United States of America v. James Smithers

*The Honorable Algenon L. Marbley, United States District Judge for
the Southern District of Ohio, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0160P (6th Cir.)
File Name: 00a0160p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED S TATES OF AMERICA ,
Plaintiff-Appellee,
v.
J AMES S MITHERS,
Defendant-Appellant.
;>

1
No. 98-1722
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 97-80248—Avern Cohn, District Judge.
Argued: August 6, 1999
Decided and Filed: May 8, 2000
Before: BATCHELDER and COLE, Circuit Judges;
MARBLEY, District Judge.*
_________________
COUNSEL
ARGUED: Andrew N. Wise, FEDERAL PUBLIC
DEFENDERS OFFICE, Detroit, Michigan, for Appellant.
Kathleen Moro Nesi, ASSISTANT UNITED STATES

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2 United States v. Smithers No. 98-1722
ATTORNEY, Detroit, Michigan, for Appellee. ON BRIEF:
Andrew N. Wise, FEDERAL PUBLIC DEFENDERS
OFFICE, Detroit, Michigan, for Appellant. Kathleen Moro
Nesi, ASSISTANT UNITED STATES ATTORNEY, Detroit,
Michigan, for Appellee.
MARBLEY, D. J., delivered the opinion of the court, in
which COLE, J., joined. BATCHELDER, J. (pp. 21-46),
delivered a separate dissenting opinion.
_________________
OPINION
_________________
ALGENON L. MARBLEY, District Judge. Appellant
James Smithers was convicted of bank robbery in violation of
18 U.S.C. § 2113(a). Smithers now appeals various aspects
of his trial, including the district court’s exclusion of the
testimony of an eyewitness identification expert, the
limitation of Smithers’s wife’s testimony, and the district
court’s response to questions posed by the jury after it began
deliberating. For the following reasons, we REVERSE the
conviction below and REMAND this case for a new trial
pursuant to the law set forth herein.
I.
On the morning of November 12, 1996, a man walked into
the Monroe Bank and Trust in Terence, Michigan, and
presented bank teller Teresa Marino a note. The note read, “I
have a gun. Give me your large bills.” Ms. Marino complied
with the demand by turning over the money from her teller
drawer. The robber asked for more money, and Ms. Marino
unlocked her other drawer and gave him three packs of large
bills totaling $3,400. When the robber repeated his demand
for more money, Ms. Marino told him that was all she had,
and he ran from the bank. The entire incident lasted about
two minutes.

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46 United States v. Smithers No. 98-1722
understanding but for the particularized resolution of
legal disputes.
509 U.S. at 596-97. I fear that the majority’s opinion here
will only undermine the balance between truth-seeking and
fairness that the Rules have so carefully crafted, without
adding much at all to the efficacy—at least in this circuit—of
criminal justice. Indeed, the majority here holds that “Expert
testimony regarding eyewitness identification must be
recognized as scientifically commensurate with all other
psychological studies, and may often be a valid source of
information to help jurors understand the factors that effect
[sic] eyewitness identifications.” The effect of the majority’s
opinion is to establish the district court as the gatekeeper with
discretion only to admit, but not to exclude, expert testimony
relative to eyewitness identification.
For all of the foregoing reasons, I respectfully dissent.
No. 98-1722 United States v. Smithers 3
Two other witnesses observed the robbery. The first, Debra
White, was also working as a teller at the bank on November
12, 1996. She was sitting at a desk behind Ms. Marino when
she noticed an unfamiliar customer standing at Ms. Marino’s
teller station. Ms. White looked away for a moment and
when she looked back, the man grabbed the money and
walked quickly out of the bank. Ms. White asked Ms. Marino
if she had been robbed. Learning that she had, Ms. White
yelled that they had been robbed and went to lock the bank
doors. While doing so, she observed the robber getting into
the passenger side of a car parked in the parking lot.
Timothy Wilson, the second witness, was a bank customer
who walked into the bank at the same time as the robber. The
robber held the door open for him as they both entered the
building. Mr. Wilson saw the robber go straight to the teller
and then leave the bank quickly.
Investigators from the Monroe County Sheriff’s
Department spoke to the witnesses that day. Ms. Marino,
who was approximately three feet from the robber, described
him as a white male in his late twenties wearing a Nike jacket,
baseball cap and sunglasses, over 6' 2" tall, 180-185 pounds,
with long bushy dark hair, a moustache and a thin beard. Ms.
White described the robber as taller than average, with
squinty eyes and wearing a bulky striped jacket. Ms. White
described the car as a two-toned brown and black, late 1970's
Monte Carlo, with a cream colored landau roof and an Ohio
license plate. Mr. Wilson recalled the robber as a very tall
man, with a moustache and partial beard, wearing a baseball
cap, dark sunglasses and a winter jacket.
The next day, officers of the Toledo Police Department
noticed a vehicle fitting the description of the car used in the
robbery at an apartment complex in Toledo. Monroe County
Detective Thomas Redmond drove Ms. White to the vehicle,
a 1976 Oldsmobile Cutlass, which she identified as the car
used in the robbery. The car was registered to James
Smithers.

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4 United States v. Smithers No. 98-1722
Officers then went to Smithers’s home, where his wife,
Josette Smithers, informed them that he was at his parents’
house. The officers searched Smithers’s apartment but found
no incriminating evidence. They located Smithers at his
parents’ home, and he accompanied the police to his
apartment. Smithers told the officers that he bought the
vehicle from his brother-in-law, Steve Dallas, who still
retained a set of keys to the car. Smithers also stated that on
the morning of November 12, 1996, he had noticed his rear
license plate was missing, so he had moved his front plate to
the rear. He also claimed to have noticed gas missing from
the car on other mornings; later, Smithers said that there was
a hole in the gas tank. Smithers consented to a search of the
car, which produced no incriminating evidence. Smithers
voluntarily went to the sheriff’s department where he
provided handwriting samples and was photographed and
fingerprinted. When photographing him, Detective Redmond
noted Smithers’s height as 6' 6 ½".
Detective Redmond prepared a photo spread of six
photographs, including a photo of Smithers. On November
14, 1996, Detective Redmond showed the photo spread to Ms.
Marino, Mr. Wilson and Ms. White. Ms. Marino and Mr.
Wilson could not identify the robber from the photo spread.
Ms. White picked out Mr. Smithers. Immediately after her
identification, Ms. White told Ms. Marino that she had been
able to identify the robber from the photo spread.
Smithers’s handwriting exemplars were submitted to the
FBI laboratory for analysis. The results were inconclusive.
The demand note was submitted to the Michigan State Police
Laboratory for fingerprint analysis. The analysis produced
one identifiable print. The government claims the print was
inconclusive; Smithers claims the analysis showed that the
print did not belong to him.
Peter Smith, an FBI examiner who specializes in analyzing
exhibits in photographic form, performed a height analysis of
the robber depicted in the bank videotape. Mr. Smith
concluded that the robber measured approximately 6' 5". Mr.
No. 98-1722 United States v. Smithers 45
to be allowed to testify in every case in which eyewitness
testimony is relevant. This would constitute a gross
overburdening of the trial process by testimony about matters
which juries have always been deemed competent to
evaluate”); United States v. Thevis, 665 F.2d 616, 641 (5th
Cir. Unit B 1982) (“To admit such testimony in effect would
permit the proponent’s witness to comment on the weight and
credibility of opponents’ witnesses and open the door to a
barrage of marginally relevant psychological evidence”);
Sabetta, 680 A.2d at 933 (“it would effectively invade the
province of the jury and . . . open a floodgate whereby experts
would testify on every conceivable aspect of a witness’s
credibility”). The logical conclusion of today’s holding—if
not its implicit intent—is likely to be precisely this type of
snowball effect in our circuit.
Acutely aware of the dangers of permitting expert
testimony without a rigorous performance of the gatekeeping
function, Daubert observed:
It is true that open debate is an essential part of both legal
and scientific analyses. Yet there are important
differences between the quest for truth in the courtroom
and the quest for truth in the laboratory. Scientific
conclusions are subject to perpetual revision. Law, on
the other hand, must resolve disputes finally and quickly.
The scientific project is advanced by broad and
wide-ranging consideration of a multitude of hypotheses,
for those that are incorrect will eventually be shown to be
so, and that in itself is an advance. Conjectures that are
probably wrong are of little use, however, in the project
of reaching a quick, final, and binding legal
judgment--often of great consequence--about a particular
set of events in the past. We recognize that, in practice,
a gatekeeping role for the judge, no matter how flexible,
inevitably on occasion will prevent the jury from learning
of authentic insights and innovations. That, nevertheless,
is the balance that is struck by Rules of Evidence
designed not for the exhaustive search for cosmic

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44 United States v. Smithers No. 98-1722
Fulero’s exclusion lies not with the district court’s legal
analysis but with Smithers’s inadequate production.
The cases holding that expert testimony regarding
eyewitness identification is too general and those finding that
it comments too directly on witness credibility delimit the
narrow range of circumstances in which this testimony is
properly admissible. Unless a very small number of
eyewitness identifications form the only evidentiary basis for
a conviction, and the proffered testimony relates directly to
the facts of the case without commenting on the eyewitnesses’
credibility, the need for this testimony will simply not be so
great that alternative means of cautioning the jury on this
subject will not suffice. See, e.g, Rincon, 28 F.3d at 923-26.
The existence of other inculpatory evidence will usually
render any error in excluding the expert testimony harmless.
See Smith, 736 F.2d at 1107; Hall, 165 F.3d at 1107-08;
Smith, 156 F.3d at 1053-54; Blade, 811 F.2d at 465; Moore,
786 F.2d at 1313. Here, the fact that three witnesses
identified Smithers adds to the probability of their accuracy.
Moreover, the Government presented the identification of
Smithers’s car at the bank, the photo analysis showing that
Smithers and the robber shared the rare characteristic of being
over 6’5” tall, and a series of lies Smithers told police
regarding his whereabouts. While this is not overwhelming
evidence, it does alleviate considerably any concern that
Smithers was convicted solely on the basis of erroneous
eyewitness testimony.
The various failings in Fulero’s proposed testimony
accentuate the jurisprudential danger posed by the majority’s
opinion. Its tangible eagerness to find that the district court
abused its discretion in excluding this testimony is likely to
set a precedent requiring admission of evidence tending to
erode further the jury’s responsibility for making credibility
determinations. Other courts have recognized this danger and
steered clear of it. See, e.g., Alexander, 816 F.2d at 169
(“Requiring the admission of the expert testimony proffered
in Moore would have established a rule that experts testifying
generally as to the value of eyewitness testimony would have
No. 98-1722 United States v. Smithers 5
Smith also conducted a comparative analysis of the robber in
the bank photos with a photograph of Smithers. He could
neither positively identify nor eliminate Smithers as the bank
robber.
On June 16, 1997, a grand jury returned an indictment
charging Smithers with one count of bank robbery in violation
of 18 U.S.C. § 2113(a).
On December 18, 1997, Smithers filed a ten-page motion
in limine to determine the admissibility of certain expert
testimony regarding eyewitness testimony. The district court
commenced Smithers’s jury trial on January 14, 1998. After
the jury was empaneled, the district court heard argument on
Smithers’s motion in limine, and denied the motion, noting
that everything an expert would have to say about eyewitness
identification was within the jury’s "common knowledge"
The court stated that it would give an instruction on
eyewitness testimony. Smithers's attorney requested
permission to make a written proffer, which the court
allowed.
The government presented its case, including eyewitness
testimony from Ms. Marino, Ms. White and Mr. Wilson.
Despite their prior inability to identify Smithers from a photo
spread, Ms. Marino and Mr. Wilson identified Smithers as the
robber in court. Ms. Marino and Ms. White testified that they
did not notice that the robber had any distinguishing features.
The government rested on January 16, 1998.
Smithers filed his renewed motion in limine and offer of
proof, regarding expert testimony, on eyewitness
identification on January 20, 1998. This proffer described the
anticipated testimony of Dr. Solomon Fulero, a proposed
expert on eyewitness identification. It noted that Dr. Fulero
would “educate the jury about the general factors that may
affect eyewitness accuracy,” including the specific the issues
of: (1) “detail salience” (the fact that eyewitnesses tend to
focus on unusual characteristics of people they observe); (2)
the relationship between the time that has passed since
observing the event and the accuracy of recalling it; (3) the

