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A Manhattan judge has declined to allow expert testimony on eyewitness identifications in a murder trial, saying that such testimony has not been generally accepted by the scientific community. The ruling by Acting Supreme Court Justice Bernard J. Fried is the first to be decided after a New York court has held a full hearing on the scientific validity of expert testimony that questions the accuracy of eyewitness identifications. In his decision, which marked a decisive victory for prosecutors in the Manhattan district attorney’s office, Fried found that studies on eyewitness identifications are so various and conflicting that jurors deciding a criminal trial should not be subjected to them. There “is a real controversy among the relevant experts concerning whether these principles are generally accepted,” Fried wrote in a 39-page opinion in People v. Nico Legrand, 2634/1999. “Consequently, to allow this testimony to be received at trial would require jurors to determine whether the expert evidence is generally accepted as reliable, which is the role of the court, not the jury.” James M. Kindler, chief assistant district attorney in Manhattan, said the ruling fully supports the office’s opinion on the scientific validity of eyewitness research. “We certainly hope other courts will follow the opinion,” Kindler said. Fried’s ruling comes in the second murder trial of Nico Legrand, who is accused of stabbing Manhattan taxi driver Joaquin Liarano to death in June 1991. Legrand’s first trial ended in a hung jury last year. Several witnesses saw a man fighting with Liarano before he was stabbed. The witnesses called police, and two witnesses eventually viewed photographs of possible suspects, but they could not identify the killer. Four witnesses also described the assailant for a sketch artist. No suspects were identified in the next seven years, until Legrand was arrested in connection with a burglary in the same precinct as the stabbing. Detectives reopened the murder case, and one witness identified Legrand as the killer. Another witness said Legrand was a close match to the killer, and another said he looked similar. Two witnesses identified Legrand at trial while others did not, but the jury could not reach a unanimous verdict. Before Legrand’s second trial, his attorneys asked Fried to allow expert testimony on the reliability of the eyewitness accounts, pursuant to the ruling last year by the New York Court of Appeals (the state’s highest court) in People v. Lee, 96 NY2d 157. In Lee, the court found that such testimony was not inadmissible per se, but at the discretion of trial courts. The defense’s expert, Professor Roy S. Malpass, a psychologist at the University of Texas at El Paso, planned to testify about the relationship between a witness’s confidence and the accuracy of an identification; how information given to a witness after an identification is made can make the witness feel more confident; and the effect that weapons have on a person’s ability to remember a face. ‘FRYE’ HEARING Fried held a Frye hearing to determine whether the testimony would be relevant and generally accepted in the scientific community, pursuant to Frye v. United States, 293 F. 1013 (D.C. Circuit, 1923). Malpass testified at the hearing, opposed by Professor Ebbe B. Ebbesen from the psychology department at the University of California. The experts also submitted numerous papers and studies to the court. In his ruling, Fried noted that there is no evidence against Legrand other than the eyewitness identifications, a fact that made expert testimony on the reliability of those identifications relevant. But, the judge said, the contrast between the two experts’ testimony made it clear that the scientific community had not agreed upon the validity of eyewitness research, nor the methods for conducting it. The judge paid considerable attention to the expert’s opinions about whether experiments that investigate a person’s ability to accurately remember and later identify faces are applicable to those who witness actual crimes, which often involve traumatic experiences. Fried highlighted findings of Ebbesen, who testified that eyewitness experiments lacked realism and therefore discounted the real-life circumstances of crimes — such as extreme stress — that might either improve or hinder a person’s ability to remember a suspect’s face. “The research findings in eyewitness identification are also affected by the lack of standardization and uniformity in the measurement of an individual’s accuracy rate,” the judge wrote. MOST EXTENSIVE EXAMINATION While Fried’s ruling represents the most extensive judicial examination of eyewitness testimony as science, it contrasts with the findings of two other New York judges who have allowed expert testimony on eyewitnesses without holding hearings. In May, Supreme Court Justice James A. Yates declined to hold a Frye hearing in a robbery case, instead ruling that expert testimony on eyewitness identifications was admissible because it did not represent a novel test or technique. Michelle Gelernt of the Legal Aid Society, who defended the man accused of robbery, said her client was acquitted on all six counts after a trial that included expert testimony. She described the testimony as helpful to her client’s case, which was based solely on eyewitness identifications. Similar expert testimony was allowed in the recent trial of Christopher Prince, who is accused of the 2001 shooting of Cory Mitchell, a star football player at St. John’s University. Queens Supreme Court Justice Joel Blumenfeld allowed the expert testimony without holding a Frye hearing. The trial ended in a hung jury and is scheduled for retrial this fall. In the case before Fried, Claudia C. Conway and Elizabeth Warin of the Legal Aid Society represented Legrand. Conway said she was “obviously disappointed” in the ruling because Legrand’s case was “particularly well-suited” to expert testimony. Assistant District Attorney Patricia J. Bailey represented the prosecution. A trial date for Legrand has not been set.

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