January-February 2012

As the judges saw it … literally: ­Tillman v. State and the admissibility of expert ­testimony regarding out-of-court identification

David C. Newell

Assistant District Attorney in Harris County

As the ancient Vulcan proverb goes, “Only Nixon could go to China.”1 This truism is essentially used in situations where someone with an unassailable reputation among a group of people takes dramatic action that would be roundly criticized by supporters had the action been taken by someone else. And judging by the reaction of some,2 Tillman v. State marks the point where the members of the Texas Court of Criminal Appeals downloaded nine copies of The Little Red Book3 on their respective Kindles and booked a collective flight to the Far East. But a closer reading of the opinion itself reveals that perhaps a unanimous decision was quite justified because the legal decision in that case—that expert testimony regarding the reliability of pre-trial identification procedures can be relevant and reliable—was not all that remarkable.

Now you see him, now you don’t

On December 21, 2005, Amandre Wilson and Joseph Liebetreu were shot and killed in their home after attending a charity ball. Richard Avila, who lived across from Wilson’s townhouse, heard two gunshots from the direction of the victims’ home. He heard Liebetreu yell, “Hey, you, get out of here,” and then heard two more shots. Avila saw an “extremely tall” black man wearing a black, mid-thigh-length coat and a gray knit cap run out of the victims’ front door. The lights to the front porch and garage were working, as well as a street light, so he could see the suspect’s face and noticed the suspect had no facial hair. Avila estimated that he was about 62 feet away from the suspect when he viewed him, and he called 9-1-1. He later assisted making a composite sketch that was published on a newscast.

    Dan Christoffel, who lived in the same complex as Wilson, saw a tall black man who appeared to be running away from the victim’s home. Christoffel was in a car driven by his brother, and the tall black man slowed when he saw the car’s headlights. Christoffel described the man as having a baby face and wearing a knit cap and a dark, long, thigh-length coat. Christoffel passed within 4 to 6 feet of the suspect and the two made eye contact.

    Shortly after the victims were murdered, Bobby Williams was at an apartment complex talking to some people when three black men entered. Williams saw and heard one of these individuals, a “big guy,” discussing that the victims, who had been dressed in ballroom clothing, looked like “easy picks.” This person explained that he was prevented from attacking the couple in their garage, so he went to the front door. When Wilson would not open the door fully, he forced his way in. Wilson fought back, so he shot her. He then shot Liebetreu, who had seen his face. Williams also saw the three men pull items from a garbage bag that included a purse, jewelry, and Christmas presents.

    Williams called Crime Stoppers and later “tentatively” identified Larry Tillman to a couple of police officers while they were driving around Tillman’s neighborhood in an unmarked car. Avila and Christoffel looked at a total of six separate photo spreads, and neither could identify Tillman. Williams, however, identified Tillman in the photo spread. Twelve days later, Avila and Christoffel separately viewed a five-person live lineup. Tillman was the only person cleanly shaven, and he was also the only one whose picture had been in one of the previously viewed photo spreads. Avila positively identified Tillman, and Christoffel “tentatively” identified him. Christoffel testified that it was either Tillman or the No. 2 person but that he felt confident that Tillman was the suspect based on his face. Christoffel’s brother was shown a videotape of the lineup, and he thought the suspect could be either the third or fourth person, but the detective explained that he did not expect the brother to be able to identify the suspect because the brother’s focus had necessarily been on driving. Indeed, the State offered other testimony through the detective that it was not unusual for a witness to be able to identify a suspect more easily in a live lineup than through viewing a photo spread.

    Tillman proffered the testimony of Dr. Roy Malpass as an expert on eyewitness identifications. A professor of psychology at the University of Texas at El Paso, Dr. Malpass was on the editorial board of one of the better psychology journals, Law and Human Behavior, and had helped to create the Department of Justice’s publication entitled Eyewitness Evidence, A Guide for Law Enforcement, which provide a set of guidelines for good practice in eyewitness-identification procedures. Dr. Malpass also lead the Eyewitness Identification and Research Laboratory at the university and explained that the study of eyewitness identification, as an area of psychology, is a field of study using repeatable techniques and calculated error rates to test a working hypothesis. Having heard the testimony in the case, Dr. Malpass stated that the type of photo spread used by the police was the same kind examined in the experiments using simulated crimes he has studied. Malpass also acknowledged that his testimony has been disallowed several times by trial court judges in criminal cases and one well-known researcher had opined that “our knowledge is not sufficient” for experts to be able to testify.

    Dr. Malpass emphasized that he was not there to render an opinion about the accuracy of a particular witness’s testimony, nor did he intend to tell the jury about the specific lineup or photo spread used in the Tillman case. Rather, he proposed to testify as to the manner in which the lineup and photo spread were employed to explain that the use of a photo spread prior to gaining identification in a physical lineup is a biasing fact against Tillman. Additionally, he also would have testified that having a witness point someone out while driving through a neighborhood and then showing him a photo spread with that person’s picture in it is also suggestive. Neither of these types of identification procedures would be approved by the standards set out in the U.S. Department of Justice Eyewitness Evidence Manual. Finally, he also would have testified that having an eyewitness work with a sketch artist can change a witness’s original memory.

