Can trial courts exclude expert testimony on eyewitness identification fallibility? State v. Hubbard Explained

In State v. Hubbard, the Utah Supreme Court addressed the critical question of when trial courts may exclude expert testimony regarding the fallibility of eyewitness identification. This case provides important guidance for practitioners seeking to introduce or exclude such evidence in criminal trials.

Background and Facts

During an armed robbery at a basement apartment, victims Jeffrey Gunderson and Cheryl Moss observed their assailant, who identified himself as “Six Nine.” Three weeks later, Officer Merino presented both witnesses with a six-photo array containing defendant’s photograph along with five similar photos of light-complexioned African-American men with goatees. Both witnesses immediately identified defendant with high certainty. Defense counsel sought to introduce expert testimony on memory research and variables affecting eyewitness identification accuracy.

Key Legal Issues

The Court addressed three main issues: whether excluding expert testimony on eyewitness identification fallibility violated due process, whether the photo array procedures violated federal and state due process protections, and whether conducting voir dire at sidebar without defendant’s presence constituted reversible error.

Court’s Analysis and Holding

The Court held that trial courts have discretion to exclude expert testimony on eyewitness identification when it would amount to “a lecture to the jury as to how they should judge the evidence.” The Court distinguished between scientific testimony about specific circumstances and general lectures on memory research that can be adequately conveyed through cautionary jury instructions. Regarding the identification procedures, the Court applied both federal and state due process analyses, finding the photo array was not impermissibly suggestive and that the identifications were sufficiently reliable under the Long factors.

Practice Implications

This decision establishes that Utah courts will not automatically admit expert testimony on eyewitness identification. Defense attorneys must demonstrate that proposed expert testimony offers more than general research findings that can be addressed through jury instructions. Prosecutors should emphasize when proffered testimony constitutes impermissible commentary on witness credibility rather than scientific analysis of specific identification conditions.