Issue: Whether the trial court properly exercised its discretion by limiting defendant’s identification expert to sharing his expertise on cross-racial identification and precluding testimony about other factors that can affect identification, including the reliability of showup identification procedures, the effect of stress, weapon focus, the duration of the encounter, distance and lighting, the use of disguises, and memory decay.

Holding: The court did not abuse its discretion in granting defendant’s application only in part and limiting the expert testimony to the topic of cross-race effect because the record established that the court reached its determination by weighing the probative value of the testimony against, among other things, the prospect of unduly delaying trial.

CAL observes: The majority found no abuse of discretion due to the delayed timing of defense counsel’s request to explore additional areas affecting the eyewitness’s identification. While Judge Rivera in dissent makes a strong case for why that decision was wrong, that issue is a run-of-the-mill discretionary exercise.

Judge Troutman’s majority decision is more interesting for what it doesn’t say than what it does, i.e., it does not say that the rule for admissibility of expert testimony set forth in People v. LeGrand, 8 N.Y.3d 449 (2007) and applied for the nearly 20 years since, was wrong. But it should have. Whether you’re a court or a person, admitting you’re wrong can be hard. But it’s the right thing to do.

LeGrand---where the Court for the first time found that it was an abuse of discretion to preclude expert testimony on the reliability of eyewitness identifications---was correctly perceived as a victory for those accused of crimes based on eyewitness testimony. Prior to LeGrand, the Court had repeatedly rejected efforts to secure a right to admit expert testimony on eyewitness identification. See, e.g., People v. Young, 7 N.Y.3d 40 (2006); People v. Lee, 96 N.Y.2d 157 (2001); People v. Mooney, 76 N.Y.2d 827 (1990).

While LeGrand reached a favorable result---finding an abuse of discretion for failure to admit the expert testimony---it created and applied a rule that has rightly been criticized. See Bova, Matthew, The Court of Appeals Should Abandon the Corroboration Rule

Governing the Admissibility of Expert-Identification Testimony, CUNY LAW REVIEW, Vol. 24, Issue 1 (2021). LeGrand held that a trial court can exclude expert testimony if it determines that the eyewitness identification was corroborated by other evidence, conflating the value of the expert’s testimony with the potential harm caused by its exclusion. Because there was scant evidence corroborating the identification in LeGrand, the Court found an abuse of discretion. LeGrand’s error appears to have originated in Lee, where the Court found no abuse of discretion in precluding the identification expert’s testimony because there was evidence independent of the identification tending to show that Lee was guilty of the charged offense. 96 N.Y.2d at 163.

Vaughn attempts to correct Lee’s original sin while at the same time defending it. Vaughn states that the guiding measure for admissibility is whether the proffered expert testimony would assist the jury. Id. at *4, *5 (“To be clear, the considerations enumerated in LeGrand do not displace the traditional principles under which courts weigh the probative value of the testimony against the prospect of delay, prejudice, or confusion). But Vaughn continues to allow courts to consider the existence of corroboration, defending LeGrand to the extent that it relied on the fact that there was “little or no corroborating evidence connecting the defendant to the crime.” Id. at *4.

An express overruling of LeGrand’s endorsement of corroborative evidence as a factor in evaluating the admissibility of expert testimony---as advocated by Judge Rivera in her dissent---would surely make for better law. The Court’s prior timid attempts to correct LeGrand have failed. The result here, where the court expressly considered corroborative evidence as reason to preclude the expert’s testimony, is proof that unclear rules cause judicial errors.

Vaughn continues to allow courts to consider whether eyewitness evidence controverted by the defendant corroborates the prosecution’s case. This corroboration rule ignores that it is the jury’s role to assess whether the purported corroboration is accurate and reinforces the identification’s reliability. Judges cannot be permitted to make that assessment. See Holmes v. South Carolina, 547 U.S. 319 (2006) (holding that the Constitution prohibits courts from blocking material evidence because a judge finds the government’s evidence reliable or strong).