02-1920, 02-2260, 02-2356 & 02-2357 Newsome v. McCabe

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“Because recollection is suggestible, it was important in this civil case to explore the question whether the testimony of Rounds, Nash, and Williams identifying Newsome at the criminal trial was attributable to deliberate manipulation or instead to chance. For if chance errors are to blame, and the witnesses would have identified Newsome no matter how the officers prompted them during the lineups, then defendants’ conduct did not cause the wrongful conviction and an award of damages would be improper. To explore this issue Newsome presented the testimony of Gary Wells, a professor of psychology who has performed experiments and written scholarly works in this field. See, e.g., Gary L. Wells & Elizabeth A. Olson, Eyewitness Identification, 54 Ann. Rev. Psych. 277 (2003); Gary L. Wells, Eyewitness Identification: A System Handbook (1988). Wells conducted an experiment to determine the likelihood that three persons who saw Emerson nonetheless would identify Newsome. He showed two panels of subjects different pictures of Emerson for 15 seconds then, after some time had passed, showed them pictures of the men in the lineup and asked them to choose the one they had seen in the initial photograph. Of 50 members on the first panel, none selected Newsome’s photo; of 500 members on the second panel (which was shown a different photo of Emerson), 15 chose Newsome’s photo. Performing a chi-square test, Wells calculated that the probability of all three eyewitnesses independently picking Newsome out of a lineup by chance error was substantially less than one in 1,000, implying that the officers must have manipulated their identifications.

“The district judge concluded that Wells is an expert on the subject of identification, that his testimony was based on sufficient data, that his methods were reliable by the standards of the field, and that he applied these methods reliably to the facts of Newsome’s case. Experiments of the kind that Wells performed are the norm in this branch of science and have met the standard for scholarly publication and acceptance. There were of course potential problems. For example, Wells assumed that Emerson is the killer, so that the witnesses saw him; if anyone other than Emerson committed the murder, the test is invalid. Wells was candid about this vital assumption, which was open to probing and argument by the defendants. Wells also assumed that twodimensional images (pictures) yield the same effects on memory as three-dimensional views (live action in the victim’s grocery store; lineups in the police station; identifications in open court). This may or may not hold, but the claim of equivalence was open to exploration at trial, and it is hard to see what else Wells could have done. Even if he could have conscripted Emerson and the lineup participants for an experiment, time has so altered their appearance since the events of October 1979 that the results would have been unreliable. Chicago does not contend that there was a better way to find out whether Rounds, Nash, and Williams would have identified Newsome without the coaching. Instead it insists that Wells’ testimony was irrelevant because he did not determine how the witnesses had been induced to believe that they saw Newsome commit the murder. Yet testimony need not prove everything in order to be useful. As we have said, the jury had to consider the possibility that unhappy chance rather than malfeasance led to the mistaken conviction. Wells provided information valuable in this endeavor.”

Affirmed.

Appeals from the United States District Court for the Northern District of Illinois, Plunkett, J., Easterbrook, J.