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6 United States v. Smithers No. 98-1722
effect of post-identification events on memory; (4) the fact
that when one person both prepares and administers a photo
spread, the likelihood of misidentification increases; (5) the
“conformity effect” (the fact that witnesses’ memories are
altered by talking about the event with each other after it
occurs); and (6) the relationship between a witness’s
confidence in her recollection and its accuracy. Regarding the
issue of detail salience, the proffer stated that “[h]ad Mr.
Smithers been the robber, the eyewitnesses would have
observed and been able to recall the large scar on Mr.
Smithers’ [sic] neck.”
After hearing oral argument on the Defendant’s renewed
motion, the district court ruled that it would exclude the
expert testimony:
[p]rimarily because it’s late in the day. It should have
been done much earlier. On the other hand, I think
you’ve got a very good, if there’s a conviction, I think
you’ve made an excellent record that I’ve abused my
discretion in failing to allow it, and I think there’s a
certain – I prefer to see it that way.
The court also opined that Dr. Fulero’s testimony was “not a
scientifically valid opinion,” “a jury can fully understand that
its [sic] got an obligation to be somewhat skeptical of
eyewitness testimony,” and “admission of Dr. Fulero’s
testimony is in this case is almost tantamount to the Court
declaring the defendant not guilty as a matter of law. . . .
[A]bsent the eyewitness testimony I don’t think there’s
enough here to go to the jury.” Finally, the district court
remarked, “I’m also interested in seeing what a jury will do
absent that expert testimony. It makes it a more interesting
case. I recognize it’s the defendant’s fate that’s at stake, but
you can always argue for a new trial if he’s convicted.”
After this ruling, Smithers presented a few witnesses,
including his wife, who attempted to establish an alibi
defense. Ms. Smithers testified that Smithers was sleeping in
their house from 3:00 a.m. to 11:30 a.m. the morning of
November 12, and that as a light sleeper she would have
No. 98-1722 United States v. Smithers 43
our legal system is the sole province of the jury. See
Greenwell, 184 F.3d at 496; Gacy, 994 F.2d at 313-14;
Murrian, supra, at 380. As illustrated above, a number of
courts have cited this tenet as a basis for excluding eyewitness
identification experts. That threat was also present in this
case, as the majority points out, because Dr. Fulero proposed
to testify, among other things, that the eyewitnesses “would
have observed and been able to recall the large scar on Mr.
Smithers’ neck. That deformity would have been more
memorable to the witnesses.” The majority opinion says that
the solution to this admittedly inadmissible testimony is
simply to excise the offending language. This ignores the fact
that at the second hearing, Smithers identified the scar as “the
key issue that [Fulero] would address.” Removing this aspect
of Fulero’s testimony would gut the remainder of the
majority’s reasoning as to why Fulero’s testimony should
have been admitted. Nor is this one sentence the only
example of how Fulero’s testimony would have stepped over
the line. Smithers argued in his renewed motion that “Fulero
would testify regarding the perception of the bank robber by
[the witnesses] and how [various factors] are directly related
to the accuracy of their identification testimony.” (emphasis
added). Again: “Fulero would thus testify that the photo
spread procedures, and the witness’ numerous meetings with
the police, FBI, and each other, would have directly
influenced the witness’ ability to recall the particular
characteristics of the bank robber with any degree of
accuracy.” (emphasis added). Other portions of the motion
are phrased in a more appropriate form, indicating that Fulero
would testify to research data as it relates to particular
conditions experienced by the witnesses, leaving the
application of that information to counsel and the jury. But
these examples more than adequately justify the district
court’s conclusion that Fulero (who, incidentally, is also an
attorney) would have acted as more of an advocate than a
scientific expert in this case. The majority’s decision merely
to excise the offending portions of the testimony not only
leaves very little testimony that is even arguably relevant, but
relieves Smithers of his burden of proving that the testimony
he proffered is admissible. Once again, the blame for

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42 United States v. Smithers No. 98-1722
The presence of a person labeled an “expert” by the court
in the witness stand inevitably carries the risk of jurors’
accepting that person’s testimony as scientifically irrefutable
truth. This simple fact underlies the special importance given
to the court’s gatekeeping function with expert testimony, and
it is in the majority’s flat rejection of this concept that its
reasoning is the shakiest. In its fifth footnote, the majority
observes: “it appears the trial court thought the expert nature
of the testimony would unduly impress the jury; this is an
improper factor upon which to exclude expert testimony, for
if this were the test, no expert could ever testify.” While it
may be correct as a hypothetical matter that exclusion of a
witness solely because he was an expert would be an abuse of
discretion, that is simply not what occurred here. Rather, the
court reasoned that cross-examination and a jury instruction
were preferable to permitting the jury to hear testimony that
was only marginally relevant and demonstrably prejudicial to
the Government. The court was in good company in this
conclusion. Daubert itself observed that “[e]xpert testimony
can be both powerful and quite misleading because of the
difficulty in evaluating it. Because of this risk, the judge in
weighing possible prejudice against probative force under
Rule 403 . . . exercises more control over experts than over
lay witnesses.” 509 U.S. at 595. A number of other courts
addressing eyewitness identification expert testimony have
explicitly cited the expert’s “aura of reliability” as a
prejudicial factor weighing against its admissibility. See
Lumpkin, 192 F.3d at 289; Brien, 59 F.3d at 276-77; Blade,
811 F.2d at 465; United States v. Purham, 725 F.2d 450, 454
(8th Cir. 1984); Fosher, 590 F.2d at 383-84 (collecting cases
referencing the “aura of reliability”); Downing, 609 F.Supp.
784; United States v. Collins, 395 F.Supp. 629, 636-37 (M.D.
Penn. 1975). The majority’s citation-free asseveration on this
subject is simply untenable.
Expert testimony on eyewitness identifications can also be
unduly prejudicial when it is phrased so as to comment
directly on the credibility of the eyewitness. No court in any
context would allow one witness to testify to the credibility of
another, because assessment of the credibility of witnesses in
No. 98-1722 United States v. Smithers 7
heard her husband leave the apartment. Ms. Smithers also
spoke about her husband’s appearance, maintaining that
Smithers weighed 245 pounds in November of 1996, is 6' 8"
tall and has a four-inch long scar on the right front side of his
neck.
The case was submitted to the jury on January 21, 1998.
The next day, the jury returned a verdict of guilty. The
district court sentenced Smithers on June 4, 1998, to a forty-
one month term of imprisonment. Smithers timely filed a
notice of appeal on June 8, 1998. Smithers now appeals
various aspects of his trial, only one of which we address
today: the exclusion of Dr. Fulero as an eyewitness expert.
II.
Generally, a trial court’s evidentiary determinations are
reviewed for an abuse of discretion. See United States v.
Moore, 954 F.2d 379, 381 (6th Cir. 1992).
Smithers argues that the district court’s denial of his motion
to introduce testimony by an identification expert warrants the
reversal of his conviction. The crucial element of the
government’s case was eyewitness identification of the
defendant and his car, Smithers argues, and Dr. Fulero’s
testimony involved a proper subject that would have been
helpful to the jury in evaluating this issue. Smithers,
therefore, contends that the decision to exclude this expert’s
testimony, to indulge the district judge in his rather eccentric
courtroom experiment, was improper. The government
counters that the district court’s decision was well within its
discretion. The district court properly excluded Dr. Fulero’s
testimony, the prosecution argues, based upon its lack of
scientific validity, invasion of the jury’s province, possibility
of confusion and the tardiness of Smithers’s proffer.
Courts' treatments of expert testimony regarding eyewitness
identification has experienced a dramatic transformation in
the past twenty years and is still in a state of flux. Beginning
in the early 1970's, defense attorneys began to bring expert
testimony into the courtroom. Then, courts were uniformly

