Andre Brown was convicted of murder on the strength of five eyewitnesses. He brought a postconviction challenge to his conviction alleging, among other grounds, that his right to due process was violated by the court’s decision to bar him from calling an expert in eyewitness identification. The trial court denied the challenge.

The Illinois Appellate Court affirmed that ruling. The decision stands as the most recent example of the judiciary’s failure to recognize the importance of defense experts who could educate the jury about the perils of eyewitness identification.

Facts of the Case

A man on a bicycle shot Enrique Fuentes as Fuentes was sitting on a Chicago street corner. The police were alerted to look for a black man riding a mountain bike. The man was described as wearing a black jacket, black cap, and dark pants.

Brown was riding a mountain bike when the police stopped him. He was wearing a black-and-silver Oakland Raiders jacket. He was also wearing a black knit cap with a white Nike swoosh on the front. While the Raiders insignia and the Nike swoosh are easily recognizable, the police decided that Brown matched the generic description of the suspect and arrested him.

Brown had no gun. The police searched the likely path from the murder scene to the point of arrest but found no gun. Brown did not appear to be fleeing or in any particular hurry when the police arrested him.

The police took Brown back to the murder scene. His bicycle was sticking out of the trunk of the squad car, making it obvious that Brown was apprehended while riding a bike.

The police pointed out Brown to five witnesses, only one of whom actually saw the bike rider shoot Fuentes. The others were in the area and advised police that they saw a man on a bike either before or after they heard shots fired.

Brown was sitting in the back of the squad car when the witnesses identified him. In at least one case, the police used a flashlight to spotlight his face. In at least one case, Brown was removed from the car in handcuffs when the witness said it was too dark to see him in the back of the car. The five witnesses identified Brown as the bicyclist they saw.

Eyewitness Identification Issues

Research demonstrates that some identification procedures are better than others. If Brown had been placed in a lineup with other black males wearing similar clothing, his identity as the shooter would not have been signaled to the witnesses. If the witnesses picked him out of a lineup, the legal system could say with greater confidence that Brown was the man they saw.

A showup (presenting only the suspect to the witness when the suspect is obviously in police custody) is inherently suggestive of guilt. Research shows that witnesses are more likely to assume that the suspect is guilty and therefore to misidentify the suspect when they view the suspect in a showup.

Research also shows that misidentifications are more likely when witnesses learn that another witness has identified the suspect. One person’s mistaken identification will tend to encourage the other witnesses to make the same misidentification.

Unfortunately, most jurors are unaware of the body of research that casts doubt on the validity of eyewitness identifications made during showups. Eyewitness identifications expert play a vital role in educating jurors who would otherwise be inclined to believe that five eyewitnesses who are in agreement could not possibly be mistaken.

Brown’s Trial

The witnesses who identified Brown in the showup also identified him at trial. Having seen what Brown was wearing in the squad car, their description of the shooter’s attire became more detailed.

Police witnesses admitted that they stopped a different black man who was on a bicycle. He was released without asking any witnesses whether they could identify him. Police witnesses also admitted that they did not test Brown’s hands for gunshot residue, in part because they thought that his sweat might have washed away any residue. They were apparently worried that a negative test result would undermine the case they were building against Brown.

The defense called an expert witness who explained that the presence of residue would be evidence that a suspect had recently fired a gun. While the expert acknowledged that residue can be washed or rubbed away, the absence of residue would provide some evidence that the suspect is innocent.

The defense wanted to call Jonathan Schooler, an expert on witness identifications and memory. Schooler would have testified that headgear, the presence of a weapon, and lighting conditions all affect eyewitness identifications. He would have testified that suggestive factors (such as showing a handcuffed suspect to a witness, shining a flashlight in his face, or making it clear that the suspect had a bicycle) could also influence identifications.

Finally, Schooler would have testified that cross-racial identifications are less accurate than same-race identifications and that the confidence a witness has in an identification cannot predict whether the identification is accurate. All of that testimony is founded on more than two decades of research by social scientists who study perception and memory.

The trial judge decided that Schooler’s expert testimony would not be helpful to the jury because commonsense and experience teach jurors all the facts that Schooler would have given them. Valuable information suggestive of innocence was thus hidden from the jury. Brown appealed his conviction.

Appellate Decision

A key issue on Brown’s initial appeal was whether the trial court erred by failing to admit Schooler’s expert testimony. The issue arises with distressing regularity. Why judges think it is bad to allow jurors to hear expert testimony that is supported by abundant science is a mystery. Cynics might say that judges who exclude eyewitness identification testimony are biased in favor of the prosecution and want to create barriers against a robust defense to accusations that the judge has decided to believe.

In 2001, the Illinois Appellate Court rejected Brown’s challenge in an unpublished opinion. That court was far from alone in upholding the decision to deny a defendant the opportunity to call an expert witness. As one commentator noted, most appellate courts give judges the discretion to admit the testimony while routinely affirming a trial judge’s decision to exclude it.

Like the judge in Brown’s case, judges often claim that eyewitness identification experts testify about facts that are matters of common sense. Yet as a federal judge has warned, studies establish that “common sense” causes jurors to “rely on inaccurate assumptions and misconceptions when they assess the credibility of others. This renders the notion of ‘common sense’ as a tool for accurately deciding credibility not only a ‘myth’ but also a tool for ‘erroneous assessments of credibility’.”

Judges who value the scholarship provided by experts agree that lay jurors do not have the experience or data that is needed to overcome the “commonsense” belief that people are reliable reporters of what they see. In the words of Judge Easterbrook, jurors “who think they understand how memory works may be mistaken, and if these mistakes influence their evaluation of testimony then they may convict innocent persons.”

Postconviction Proceeding

More than ten years after losing his appeal, Brown sought postconviction relief based on his actual innocence. Brown presented new exonerating eyewitness evidence, the recantation of one of the original eyewitnesses, and alibi evidence. He also offered the testimony of Brian Cutler, another expert in eyewitness identification. Finally, he pointed to a 2016 Illinois Supreme Court decision that belatedly recognized the value of expert eyewitness identification evidence.

The 2016 decision acknowledged that the science of eyewitness identification is well established, strongly supported, and outside the ken of ordinary jurors. It also recognized the value of expert witnesses who can explain that science to juries. Yet the appellate court in Brown’s case decided that the state supreme court’s 2016 decision did not entitle a defendant to call an expert witness in every case.

In any event, the appellate court decided that Brown could not benefit from the 2016 decision because the supreme court’s decision did not bring about a “watershed” change in Illinois law. That opinion is doubtful.

Before the 2016 decision, appellate courts routinely gave their blessing to trial court rejections of expert eyewitness identification testimony. The 2016 decision made clear that expert testimony should usually be allowed as a component of the defendant’s due process right to fair trial. That seems like a change of seismic proportion — a watershed change intended to benefit a defendant like Brown, who could not have been convicted in the absence of the eyewitness identifications.

Unfortunately, the supreme court’s 2016 recognition that expert witnesses play a necessary role in educating juries about the perils of eyewitness identification came too late to benefit Brown. He may or may not be innocent, but it is plain that the denial of an expert witness assured he would not have a fair trial. Unless the state supreme court makes its 2016 decision retroactive, he will likely never have the benefit of a jury that has been informed by an expert witness.