Bomas v. State

ADKINS, J. Petitioner, Tavon Bomas a/k/a Tavon Bomar (hereinafter “Bomar”) 1 was tried and convicted in the Circuit Court for Baltimore City of second-degree murder and use of a handgun in a crime of violence. Bomar’s conviction rested principally on the eyewitness identification of him by an off-duty detective. We granted his request for a writ of certiorari to review the standard by which trial judges determine whether to admit expert testimony on eyewitness identification and to decide if the Circuit Court exercised proper discretion in excluding such proffered expert testimony in this case. Although we will clarify the standard for the admission of expert testimony on eyewitness identification, we shall hold that the Circuit Court in this case properly evaluated the proffered expert testimony.

FACTS AND LEGAL PROCEEDINGS On April 18, 2004, at approximately 2:00 a.m., off-duty detective Kenneth Bailey stopped his truck in traffic on York Road near the Tower Lounge, a bar in Baltimore City. Bailey heard six to eight gunshots emanating from a crowd of people that had formed on the sidewalk roughly fifteen feet away from him. He observed an individual, whom he later identi ³⁹⁶ fied as Bomar, shoot at and ultimately Mil a young African American male. After shooting the victim, Bomar passed within a car length of Bailey’s vehicle and fled the scene.

Bailey drew his weapon with the intent of pursuing Bomar but a police officer approached Bailey and requested he identify himself. After establishing his identity, both Bailey and the police officer tried, unsuccessfully, to locate Bomar. In a report Bailey filed a week later, he described the shooter simply as “a black male.” The case did not progress until October 14, 2004, when police arrested Jimmy Dower for heroin possession and he volunteered information about a shooting on York Road. Dower told police that he had been inside Tower Lounge the night of the shooting and had observed an argument between the shooter and the victim.

Dower originally told police that the shooter’s name was Henry Low, but he later testified that he had known Bomar as “Henry Low” for “[pjractically all [of Bomar’s] life.” According to Dower, Bomar and the victim left Tower Lounge and he too went outside. Dower saw Bomar retrieve a handgun from a vacant home on York Road and fire several shots at the victim. After Dower identified Bomar, police constructed a photo array that included Bomar’s picture and showed the array to Bailey on October 26, 2004. Bailey identified Bomar as the perpetrator of the murder.

Dower met with police at a 7-11 store parMng lot whereupon police showed him the photo array. Dower identified Bomar’s picture in the array and he signed and dated Bomar’s photo. Based upon the eyewitness identifications of Bailey and Dower, police arrested Bomar on November 3, 2004. Initially Bomar claimed he was not at Tower Lounge the night of the shooting, but he later stated that he witnessed the shooting.

Bomar moved to suppress the pretrial eyewitness identifications made by Bailey and Dower. At the pretrial hearing and at trial, Dower repudiated Ms identification of Bomar as the shooter. He claimed a different person was the real shooter and that police had directed him towards Bomar’s photo. ³⁹⁷ Dower also expressed his reluctance to testify in court and concern that he would incur a reputation as a “snitcher[.]” The motions judge found the photo array and Bailey’s identification not impermissibly suggestive and denied Bomar’s motion to suppress. Bomar also proffered testimony from David Schretlen, Ph.

D., an expert in the field of neuropsychology and a licensed psychologist, at a pretrial hearing. Dr. Schretlen offered testimony that (1) a “trained observer,” such as a police officer, has no better ability to remember faces than a lay person, (2) a witness’s confidence in his testimony is not correlated with the accuracy of his identification, (3) stress and the passage of time adversely affect one’s ability to recall events or people, (4) a police photo array can influence a witness’s identification of a suspect, and (5) juries tend to believe eyewitness testimonies in spite of “effective cross examination.” Because Dower had recanted his identification of Bomar at trial, Bomar sought to use Dr. Schretlen’s testimony to counter Bailey’s identification. Bomar proffered testimony on several issues from Dr. Schretlen. On the effect of stress on memory, Dr. Schretlen offered the following: [Schretlen]: Another factor that has been examined is the level of stress that a person is under when they’re trying to encode information.