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8 United States v. Smithers No. 98-1722
skeptical about admitting such testimony, elaborating a host
of reasons why eyewitness experts should not be allowed to
testify. In the first case to address the issue, United States v.
Amaral, 488 F.2d 1148 (9th Cir. 1973), the Ninth Circuit held
that the district court did not err in excluding expert testimony
regarding eyewitness identification because cross-
examination was sufficient to reveal any weaknesses in the
identifications. After that decision, a series of cases rejected
similar evidence for a variety of reasons. See, e.g., United
States v. Purham, 725 F.2d 450, 454 (8th Cir. 1984) (finding
the question is within the expertise of jurors); United States
v. Thevis, 665 F.2d 616, 641 (5th Cir. 1982) (reasoning that
identification was adequately addressed through cross-
examination); United States v. Sims, 617 F.2d 1371, 1375 (9th
Cir. 1980) (finding no general acceptance in scientific
community); United States v. Fosher, 590 F.2d 381, 383 (1st
Cir. 1979) (ruling that the testimony would be prejudicial).
This trend shifted with a series of decisions in the 1980's,
with the emerging view that expert testimony may be offered,
in certain circumstances, on the subject of the psychological
factors which influence the memory process. See, e.g., United
States v. Moore, 786 F.2d 1308, 1313 (5th Cir. 1986) (finding
that “[i]n a case in which the sole testimony is casual
eyewitness identification, expert testimony regarding the
accuracy of that identification is admissible and properly may
be encouraged . . . ”); United States v. Downing, 753 F.2d
1224, 1232 (3d Cir. 1985) (reasoning that “expert testimony
on eyewitness perception and memory [should] be admitted
at least in some circumstances”); United States v. Smith, 736
F.2d 1103, 1107 (6th Cir. 1984) (“The day may have arrived,
therefore, when Dr. Fulero’s testimony can be said to conform
to a generally accepted explanatory theory.”). State court
decisions also reflect this trend. See, e.g., State v. Buell, 489
N.E.2d 795 (Ohio 1986) (overruling per se rule and holding
expert testimony admissible to inform jury about factors
generally affecting memory process). Indeed, several courts
have held that it is an abuse of discretion to exclude such
expert testimony. See, e.g., United States v. Stevens, 935 F.2d
1380, 1400-01 (3d Cir. 1991) (reversing and remanding for
No. 98-1722 United States v. Smithers 41
cross-examination to inquire into the witness’ opportunity for
observation, his capacity for observation, his attention and
interest and his distraction or division of attention” (internal
quotations and citations omitted)). The witness’s cross-
examination testimony can then be framed as the defendant
chooses in closing argument to maximize its potential to
undermine the identification. See Currie, 515 S.E.2d at 339.
What the defendant is unable to establish by these
means—e.g., the counter-intuitive concept suggested by
psychological research that confidence in one’s recollection
does not necessarily reflect accuracy—can be ably
communicated by the court in its jury instructions.
Instructions have an advantage over experts in that they can
be informed by advances in social science research while
communicating only those theories that are relevant to the
facts of the case, and avoiding the extra delay and expense of
producing and rebutting expert testimony, all without the
imprimatur of scientific reliability that accompanies expert
testimony. Certainly the utility of jury instructions in these
situations was aptly demonstrated in this case, where the
district court skillfully addressed Smithers’s concerns by
adopting an instruction specifically tailored to explain the
possible deficiencies of the identifications in this case. In any
event, given the utility of cross-examination and jury
instructions combined, it is little wonder that the vast majority
of appellate cases have found the choice of these mechanisms
over expert testimony, even if the expert may have some
particular insight that would not be otherwise revealed, not to
be an abuse of the district court’s broad discretion under
Kumho Tire, Daubert, and Rule 702. See Moore, 882 F.2d at
1110-11; Hall, 165 F.3d at 1107; Smith, 122 F.3d at 1358-59;
Hicks, 103 F.3d at 847; Kime, 99 F.3d at 884; Ginn, 87 F.3d
at 370; Rincon, 28 F.3d at 925-26; Jordan, 983 F.2d at 938-
39; Curry, 977 F.2d at 1051; Blade, 811 F.2d at 464-65;
Moore, 786 F.2d at 1311-12; Fosher, 590 F.2d at 382;
McClendon, 730 A.2d at 1115-16; McMullen, 714 So.2d at
370; Gaines, 926 P.2d at 662-63; Buell, 489 N.E.2d at 803-
04; Currie, 515 S.E.2d at 339.

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40 United States v. Smithers No. 98-1722
might help jurors reach better decisions. Juries have a
hard time distinguishing "junk science" from the real
thing, but aside from some tinkering with the expert
testimony admitted at trial, this shortcoming has been
tolerated. Jurors reach compromise verdicts, although
they aren't supposed to. Juries return inconsistent
verdicts, representing irrational behavior or disobedience
to their instructions. Juries act in ways no reasonable
person would act. This is the standard for granting
judgment notwithstanding the verdict in a civil case, or
acquittal after verdict in a criminal case, or reducing an
award of damages, and there are plenty of occasions for
these post-verdict correctives. Yet for all of this, courts
do not discard the premises of the jury system, postulates
embedded in the Constitution and thus, within our legal
system, unassailable. This shows up in a striking fact
about the Supreme Court's treatment of social science:
of the 92 cases between 1970 and 1988 addressing issues
of evidence and trial procedure, not one relied on the
extensive body of evidence about jurors' conduct.
(citations omitted).
No psychological study will ever bear directly on the
specific persons making an eyewitness identification in court;
psychological experts will always be forced to extrapolate
from studies done on other people and opine on the relevance
such data might have to the facts at hand. Cross-examination
of the identifying witnesses, on the other hand, will always
provide more relevant testimony, because by definition the
inquiry is limited to what the eyewitnesses themselves saw
and experienced. See Smith, 122 F.3d at 1359 (“defendants
who want to attack the reliability of eyewitness recollection
are free to use the powerful tool of cross-examination to do
so”). Indeed, to a certain extent, lawyers are abdicating their
own roles when they seek to rely on experts instead of cross-
examination to discredit an eyewitness identification. See
Amaral, 488 F.2d at 1153 (“Our legal system places primary
reliance for the ascertainment of truth on the test of cross-
examination. [...] It is the responsibility of counsel during
No. 98-1722 United States v. Smithers 9
1A plethora of recent studies show that the accuracy of an eyewitness
identification depends on how the event is observed, retained and
recalled. See generally Roger V. Handberg, Expert Testimony on
Eyewitness Identification: A New Pair of Glasses for the Jury, 32 A M .
CRIM . L. R EV. 1013, 1018-22 (1995). Memory and perception may be
affected by factors such as:
(1) the retention interval, which concerns the rate at which a
person’s memory declines over time; (2) the assimilation factor,
which concerns a witness’s incorporation of information gained
subsequent to an event into his or her memory of that event; and
(3) the confidence-accuracy relationship, which concerns the
correlation between a witness’s confidence in his or her memory
and the accuracy of that memory. Other relevant factors include:
(4) stress; (5) the violence of the situation; (6) the selectivity of
perception; (7) expectancy; (8) the effect of repeated viewings;
(9) and the cross-racial aspects of identification, that is where
the eyewitness and the actor in the situation are of different
racial groups.
Alan K. Stetler, Particular Subjects of Expert and Opinion Evidence, 31A
A M . J UR . Expert § 371 (1989). Accordingly, “a jury should consider
several factors in judging the accuracy of an eyewitness identification.
Social science data suggests, however, that jurors are unaware of several
scientific principles affecting eyewitness identifications.” Handberg,
supra, at 1022. In fact, because many of the factors affecting eyewitness
impressions are counter-intuitive, many jurors’ assumptions about how
memories are created are actively wrong. See Downing, 753 F.2d at 1231
(finding that “[f]actors bearing on eyewitness identification may be
known only to some jurors, or may be imperfectly understood by many,
or may be contrary to the intuitive beliefs of most”) (citations omitted).
This ignorance can lead to devastating results. One study has
estimated that half of all wrongful convictions result from false
identifications. See Elizabeth F. Loftus, Ten Years in the Life of an
Expert Witness, 10 LAW & H UM . BEHAV. 241, 243 (1986) (citing a 1983
Ohio State University doctoral dissertation). And “[i]t has been estimated
new trial); Smith, 736 F.2d at 1107 (holding error harmless in
light of other inculpatory evidence); Downing, 753 F.2d at
1232 (holding error harmless in light of other inculpatory
evidence); State v. Chapple, 660 P.2d 1208 (Ariz. 1983)
(reversing and remanding for new trial). This jurisprudential
trend is not surprising in light of modern scientific studies
which show that, while juries rely heavily on eyewitness
testimony, it can be untrustworthy under certain
circumstances.1

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10 United States v. Smithers No. 98-1722
that more than 4,250 Americans per year are wrongfully convicted due to
sincere, yet woefully inaccurate eyewitness identifications.” A NDRE A.
M OENSSENS ET AL., S CIENTIFIC EVIDENCE IN CIVIL AND CRIMINAL CASES
§ 19.15, at 1171-72 (4th ed. 1995) (citing United States v. Wade, 388 U.S.
218 (1967)). A principal cause of such convictions is “the fact that, in
general, juries are unduly receptive to identification evidence and are not
sufficiently aware of its dangers.” P ATRICK M. WALL, EYE -WITNESS
I DENTIFICATION IN CRIMINAL CASES 19 (1965). Many jurists agree that
eyewitness identifications are the most devastating and persuasive
evidence in criminal trials. See, e.g., Watkins v. Sowders, 449 U.S. 341,
352 (1981) (stating that “[t]here is almost nothing more convincing than
a live human being who takes the stand, points a finger at the defendant,
and says ‘That’s the one!’”) (Brennan, J., dissenting) (citations omitted);
Manson v. Brathwaite, 432 U.S. 98, 120 (1977) (stating that “juries
unfortunately are often unduly receptive to [identification] evidence”)
(Marshall, J., dissenting); Hon. D. Duff McKee, Challenge to Eyewitness
Identification Through Expert Testimony, 35 A M . J UR . POF 3d 1, § 1
(1996) (“Eyewitness testimony may be the least reliable, and yet the most
compelling.”). Jurors tend to overestimate the accuracy of eyewitness
identifications because they often do not know the factors they should
consider when analyzing this testimony. See Handberg, supra, at 1022.
Recognizing the dichotomy between eyewitness errors and
jurors’ reliance on eyewitness testimony, this Circuit has held
that expert testimony on the subject of eyewitness
identification is admissible. In United States v. Smith, 736
F.2d 1103 (6th Cir. 1984), this Court held that a trial court
abused its discretion in excluding such an expert. In Smith,
the defendant sought to introduce the testimony of
psychologist Solomon Fulero – the same expert Smithers
attempted to introduce at his trial – as an expert in the field of
eyewitness identification to shed light upon an eyewitness’s
testimony. The lower court excluded the testimony, finding
that it was inadmissible pursuant to Federal Rule of Evidence
403. On appeal, this Court applied the four prong test for
expert testimony articulated in United States v. Green, 548
F.2d 1261 (6th Cir. 1977): (1) that the witness, a qualified
expert, (2) was testifying to a proper subject, (3) which
conformed to a generally accepted explanatory theory, and (4)
the probative value of the testimony outweighed its
prejudicial effect.
No. 98-1722 United States v. Smithers 39
reconstructionists or DNA experts) typically focus on the data
to which the scientific method is applied, which is subject to
objective analysis. The certainty of the testimony of social
scientists, however, is limited by the nature of their field.
They typically base their opinions on studies of small groups
of people under laboratory conditions; those studies are then
interpreted and extrapolated to predict the likelihood that
another person under similar but non-controlled conditions
will manifest similar behavior. Each step of this
analysis—the choice of sample and control groups, the
conditions under which they are observed, the cause and
nature of the observed behavior, and the likelihood that the
observed behavior will be replicated by a different person in
a non-controlled setting—is influenced by the personal
opinion of the individual expert. Nor will there be much
similarity between the persons typically studied by social
scientists and the witnesses in any given criminal trial. The
studies are virtually always based on college students or other
readily available test subjects in a controlled environment
(which are the most easily measurable), not individuals
involved in real world incidents such as actual robbery
victims. See, e.g., United States v. Hines, 55 F.Supp.2d 62,
72 (D. Mass. 1999) (assessing relevance of studies of college
students); Brian L. Cutler and Steven D. Penrod, Assessing
the Accuracy of Eye-Witness Identifications, in HANDBOOK OF
P SYCHOLOGY IN LEGAL C ONTEXTS 193 (R. Bull and D.
Carson ed. 1995) (Attachment E to Smithers’s Motion in
Limine) (“Most of what is known about the psychology of
eye-witness memory has been acquired through laboratory
experiments”). The limits of social science testimony were
aptly expressed in Gacy v. Welborn, 994 F.2d 305, 313-14
(7th Cir. 1993):
Social science has challenged many premises of the jury
system. Students of the subject believe, for example, that
jurors give too much weight to eyewitness evidence and
not enough weight to other kinds. Still, the ability of
jurors to sift good evidence from bad is an axiom of the
system, so courts not only permit juries to decide these
cases but also bypass the sort of empirical findings that

