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State Supreme Court to allow testimony about unreliability of eyewitness accounts

By Izaskun E. Larrañeta

Publication: theday.com

Published August 24. 2012 3:00PM   Updated August 25. 2012 3:34PM

In reviewing a New London murder case, the state Supreme Court has reversed itself and will allow criminal defendants to introduce expert, scientific testimony about the unreliability of eyewitness identifications.

"This is a great step for the courts and for Connecticut law because it recognizes that traditional standards of employing eyewitness testimony has led to great injustices," Timothy Everett, a clinical professor of law at the University of Connecticut, said Friday. "It's an important plank in that the law is not so stubborn and when it does change, it changes in careful response to good social science."

The issue was raised in February 2011, when the high court heard arguments centering on New London Superior Court Judge Stuart M. Schimelman's ruling that prevented an expert from testifying at Brady Guilbert's 2007 trial on the effects of stress on witness identifications.

Guilbert, 40, is serving a life sentence without the possibility of release for the murders of 23-year-old Cedric "Ceddie" Williams and 21-year-old Terry "T" Ross and the barroom shooting of William "Double R" Robinson on Oct. 9, 2004. At the trial, Robinson and other witnesses identified Guilbert as the shooter, but there was little physical evidence to link him to the two crimes, which occurred within minutes of each other.

The high court, in a decision released Thursday, agreed that expert testimony can be a useful aid to juries. The court said two earlier decisions on the subject — State v. Kemp and State v. McClendon — "are out of step with the widespread judicial recognition that eyewitness identifications are potentially unreliable in a variety of ways unknown to the average juror," Justice Richard N. Palmer wrote.

Palmer, however, noted that the exclusion of the expert testimony in Guilbert's trial was "harmless" and upheld the jury's guilty verdict.

Palmer said there are hundreds of scientific and peer-reviewed studies that "convincingly demonstrate the fallibility of eyewitness identification testimony and pinpoints an array of variables that are most likely to lead to a mistaken identification."

Palmer added: "Expert testimony on the reliability of eyewitness identifications does not invade the province of the jury to determine what weight or effect it wishes to give to eyewitness testimony. An expert should not be permitted to give an opinion about the credibility or accuracy of the eyewitness testimony itself. ... Rather, the expert should be permitted to testify only about factors that generally have an adverse effect on the reliability of eyewitness identifications and are relevant to the specific eyewitness identification at issue."

Palmer said trial courts still retain broad discretion in ruling on the qualifications of expert witnesses and determining whether their opinions are relevant.

Connecticut joins other states, including Arizona, California and Utah, that routinely allow expert testimony on eyewitnesses.

The hazards of misidentification, long a part of criminal defenses, came to the fore in Connecticut after the 2006 exoneration of James Tillman, who was wrongfully convicted of rape and imprisoned for 18 years before being freed by DNA evidence. The case against Tillman had been based almost entirely upon the victim's identification of Tillman as her attacker.

Attorneys from The Connecticut Innocence Project, who worked on the Tillman case, and a group of professors from Duke University filed briefs in support of the Guilbert appeal.

Karen Goodrow, director of the Connecticut Innocence Project and a state public defender, said the decision is part of a larger fabric of reforms happening in the state and across the nation to ensure that eyewitness testimony is as reliable as can be.

"I think it's important," she said, "because it recognizes that there have been problems with eyewitness identifications."

i.larraneta@theday.com

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