Although there are some studies showing that moderate levels of stress are beneficial, there are a number of studies suggesting that extremely high levels of stress actually impede the effective encoding of to be remembered material. Q: Has scientific research in the area of human memory address[ed] the area of the effect of a violent event upon human memory? [Schretlen]: There’s been very little data on the impact of a violent event.... [One study uses] soldiers who are undergoing survival skills training ... there’s a facility in which soldiers are prepared to withstand the withers of ³⁹⁸ interrogation if they’re captured as prisoners of war and in that, in that survival skills training, they are exposed to both stressful, high stressful and low stress interrogation techniques and [the study] has shown that people are much better at remembering the faces of interrogators who interrogate them in a low stress fashion compared to interrogators who interrogate them in a high stress fashion and there are a number of such studies showing that when people are under high levels or exposed to high levels of stress, their memory is actually not as good as it is when they are under you know a sort of ordinary level, experiencing an ordinary level of arousal[.] I don’t think people appreciate that high levels of stress might actually impair memory rather than foster it as you gave an example, I think, of the person who says I was so frightened, I’ll never forget that face. Q: Now, with regard to stress, isn’t it true that the studies seem to indicate both sides of it? There are some studies that say high levels of stress will indicate a lower encoding of memories correct? [Schretlen]: Relatively few studies of very high levels of stress.

The studies that I have seen of very'high levels of stress ... more consistently suggest that it impedes encoding. Studies of sort of lower levels of stress suggest that when you go from an extremely low level to a moderate level, that can actually be beneficial^] Q: Would you agree with me doctor that someone holding a gun on you would be a high level of stress? [Schretlen]: It depends on the individual. ³⁹⁹ [P]eople experience different levels of fear, or arousal, or distress in response to the same event and what the studies suggest is that people who ... experience very high levels of arousal are more likely to have problems encoding a new memory. Q: [W]ould you agree with me that it’s generally less stressful to witness a gun on someone else than having a gun on you as an individual? [Schretlen]: I think that stands to reason. Q: So arguably, someone who is watching ... someone holding a gun on someone else, would conceivably be under less levels of stress than that person having a gun held on them personally, correct? [Schretlen]: Very possibly.

Q: And if you add to it the fact that ... the person is a 20-year military person [who is] trained in guns and gunfire and then also a person who is a trained law enforcement officer, conceivably that level of stress could be even less, correct? [Schretlen]: It certainly is a possibility[.] Q: [In regard to the study of the soldiers being interrogated under high stress and low stress situations, the soldiers] are the focus of the stress. The stress is happening to them, correct? [Schretlen]: Yes. Q: Can you cite me any studies in which that particular scenario is involved where people are watching the interrogation? [Schretlen]: No. With respect to the storage of information within human memory, Dr. Schretlen offered the following: ⁴⁰⁰ Q: And can you explain what the research has shown, what the scientific research has shown in regards to human memory and the storing of information? [Schretlen]: Well the major finding in that area, Your Honor, is [that] the longer information is stored, the more it tends to break down. But again, what’s not so intuitive about this is that the forgetting curve is just that, a curve.

It’s not a straight line. That is we forget the most information in the few seconds or minutes after we’re exposed to it and we forget less and less of the material as time goes by. Q: And in regards to human memory ... there are some who may say that these issues are a matter of common sense. Do you have an opinion ... ? [Schretlen]: I think some of them are a matter of common sense but there are a number of findings that are actually somewhat counter intuitive.

