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The Missouri Supreme Court is considering whether eyewitness identification experts should be allowed to testify in criminal cases following the state’s adoption of the Daubert standard.
On Feb. 25, the court heard arguments in the case of Kane Carpenter, who was convicted of first-degree robbery and sentenced to 10 years in prison for robbing a man on East Capitol Avenue in Jefferson City in October 2016.
Within five minutes of the 911 call reporting the robbery, police searched the area and located Carpenter, then 17, and Robert Scott, 18, who were walking nearby, according to Carpenter’s brief. Police identified them as potential suspects because they were the only people seen in the area, according to the brief.
An officer told the victim the two teens might not be suspects, but they matched the description and were “kind of” in the area. When police brought the victim to the two detained teens, the victim said he was 100 percent certain Carpenter had robbed him, according to the brief.
At trial, Carpenter’s attorneys requested that Dr. James Lampinen be allowed to testify. Their offer of proof supporting Lampinen’s testimony included scientific evidence that a witness’ confidence level in his identification does not correlate with the accuracy of the identification.
Cole County Circuit Judge Patricia S. Joyce denied the request. She instructed the jury that presence at the scene is not sufficient to make a defendant responsible for the offense, and she listed factors to consider when evaluating the eyewitness identification testimony.
Carpenter was convicted. On appeal, he is arguing Joyce should have allowed Lampinen’s testimony because it was critical to his defense of mistaken identity. He argued that his case hinged on the victim’s testimony and it would not have invaded the province of the jury to have an expert give context on the weaknesses of eyewitness identification.
Rosemary E. Percival, a public defender in Kansas City, represented Carpenter. She said eyewitness identification is one of the least reliable forms of evidence.
“Despite this, Missouri trial courts, relying on case law from 30 years ago, routinely bar expert testimony that would help jurors understand the problems inherent in eyewitness identification,” she said.
Percival asked the court to overrule its prior decisions in State v. Lawhorn, from 1988, and State v. Whitmill, from 1989, or at least instruct Missouri judges that expert testimony on eyewitness identification should be treated like any other expert testimony under Section 490.065 of the Missouri Revised Statutes.
The Missouri legislature’s 2017 amendment to that statute adopted the Daubert standard’s “liberal approach to relaxing traditional barriers to expert testimony,” she said.
Percival also noted that in the 30 years since Lawhorn and Whitmill, evolving science has shown the fallibility of eyewitness identification. Courts in 44 states and the District of Columbia, as well as the federal courts, have held that expert testimony on eyewitness identification should be admissible, she said.
Judge Laura Denvir Stith asked Percival to respond to the state’s argument that allowing expert testimony on eyewitness identification would invade the province of the jury.
“This is not invading the province of the jury because it’s not going to the credibility of the witnesses. It’s going to the reliability of the identification,” Percival said. “The expert would not be criticizing or claiming that the witness is lying, but rather exposing problems that generally occur with eyewitness identification so that the jurors could place that in context.”
Karen L. Kramer, an assistant attorney general in Jefferson City, countered that Joyce did not abuse her discretion in excluding expert testimony in the case. She said Carpenter failed to demonstrate in his offer of proof that Lampinen’s testimony was relevant and helpful to the jury.
If jurors already know something, such as how bad eyesight could affect eyewitness identification reliability, it’s not helpful to them to have an expert testify to that, Kramer said.
Judge Patricia Breckenridge said eyesight is just one factor in eyewitness identification, and that cases have recognized other factors — such as cross-racial identification and witnesses’ memories — in “which the jury should not rely on their common understanding because persons generally don’t have an understanding of the reliability of eyewitness testimony.”
Kramer said the Missouri Supreme Court, 30 years ago, found those subjects to be within the general knowledge of the jury. “A lot has happened in 30 years,” Breckenridge replied.
Stith noted that Carpenter and Scott, when detained by police, were not wearing clothes that matched the victim’s description. She asked Kramer what description they specifically fit to become suspects.
“There is nothing identifying them other than being two young black men in the area,” she said.
Kramer replied: “They were two young black men in the area, within five minutes of the robbery, who had the property within six feet of them, and that’s enough for a jury to look at and be convinced that was a correct identification.”
The case is State v. Carpenter, SC98088.