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38 United States v. Smithers No. 98-1722
announce what facts about the testimony the court would have
discovered in a hearing. Instead, we should follow the lead of
our sister circuits which, upon a finding that the district court
has not assessed an eyewitness identification expert’s
relevance in a manner consistent with Rule 702, have
remanded the matter without further discussion. See, e.g.,
Hall, 165 F.3d at 1102; United States v. Amador-Galvan, 9
F.3d 1414, 1417-18 (9th Cir. 1993); Downing, 753 F.2d at
1226. I take some comfort in the fact that the majority’s sua
sponte application of Daubert and glowing praise for
eyewitness identification expert testimony are dicta, since
they exceed the actual holding that the court abused its
discretion. To the extent, however, that the opinion as a
whole is seen as persuasive authority cementing the already-
extant impression that our circuit is among the most receptive
to this type of testimony, see Murrian, supra, at 392, it does
our jurisprudence a disservice.
III. The Merit of Expert Testimony on Eyewitness
Identifications
The trepidation with which nearly all appellate courts have
treated this subject is representative of a broader reluctance,
which I share, to admit the expert testimony of social
scientists with the same deference given to the testimony of
those in the physical sciences. I do not seek to discredit the
value of these researchers’ work; the ever-expanding
psychological disciplines have done much in the past several
decades to explode commonly held misconceptions and
enrich our understanding of human behaviors. As even those
courts most opposed to admitting the testimony in court have
acknowledged, those benefits include an enhanced insight
into the fallibility of eyewitness identification that can inform
our trial procedures. See, e.g., Hall, 165 F.3d at 1104. The
difficulty arises in treating psychological theories as if they
were as demonstrably reliable as the laws of physics.
Conclusions reached by applying the laws of all but the most
theoretical of physical sciences to a particular set of facts are
verifiable through replication; disagreements between dueling
experts in the physical sciences (e.g., accident
No. 98-1722 United States v. Smithers 11
Applying that standard, the Court noted that the offered
testimony would have been based on “a hypothetical factual
situation identical” to the facts of the case and would have
explained: (1) that a witness who does not identify the
defendant in a first line-up may “unconsciously transfer” his
visualization of the defendant to a second line-up and thereby
incorrectly identify the defendant the second time; (2) that
studies demonstrate the inherent unreliability of cross-racial
identifications; and (3) that an encounter during a stressful
situation decreases the eyewitness’s ability to perceive and
remember and decreases the probability of an accurate
identification. See Smith, 736 F.2d at 1105-06. The Smith
Court held that expert testimony on the reliability of
eyewitness identification met the “helpfulness” test of Federal
Rule of Evidence 702 and therefore had been excluded
improperly at trial. The Court explained that "[i]n reviewing
a 403 balancing, the court must look at the evidence in the
light most favorable to the proponent, maximizing its
probative value and minimizing its prejudicial effect," id. at
1107, and concluded that “[s]uch testimony might have been
relevant to the exact facts before the court and not only might
have assisted the jury, but might have refuted their otherwise
common assumptions about the reliability of eyewitness
identification.” Id. at 1106. Further, the Smith Court
expressed its acceptance of psychological studies as a
scientifically sound and proper subject of expert testimony,
noting, “[t]he science of eyewitness perception has achieved
the level of exactness, methodology and reliability of any
psychological research.” Id. at 1107.
Smith’s conviction was nonetheless affirmed on the ground
that any error by the district court in excluding the proffered
testimony was harmless. The Smith Court noted that the
government had not only presented three witnesses who
identified the defendant as the perpetrator, but that the
defendant’s palm print was recovered at the scene of the
crime, thus “wholly discrediting the defendant’s alibi”
defense. Id. at 1107-08. Because there was other significant
inculpatory evidence, the trial court’s error was deemed
harmless, and the defendant’s conviction was affirmed.

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12 United States v. Smithers No. 98-1722
Smithers now argues that the proper standard for the
admission of eyewitness expert testimony is that set out in
Smith. We disagree. The significance of Smith in terms of
evaluating expert testimony is questionable after the landmark
decision of Daubert v. Merrell Dow Pharmaceuticals, 509
U.S. 579 (1993). In Daubert, the Supreme Court articulated
the test that trial courts must use in determining whether
scientific evidence and testimony is admissible. According to
Daubert, a district court must “ensure that any and all
scientific testimony or evidence admitted is not only relevant,
but reliable.” Id. at 589. Daubert thus requires trial courts to
perform a two-step inquiry. First, the court must determine
whether the expert’s testimony reflects “scientific
knowledge,” that is, the court must make “a preliminary
assessment of whether the reasoning or methodology
underlying the testimony is scientifically valid and of whether
that reasoning or methodology properly can be applied to the
facts in issue.” Id. at 592-93. Second, the court must ensure
that the proposed expert testimony is relevant to the task at
hand and will serve to aid the trier of fact. See id. The
Supreme Court referred to this second prong as the “fit”
requirement. See id.
Citing the concurring opinion of Justice Scalia’s in Kumho
Tire Co. v. Carmichael, 119 S. Ct. 1167 (1999), the Dissent
proclaims that Daubert is not “holy writ” to evaluate
proffered experts under Rule 702. While it is true that the
Daubert factors “do not constitute a ‘definitive checklist or
test . . . ,’” Kumho Tire, 119 S. Ct. at 1175 (citing Daubert,
509 U.S. at 593), the Supreme Court did conclude that “[a]
trial court should consider the specific factors identified in
Daubert where they are reasonable measures of the reliability
of expert testimony.” Id. at 1176. The Court also stressed:
We conclude that Daubert’s general principles apply to
the expert matters described in Rule 702. The Rule, in
respect to all such matters, ‘establishes a standard of
evidentiary reliability.’ . . . It ‘requires a valid . . .
connection to the pertinent inquiry as a precondition to
admissibility.’ . . . And where such testimony’s factual
No. 98-1722 United States v. Smithers 37
7Of course, in order to perform a more detailed inquiry next time, the
district court should have the discretion to require Smithers to present his
witness for voir dire, or at least to make an effort to present a sufficiently
detailed proffer in a timely fashion. Unfortunately, the majority’s opinion
would appear to curtain that discretion considerably, if, indeed, the
majority’s opinion leaves any room for the district court to perform any
further inquiry at all.
was not indifference to the law, but an assurance that she had
done well in preserving a record of her objection for appeal.
The observation that admitting Fulero’s testimony would have
been “tantamount to the Court declaring the defendant not
guilty as a matter of law” and that “absent the eyewitness
testimony I don’t think there’s enough here to go to the jury”
correctly describes the severely prejudicial effect that Fulero’s
testimony likely would have had on the Government’s case.
Finally, the court’s “experiment” remark, while perhaps
inappropriate, was made well after the motion had twice been
denied and was the last statement made on the record before
Smithers rested his case. It did not form the basis for the
court’s exclusion of Fulero, nor did it prejudice Smithers in
any other way. I do not agree that this single comment can
justify the majority’s finding of a patent abuse of discretion.
The majority ultimately concludes that this case must be
remanded for a new trial that, presumably, will include “a
Daubert test,”7 whatever that may be. Were that the extent of
our holding, my difference of opinion with the majority would
simply be a disagreement about what Daubert requires and
how the district court should have proceeded here. But the
majority does not stop there. Instead, it proceeds into a
lengthy explanation of what the court might have found had
it applied Daubert to the majority’s liking. This, in my view,
is wholly improper. Not only does this exceed our function
as an appellate court, but it is anathema to the law that the
majority had theretofore laid out; if the gatekeeping function
is truly in the district court’s discretion and requires a fact-
finding hearing, and the district court in this case has failed to
exercise that discretion as utterly as the majority concludes,
then surely the record before us is inadequate to permit us to

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36 United States v. Smithers No. 98-1722
order to alleviate the genuine concerns that Smithers had
raised. The majority is resolute in its conviction that the
district court failed to “apply Daubert,” but it fails to explain
how that court could have done any better with no more
information than Smithers provided.
This case presents very few of the “narrow circumstances”
identified by other courts in which this kind of expert
testimony can be relevant. See Smith, 156 F.3d 1046, 1052;
Harris, 995 F.2d at 535-36. There was no problem of cross-
racial identification. The passage of time has been found to
be a relevant factor when the recalled event occurred forty
years prior, see Krist v. Eli Lilly and Co., 897 F.2d 293, 297-
98 (7th Cir. 1990), but not when the time lapse was a
“routine” one of “merely” six years. See Curry, 977 F.2d at
1052. Here, the time between the robbery and Ms. White’s
positive identification of Smithers in the photo array was two
days; the time between the robbery and the trial was only one
and a half years. Moreover, although Smithers alleges that
there was an unconscious transference of mistaken
identifications among the witnesses, the court explicitly found
that all the evidence presented at the hearing appeared to
suggest otherwise.
Furthermore, the majority identifies its primary basis for
finding an abuse of discretion as the court’s “experiment”
comment, explaining that “[b]asing an evidentiary decision on
personal curiosity rather than applicable case law and the
rules of evidence is a patent abuse of discretion.” The fact
that these offhand statements were made is unfortunate. We
review them on the cold record, separated them from their
context and texture, including the voice inflection and facial
expressions of their delivery. But the proceedings described
above make it clear that the district court did not base its
exclusion of Fulero on the sinister whimsy that the majority
imputes to it. The statements were made at the close of the
second hearing, after the court had again denied the motion
and instead awarded Smithers a strongly worded instruction.
The court’s comment to Smithers’s counsel that she had
“made an excellent record that I’ve abused my discretion”
No. 98-1722 United States v. Smithers 13
2The Dissent finds that the Supreme Court’s Daubert decision is:
[n]ot 'holy writ' that the district court must invoke by
name in order to pass our scrutiny.
Instead, the Dissent suggests that the district court should have instead
relied on a pre-Daubert Third Circuit precedent, United States v. Stevens,
935 F.2d 1380 (3d Cir. 1991), and United States v. Downing, 753 F.2d
1224 (3d Cir. 1985), as the standard for outlining the steps that Smithers
should have followed in making his proffer to the Court. Apparently, the
Third Circuit has provided what the Dissent characterizes as “holy writ,”
notwithstanding the fact that Stevens and Downing are pre-Daubert
authority and that the proffer of testimony that these Third Circuit cases
require does not meet Daubert's standard for determining whether
scientific evidence is admissible.
basis, data, principles, methods, or their application are
called sufficiently into question . . . the trial judge must
determine whether the testimony has ‘a reliable basis in
the knowledge and experience of [the relevant]
discipline.’
Id. at 1175 (citations omitted) (emphasis added).
The Supreme Court in Kumho indicated that the standards
set forth in Daubert, depending on the “particular
circumstances of the particular case,” id., should be flexibly
applied. Contrary to the Dissent, the Supreme Court’s
reasoning does not indicate that Daubert should be abandoned
totally. This Court finds that in the case sub judice, given the
expert and the testimony that was proffered, the standards of
Daubert should have been applied.2
While it is true that several post-Daubert eyewitness
identification cases have found that the exclusion of the
testimony was not an abuse of discretion, see, e.g., United
States v. Hall, 165 F.3d 1095 (7th Cir. 1999); United States
v. Smith, 156 F.3d 1046 (10th Cir. 1998); United States v.
Smith, 122 F.3d 1355 (11th Cir. 1997); United States v. Kime,
99 F.3d 870 (8th Cir. 1996); United States v. Brien, 59 F.3d
274 (1st Cir. 1995); United States v. Rincon, 28 F.3d 921 (9th
Cir. 1994), the lesson from these cases is not that expert

