At Allen's trial, the judge refused to allow an expert witness to testify for the defense about problems with eyewitness identification. The judge said that the testimony of Dr. Steven Penrod, a respected psychology-law professor at the John Jay College of Criminal Justice, was unnecessary and might confuse the jury.These cases are grist for the College Station criminal defense lawyer's mill. Earlier this summer we examined some important issues regarding eyewitness misidentification here and here. Traditionally, trial judges are given wide latitude when deciding whether to allow expert psychological testimony. In Texas courts, the foundational cases regarding the admissibility of expert testimony are Daubert v. Merrell Dow Pharmaceuticals and Kelly v. State. These cases say judges can exclude such testimony in some cases, but first they must carefully scrutinize the proffered testimony and determine whether it is relevant. Further, judges must determine whether the expert testimony might be helpful to the jury. In the Allen trial the court said no such careful scrutiny took place.
In its opinion in People v. Allen, the appellate court pointed to research establishing that eyewitnesses are often wrong, and that jurors have misconceptions about eyewitness accuracy. It cited prior Illinois rulings stating that expert testimony can dispel myths and correct misconceptions, and that "the science of eyewitness perception has achieved the level of exactness, methodology and reliability of any psychological research."
The aggressive criminal defense lawyer should develop expert testimony to discredit the testimony of eyewitnesses. Even in cases where lawyers are court appointed, motions requesting funds for expert assistance should be an integral part of the lawyer's motions practice. With cases like Mr. Allen's to back us up, even the denial of our request for funds can lead to a reversal.