was so mentally incompetent during the course of the trial as to be unable to understand the proceedings against him or properly to assist in his own defense. Indeed, defendant testified at great length concerning events leading up to the offense, the offense itself, and matters occurring subsequent thereto. He did not exhibit any traits of mental weakness or incompetency. In sum, the argument with respect to his motion for a reexamination under 18 U.S.C. § 4244 must be rejected.
Defendant next argues that a new trial is required because the Court erred in denying four of his challenges for cause during the voir dire of the jury array, thereby forcing him to use four of his peremptory challenges to remove those four potential jurors. With respect to the four potential jurors in question, the defense asserts that the voir dire questioning established that one of them knew two of the potential government witnesses (neither of whom actually testified); that two others each had one personal acquaintance who worked at the Lewisburg Penitentiary, and that the other had a son-in-law who was a guard at the penitentiary.
Nevertheless, all four assured the Court that they would be impartial and unbiased if selected as jurors, and would be able to reach a verdict based solely on the evidence presented at trial. Notwithstanding this, defendant maintains that the four potential jurors in question should have been removed for cause, in effect taking the position that their relationship to persons only peripherally involved with the trial constituted a per se cause for their removal.
The trial court has broad discretion to determine bias of potential jurors on challenges for cause. Frazier v. United States, 335 U.S. 497, 93 L. Ed. 187, 69 S. Ct. 201 (1969); Government of Virgin Islands v. Williams, 476 F.2d 771, 775 (3d Cir. 1973). Particularly where there has been no showing of actual bias, the court's determination will not be upset. No such showing was made with respect to these four witnesses at the time of the voir dire, nor does defendant at this time point to anything indicating actual bias. His argument with respect to the challenges for cause is without merit. See Mikus v. United States, 433 F.2d 719 (2d Cir. 1970).
The defendant's next argument is that the Court erred in denying his request to call an expert witness, Dr. Robert Buckout, to testify for the defense. It was represented to the Court at trial that Dr. Buckout, a practical clinical psychologist and professor at Brooklyn College of the City University of New York, has done extensive testing and research in the area of eyewitness testimony and the effect on the reliability of such testimony of such factors as the stress the viewer was under at the time he witnessed the event about which he testifies, the environment and physical conditions under which the activity was witnessed, and the tendency of many eyewitnesses to consciously alter their account of what they witnessed by "filling in" what they actually saw with what they thought they were seeing. The defendant's offer of proof suggested that Dr. Buckout would have testified about the results of his testing and research, and would have offered the opinion that, as a result of the above-described factors and others, eyewitness accounts of incidents are not as reliable as most people would tend to believe. He would not have addressed himself to the testimony of the three eyewitnesses of the killing who actually testified on behalf of the government at the trial. Instead, he would have testified about the unreliability of eyewitness accounts in general in order to, in the language of the defendant's brief, give "defense counsel a basis, well founded in science, upon which to argue to the jury that the eyewitness accounts were inaccurate." Defendant's Brief in Support of Post Trial Motions, at 18. This Court refused to permit the testimony of Dr. Buckout, and the defendant now contends that this refusal was sufficient error to warrant the granting of a new trial.
The test in this circuit for determining the competency of proffered expert testimony was expressed in United States v. 60.14 Acres of Land, 362 F.2d 660, 667 (3d Cir. 1966), where the court, quoting from Jenkins v. United States, 113 U.S. App. D.C. 300, 307 F.2d 637, 643 (1962), stated:
"'To warrant the use of expert testimony . . . two elements are required. First, the subject of the inference (which is to be drawn from the facts) must be so distinctively related to some science, profession, business or occupation as to be beyond the ken of the average layman, and second, the witness must have such skill, knowledge or experience in that field or calling as to make it appear that his opinion or inference will probably aid the trier in his search for truth.'"
In short, the subject must be a proper one for expert testimony, and the expert must be properly qualified. In addition, once it is determined that the expert testimony in question is competent, its probative value must be weighed against its prejudicial effect. United States v. Amaral, 488 F.2d 1148, 1152 (9th Cir. 1973). As with any evidence, if the potential for prejudice of competent expert testimony outweighs its probative value, it will not be admitted.
Judged by those standards, the proffered testimony of Dr. Buckout in this case was properly rejected. Without deciding whether the subject matter of Dr. Buckout's testimony would have been a proper one for expert testimony, or whether Dr. Buckout is properly qualified to testify on that subject, I conclude, as I did at trial, that the potential prejudice of his testimony outweighed its probative value. To begin with, the probative value of the expert testimony would not have been significant. It is conceded that Burkeen was stabbed by the defendant while in the stairwell, although the defendant contended that he acted in self-defense. Thus, the area of dispute is restricted to which one was the aggressor. Moreover, Dr. Buckout would have testified about something which is generally brought out by effective cross-examination at any trial -- the factors, such as undue stress on the viewer and environmental conditions, which would tend to render a given eyewitness account unreliable, and the possibility or probability that the account in question is inaccurate. Defense counsel had ample opportunity to attack the eyewitness testimony in this case, and did so by attempting to point out alleged inconsistencies in the accounts offered at trial by the three eyewitnesses. In addition, counsel argued to the jury that because of those inconsistencies and other factors the accounts of the eyewitnesses should not be believed, and the jury was charged, at the defendant's request, about the vagaries of eyewitness accounts.
Dr. Buckout's testimony would have done little more than add a scientific luster to the facts and ideas which were amply presented by cross-examination, counsel's argument to the jury and the charge of the Court.
Weighed against the limited probative value of that testimony is the substantial possibility of prejudice that it would have presented. To start with, the testimony adduced at the trial failed to reveal the existence in this record of those factors previously mentioned that usually form the basis for opinion evidence challenging the reliability of eyewitness testimony. Further, the proffered testimony would not materially assist the jury in analyzing the evidence in this case but would be directed to the expert's thesis that eyewitness accounts generally are not as reliable as one would believe. Consequently, there was a substantial risk that the credentials and persuasive powers of the expert would have had a greater influence on the jury than the evidence presented at trial, thereby interfering with the jury's special role as fact finder. Scientific or expert testimony particularly courts the substantial danger of undue prejudice or of confusing the issues or of misleading the jury because of its aura of special reliability and trustworthiness. United States v. Amaral, 488 F.2d 1148 (9th Cir. 1973); United States v. Brown, 501 F.2d 146 (9th Cir. 1974). Therefore, considering all the circumstances of this case, I conclude that the probative value of Dr. Buckout's testimony was outweighed by its potentially prejudicial effect and was properly excluded.
I have considered the remaining arguments in support of the motion for a new trial,
and conclude that they are without merit. Accordingly, defendant's motions will be denied.
William J. Nealon / United States District Judge
Dated: April 25, 1975
Now, this 25th day of April, 1975, in accordance with the memorandum this day filed, defendant's post-trial motions for a judgment of acquittal or, in the alternative, for a new trial are hereby denied.
United States District Judge