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14 United States v. Smithers No. 98-1722
testimony on eyewitness identification is never appropriate;
rather, the cases indicate that courts must consider whether
the testimony would be helpful or confusing to the jury. The
cases also discuss whether this type of testimony touched on
the “ultimate issue” in the case and therefore usurped the
jury’s role; whether there was other evidence against the
defendant; and whether the jury could more properly evaluate
the reliability of eyewitness testimony through cross-
examination. In light of these cases, we believe that the
district court should have performed its analysis under the
rule of Daubert, rather than, as Smithers argues, that of Smith.
In any event, the trial court did not analyze the admissibility
of the expert testimony in this case under either of these
cases.
We find that the district court abused its discretion in
excluding Dr. Fulero’s testimony, without first conducting a
hearing pursuant to Daubert. There are several bases for this
conclusion. As a threshold consideration, we address the
district court’s “experiment” comment. The district court
explained that it was interested in seeing what a jury would do
absent the expert testimony because it would make the trial
“more interesting.” The district court stated:
I’m also interested in seeing what a jury will do absent
that expert testimony. It makes it a more interesting case.
I recognize it’s the defendant’s fate that’s at stake, but
you can always argue for a new trial if he’s convicted.
This comment is gamesmanship at its worst and reveals a
troubling disregard for this Defendant’s rights, relegating
those rights to mere abstractions. The district court’s
reasoning that it could indulge in this experiment because
Smithers could “always appeal” ironically turned this trial
into a laboratory experiment where the judge felt free to play
with evidentiary variables at the cost of the Defendant’s
rights. Basing an evidentiary decision on personal curiosity
rather than on applicable case law and the rules of evidence
is a patent abuse of discretion.
No. 98-1722 United States v. Smithers 35
indeed, is precisely the kind of proceeding that Kumho Tire
expressly gives the district courts the discretion to avoid.
The majority acknowledges that although the district court
did not explicitly explain that it was doing so, it did conduct
some inquiry into relevance when it decided that the jury was
aware of its obligation to be skeptical of eyewitness
testimony. The record of the second hearing, however,
reveals that the district court in fact looked carefully at the
issue of relevance. Even at this point, Smithers did not make
Dr. Fulero available for voir dire by the Government, but the
court initiated a lengthy discussion with Smithers’s counsel
on Fulero’s familiarity with the facts of the case, including
Smithers’s scar, the photo lineup procedure, and the stress of
the robbery. These are precisely the questions the district
court needed to ask to determine the relevance and “fit” of
Fulero’s testimony to the particular facts of the case. After
hearing Smithers’s answers, the court concluded that Fulero
would have acted in this case as more of an advocate than a
neutral, scientific expert—a characterization borrowed from
Rincon. See 28 F.3d at 923. The majority fails to suggest any
means whatever by which the court could have conducted a
better inquiry under the circumstances. Instead it flatly
pronounces that the court’s conclusion was “simply wrong”
because it would lead to the “absurd” result of never allowing
such expert testimony.
I suspect that the Seventh and Eleventh Circuits might take
umbrage at the majority’s characterizing as “absurd,” their
strong presumptions against expert testimony regarding
eyewitness identifications, see Hall, 165 F.3d at 1103; Smith,
122 F.3d at 1357. More importantly, I think it is the
majority’s conclusion that is simply wrong. The majority
fails to explain how this extreme result would follow from the
district court’s observation. Indeed, if the district court meant
flatly to disallow expert testimony concerning eyewitness
identifications, it would not have gone out of its way at this
hearing to replace sua sponte the pattern jury instruction on
eyewitness identifications to which Smithers had already
agreed with what it saw as “a much stronger instruction” in

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34 United States v. Smithers No. 98-1722
28 F.3d 921 (9th Cir. 1994) and our decision in United States
v. Smith, 736 F.2d 1103 (6th Cir. 1984) (per curiam). The
Government’s brief went further to explain why the testimony
would be unhelpful and prejudicial in this case, and why
cross-examination and jury instructions would better address
Smithers’s concerns. The court demonstrated its reliance on
these briefs when it began the relevant portion of the motion
hearing by noting its belief that the Government’s arguments
were persuasive, informing Smithers that he could discredit
the eyewitness identifications through cross-examination, and
asking for Smithers’s assistance in choosing an appropriate
jury instruction. As recounted above, the court pressed
Smithers for additional details on how Fulero’s testimony
would relate to the facts of the case, but no such details were
forthcoming. This left the court with little basis upon which
to conclude that the Government was in error in its contention
that the testimony would only confuse the jury and invade its
province by commenting directly on the credibility of the
witnesses. Whether Smithers was unable to demonstrate the
relevance of the testimony at this hearing on the first day of
trial or was simply procrastinating, the onus should fall on
him; the court dealt appropriately with the information and
arguments presented to it.
The court also acted properly once Smithers—at the close
of his defense—finally proffered the details of Fulero’s
testimony. At one point during the hearing on the renewed
motion to permit Fulero to testify, the court— addressing the
prosecutor—explained its reliance on Rincon, and noted,
consistent with the “reliability” element of Daubert, that “the
good professor in his affidavit and in his background and in
the literature that was cited to me suggests that the fragility .
. . of eyewitness testimony has been established scientifically
and that he brings an expertise that may assist the jury.” How
the majority can hold, in light of this statement and the
Government’s decision not to challenge Fulero’s competence,
that “the district court did not make any determination as to
this expert’s scientific reasoning or methodology” is puzzling.
And because reliability was never at issue, any further inquiry
into the reliability of the testimony was unnecessary and,
No. 98-1722 United States v. Smithers 15
We do not, however, base our decision on the district
court’s “experiment” comment alone. Even without this
comment, the district court erred in its evidentiary analysis by
failing to apply the Daubert test to the proposed expert
testimony. Although the decision of whether to admit a
witness’s testimony is left to the sound discretion of the trial
court, a trial court cannot make an arbitrary decision. When
a defendant’s liberty is at stake, it is incumbent upon the trial
court to apply the correct law, follow the appropriate
decision-making steps and articulate the bases upon which its
decision rests. Here, the district court should have applied the
analytical principles set forth in Daubert, but it did not.
Under Daubert, a trial court should consider: (1) whether
the reasoning or methodology underlying the expert’s
testimony is scientifically valid; and (2) whether that
reasoning or methodology properly could be applied to the
facts at issue to aid the trier of fact. The district court, in
neglecting to undertake a Daubert analysis, failed to take
these factors into consideration. Indeed, the district court did
not make any determination as to this expert’s scientific
reasoning or methodology. We find that if the district court
had given this issue proper consideration, it may have deemed
Dr. Fulero’s testimony scientifically valid.
Following Kumho Tire, 119 S. Ct. at 1176, we next
consider the way the district court may have examined the
Daubert factors in the present case. Tellingly, this Court has
already accredited Dr. Fulero’s science and methodology. In
Smith, this Court not only noted the jurisprudential movement
toward admitting psychological studies of eyewitness experts
in general, but praised the qualifications and scientific
methods of this same expert witness, Dr. Fulero. In addition,
the district court could have concluded that this testimony ––
describing psychological factors such as detail salience, the
conformity effect, the dynamics of photo identifications and
the confidence-accuracy relationships –– could have been
applied to the facts at issue in this case. Information about the
effects of detail salience would bear on the witnesses’ failure
to notice Smithers’s conspicuous scar; evidence about the

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16 United States v. Smithers No. 98-1722
conformity effect would apply to Ms. Marino’s and Mr.
Wilson’s ability to identify Smithers only after they had
spoken with Ms. White; the suggestibility of photo
identifications created and administered by a single person
would apply to the procedures that Detective Redmond used;
and explaining the lack of correlation between confidence and
accuracy would bear upon the credibility of all of the
eyewitnesses. Had the district court conducted a proper
evaluation of this testimony, we believe it may have found
that Dr. Fulero’s testimony met the first requirement of the
Daubert test.
The trial court should have next considered whether the
proposed expert testimony was relevant to the task at hand
and would aid the trier of fact. The district court did, to some
extent, discuss this second Daubert prong (even if it did not
explicitly note that it was doing so), by stating that “a jury can
fully understand” its “obligation to be somewhat skeptical of
eyewitness testimony.” This point addresses whether the
testimony would “aid the trier of fact.” The court’s statement,
however, is simply wrong, and the district court, on remand,
should reconsider this factor. As noted above, jurors tend to
be unduly receptive to, rather than skeptical of, eyewitness
testimony. Further, accepting the district court’s analysis that
all jurors are aware of their obligation to be skeptical would
lead to absurd results: expert testimony on eyewitness
identification would never be admissible. As demonstrated
by abundant case law, this is not the conclusion that has been
reached by courts addressing this issue. Today, there is no
question that 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. In
Smith we recognized the expediency of expert testimony to
address these complex issues and to inform jurors fully of the
issues they must decide.
The Dissent counters by arguing that eyewitness
identification experts are not necessary because cross-
examination and jury instructions should be the tools used in
a trial to discredit and flush-out eyewitness testimony.
No. 98-1722 United States v. Smithers 33
referenced the decision). Instead, our task is to review the
district court’s performance of its gatekeeping function in
light of “the facts of [the] particular case,” Kumho Tire, 119
S.Ct. at 1175 (internal quotations omitted), granting “the trial
judge [ ] considerable leeway in deciding in [this] particular
case how to go about determining whether [this] particular
expert testimony is reliable.” Id. at 1176. In so doing, we
must be mindful of the principles behind Daubert, but “the
factors it mentions do not constitute a definitive checklist or
test.” Id. at 1175 (internal quotations omitted).
I would hold that the way in which the district court
conducted its analysis of the admissibility of Dr. Fulero’s
testimony was not abusive of the court’s discretion. The core
holding of the Daubert decision was that admission of expert
testimony is governed by the Federal Rules of Evidence and
not the theretofore majority rule of “general acceptance” by
the scientific community. See Daubert, 509 U.S. at 587. The
primary “locus” of the court’s power to evaluate experts rests
in Rule 702. See id. at 589. Rule 702 requires that the
testimony be reliable and relevant to be admitted. Because
the Government has chosen not to contest Dr. Fulero’s
qualifications as a psychologist or the abstract scientific
validity of the studies he proposes to testify from, either at
trial or on appeal, we may assume that Smithers has satisfied
the reliability requirement. See Greenwell, 184 F.3d at 498.
Instead, the Government has consistently focused its
challenge on the relevance aspect of Rule 702, which “further
requires that the evidence or testimony assist the trier of fact
to understand the evidence or determine a fact in issue. [...]
The consideration has been aptly described . . . as one of
‘fit.’” ‘Fit’ is not always obvious, and scientific validity for
one purpose is not necessarily scientific validity for other,
unrelated purposes.” Daubert, 509 U.S. at 591 (internal
quotations omitted). The district court here examined briefs
on the issue from both sides in preparation for the hearing on
Smithers’s limine motion. Both briefs recited the applicable
factors from Daubert and Rules 702 and 403. Both examined
the leading cases on this type of testimony, both before and
after Daubert, focusing especially on United States v. Rincon,

