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The New York Court of Appeals, New York’s high court, has ruled that trial courts have wide discretion to allow or disallow expert testimony. People v. Paris Drake, No. 63, and People v. Rudolph Young, No. 64. In two rulings, the court suggested that it generally will defer to the discretion of trial judges, except perhaps when such expert evidence is denied to the defense and the case turns on uncorroborated identification evidence. Drake stems from an incident on Nov. 16, 1999, when 27-year-old Nicole Barrett was hit in the head with a brick while waiting for a walk signal in New York City. Barrett, who was seriously injured, did not see her assailant, but there were several eyewitnesses. Paris Drake was convicted of first-degree assault and sentenced to 25 years in prison. Out of the 11 eyewitnesses, only two identified him as the assailant. The trial judge, Justice Laura Visitacion-Lewis, granted a pretrial defense motion to admit the testimony of Dr. Elizabeth Loftus, an expert in the reliability of eyewitness identification. However, Visitacion-Lewis, in her charge, told the jury that Loftus’ testimony “may not be used to discredit or accredit the reliability of eyewitness testimony in general or in this case.” The New York Court of Appeals unanimously agreed that the instruction was improper. But Chief Judge Judith S. Kaye, writing for the 6-1 majority, said that if one viewed the entire charge in its totality, “No reasonable juror would have concluded from the court’s instructions that Dr. Loftus’s testimony had been effectively stricken from the case.” Young arose from an incident in 1991 when someone invaded the suburban Rochester, N.Y., home of Lisa and William Sykes, threatened them with an ax and made off with a quantity of cash and jewelry. The intruder had covered the lower portion of his face with a scarf. Rudolph Young was convicted in 1992, but the conviction was overturned because police lacked probable cause for an arrest. Lisa Sykes had identified Young at a lineup, but that evidence was suppressed since it stemmed from an illegal arrest. At retrial, Judge John J. Ark held that Sykes had an independent basis for an in-court identification of the defendant. Ark denied a defense request to call an expert on eyewitness identifications. The critical issue on appeal was whether Ark had abused his discretion. Writing on behalf of the 6-1 court, Judge Robert S. Smith said that though the judge had not abused his discretion, “if this case turned entirely on an uncorroborated eyewitness identification, it might well have been an abuse of discretion to deny the jury the benefit of [the expert's] opinions.” New York’s high court has been wrestling with the issue of the admissibility of expert identification testimony for years. In 1990, then-Associate Judge Kaye dissented in People v. Mooney, 76 N.Y.2d 827, writing that “the emerging trend today is to find expert psychological testimony on eyewitness identification sufficiently reliable to be admitted, and the vast majority of academic commentators have urged its acceptance.” In 2002, a state trial judge, Bernard J. Fried, in People v. LeGrand, 196 Misc. 2d 179, quoted another Kaye opinion ( People v. Wesley, 83 N.Y.2d 417 (1994), concurrence) in which she said that it is “not for a court to take pioneering risks on promising new scientific techniques, because premature admission both prejudices litigants and short-circuits debate necessary to determination of the accuracy of a technique.” Fried said there remains such a “raging controversy among the experts in eyewitness identification” that he was far from persuaded that the evidence of reliability or unreliability of eyewitness identification is generally accepted within the relevant scientific community. Last month, an intermediate New York appeals court unanimously affirmed.

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