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UNITED STATES v. DOWNING

May 23, 1985

UNITED STATES OF AMERICA
v.
JOHN W. DOWNING


Weiner, J.


The opinion of the court was delivered by: WEINER

WEINER, J.

 On August 17, 1982, John W. Downing was indicted on counts of mail fraud, 18 U.S.C. §§ 1341 and 1342; wire fraud, 18 U.S.C. § 1343; interstate transportation of stolen property, 18 U.S.C. § 2314; and aiding and abetting, 18 U.S.C. § 2. On October 28, 1982, after a trial before this court, the jury found Downing guilty of all but the interstate transportation of stolen property counts. On January 25, 1985, the United States Court of Appeals for the Third Circuit vacated the judgment of conviction and remanded the case to this court with instructions to conduct an evidentiary hearing with respect to the admissibility of certain expert testimony which this court had declined to admit at trial. United States of America v. Downing, 753 F.2d 1224, 1244 (3d Cir. 1985). An evidentiary hearing was held on March 25, 1985. After consideration of the testimony presented at the hearing and the briefs filed by counsel, the court declines to admit defendant's expert testimony and reinstates the judgment of conviction.

 Briefly summarized, defendant's indictment arose out of a scheme to defraud numerous vendors by a group of individuals calling themselves the Universal League of Clergy (U.L.C.). U.L.C. sent representatives, identifying themselves as U.L.C. clergy, to national trade shows where they expressed interest in the product lines of various manufacturers. When a vendor took an order for his product, U.L.C. would provide the vendor with a list of phoney credit references. U.L.C. established mail drops where it would collect inquiries sent by the credit departments of manufacturers. It provided positive credit reports to the manufacturers, who then shipped the goods to U.L.C. on credit. U.L.C. disposed of the goods without making payment to the manufacturers.

 Defendant and co-defendants James A. Silva and Richard Piazza were indicted as representatives of U.L.C. *fn1" The government sought to connect defendant with this scheme through eyewitness identifications. It produced twelve witnesses who identified defendant as a man they knew as Reverend Claymore. The witnesses personally observed Claymore for periods of 5-45 minutes during the course of business dealings that subsequently turned out to be fraudulent. At trial, defendant sought to introduce the expert testimony of a psychologist as to the unreliability of eyewitness identifications. The court declined to admit such testimony because it felt that it was the jury's function to judge the credibility of the witnesses. However, the Third Circuit vacated the judgment of conviction and directed this court to conduct an evidentiary hearing to determine whether proffered testimony could meet the "helpfulness" standard of Fed.R.Evid. 702. Furthermore, if this court determines that the proffered testimony meets the helpfulness standard, it must then consider, pursuant to Fed. R. Evid 403, whether the danger of unfair prejudice outweighs the probative value of the evidence.

 In directing this court to hold an evidentiary hearing, the Third Circuit set forth various guidelines for determining the admissibility of scientific evidence that cannot be judicially noticed. The factors that the court must consider are:

 
1. the soundness and reliability of the process or technique used in generating the evidence;
 
2. the possibility that admitting the evidence would overwhelm, confuse, or mislead the jury; and
 
3. the proffered connection between the scientific research or test result to be presented, and particular disputed factual issues in the case.

 Slip op. at 27-28. In formulating this approach to admissibility, the Third Circuit expressly rejected the test first propounded in Frye v. United States, 54 App. D.C. 46, 293 F. 1013 (D.C. Cir. 1923). Frye held that before scientific evidence may be admitted, the methodology used to generate it must be shown to have gained general acceptance within the relevant scientific community. Id. at 1014. With the guidelines of the Third Circuit in mind, the court must now consider the evidence presented at the hearing.

