications, and the Limits of Cross-Examination, 36 Stetson L. Rev. 727, 754 (2007) ("Studies confirm that eyewitnesses overestimate an event's duration, particularly when stress is elevated.").

Accordingly, the event duration phenomenon is beyond the ken of the average juror. Moreover, as the defendant has established that this phenomenon is generally accepted as reliable under the Frye test, he will be permitted to introduce expert testimony with respect to event duration at trial.

Own-Race Bias

The defendant has failed to meet his burden of proving that it is generally accepted as reliable in the relevant scientific community that the own-race bias phenomenon applies to eyewitnesses identifications made by persons of Asian/Indian descent. Both Dr. Franklin and Dr. Cooper testified that the majority of research in the area of own-race bias concerns identifications made by persons of African-American and Caucasian descent. Indeed, Dr. Franklin testified that the overwhelming majority of the participants studied in the Brigham Meissner meta-analysis, upon which the defendant principally relies in support of his claim that own-race bias phenomenon is generally accepted as reliable by the relevant scientific community, were Caucasian and African-American. Hearing Testimony at 247; see C.A. Meissner J.C. Brigham, Thirty Years of Investigation the Own-Race Bias in Memory for Faces, 7 Psychol. Pub. Pol'y Law 3, 14 (2001).

Dr. Franklin testified at the hearing that she was not aware of any study that reviewed the extent to which the own-race bias phenomenon applied to persons of Asian/Indian descent. While she opined that 'the own-race bias phenomenon extended to persons of Asian/Indian descent, she acknowledged that she was unable to point to any specific scientific studies to support such a conclusion. Id. at 88. Dr. Cooper also testified that he was not aware of any scientific studies that had analyzed whether the own-race bias phenomenon applied to eyewitness identifications of African-Americans made by persons of Asian/Indian/Pakistani descent. Due to the absence of any evidence showing that the own-race bias phenomenon applies to persons of Asian/Indian/Pakistani descent, the defendant has failed to meet his burden of proving that such a proposition is generally accepted as reliable in the relevant scientific community. Accordingly, the defendant's motion to introduce expert testimony with respect to the own-race bias phenomenon is denied. See People v. Banks , 16 Misc 3d 929, 942 (West. Cty Co. 2007), aff'd (Defendant's motion to introduce expert testimony with respect to own-race bias phenomenon in case where the complainants were Hispanic and the defendant African-American, was denied after Frye hearing as Court found that most of the research with respect to this phenomenon dealt "with black/white racial identifications" and no evidence was introduced to show that the own-race bias phenomenon applied to identifications of African-Americans made by Hispanics); see People v. Carrieri , 4 Misc 3d 307 (Sup. Ct. Queens Co. 2004) (defendant's motion to introduce expert testimony with respect to own-race bias denied on various grounds including that "scientists disagree about the extent to which it affects identification and to which racial groups it applies[.]"), aff'd 49 AD3d 660, 661 (2d Dept.), lv. denied, 11 NY3d 786 (2008).

Conclusion

The defendant's motion is granted in part and denied in part. The defendant's motion to introduce expert testimony at trial with respect to event stress, weapon focus, event duration, confidence malleability, the effect of post-event information on accuracy of identification, and the correlation between confidence and accuracy of identification is granted. The defendant's motion to introduce expert testimony at trial with respect to own-race bias is denied.

This constitutes the Decision and Order of the Court.