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32 United States v. Smithers No. 98-1722
The trial court must have the same kind of latitude in
deciding how to test an expert's reliability, and to decide
whether or when special briefing or other proceedings are
needed to investigate reliability, as it enjoys when it
decides whether or not that expert's relevant testimony is
reliable. Our opinion in Joiner makes clear that a court
of appeals is to apply an abuse-of-discretion standard
when it reviews a trial court's decision to admit or
exclude expert testimony. That standard applies as much
to the trial court's decisions about how to determine
reliability as to its ultimate conclusion. Otherwise, the
trial judge would lack the discretionary authority needed
both to avoid unnecessary "reliability" proceedings in
ordinary cases where the reliability of an expert's
methods is properly taken for granted, and to require
appropriate proceedings in the less usual or more
complex cases where cause for questioning the expert's
reliability arises. Indeed, the Rules seek to avoid
unjustifiable expense and delay as part of their search for
truth and the just determination of proceedings. Thus,
whether Daubert's specific factors are, or are not,
reasonable measures of reliability in a particular case is
a matter that the law grants the trial judge broad latitude
to determine. And the Eleventh Circuit erred insofar as
it held to the contrary.
Kumho Tire, 119 S.Ct. at 1176 (internal citations, quotations
and alterations omitted). The court’s failure specifically to
cite Daubert as its basis for excluding Dr. Fulero does not
itself mandate remand. See Greenwell v. Boatwright, 184
F.3d 492, 498 (6th Cir. 1999) (“Although the trial court is not
required to hold an actual hearing to comply with Daubert,
the court is required to make an initial assessment of the
relevance and reliability of the expert testimony. Because the
district court did not hold a Daubert hearing we must review
the record to determine whether the district court erred in its
assessment of the relevance and reliability of the expert
testimony”); see also Hall, 165 F.3d at 1102 (approving of the
district court’s evaluation of the testimony in a hearing that
did not explicitly cite the two Daubert prongs but frequently
No. 98-1722 United States v. Smithers 17
Unfortunately, the Dissent’s homage to trial procedures does
not extend to expert witness testimony. The same argument
can be made for the admission of expert testimony: cross-
examination and jury instructions can be used to question the
qualifications of the proffered expert, undermine the basis of
the expert’s theories, explain the limits of social science’s
validation studies and pick apart research methods. The only
reason given by the Dissent for why cross-examination and
jury instructions can serve these goals for eyewitness
testimony, but not for expert testimony, is that the jury may
take the expert’s testimony as “scientifically irrefutable truth.”
The Dissent's selective faith in the collective intelligence,
common sense and decision-making ability of the jury is
disheartening, and is also inconsistent with the Dissent’s
deference to the jury on other matters, including judging the
credibility of eyewitness identifications.
Further, based on the comment that Smithers’s proffer of
Dr. Fulero’s testimony was “too late in the day,” the Dissent
crafts a legal basis for the district court’s exclusion based on
Federal Rule of Evidence 403. The Dissent concludes that
Rule 403 permits the exclusion of relevant evidence based on
“delay.” FED . R. EVID . 403. The Dissent misquotes and
misconstrues the meaning of “delay” in Rule 403. Not all
delay authorizes the exclusion of relevant evidence – only
“undue delay.” Moreover, the term “delay” does not connote
delay in the submission of motions or proffers; rather, it
encompasses the prolonging of the length of the trial, and can
be read properly in conjunction with the other exclusionary
factors: “waste of time, or needless presentation of
cumulative evidence.” See, e.g., John McShain, Inc. v.
Cessna Aircraft Co., 563 F.2d 632 (3d Cir. 1977);
United States v. International Bus. Mach., 87 F.R.D. 411
(S.D.N.Y. 1980); SCM Corp. v. Xerox Corp., 77 F.R.D. 10
(D. Conn. 1977).
“Delay” is a consideration of efficiency and is not readily
distinguishable from “waste of time.” C HARLES ALAN
W RIGHT & KENNETH W. GRAHAM J R., FEDERAL P RACTICE
AND P ROCEDURE : EVIDENCE § 5218 (1978); see also

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18 United States v. Smithers No. 98-1722
3The government argues additionally that Smithers’s proffer
demonstrates that the expert testimony would have invaded the jury’s
province. Specifically, the government points to the sentence in the
proffer which states, “Had Mr. Smithers been the robber, the eyewitnesses
would have observed and been able to recall the large scar on Mr.
C HRISTOPHER B. M UELLER & LAIRD C. KIRKPATRICK,
EVIDENCE § 4.5 (1995) (concluding that “undue delay, waste
of time or needless presentation of cumulative evidence” are
concerns for the “concessions to the shortness of life,” “the
limited resources of the judicial system,” and the presentation
of cumulative evidence) (footnote omitted). “Delay” in Rule
403 does not mean “filed late” as the Dissent concludes.
Furthermore, the cases cited by the Dissent to support the
contention that the basis for the district court’s exclusion of
Dr. Fulero’s testimony was a consideration of “delay” under
Rule 403 do not explicitly cite to the Rule nor do they
mention delay as a factor. See United States v. Curry, 977
F.2d 1042, 1052 (7th Cir. 1992); United States v. Dowling,
855 F.2d 114, 118 (3d Cir. 1988).
The exclusion of Dr. Fulero’s testimony because the
evidence was presented “late in the day,” contrary to the
Dissent’s assertion, was not a proper basis for exclusion.
First, the Defendant filed his ten-page motion in limine
requesting a ruling on this issue a full month before trial. At
the beginning of trial, Smithers renewed his motion orally. A
week later, he submitted an additional seven-page brief on the
subject. Thus, it is impossible to say that either the court or
the government did not have adequate notice of the issue.
Second, “a criminal defendant’s relevant evidence may
generally not be excluded on the basis of a discovery sanction.
The defendant’s Sixth Amendment right to an effective
defense will usually outweigh the interest served by pretrial
discovery orders.” United States v. Collins, No. 87-5077,
1988 WL 4434, at *2 (6th Cir. Jan. 25, 1988). Given the
importance of eyewitness testimony in this case, the district
court should not have excluded Dr. Fulero’s testimony based
on its supposed tardiness.3
No. 98-1722 United States v. Smithers 31
“a criminal defendant’s relevant evidence may generally not
be excluded on the basis of a discovery sanction.” The
Collins court expressly distinguished the case from one
determining whether such evidence was admissible pursuant
to our then-recent Smith decision. In fact, the Collins court
followed Smith in declining to rule that the testimony was
admissible as a matter of law, and proceeded to find the error
harmless in light of other evidence. See id. at **2. Collins,
then, is completely inapposite to this case, which involves an
admissibility determination and not a discovery sanction.
Moreover, reliance on unpublished cases in a subsequent
written opinion for purposes other than establishing
preclusion or law of the case, unless the prior case is truly of
such precedential value that it probably should have been
published, does violence to the policy we have promulgated
in 6. Cir. R. 28(g). This dubious use of Collins will only have
the unfortunate side effect of encouraging lawyers to cite
other unpublished decisions to us in the future, despite the
clear intent of the rule.
II. The District Court’s Application of Daubert
The majority finds that the district court abused its
discretion by failing to apply the evidentiary gatekeeping
principles of Daubert. I am not convinced that the court
committed this error, or that remand would be necessary even
if it did.
The majority pays passing obeisance to the abuse of
discretion standard by which we review a district court’s
decision to exclude expert testimony, but wholly fails to apply
in this case the deference that standard requires. The factors
listed in Daubert were meant to suggest to federal courts the
relevant subjects of analysis when evaluating proffered
experts under Rule 702, but they are “not holy writ” that the
district court must invoke by name in order to pass our
scrutiny. Kumho Tire Co. Ltd. v. Carmichael, 119 S.Ct. 1167,
1179 (1999) (Scalia, J., concurring). The Supreme Court has
recently instructed that

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30 United States v. Smithers No. 98-1722
6As I believe my discussion here makes clear, I understand “delay”
to mean “prolonging of the length of the trial,” and not, as the majority
suggests I mean, merely “filed late.” This certainly appears to have been
the district court’s understanding as well, since its ruling was made
immediately before Smithers rested his case, and granting the motion
would have required a “lengthy voir dire,” more preparation by the
Government, and the direct and cross-examination of Dr. Fulero.
notice given); United States v. Dowling, 855 F.2d 114, 118
(3d Cir. 1988) (upholding exclusion when 5 days notice given
in trial held in the Virgin Islands); see also Hon. Robert P.
Murrian, The Admissibility of Expert Eyewitness Testimony
Under the Federal Rules, 29 C UMB. L. R EV . 379, 395-96
(1998-99) (instructing practitioners that “The offer of proof
should establish the factors in the particular case which call
for expert testimony, such as the extreme stress of the
witness, differences in age or race of the defendant and the
eyewitness, and suggestive line up techniques. If the factors
necessitating expert testimony are not established, and the
court excludes the expert testimony, the decision will likely
be upheld on appeal”). These decisions and commentary
contradict the majority’s blanket statement that delay is “not
a proper basis for exclusion.”6
It is important to note that the majority relies solely on
United States v. Collins, No. 87-5077, 1988 WL 4434 (6th
Cir. Jan. 25, 1988) (per curiam) (unpublished), for the
proposition that tardiness is not a proper basis for exclusion
of expert testimony. This use of Collins is both misleading
and inappropriate. In Collins, which is not only unpublished
but is pre-Daubert, the defendant proffered a psychologist
who would testify that the tendency to fill in gaps in
perception made the eyewitness identifications in the case
unreliable. See id. at **1. The district court excluded the
witness for only one reason—he had not been listed as a
witness as instructed by a pretrial order. No admissibility
determination of any kind was made. The witness was
therefore excluded solely to punish the defendant for
noncompliance with a discovery order. It was in this context
that the court made the statement quoted by the majority here:
No. 98-1722 United States v. Smithers 19
Smithers’s neck.” We agree with the government that this was poorly
chosen wording, and that no expert may testify as to what witness did or
did not see. In a case heavily dependent upon eyewitness identification,
such testimony could usurp the jury’s function and produce an improper
comment on the ultimate issue to be decided in the case. The district
court, however, did not even mention, much less base its decision on the
language in this sentence. Even if it had, the proper solution would have
been to excise the inappropriate portion of the proffer rather than to
exclude all of the testimony, the remainder of which dealt only with the
psychological factors which may have impacted the perception and
memory of the witnesses in this case. This evidence would have been
both relevant and helpful to the jury.
4As one commentator has indicated:
[t]here are some indications of a compromise position that would
be more favorably inclined toward [eyewitness identification]
testimony when specific factors of need arise. Where
identification rests on testimony by someone who knew the
defendant well and was in a good position to see the crime, or
where the identification seems strongly established for other
reasons (like physical evidence connecting defendant to the
crime), there is little reason to admit such testimony. Where
identity is a crucial and closely contested issue, however, and
where critical testimony is given by people who did not know the
perpetrator and had only a short time to see him or were limited
or distracted by other factors, expert testimony seems more
clearly warranted.
CHRISTOPHER B. M UELLER & LAIRD C. KIRKPATRICK, EVIDENCE , § 6.37,
at 601 (1995).
Finally, we find that the trial court’s error was not harmless.
The complexion of the proceedings likely would have
changed had the district court conducted a Daubert hearing
and determined that Dr. Fulero's testimony was admissible.
And, as the Dissent properly points out, expert testimony
should be admitted in the precise situation presented to the
trial court in this case –– that is, when there is no other
inculpatory evidence presented against the Defendant with the
exception of a small number of eyewitness identifications.
See Smith, 736 F.2d at 1107; Moore, 786 F.2d at 1313;
Downing, 753 F.2d at 1226.4 Here, eyewitness testimony was
the crucial, if not the sole basis for Smithers’s conviction.