Q: Of the ones that are counter intuitive, which ones are they in particular? [Schretlen]: I don’t think people appreciate that the relationship between exposure time ... and memory encoding accuracy ... is a curvilinear relationship^] Q: What about ... in regards to ... your expert testimony that the longer information is stored in fact relates [to] the breakdown of that information? [Schretlen]: Well, I think all—I think people would pretty widely recognize that the more time between when you learn something and when you’re asked to remember it, the less likely you’ll remember it. So, I’m saying I think that is actually fairly intuitive. In regard to the memory ability of a “trained observer,” Dr. Schretlen testified as follows: [Schretlen]: By and large there have been at least early on a number of studies comparing Public Safety Officials, police officers and other sort of lay persons in their ability to remember faces or staged events and it doesn’t appear ⁴⁰¹ that police officers have any particular advantage over a non—over lay persons. Q: So in your expert opinion, the research that has been conducted it has not shown that trained observers as the police officer is more accurate than a non-trained person? [Schretlen]: In general that’s the case.

There are certainly some studies showing that police officers tend to be a little bit better at recording peripheral details but they’re not typically better at remembering faces. The motions judge declined to allow this testimony because she felt it would be unhelpful to a jury and that a jury was capable of appropriately evaluating and weighing the eyewitness identifications. In reaching its decision, the Circuit Court stated: I have not found that his testimony in this case will be helpful to the jury in evaluating the evidentiary issues presented with respect to the two eyewitness identifications .... With respect to ...

Bailey, Defense counsel through cross examination will have an opportunity to probe the officer’s ability to observe, remember, and recall the event in question including the officer’s ability to pay attention and any distraction the officer was under.... Mr. Dower has already testified that he knows the Defendant^] ... Thus, Mr. Dower’s identification of the Defendant in a photographic array did not depend on his ability to encode, store, or retrieve the face of a stranger. Indeed on cross examination, Dr. Schretlen candidly admitted that his entire direct examination would not pertain to a situation in which an identification [wa]s made by a witness when the person being identified is known to the witness.... [The shooting] was a violent event for which the expert witness has no data showing the impact of circumstances or the ability to encode, store, and retrieve information in the human memory....

The doctor has no studies or data to present in which a witness has been tested for the events of observing a stressful intervention or action.... The doctor further testified that every individual would experience a different level of stress[.] ⁴⁰² [W]ith respect to the testimony of the doctor on police officer or trained observers’ reactions with respect to human memory, the doctor gave little to no testimony on direct. There was one question asked by the Defense attorney as to whether the studies differed or what the studies showed about police officers. The doctor responded in a generality that there have been some studies that have been shown that there is no appreciable difference in the reaction [by] police officers or trained observers [compared to] the other members of the public ... [I]n coming to that conclusion ... we don’t have[:] the identification of these studies, ... the names of them[;] ... the number of studies that he’s talking about with respect to police officers[;] ... a description of what these studies consisted of[; or] ... the dates of the discoveries of the studies....

So with respect to the observing ability of a police officer, we have little to no information in terms of data or expert opinion from the doctor to even apply to [this witness]. The judge allowed the prosecution to introduce into evidence the eyewitness identifications made by Dower and Bailey. At Bomar’s trial, Bailey testified for the State and identified Bomar as the shooter. Bailey authenticated the photographic array that was shown to him on October 26, 2004, from which he had identified and signed Bomar’s photo.

Through cross-examination of Bailey, Defense counsel probed the following issues: • (1) Bailey had been coming from a nightclub (Melba’s); (2) he drank a 12-16oz. beer at Melba’s; (3) his truck’s radio was on when the shooting occurred; (4) there was a SUV approximately the same size as Bailey’s truck two cars in front of him on York Road; and (5) when Bailey exited his vehicle he was cautious and apprehensive. Dower testified that Bomar was in fact not the person he had seen at the shooting and refused to implicate him in the crime; but, he admitted he had told the police that Bomar was the shooter. Dower testified the shooter was a man with “deep dimples” and that police had instructed him what to say ⁴⁰³ during his taped interview and directed him to Bomar’s picture in the photo array. Dower alleged that he had identified Bomar as the shooter and from the photo array because he has poor eyesight, the sun was in his eyes, and he was experiencing heroin withdrawal symptoms.