 I

 THE EVIDENTIARY HEARING

 Defendant seeks to present before the jury the testimony of Dr. Robert Buckhout, a professor of psychology at Brooklyn College. Dr. Buckhout proffered testimony concerning three phenomena of memory which he claims that research in experimental psychology has identified:

 1. retention interval, which concerns the rate at which memory declines over time;

 2. the assimilation factor, which concerns a witness' incorporation of information gained subsequent to an event into his/her memory of that event; and

 3. the confidence-accuracy relationship, which concerns the correlation between a witness' confidence in his/her memory and the accuracy of that memory.

 Dr. Buckhout also testified about a checklist he prepared which purports to identify sources of bias in photographic lineups. In response to Dr. Buckhout's testimony, the government offered the testimony of Dr. Michael McCloskey, an associate professor of psychology at Johns Hopkins University. The court will now proceed to review each area of Dr. Buckhout's testimony and the response offered by Dr. McCloskey. *fn2"

 A) Retention Interval

 According to Dr. Buckhout, the research on retention interval dates back to the early 1900's when "forgetting curves" were first published. Tr. at 11. He cited one study of face identification by Professors Shepard, Ellis and Davies published in 1982 [D-1] which found a straight line decay of memory over time up to a period of eleven months. Tr. at 11-12. Beginning with 60 percent correct identifications after seven days, the group tested was only 20 percent accurate after eleven months. When asked whether he could assist the jury in evaluating the accuracy of a witness' memory after a period of over three years, Dr. Buckhout responded as follows:

 
I would have to project a limited body of data. The limited body of data here means by the time they reached eleven months they would not essentially have gone further with that type of testing for faces. When we look at older studies of memory without regarding verbal memory if it is well learned, such as a language structure, memory is quite good, but verbal and face memory appear to be two different processes to simplify it as much as I can.
 
In effect, testing beyond eleven months has not been done yet systematically because by the time you reach eleven months if you are down to close to 10 or 20 percent recognition, there isn't much further you can go. Memory loss is substantial and further extension of that would be lower than that, but I have another point of contention about this because I think a lot of it depends on the kinds of testing and what people do when they go to those tests.

 Tr. at 13-14. When asked whether it was possible to extrapolate from the eleven month period of the Shepard, Ellis and Davies study to a period of three years (the approximate time period between the witnesses transactions with Reverend Claymore and the time of trial), Dr. Buckhout stated that:

 
Extrapolation is, of course, mathematically possible, but the trend of the curve is quite crystal clear. Unless a lot of research changes dramatically I would not expect a chance [sic] in the performance. I would expect it to get worse. They get much worse than are [sic] at the point of eleven months.

 Tr. at 16.

 On cross-examination, Dr. Buckhout acknowledged that in most of the studies of eyewitness identification, the individuals tested had a period of only sixty seconds or less to view the persons they were later asked to identify. Tr. at 32. Such was the case in the previously discussed Shepard, Ellis, and Davies study. Tr. at 42. Dr. Buckhout was aware of no studies in which the individuals tested had an opportunity to view the person they were asked to identify for periods of up to 45 minutes. Tr. 32. The following exchange took place between the government's attorney and Dr. Buckhout, regarding the validity of extrapolating from studies where the viewing times were a minute or less to a situation in which the viewing times ranged from five to forty-five minutes:

 
Q And would it be fair to say that all of those, even the shortest of those, is in excess of the time you used in the experiments?
 
A Absolutely. There would be no issue if it were not for the long delay and the long length in taking information. The research in this area does not approach good research, which is familiar aticles [sic] where people have had years. We have one extreme or the other.
 
Q So really the scientific experiments, and yours don't put you in the position where you can evaluate the kind of facts that we have in this case?
 
A I don't agree at all. The facts [sic] pattern falls within the parameters and have become solid over the years. There was no necessity to apply research nor every single comment or element you find in the trial.
 
Q You will agree, the closer you get to the trial the more accurate your extrapolations would be?
 
A I't [sic] very close to the fact pattern with respect to long term memory. Memory has fallen off to eleven months even ...

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