Warnken, LLC Attorneys at Law, Attorneys & Lawyers, Pikesville, MD

Bomas v. State – Eyewitness Identification

Bomas v. State, 412 Md. 392 (2010).

Evidence—Expert Testimony & Eyewitness Identification:

Petitioner was tried and convicted in the Circuit Court for Baltimore City of second-degree murder and use of a handgun in a crime of violence.  Petitioner’s conviction was based chiefly on an identification made by an eyewitness.  The COA granted the Petitioner’s request for a writ of certiorari to review the standard by which trial judges determine whether to admit expert testimony on eyewitness identification.  The COA also decided whether the Circuit Court exercised proper discretion in excluding expert testimony in this case.  The COA held that the Circuit Court properly evaluated the expert testimony.

Note: Though we were criminal lawyers in Baltimore, we did not represent Bomas in this case.

At approximately 2:00 a.m. on April18, 2004 Detective Bailey, while off-duty, stopped his truck in traffic on York Road near the Tower Lounge.  Detective Bailey heard six gunshots coming from a crowd roughly fifteen feet from where he was stopped.  He observed the Petitioner shoot and kill a young man.  After the shooting, the Petitioner fled the scene within a car length from Detective Bailey.  Detective Bailey filed a report a week later describing the shooter simply as “a black male.”

On October 14, 2004, police arrested Jimmy Dower for possession of heroin.  Dower volunteered information about the shooting on York Road.  Dower said that he knew the Petitioner, and saw him April 18th at the Tower Lounge.  Dower said that he saw Petitioner retrieve a gun and fire multiple shots at the victim.  Dower identified Petitioner from a photo array.  After Dower identified the Petitioner, Detective Bailey did the same on October 26, 2004.

Police arrested the Petitioner based on the identifications made by Dower and Detective Bailey on November 3, 2004.  The Petitioner moved to suppress the eyewitness identifications, and, at the pretrial hearing, Dower renounced his identification.  Dower claimed that his identification was based upon suggestiveness by the police.  The motions judge denied the motion to suppress and ruled that the photo array presented to Dower was not impermissibly suggestive.  Petitioner also sought to offer testimony from David Schretlen, Ph.D., an expert in neuropsychology.  Dr. Schretlen offered testimony to the effect that (1) an officer does not have more ability to remember faces than anybody else; (2) a witness’s confidence in his testimony does not directly correspond with accuracy; (3) one’s ability to recall events or people is affected by stress and the passage of time; (4) police photo arrays can be suggestive at times; and (5) juries tend to believe eyewitness testimonies in spite of “effective cross examination.”  The motions judge, finding that it would not be helpful to the jury, declined to allow Dr. Schretlen’s testimony.

At trial, Detective Bailey identified Petitioner as the shooter.  After cross-examination of both Detective Bailey and Dower, the jury convicted the Petitioner of second degree murder and the use of a handgun during the commission of a crime of violence.  The Petitioner appealed to the CSA claiming that the Circuit Court improperly excluded Dr. Schretlen’s expert testimony.  The CSA affirmed the Circuit Court.  The COA granted the petition for writ of certiorari and considered two questions: 1) whether the COA should reconsider its decision in Bloodsworth v. State, 307 Md. 164, 512 A.2d 1056 (1986), and 2) did the trial court improperly exercise its discretion in finding the expert testimony would not be helpful to the jury.

Under Maryland Rule 5-702, expert testimony may be admitted if the court determines that the testimony will assist the trier of fact to understand the evidence or determine a fact at issue.  That determination requires the court to consider whether the witness is qualified as an expert, the appropriateness of the expert testimony, and whether a sufficient factual basis exists to support the testimony.  As in this case, Bloodsworth was convicted largely on the strength of eyewitness testimony.  Id. at 166-70.  Bloodsworth also argued, like the Petitioner, that the trial court erred when it refused to allow expert testimony about the shortcomings of eyewitness identification.  Id. at 177.  The COA in Bloodsworth held that the proper standard of admissibility of expert testimony on the reliability of an eyewitness is “whether the expert’s testimony will be of real appreciable help to the trier of fact in deciding the issue presented.”  Id. at 184.  The COA also held that “the admissibility of expert testimony is a matter largely within the discretion of the trial court, and its action in admitting or excluding such testimony will seldom constitute a ground for reversal.  Id. at 185.

The Petitioner in this case argued that the trial judge erred in not admitting the expert testimony, and urged the COA to reevaluate the standard it adopted in Bloodsworth.  Petitioner argued that (1) Bloodsworth discouraged the admission of expert testimony on eyewitness identifications; (2) many jurisdictions favor expert testimony about eyewitness identifications because many wrongful convictions are a result of bad eyewitness identifications; and (3) this expert testimony should be presumptively helpful.

The COA agreed with the Petitioner that their opinion in Bloodsworth shed a bad light on expert testimony on eyewitness identifications.  However, the COA was not willing to say that Bloodsworth was incorrectly decided.  The COA also refused to depart from the standard for admission applied in that case.

In regard to the frequency of misidentifications by eyewitnesses, the Petitioner argued that the new trend in many jurisdictions is to allow expert testimony that indicates the shortcomings of eyewitness testimony.  The Petitioner reasoned that the jurisdictions that allow the expert testimony treat it as “presumptively helpful to the jury” when the state’s case is based primarily on eyewitness testimony.

The COA agreed with the Petitioner that the trend of many jurisdictions has changed to admit the expert testimony.  The COA stated that trial courts should account for the scientific advancement when exercising their discretion in each particular case.  However, the COA was not willing to rule that some factors relating to eyewitness identifications are not outside the comprehension of a jury.  It is generally known that the effects of stress or time are factors in memory loss.  Because of this finding, the COA ruled that a flexible standard that properly gauges science and specific facts is best.  The COA then reiterated the test for admissibility from Bloodsworth.  “Whether his [or her] testimony will be of real appreciable help to the trier of fact in deciding the issue presented [;]” the application of this test is “a matter largely within the discretion of the trial court[.]”  Bloodsworth, at 184.

The reasoning behind this ruling is that the COA did not want to detract from the trial court’s ability to evaluate proffered expert testimony on a case-by-case basis.  Additionally, expert testimony is not the only means by which testimony of eyewitnesses can be challenged.  Cross-examination, closing arguments, and jury instructions are among the ways a jury may be provided the information needed to come to a proper decision on the eyewitness’ reliability.  Furthermore, a presumptively helpful standard might lead to a “battle of the experts” which could confuse the jury.

After ruling on the standard to be used, the COA applied the “appreciable help to the trier of fact” standard to the trial court’s decision to exclude the expert testimony.  The COA found that the trial court demonstrated that it was aware of the expert’s potentially helpful information.  Additionally, the COA found that there was not indication that the testimony was excluded on account of any bias.  Rather, the trial court considered the testimony and was entitled to conclude that the topics covered by the testimony were inadmissible for any or all of the following reasons: the testimony (1) lacked adequate citation to studies or data, (2) insufficiently related to the identifications at issue, and/or (3) addressed concepts that were not beyond the comprehension of a lay person.  The COA ruled that the trial court had sufficient basis to conclude that the testimony was unhelpful to the jury.  Judgment of the CSA affirmed.