In Harris, the Court of Appeals applied this standard and concluded that a trial court did not err in excluding expert testimony on eyewitness reliability where the enumerated factors were not present and the eyewitness testimony was corroborated by other evidence. Cf. United States v. Jordan, 924 F. Supp. 443, 448-49 (W.D.N.Y. 1996) (concluding that expert evidence on the reliability of eyewitness identification evidence would assist the jury because the testimony of an eyewitness was central to the government's case). The Court interprets the circumstances enumerated in Harris as illustrative rather than mandatory.
tress 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.2
A proffer must also include sufficient information regarding the bases for the expert's opinion." United States v. Jordan, 924 F. Supp. 443, 447 (W.D.N.Y. 1996); see also United States v. Brien, 59 F.3d 274, 277-78 (1st Cir. 1995); United States v. Rincon, 28 F.3d 921, 924-25 (9th Cir. 1994). In deciding whether proffered scientific evidence satisfies the secondDaubert prong — i.e., whether it will assist the trier of fact — trial courts must be mindful of both the potential for expert testimony to mislead a jury, and the court's continuing obligation under Rule 403 to exclude evidence, the probative value of which is substantially outweighed by the danger of confusing the jury.
United States v. Rincon, 28 F.3d 921, 924-25 (9th Cir. 1994); United States v. Jordan, 924 F.Supp. 443, 447 (W.D.N.Y. 1996).
Id. at 593–94, 113 S.Ct. 2786. The proponent of the evidence bears a significant burden in proving reliability; a proffer of expert testimony must include the substantive area of the proposed testimony, as well as “ ‘sufficient information regarding the bases for the expert's opinion.’ ” United States v. Lester, 234 F.Supp.2d 595, 598 (E.D.Va.2002) (quoting United States v. Jordan, 924 F.Supp. 443, 447 (W.D.N.Y.1996) ). “Where the proponent of the testimony fails to present enough evidence to demonstrate to the court the scientific validity of the research supporting the expert's conclusions, the trial court cannot determine whether the testimony is well-founded.” Lester, 234 F.Supp.2d at 598.If allowed to testify at trial, Rone would have offered two opinions on the locations of the shooter of the firearm that ejected the .223 casings found at the crime scenes.
This task as expressed in Daubert applies where, as here, the expert testimony is "scientific." Iacobelli Const., Inc. v. County of Monroe, 32 F.3d 19, 25 (2d Cir. 1994); see also United States v. Jordan, 924 F. Supp. 443 (W.D.N.Y. 1996) (applying Daubert to the expert testimony of a psychologist). Towns has made it clear in both Dr. Stott's proffer and in the statements of his attorney at oral argument that he will not argue that, as a consequence of his psychological infirmities, he lacked the ability to form the intent to rob the bank.
Several federal and state courts have held explicitly that trial courts have abused their discretion by excluding this type of testimony in cases in which identification was the central issue. See, e.g., United States v. Harris, 995 F.2d 532, 535 (4th Cir. 1993) (reliability of identification causes greater concern where case "involves one identification, by one witness, under stress"); United States v. Sebetich, 776 F.2d 412, 418-19 (3d Cir. 1985), cert. denied, 484 U.S. 1017, 108 S.Ct. 725, 98 L.Ed.2d 673 (1988) (error to exclude expert testimony where identification, made nineteen months after robbery, was made under stressful circumstances, and was derived from one person's testimony); United States v. Norwood, 939 F. Sup. 1132, 1137-41 (D.N.J. 1996) (proffered testimony of expert not necessarily within common knowledge of average juror and hence should have been admitted); United States v. Jordan, 924 F. Sup. 443, 449 (W.D.N.Y. 1996) (error to exclude expert testimony where state's case "depends largely on the testimony of a single eyewitness who was the victim"); United States v. Brown, 45 M.J. 514, 516 (C.A.A.F. 1996) (error to exclude expert testimony where, upon viewing photographic array, sole eyewitness to truck theft selected defendant's photograph and asked police, "Was that him?"); State v. Chapple, 135 Ariz. 281, 293-97, 660 P.2d 1208 (1983) (error to exclude expert testimony on witness reliability when facts are close); Nations v. State, 944 S.W.2d 795, 798 (Tex.App. 1997) (error to exclude expert testimony where "most highly contested issue was the victim's identification of her assailant"; victim viewed photographic array and stated one photograph "could be" assailant and, when pressed by police for assurance, "responded that she thought it was him"). Our own opinion in a recent case led me to believe that this court was headed in the same direction.
As examples, the following cases held the exclusion of expert opinion to be an abuse of discretion: United States v. Stevens, 935 F.2d 1380 (3d Cir. 1991); United States v. Sebetich, 776 F.2d 412 (3d Cir. 1985); United States v. Downing, 753 F.2d 1224 (3d Cir. 1985); United States v. Smith, 736 F.2d 1103 (6th Cir. 1984); State v. Chapple, 135 Ariz. 281, 660 P.2d 1208 (1983); McDonald, 208 Cal.Rptr. 236, 690 P.2d at 709; People v. Campbell, 847 P.2d 228 (Colo.Ct.App. 1992); Echavarria v. State, 108 Nev. 734, 839 P.2d 589 (1992); and State v. Whaley, 305 S.C. 138, 406 S.E.2d 369 (1991). In the following cases, expert testimony on eye witness identification was held admissible in part: United States v. Jordan, 924 F. Supp. 443 (W.D.N.Y. 1996); People v. Lewis, 137 Misc.2d 84, 520 N.Y.S.2d 125 (N.Y.Co.Ct. 1987); State v. Fontaine, 382 N.W.2d 374 (N.D. 1986); State v. Hill, 463 N.W.2d 674 (S.D. 1990); Hampton v. State, 92 Wis.2d 450, 285 N.W.2d 868 (1979). We found no state appellate court other than Iowa with a per se rule of exclusion of expert testimony regarding eye witness identification.