The jury subsequently convicted Bomar of second degree murder and use of a handgun during the commission of a crime of violence or felony. The judge sentenced Bomar to imprisonment of thirty years for second degree murder and twenty years for the use of a handgun in a crime of violence, which terms were to be served consecutively. Bomar appealed the judgment to the Court of Special Appeals (“CSA”) challenging the Circuit Court’s exclusion of Dr. Schretlen’s expert testimony on grounds that it would not have been helpful to a jury; the intermediate appellate court affirmed. Bomas v. State, 181 Md.App. 204 , 956 A.2d 215 (2008).

We granted Bomar’s Petition for Writ of Certiorari to consider the following two questions: (1) should this Court reconsider its decision in Bloodsworth v. State, 307 Md. 164 , 512 A.2d 1056 (1986), and adopt a standard that favors the admissibility of expert testimony on eyewitness memory identification in criminal cases where the State’s primary evidence of guilt is an eyewitness identification of the accused, and (2) did the trial court improperly exercise its discretion in finding that testimony from an expert in the fields of neuropsychology and human memory would not be helpful to the jury in evaluating eyewitness identifications of the defendant? Bomar asks us to answer each question in the affirmative. DISCUSSION I. The Standard for Expert Testimony on Eyewitness Identification Under Maryland Rule 5-702, Expert testimony may be admitted, in the form of an opinion or otherwise, if the court determines that the testi ⁴⁰⁴ mony will assist the trier of fact to understand the evidence or to determine a fact in issue. In making that determination, the court shall determine (1) whether the witness is qualified as an expert by knowledge, skill, experience, training, or education, (2) the appropriateness of the expert testimony on the particular subject, and (3) whether a sufficient factual basis exists to support the expert testimony.

Although decided before our adoption of Rule 5-702, 2 in Bloodsworth v. State, 307 Md. 164 , 512 A.2d 1056 (1986), we applied a substantially similar common law rule, doing so specifically in the context of the admissibility standard for, and the extent of courts’ discretion in, allowing or excluding expert testimony on eyewitness identifications. Bloodsworth was convicted of first degree murder and related sexual offenses largely on the strength of eyewitness testimony. Id. at 166-70 , 512 A.2d at 1057-59 . Similar to Bomar, Bloodsworth argued that the trial court erred in refusing to allow an expert witness to testify about the shortcomings of eyewitness identification.

Id. at 177 , 512 A.2d at 1062-63 . The expert witness in Bloodsworth offered to testify to the following: ... I would only be estimating what the research shows. I don’t have a particularly overall general condemnation of eye witnesses at issue. [E]ye witnesses are really confronted with a difficult situation, and when the circumstances add up to a very difficult challenge to the memory system, these are things that can happen to various parts of their testimony and various parts of their identification, and testing methods ...

I see as simply a tool, and the checklist is ... provided to the jury so that they can essentially assess what ... the filter of the scientist would say about a given test. ⁴⁰⁵ Id. at 177-78 , 512 A.2d at 1062 . The trial judge excluded the expert’s testimony stating: I am concerned [about] the possibility [that] admitting the evidence would tend to confuse or mislead the jury. This is not just a matter of usurping the province of the jury, although it is in my judgment most certainly that, it is also that such testimony is of little value in aiding the jury in this case. I’m not persuaded that the testimony will be helpful to the jury in understanding the evidence in this case.

It seems to me that the reliability of the witnesses and the identification witnesses is better tested by the cathartic effect of cross-examination than by the opinion of an expert. Id. at 178 , 512 A.2d at 1063 . The trial judge also concluded that the proffered testimony failed the Frye-Reed test 3 because the defense failed to present evidence showing that the expert testimony on eyewitness identification “has general acceptance in the relevant scientific community.” Id. at 179 , 512 A.2d at 1063 . Finally, the trial judge held: [E]ven if it were a technique generally accepted in the relevant scientific community, the proffer is not sufficient to persuade me first, exactly what is being offered to the jury other than some generalized explanation of the studies that ⁴⁰⁶ have been made.

