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The New York Court of Appeals unanimously ruled on March 27 that it is abuse of the trial judge’s discretion to preclude qualified, expert testimony on the reliability of eyewitness identifications in cases in which there is little or no corroborating evidence. People v. Nico LeGrand, No. 39. The court, New York state’s highest, said that the trial judge, Justice Bernard Fried, erred when he ruled out expert testimony on eyewitness identification. The ruling means a new trial for Nico LeGrand, his third, for the 1991 slaying of Joaquin Liriano, a New York City taxicab driver. LeGrand was convicted of second-degree murder and sentenced to an indeterminate term of 25 years to life. Writing on behalf of the court, Judge Theodore T. Jones Jr. said, “We hold that where the case turns on the accuracy of eyewitness identifications and there is little or no corroborating evidence connecting the defendant to the crime, it is an abuse of discretion for the trial court to exclude expert testimony on the reliability of eyewitness identifications if that testimony is (1) relevant to the witness’s identification of defendant, (2) based on principles that are generally accepted within the relevant scientific community, (3) proffered by a qualified expert, and (4) on a topic beyond the ken of the average juror.” Allowing the testimony in LeGrand “plainly” would have “benefitted the jury in evaluating the accuracy of the eyewitness identifications,” Jones said. Three witnesses had identified LeGrand as Liriano’s killer. His first trial ended in a hung jury in 2001. At a Frye hearing ( Frye v. U.S., 293 F. 1013 (D.C. Cir. 1923)) before LeGrand’s second trial, expert Roy S. Malpass of the University of Texas at El Paso said some of the issues he planned to address for the defense were whether a witness’s focus on a weapon brandished during a crime reduces the witness’s ability to identify the people involved, whether undue stress caused by the criminal event reduces the accuracy of witness identifications, and whether the certainty with which a witness makes an identification is actually indicative of accuracy. Fried barred Malpass’ testimony on the ground that his conclusions were not generally accepted in the scientific community. An intermediate appellate court affirmed LeGrand’s conviction as well as Fried’s preclusion of the expert testimony. The Legal Aid Society, the New York State Association of Criminal Defense Lawyers and the Neighborhood Defender Service of Harlem joined in an amicus brief. The Innocence Project of Yeshiva University Benjamin N. Cardozo School of Law filed a separate brief. The Innocence Project, which focuses on using DNA evidence to overturn false convictions, said that three-quarters of the 188 people it has shown to be innocent were convicted by mistaken identifications. In 31 of those cases, there was more than one witness misidentifying innocent defendants, the group said in its amicus brief. Ezekiel Edwards, staff attorney for the Innocence Project, said that the March 27 ruling is limited in scope by the court’s stipulation that cases have to turn on the accounts of eyewitnesses because of a lack of corroborated evidence. But he said, “there are certainly many more of those cases than you might imagine.” Obliging judges to allow expert testimony should make them more sensitive to issues that can affect witnesses’ memories of events and result in more informed instructions to jurors in trials that depend heavily on eyewitness accounts. Rockland County District Attorney Michael E. Bongiorno, president of the New York State District Attorneys Association, said allowing defense experts to testify in more cases would force prosecutors to call their own experts. “It could complicate the presentation of a case in court and it could complicate a bit the arguing of a case before a jury.”

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