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20 United States v. Smithers No. 98-1722
5Presumably, the district court was trying to express that the expert
testimony would be unduly prejudicial. This conclusion is flawed. First,
as the Smith Court noted, "in reviewing a 403 balancing [in a criminal
case], the court must look at the evidence in the light most favorable to the
proponent, maximizing its probative value and minimizing its prejudicial
effect." 736 F.2d at 1107. The district court did not apply this standard
here. Second, it appears the trial court thought the expert nature of the
testimony would unduly impress the jury; this is an improper factor upon
which to exclude expert testimony, for if this were the test, no expert
could ever testify. The court erred in concluding that merely because
testimony is given by an expert, it must be excluded.
6Smithers also appealed his conviction on two other grounds: (1) the
district court’s exclusion of a portion of the testimony of Smithers’s wife
on relevancy grounds, and (2) the district court’s response to questions
posed by the jury after it began deliberating. Because we have remanded
this case for a new trial based on the district court’s failure to conduct a
Daubert test before excluding the eyewitness expert's testimony, these
additional issues are moot.
The district court in this case concluded that “[a]dmission of
Dr. Fulero’s testimony is in this case is almost tantamount to
the Court declaring the defendant not guilty as a matter of
law. . . . absent the eyewitness testimony I don’t think there’s
enough here to go to the jury.” The lower court did not seem
to realize that eyewitness expert testimony is most appropriate
in such situations.5
The district court should have conducted a hearing under
Daubert and analyzed the evidence to determine whether Dr.
Fulero's proffered testimony reflects scientific knowledge, and
whether the testimony was relevant and would have aided the
trier of fact. Based on its failure to perform the correct legal
analysis––the Daubert analysis––as well as its “experiment”
rationale for excluding the testimony, we find that the district
court abused its discretion. We therefore REVERSE
Smithers’s conviction and REMAND this case for
proceedings in accordance with this decision.6
No. 98-1722 United States v. Smithers 29
“Admittedly, Your Honor.” A lengthier conversation on the
merits of the testimony ensued, followed by the court’s
decision to continue to exclude the testimony, primarily
because of the delay.
Federal Rule of Evidence 403 permits relevant evidence to
be excluded "if its probative value is substantially outweighed
by the danger of unfair prejudice, confusion of the issues,
delay, waste of time, or needless presentation of cumulative
evidence." (emphasis added). A district court has "very
broad" discretion in making this determination. See United
States v. Hawkins, 969 F.2d 169, 174 (6th Cir.1992). A
Daubert analysis includes a consideration of Rule 403, see
Daubert, 509 U.S. at 595; Rincon, 28 F.3d at 925, and several
courts have held that Rule 702’s “helpfulness” inquiry
incorporates Rule 403’s concern for undue prejudice. See
Hall, 165 F.3d at 1104; Kime, 99 F.3d at 884; Curry, 977 F.2d
at 1051. The district court was well within its discretion to
refuse to require the Government to prepare a response to an
expert witness when the first inkling of what the witness
would testify to was not given to the Government until the
middle of the trial, after the Government had rested its own
case. There is no basis for the majority’s holding that
Smithers’s initial motion—which did little more than
introduce Dr. Fulero and his field of study—or his renewed
motion at the start of trial, or his mid-trial brief, put the
Government on sufficient notice of the substance or
foundation of Fulero’s testimony so as to permit the
Government to prepare a rebuttal, either to the motions or the
testimony. The consequences of Smithers’s procrastination
should rest on him, not on the Government. Other courts
have held that initial notice of the intent to call an eyewitness
identification expert witness only a few days before trial is
grounds for exclusion. See Dorsey, 45 F.3d at 816 (remarking
“the case law is clear that it is not an abuse of discretion . . .
to disallow expert testimony where a late proffer of evidence
by the defense substantially prejudices the government in its
ability to find its own expert and conduct similar testing” and
upholding exclusion when notice given on first day of trial);
Curry, 977 F.2d at 1052 (upholding exclusion when 4 days

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28 United States v. Smithers No. 98-1722
5Smithers now proposed to have Fulero testify to the efficacy of the
photo spread, despite having no response to the Government’s
observation in its prior brief that Smithers had thus far proposed no such
thing.
me his curriculum vitae . . . . I’d be happy to entertain [an
instruction.]” It was after this exchange that Smithers
asserted for the first time that Fulero would “testify to the
specifics of the case and explain to the jury that there are
scientific studies that have shown that eyewitness
identification is flawed.” Smithers still did not, however, cite
a specific theory or fact in the case to which these “scientific
studies” would relate. The court then concluded that “[none
of the cases] cited to me . . . suggests that this is admissible
evidence. The government’s brief is very persuasive, and I
don’t have a report from the expert. No, I think . . . you’re
asking him to comment upon Debra White’s credibility.”
(emphasis added). Smithers conceded the motion and asked
permission to proffer the evidence. The court agreed, and
although it offered several times to accept an oral proffer at
that time, Smithers insisted on delivering it in writing.
It was in the written proffer, which was not filed until after
the Government had rested its case and immediately before
Smithers rested his, that Smithers first made any colorable
attempt to tie Dr. Fulero’s testimony to the facts of the case.
Smithers identified the stress of the robbery, “detail salience”
relating to Smithers’s scar, the length of time between the
robbery and the trial, the “conformity effect” of subsequently
received information, the photo spread methodology,5 and the
relationship between the witnesses’ confidence and accuracy
as relevant subjects for Fulero’s testimony. Smithers also
took issue with the adequacy of a jury instruction in
counteracting the fallibility of eyewitness identifications.
Smithers had made none of these arguments before this point
in the proceedings, either orally or in writing, despite several
opportunities to do so. It was in this context that the court
held another hearing on the motion, and remarked, “you
finally got your act together with this latest filing . . . . Much
different from the first filing,” to which Smithers responded,
No. 98-1722 United States v. Smithers 21
_______________
DISSENT
_______________
ALICE M. BATCHELDER, Circuit Judge, dissenting. I
would hold that the district court’s decision to exclude Dr.
Fulero’s testimony should be affirmed on the basis of
Smithers’s delay in proffering it in its specifics to the court
and Government. If we are to reach the merits of the
decision, however, I am not nearly so certain as the majority
is that the court did not perform the proper legal analysis.
Certainly we should make that decision on the basis of a
review of the entire record and not, as does the majority,
largely on the basis of a handful of unfortunate but irrelevant
remarks by the district court. In any event, once we have
decided, as the majority has, that the court did not perform the
proper Daubert analysis, our response should be to remand
the issue for a proper hearing. We should not proceed to do
that analysis ourselves, nor should we issue what is essentially
a blanket endorsement of expert testimony on a subject
deserving of, at best, our careful and skeptical scrutiny,
effectively warning the district courts in this circuit that in the
future it will be an abuse of discretion not to accept such
experts. For these reasons, I must dissent.
I. Delay
As the majority noted, the district court’s primary reason
for denying the renewed motion to permit Fulero to testify
was that it was made “too late in the day.” In reasoning that
Smithers’s initial motion in limine put the Government on
sufficient notice of Fulero’s testimony, the majority makes no
mention of the paucity of detail which that motion contained.
Furthermore, the legal foundation of the majority’s reasoning
is, in my view, erroneous.
A brief overview of the appellate courts’ reception of expert
testimony on the fallibility of eyewitness identifications is
necessary in order to explain the inadequacy of Smithers’s