Nothing that has been proffered suggests that it will be helpful. [I]t may usurp the jury’s province in determining the reliability of the identification in this case---- Id. at 179 , 512 A.2d at 1063 . We upheld the trial judge’s decision to exclude the expert’s testimony but remanded the case to the Circuit Court due to Brady violations. 4 Bloodsworth, 307 Md. at 171-76 , 512 A.2d at 1067 . In addition, we held “that the Frye-Reed test was not properly applicable to [expert testimony on eyewitness identification.]” Id. at 184 , 512 A.2d at 1066 . In upholding the decision we held that the proper standard for the admissibility of expert testimony on eyewitness reliability is “ Nvhether [the expert’s] testimony will be of real appreciable help to the trier of fact in deciding the issue presented.’ ” Id., 512 A.2d at 1066 (iquoting Shivers v. Carnaggio, 223 Md. 585 , 165 A.2d 898 (I960)).

Further, we held that “ ‘[t]he admissibility of expert testimony is a matter largely within the discretion of the trial court, and its action in admitting or excluding such testimony will seldom constitute a ground for reversal.’ ” Bloodsworth, 307 Md. at 185 , 512 A.2d at 1067 (quoting Raithel v. State, 280 Md. 291 , 372 A.2d 1069 (1977)). ⁴⁰⁷ Bomar now urges us to reevaluate the standard adopted in Bloodsworth regarding expert testimony on eyewitness identification. He argues that such expert testimony should be presumptively admissible, or at least be favored, especially in cases like this one, where eyewitness testimony forms the foundation of the State’s case. For this proposition, he argues that (1) Bloodsworth discouraged the admission of expert testimony on eyewitness identification; (2) many wrongful convictions are due to eyewitness misidentifications, causing many jurisdictions to favor the admissibility of expert testimony on the reliability of eyewitness identifications; and (3) expert testimony on eyewitness identification should be presumptively helpful and under this standard the trial judge erred in not admitting the proffered expert testimony. Before assessing Bomar’s arguments, we first look for guidance from other jurisdictions that have grappled with how to handle expert testimony on eyewitness identification.

In McMullen v. State, 714 So.2d 368, 370-71 (Fla.1998), the Supreme Court of Florida divided the various jurisdictional approaches on this issue into categories, “discretionary” and “prohibitory.” The discretionary approach grants the trial court discretion as to whether to admit such testimony and appears to be the majority view on both the federal 5 and state 6 levels that have considered the question. Id. at 370 . ⁴⁰⁸ Other jurisdictions embrace a discretionary approach generally, but either require or favor the admission of expert testimony on eyewitness identification when the prosecution’s case relies solely on eyewitness testimony. 7 Some jurisdictions appear to generally disfavor expert testimony on eyewitness identification, but favor it when the State has no substantial corroborating evidence. 8 Finally, there is a prohibitory approach which excludes all expert testimony on eyewitness identification. To our knowledge, only three jurisdictions have retained this per se exclusion. 9 Id. at 371 . ⁴⁰⁹ Bomar argues that Bloodsworth discourages the admission of expert testimony on eyewitness identification because “the opinion advances all the arguments against the admissibility of expert testimony, and provides no countervailing observations which would educate trial judges as to circumstances in which expert testimony on eyewitness reliability would be helpful.” To support his argument, Bomar draws attention to our observation in Bloodsworth that, “[t]he vast majority of courts have rejected [expert testimony on eyewitness identification,]” id. at 181 , 512 A.2d at 1064 , and the Court’s reliance on United States v. Amaral, 488 F.2d 1148 (9th Cir.1973), and State v. Porraro, 121 R.I. 882 , 404 A.2d 465 (1979), two cases that upheld the exclusion of such evidence. We quoted Amaral for the proposition that “ ‘[o]ur legal system places primary reliance for the ascertainment of truth on the test of cross-examination’ ” and that “ ‘[i]t is the responsibility of counsel during cross-examination to inquire into the witness’ [sic] opportunity for observation, his capacity for observation, his attention and interest and his distraction or division of attention.’ ” Bloodsworth, 307 Md. at 182 , 512 A.2d at 1065 (quoting Amaral, 488 F.2d at 1153 ) (citations omitted).

