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United States v. Redwood

United States District Court, N.D. Illinois, Eastern Division

October 20, 2016



          AMY J. ST. EVE, District Court Judge.

         On October 6, 2016, the Government moved to exclude Defendant Vandetta Redwood's (“Defendant”) proposed expert in perception and human memory, Dr. Ken Paller, pursuant to the Federal Rules of Evidence and Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). (R. 153.) For the following reasons, the Court, in its discretion, grants the government's motion. The Court therefore declines to appoint an expert under the Criminal Justice Act, as Defendant requests, (R. 146), because Defendant has failed to establish that Dr. Paller's testimony is “necessary for adequate representation.” 18 U.S.C. § 3006A(e); see United States v. Carter, 410 F.3d 942, 949-51 (7th Cir. 2005).


         I. The Charges Against Redwood

         On February 10, 2016, a grand jury returned a two-count indictment against Defendant. (R. 1.) Count One charges Defendant with transferring a handgun and ammunition, namely, a loaded Smith & Wesson, Model 642 Airweight, .38 special caliber revolver, bearing serial number CRZ6547, to Minor D.P., knowing and having reasonable cause to believe that Minor D.P. was a juvenile, in that she had not attained eighteen years of age, and knowing and having reasonable cause to believe that Minor D.P. intended to carry and otherwise possess and discharge and otherwise use the handgun and ammunition in the commission of a crime of violence, namely first degree murder, aggravated battery with a firearm, and aggravated discharge of a firearm, in violation of 18 U.S.C. §§ 922(x)(1)(A), (B) and 924(a)(6)(B)(ii). (Id.) Count Two charges Defendant with knowingly possessing in and affecting interstate commerce a firearm, namely, the same handgun identified above in Count One, which had traveled in interstate commerce prior to Defendant's possession of the firearm, within a distance of 1, 000 feet of the grounds of Oliver Wendell Holmes Elementary School and Visitation Catholic School, a place that Defendant knew and had reasonable cause to believe was a school zone, in violation of 18 U.S.C. §§ 924(q)(2)(A) and 924(a)(4). (Id.)

         The charges against Defendant are premised on events that took place on April 28, 2014, during a fight among high school students. Defendant is charged with giving D.P., her then 14-year old cousin, a loaded firearm and telling her to shoot another 14-year old girl. D.P. then used the firearm to shoot two teenage girls, killing one of them.

         II. The Proffered Expert Testimony

         On September 23, 2016-the deadline for expert disclosures, (R. 131)-Defendant provided notice to the government of her intent to call Dr. Geoffrey Loftus as an expert witness. (R. 153-1 at 1.) Defendant explained that Dr. Loftus would “testify to the vagaries of eyewitness identification under the specific circumstances of this case.” (Id.) Specifically, Defendant indicated that Dr. Loftus would testify about the following issues: (1) “that [a] witness's level of confidence does not necessarily correlate to the accuracy of the eyewitness identification”; and (2) “that numerous factors can undermine the accuracy of an eyewitness's recall of series of events or identifications, including” (a) “the stress of the event itself, ” (b) “the presence of a weapon, ” (c) “the passage of time, ” (d) “the ‘forgetting curve, '” (e) “exposure to post-event information, ” (f) “divided attention of the witness, ” and (g) “suggestive police identification procedures.” (Id. at 2.) Defendant highlighted that Dr. Loftus would testify regarding how “the slow-motion crime scene video”[1] supposedly altered witnesses' memories of the events leading up to the shooting. Additionally, Defendant indicated that Dr. Loftus would testify “to the problem of eyewitness recollection, which affects the ability to correctly identify a face, product, figure, or sequence of events, ” as well as “‘poor encoding' or how a witness's brain initially perceives an event which may include challenging the eyewitness's visibility, attentiveness, focus and perception at the time an event occurred and that perception is affected by known, scientifically documented tricks that the mind plays on a witness.” (Id.)

         On September 26, 2016, Defendant told the government that Dr. Loftus was unavailable to testify at trial and that a second expert, Dr. Paller, would replace him. (R. 153 at 1.) Then, on September 30, 2016, Defendant provided an expert disclosure summarizing Dr. Paller's testimony. (R. 153-1 at 3-4.) Relevantly, Defendant said:

To start, a confident eyewitness testimony may not always be accurate, and confidence in one's report can be dissociated from accuracy of report. Furthermore, accuracy can be compromised through action at many stages from initial learning until later recall. Initial learning may be more difficult when distracting events and emotional factors are operative concurrently. Information we acquire at one time can be altered based on subsequent events. Additional information available after initial learning, including specific forms of questioning or misleading information, can corrupt memory storage in the brain. In this sense, memory storage in the brain is quite unlike recording by a video camera.

(Id. at 3.)

         In a September 29, 2016 motion for expert assistance under the Criminal Justice Act, which Defendant amended the following day, Defendant represented that Dr. Paller's testimony would provide context for and cast doubt upon the testimony of eyewitnesses who initially reported that they saw “the gun being passed between two minors” but later changed their accounts after seeing the slow motion cell phone video. (R. 140 at 2-3; R. 146 at 2-3.)

         Finally, on October 4, 2016, Defendant provided a third disclosure. (R. 153-1 at 5.) It stated:

This is not the typical eye witness expert testimony dealing with eye witness identifications. Instead, the facts of this case demonstrate the need to explain to the jury how memories are formed and how they can be distorted by after-event information such as viewing the slow motion video, discussing the events with others, exposure to after-event details through social media and/or other media coverage, interviews with law enforcement, prior testimony and other intervening events and how this post-event information gets melded with one's actual memory. Further how one's perception and life events can distort a memory and how false memories can be formed. Additionally, how memory and perception are effected [sic] by traumatic events, such as seeing someone get killed or seeing a weapon as well as the circumstances surrounding the event itself including the length of time and the focus of one's attention during the event. The cases cited by the Court deal with more traditional eye witness identifications and reliability, however the expected testimony in this case far exceeds the reliability of eye witness identifications.


         LEGAL ...

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