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22 United States v. Smithers No. 98-1722
initial motion. The majority correctly observes that for
approximately the first decade or so in which such testimony
was submitted, courts were “uniformly skeptical . . . for a host
of reasons.” These reasons included distrust of the science
behind the testimony, a concern that the majority goes to
considerable lengths to dispel. But this was hardly the only
reason given for disallowing the testimony, and that
skepticism rightly continues in the appellate courts today.
The majority opinion in this case acknowledges some of these
decisions, but sidesteps the unanimous hesitancy among
appellate courts to open the door too far to this testimony. In
many cases, the excluded testimony is either a generic,
scholarly exploration of psychological theory, bearing little
relation to the facts of the particular case, see, e.g., United
States v. Brien, 59 F.3d 274, 277 (1st Cir. 1995); United
States v. Rincon, 28 F.3d 921, 925 (9th Cir. 1994); Jordan v.
Ducharme, 983 F.2d 933, 939 (9th Cir. 1994); United States
v. Blade, 811 F.2d 461, 464-65 (8th Cir. 1987); United States
v. Fosher, 590 F.2d 381, 382-83 (1st Cir. 1979), or else so
specifically directed at the validity of a particular witness’s
testimony as to usurp the jury’s role in determining
credibility, see, e.g., United States v. Lumpkin, 192 F.3d 280,
289 (2d Cir. 1999); United States v. Hall, 165 F.3d 1095,
1107 (7th Cir. 1999); United States v. Kime, 99 F.3d 870, 884
(8th Cir. 1996); United States v. Dorsey, 45 F.3d 809, 812
(4th Cir. 1995); United States v. Moore, 786 F.2d 1308, 1311-
12 (5th Cir. 1986); United States v. Langford, 802 F.2d 1176,
1179 (9th Cir. 1986); State v. Gaines, 926 P.2d 641, 645
(Kan. 1996); State v. Sabetta, 680 A.2d 927, 933 (R.I. 1996).
In either situation, even though the testimony may have
provided some measure of insight that the jury otherwise
would not have possessed, the risk of the jury’s being unduly
swayed by testimony with the imprimatur of scientific
expertise has been deemed significant enough that the
decision to exclude it could not be considered an abuse of the
trial court’s considerable discretion with regard to evidentiary
matters. This is especially so in light of the fact that the more
traditional methods of exposing the fallibility of eyewitness
identifications—cross-examination, jury instruction and
closing argument—are more efficacious and far less risky
No. 98-1722 United States v. Smithers 27
clearly inapplicable in this case. Daubert cited as an example of scientific
testimony the Seventh Circuit’s treatment of spectrographic voice
identification technique. One method of examining this technique’s
reliability was to ask how often it produced an erroneous result. Here, the
proposed “technique” is of the exactly opposite type; it seeks not to make
an identification, but to explain the reasons why an identification may be
incorrect. Hence, a proper analogy to this Daubert observation might be
to ask how often this technique correctly ascertains that an identification
is wrong.
Nevertheless, Smithers continued: “[T]he question of known rate of
error is addressed by the [Handberg] article included as Attachment C
. . . . This article analyzes in detail the effect that certain variables are
likely to have on the ability of eyewitnesses to correctly identify persons
they have previously seen, pointing out the rate of error in making
identifications. [This] forms parts of the scientific basis of Dr. Fulero’s
testimony.” This passing reference was Smithers’s entire treatment of the
“rate of error” issue, and does not provide the needed specificity.
4The Government noted that “Fulero’s testimony . . . would likewise
be of dubious assistance to the jury. His testimony does not relate to a
specific fact in this case, such as the efficacy of the photo spread.
Instead, defendant will offer his testimony regarding the general problems
arising from eyewitness identification, in contrast to the specific issues
that were presented in the Smith case.”
confidence relationship, etc.) may be applicable in the
situation at hand. The memorandum’s attachments—Fulero’s
vita and a selection of journal articles on the topic—plainly
did nothing to provide the needed specificity. The
Government made precisely this point in its response
memorandum,4 and cited a number of authorities suggesting
that cross-examination and jury instructions were better
alternatives. At the hearing, the court began the discussion by
opining that “the government writes a pretty persuasive brief.
You can argue to the jury people make mistakes all the time.
You can bring out the discrepancies [through cross-
examination and a jury instruction].” Smithers responded by
defending the scientific validity of the testimony. The court
asked, “Has [the expert] rendered a report?” Receiving a
negative response, the court continued: “I would have to go
through a long voir dire ahead of time. I think if you’re going
to have an expert you’ve got to have a report. You’ve given

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26 United States v. Smithers No. 98-1722
1Contrary to the majority’s characterization of this citation, I do not
offer this quotation as a “holy writ” or rigid “test” that the district court
should have adhered to, but rather as a common-sense explanation of
Smithers’s burden to establish the relevance of his proffered testimony to
the case. For this reason, the Stevens court’s reasoning—or, for that
matter, the identical emphasis on specificity in our Smith decision— is
made no less valid by the fact that it pre-dates Daubert.
2Tellingly, the district court on remand again dismissed the
testimony, this time as unhelpful to the jury and more prejudicial to the
prosecution than it was probative to the defense. See 609 F.Supp. 784
(E.D. Pa. 1985). The judgment was affirmed without opinion. See No.
85-1359, 780 F.2d 1017 (3d Cir. Nov. 25, 1985) (table).
3The only assertion made in this memorandum that could arguably be
considered “specific” to Fulero’s testimony in this case is the reference
to the “known rate of error.” This brief discussion actually originated
from Smithers’s recitation of the Daubert analysis. Smithers was
“unclear how the third step in the Daubert analysis, reviewing the rate of
known error, would apply to this form of scientific testimony.” Not only
is this rate-of-error inquiry not a “step”mandated by Daubert but simply
one of its “general observations,” Daubert, 509 U.S. at 593-94, it is also
Stevens, 935 F.2d at 1397 (quoting Downing, 753 F.2d at
1242).1 The Downing court remanded its case for a proper
Rule 702 hearing on the proposed expert testimony, because
the district court had merely held a brief sidebar on the issue
on the tenth day of trial without a voir dire of the witness or
any time for either party to present its view. See Downing,
753 F.2d at 1228.2 Here, however, the district court properly
held a pretrial hearing on various motions in limine, including
this one, but the content of Smithers’s supporting
memorandum was woefully inadequate to enable the court to
exercise its discretion in an informed manner. The 10-page
supporting memorandum recited the applicable standards of
Daubert and Rules 702 and 403, defended the legitimacy of
Dr. Fulero’s field of study and academic qualifications, and
included a few paragraphs indicting the reliability of
eyewitness identifications in general. It contained absolutely
no attempt to explain how the testimony would relate to the
facts of the case or which of the psychological theories on
memory3 (e.g., stress, “forgetting curve,” accuracy-
No. 98-1722 United States v. Smithers 23
than expert testimony that can at best be only marginally
relevant to the facts at hand. See Moore v. Tate, 882 F.2d
1107, 1110-11 (6th Cir. 1989); Hall, 165 F.3d at 1107; United
States v. Smith, 122 F.3d 1355, 1358-59 (11th Cir. 1997);
United States v. Hicks, 103 F.3d 837, 847 (9th Cir. 1996);
Kime, 99 F.3d at 884; United States v. Ginn, 87 F.3d 367, 370
(9th Cir. 1996); Rincon, 28 F.3d at 925-26; Jordan, 983 F.2d
at 938-39; United States v. Curry, 977 F.2d 1042, 1051 (7th
Cir. 1992); Blade, 811 F.2d at 464-65; Moore, 786 F.2d at
1311-12; Fosher, 590 F.2d at 382; State v. McClendon, 730
A.2d 1107, 1115-16 (Conn. 1999); McMullen v. State, 714
So.2d 368, 370 (Fla. 1998); Gaines, 926 P.2d at 662-63; State
v. Buell, 489 N.E.2d 795, 803-04 (Ohio 1986); Currie v.
Commonwealth, 515 S.E.2d 335, 339 (Ct. App. Va. 1999).
The grounds on which these courts have explained their
rulings vary—the testimony was unhelpful, the subject was
within the jury’s common knowledge, the subject was not a
proper one for expert testimony under Evidence Rule 702 or
some analogous test, or the prejudice substantially
outweighed the probative value pursuant to Rule 403—but the
results were the same.
I will concede that the concept of expert testimony on the
subject of eyewitness identification, and the scientific
research behind the testimony, has gained some acceptance
and respect in our courts since it was introduced. But the
majority’s own recounting of the case law on this subject
reveals that the appropriateness of using such testimony in
court—instead of its traditional alternatives—to counteract
the deficiencies of eyewitness identifications is still very
much in controversy, for all of the reasons detailed above.
The recent trend has been towards allowing the testimony in
a limited number of “narrow circumstances,” but this merely
reflects the liberality of Rule 702 and the gradual maturing of
the research, not the “dramatic transformation” of judicial
attitudes that the majority claims. See United States v. Smith,
156 F.3d 1046, 1052 (10th Cir. 1998) (holding that cross-
examination and common sense will presumptively suffice
outside the “narrow circumstances [of] cross-racial
identification, identification after a long delay, identification

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24 United States v. Smithers No. 98-1722
[...] under stress, and [...] the feedback factor and unconscious
transference”); United States v. Harris, 995 F.2d 532, 535-36
(4th Cir. 1993) (same); Currie, 515 S.E.2d at 338 (same);
Brien, 59 F.3d at 277 (“a door once largely shut is now
somewhat ajar”). Some of our sister circuits expressly retain
their jaundiced view of this type of testimony. See Hall, 165
F.3d at 1104 (“This Court has a long line of cases which
reflect our disfavor of expert testimony on the reliability of
eyewitness identification”); Smith, 122 F.3d at 1357 (“This
Court has consistently looked unfavorably on such
testimony”). Every court to address the issue has left the
admissibility of the testimony to the sound discretion of the
district court on a case-by-case basis, either on the authority
of Daubert, Rule 702, or an analogous state rule. No
appellate court has adopted a presumption or per se rule in
favor of admitting eyewitness identification expert testimony,
something the majority’s opinion comes dangerously close to
doing. Many courts have expressly disavowed such a rule.
See Smith, 122 F.3d at 1359; United States v. Alexander, 816
F.2d 164, 169 (5th Cir. 1987); Blade, 811 F.2d at 465;
Langford, 802 F.2d at 1179; Sabetta, 680 A.2d at 933.
Moreover, the only federal appellate decisions finding the
exclusion of this type of expert testimony to be an abuse of
discretion are readily distinguishable from the instant case. In
United States v. Stevens, 935 F.2d 1380, 1397 (3d Cir. 1991),
the Third Circuit reviewed a district court’s decision to admit
the expert’s testimony as to some psychological theories but
not others. The dangers of the expert’s testimony in general,
then, were not at issue. The panel reversed because it found
no reason why the excluded theories did not “fit” the facts of
the case as much as those that were admitted. In United
States v. Downing, 753 F.2d 1224, 1242 (3d Cir. 1985), the
district court erroneously excluded the testimony per se
instead of performing its gatekeeping function. In this
circuit’s Smith decision, the Government conceded Dr.
Fulero’s expertise, see 736 F.2d at 1105, and the proffer there
specifically tied the theories of transference and cross-racial
identification to the facts of that case. See id. at 1106. We
used this specificity to distinguish Fosher, which was
No. 98-1722 United States v. Smithers 25
representative of the cases finding expert testimony too
removed from the particular facts to be helpful. See id. The
lack of specificity in Smithers’s proffer likens this case to
Fosher far more than to Smith. Apart from this distinction,
the majority opinion’s characterization of Smith’s holding is
troubling. At most, this court said in Smith that Dr. Fulero’s
testimony on the reliability of eyewitness testimony might
meet the Green criteria, and might have been improperly
excluded. We did not, as the majority opinion claims, express
our “acceptance of psychological studies as a scientifically
sound and proper subject of expert testimony, noting, ‘[the]
science of eyewitness perception has achieved the level of
exactness, methodology and reliability of any psychological
research.’” What we noted is that Dr. Fulero had testified to
that effect, see id., and, in the final analysis, held that “even
if it were error to exclude the expert’s testimony, such error
was ‘harmless.’” Id. at 1106-07 (emphasis added). It is also
worth noting that the analysis in Smith was not unanimous;
the concurring judge did not find an abuse of discretion.
Since the Smith case, no Sixth Circuit decision has reversed
a district court’s exclusion of expert testimony on eyewitness
identifications as an abuse of discretion.
I will address in a later segment of this dissent my view of
this testimony’s utility, but for now it suffices to say that
because the range of circumstances in which this testimony
should be admitted is so narrow, the party offering it should
be required as a threshold matter to make
an on-the-record detailed proffer to the court, including
an explanation of precisely how the expert’s testimony is
relevant to the eyewitness identifications under
consideration. The offer of proof should establish the
presence of factors (e.g., stress, or differences in race or
age as between the eyewitness and the defendant) which
have been found by researchers to impair the accuracy of
eyewitness identifications.

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