Brooklyn Law Review


The admission of expert testimony on eyewitness identification evidence is an effective means of ensuring that juries and judges will weigh eyewitness identification evidence appropriately. The fallibility of such evidence is an increasingly well-researched and documented phenomenon in criminal law. Despite publicity of the frequency with which eyewitness identification evidence leads to wrongful convictions, studies show that jurors are often unable to properly assess the probative value of such testimony. Judges are also often unfamiliar with the factors that affect the reliability of eyewitness identification evidence. A 2016 Court of Appeals of New York case, People v. McCullough, represented a departure from New York’s LeGrand limits on judicial discretion and highlighted the fact that allowing judges to determine whether “little or no” corroborating evidence is available is problematic when that evidence consists of other eyewitnesses or the testimony of an accomplice. Because the high rate of wrongful convictions based on eyewitness misidentification is attributable to both judges’ and juries’ general misunderstanding of the factors that affect the reliability of eyewitness identification evidence, the McCullough court’s deferential interpretation of the LeGrand test has troubling implications. This note proposes a return to the LeGrand test as originally conceived and an additional rule that eyewitnesses and accomplice testimony provide insufficient corroboration, so that relevant and qualified expert testimony must be admitted when that is the only corroborating evidence available. This solution is not only consistent with existing New York law, but also a step toward further reducing wrongful convictions.