    The trial court excluded the testimony. First, the trial court explained that Dr. Malpass had not performed any studies regarding a lineup procedure following a photo spread or on seeking a defendant and then a photo spread later. Second, the trial court questioned Dr. Malpass’s credibility because Dr. Malpass testified that he had not fallen asleep during the detective’s testimony during the trial even though the trial court had personally seen him nodding off several times and the bailiff had had to prod Dr. Malpass to wake him up. The court of appeals affirmed on the ground that Dr. Malpass’s testimony would not help the jury understand the evidence because Dr. Malpass did not tie the pertinent facts of the case to the scientific principles at issue.

Don’t let the gate hit you …

Overriding the trial court’s role as “gatekeeper” for the admissibility of expert testimony, a unanimous Court of Criminal Appeals held that the trial court should have allowed Dr. Malpass to testify because his testimony would have been both reliable and relevant.4 Writing for the majority, Judge Hervey explained that for expert testimony to be admissible it must be based upon a reliable scientific foundation and relevant to the issue in the case. Applying the standard set out in Nenno v. State, the court first explained that psychology is a legitimate field of study and that the study of the reliability of eyewitness identification is a legitimate subject within the area of psychology. The court relied upon the broad consensus of the scientific community detailed in a recent opinion by the Supreme Court of New Jersey to reach the conclusion that the study of eyewitness identification is a reliable field of research that continues to grow.5 The court even noted that in the New Jersey case, a 10-day hearing on admissibility of such testimony was held and Dr. Malpass testified as an expert for the State. Thus, the court held that reliability of eyewitness identification was a legitimate subject within the legitimate field of psychology.

    Having resolved the first two prongs of Nenno in favor of admission, the court then considered whether Dr. Malpass’s testimony properly relied upon and utilized principles involved in the relevant field of psychology. The State argued that Dr. Malpass did not make the principles he relied upon clear, but the court disagreed. Dr. Malpass specifically detailed one of the studies he relied upon as well as the psychological explanations leading to the primary conclusion that showing a witness a photo spread and then a lineup could be suggestive. Ultimately the court held that Dr. Malpass’s extensive experience and knowledge gave them confidence that Dr. Malpass had relied upon and utilized the principles in the relevant area of psychology. Thus, the court concluded that Dr. Malpass’s testimony was reliable.

    The court also held that Dr. Malpass’s testimony was relevant because it sufficiently tied the facts of the case to the scientific principles that were the subject of his testimony. The court first noted that it had already previously decided similar evidence was relevant in Jordan v. State, though in that case expert had been told the facts of the case and specifically applied his theories to those facts.6 The court explained that it was not necessary for Dr. Malpass to have heard the testimony of the officer conducting the identification procedure because his testimony took into account enough of the pertinent facts to be of assistance to the trier of fact. Moreover, Dr. Malpass’s testimony was still relevant even though he was presented facts of the case only in hypothetical questions. Relying upon Cohn v. State, the court explained that there can be a sufficient “fit” between expert opinion and the facts of the case where witnesses other than the expert testify to facts that are later identified by the expert in his testimony.7

    Additionally, the court distinguished its previous cases where it had upheld the exclusion of eyewitness expert testimony. The court noted that this was unlike the situation presented in Pierce v. State, where the expert could not say if any factors that he discussed regarding cross-racial identification were applicable to the case or to what extent they might undermine the witnesses testimony.8 Similarly, the court distinguished Tillman from a case where the expert would have testified that the entire identification process is flawed without reference to any factors that may have applied to the testifying witnesses.9 In both of those previous cases, the court noted that the experts had not examined any of the eyewitnesses, but in Tillman, that did not appear to be a bar to admissibility of the evidence as the court appeared to opt for a looser fit than it had previously required.10 However, the court did reiterate that the hypotheticals posited to Dr. Malpass mirrored the facts of the case, suggesting his opinion testimony was sufficiently tied to the case.

    Finally, the court also noted that Dr. Malpass’s testimony would have assisted the trier of fact. The court noted that eyewitness identification has continued to be troublesome and controversial and has been a major factor behind wrongful convictions.11 The court pulled examples of juror responses in voir dire in unrelated cases to note that awareness and concern surrounding mistaken identifications among jury members. The court cited the new laws regarding improvement and standardization of photograph and live lineup identification procedures.12 Given that jurors might have their own notions about the reliability of eyewitness identification, the court explained that Dr. Malpass’s testimony could also have educated the jury about an area in which it lacked a thorough understanding, much like the educator-expert testimony discussed in Coble v. State.13 And the State’s offer of the detective’s testimony about his experience with identification procedures made it necessary for the jury to hear from Dr. Malpass to receive a more balanced picture of the reliability of these procedures.

Knee-deep in the hoopla

A casual reading of the opinion demonstrates that despite how generally unassailable the court’s ultimate conclusion was, the opinion was crafted to achieve a particular result. For example, there is no real discussion of the fact that Tillman, the proponent of the evidence, had the burden to prove by clear and convincing evidence that Dr. Malpass’s testimony was sufficiently reliable.14 Equally inconspicuous is any mention that the State, as the prevailing party on appeal, was entitled to every adverse inference or that Tillman could not rely upon any articles or treatises not presented to the trial court. However, the court cites to a lot of swell stuff without making it clear whether those articles were ever presented to the trial court. I do not mention this to denigrate the court or quibble with the ultimate conclusion that Dr. Malpass’s testimony was admissible. Rather, I point this out to show how ready the court was to bend over backwards to support its conclusion that such evidence should be presented to the jury. Given the court’s apparent predilection, prosecutors should be careful about trying to keep out expert testimony regarding the reliability of eyewitness identification.

    Of course, as we go forward, it is also important to note what the opinion does not say. Nothing in this opinion undermines the current legal standards for suppression of in-court identification. The test is still whether, under the totality of the circumstances, an identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.15 This case holds only that the jury should have heard the defense’s expert testimony, not that the in-court identification should have been suppressed. What prosecutors must be mindful of, however, is that the court does take time to note that the identification procedure employed in this case “was not usual” and “involved many layers of suggestiveness.” So if you are dealing with identification procedures similar to those in this case, expect the defense to cite this language to prove up its suppression case.

    Similarly, this is not a case where the expert was opining about the visual acuity of the witnesses. In Ex parte Spencer, the Court of Criminal Appeals considered expert testimony that witnesses could not have identified the facial features of an individual involved in the crime.16 There, the court addressed the issue of actual innocence rather than the admissibility of evidence, but the court did note that there would be no way for a forensic visual expert to test the conditions as they existed at the time of the offense. Tillman certainly gives the defense some good precedent to urge when offering new expert testimony, but the language in Spencer could suggest that a forensic visual expert’s testimony may need a tighter fit for admissibility given the inability to replicate the lighting conditions during the offense. At the very least, it suggests that the Court of Criminal Appeals did not announce a new per se admissibility rule regarding eyewitness reliability in Tillman. As with all things evidentiary, the court will still take them up on a case-by-case basis.

    And finally, the court itself acknowledged the new identification procedure legislation that will, we hope, significantly reduce the number of flawed identification procedures and wrongful convictions. Nothing succeeds like success, and as officers receive more and more training regarding proper identification techniques we hope the need for expert testimony in this area will decrease. That said, prosecutors should be prepared to counter expert testimony on eyewitness reliability in the aftermath of Tillman as it seems likely trial courts will become more reluctant to exclude defensive evidence in related areas. Just how far trial courts and courts of appeals may stretch this opinion and whether it leads to a change in standards of review for suppression of in-court identification remains to be seen. As is usually the case, such answers lie in the undiscovered country.


1 Star Trek VI: The Undiscovered Country, Paramount 1991.
2 See e.g. Editorial, Texas seeks to enhance the reliability of convictions, Fort-Worth Star-Telegram, Oct. 6, 2011; Steve McGonigle, Texas court’s ruling makes it easier for juries to hear about witnesses’ fallibility, Dallas Morning News, Oct. 5, 2011.
3毛People’s Liberation Army Daily, 1964. According to Google translation, the Chinese-character version of the name means, “Ain’t no party like a Communist Party.”
4 Tillman v. State, 2011 WL 4577675 (Tex. Crim. App. October 5, 2011)(9:0).
5 See New Jersey v. Henderson, 27 A.3d 872 (New Jersey 2011).
6 Jordan v. State, 928 S.W.2d 550 (Tex. Crim. App. 1996).
7 See Cohn v. State, 849 S.W.2d 817 (Tex. Crim. App. 1993).
8 Pierce v. State, 777 S.W.2d 399 (Tex. Crim. App. 1989).
9 Rousseau v. State, 855 S.W.2d 666 (Tex. Crim. App. 1993).
10 And really, skinny jeans are not very flattering.
11 United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967)(“The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification”).
12 Tex. Code Crim. Proc. art. 38.20. Note that at the time of the writing of this article, the draft of the statewide model policy for eyewitness identifications was available for viewing and comment at www.lemitonline.org/publications/eyewitnessid.html. Even if comments are closed by the time you read this article, it may still be available for viewing.
13 Coble v. State, 330 S.W.3d 253, 288 (Tex. Crim. App. 2010)(holding that A.P. Merillat could testify as an educated expert on the opportunities for violence in prison).
14 Hernandez v. State, 116 S.W.3d 26 (Tex. Crim. App. 2003).
15 Loserth v. State, 963 S.W.3d 770 (Tex. Crim. App. 1998).
16 Ex parte Spencer, 337 S.W.3d 869 (Tex. Crim. App. 2011).