We also referenced Porraro , in which the Supreme Court of Rhode Island upheld the trial judge’s exclusion of a psychology professor’s testimony on eyewitness identification because of a fear “ ‘it would effectively invade the province of the jury’ ” and that “ ‘admitting this testimony would open a floodgate whereby experts would testify on every conceivable aspect of a witness’ [sic] credibility.’ ” Bloodsworth, 307 Md. at 183 , 512 A.2d at 1065 (quoting Porraro, 404 A.2d at 471 ). We then quoted the following holding in Porraro , which was similar to the decision in Amaral : “We are persuaded that the subject matter of the proffered testimony in this case, the trustworthiness in general of eyewitness observations, was not beyond the ken of the jurors and therefore the trial justice did not abuse his ⁴¹⁰ discretion in excluding this evidence. Through cross-examination, defense counsel was able to probe into the witness’ [sic] capacity and opportunity for observation, her attention, interest and distraction. The jury was perfectly capable of • assessing the witness’ [sic] credibility by weighing the inconsistencies and deficiencies elicited in cross-examination.” Bloodsworth, 307 Md. at 183 , 512 A.2d at 1065 (quoting Porraro, 404 A.2d at 465 ).

We agree with Bomar that the Bloodsworth opinion strikes a negative tone with respect to expert testimony on eyewitness identification. But this does not mean that Bloodsworth was wrongly decided or that we should depart from the “real appreciable help” to the jury standard for admission that was applied in that case. We will be sure, though, to carefully examine the record here to ascertain whether that negative tone influenced the trial court’s ruling excluding Dr. Schretlen’s testimony. First we consider Bomar’s thesis that such expert testimony should be presumptively admissible.

Quoting an article published in an American Bar Association journal, Richard S. Schmechel, et al., Beyond the Ken? Testing Jurors’ Understanding of Eyewitness Reliability Evidence, 46 Jurimetrics 177 , 184, Bomar defends his “presumptively admissible” theory by arguing that the standard of review for trial judges’ decisions on expert testimony is “ ‘vacuous!,]’ ” makes a lower court’s decision “Me facto final”' or grants the lower court “unfettered” discretion, and “insulates the decision not to allow such experts within an extremely deferential standard of review.” Bomar points out that the trial judge in Bloods-worth, on remand, again precluded the expert testimony he sought to introduce and again a jury convicted Bloodsworth of murder primarily on the basis of eyewitness identification. See Bloodsworth v. State, 76 Md.App. 23, 33 , 543 A.2d 382, 387 (1988). He observes, moreover, that DNA testing in 1993 exonerated Bloodsworth of this crime.

See The Innocence Project, Know the Cases: Kirk Bloodsworth, http://www. innocenceproject.org/Content/54.php (last visited Jan. 04, 2010). ⁴¹¹ Bomar’s second contention is that the volume of wrongful convictions based on eyewitness misidentifications impels this Court to encourage the admission of expert testimony on eyewitness identification. Bomar predicates his argument on studies showing that a substantial number of individuals who were convicted of a crime, but later exonerated by DNA evidence, were mistakenly identified by at least one eyewitness. For example, the Third Circuit in United States v. Brownlee reviewed literature on eyewitness reliability and observed: The recent availability of post-conviction DNA tests demonstrate that there have been an overwhelming number of false convictions stemming from uninformed reliance on eyewitness misidentifications. In 209 out of 328 cases (64%) of wrongful convictions identified by a recent exoneration study, at least one eyewitness misidentified the defendant.

In fact, mistaken eyewitness identifications are responsible for more wrongful convictions than all other causes combined. 454 F.3d 131, 141-42 (3d Cir.2006) (internal quotation marks and citations omitted); see also State v. Copeland, 226 S.W.3d 287, 299-300 (Tenn.2007) (reviewing literature addressing limitations of eyewitness identification evidence); The Maryland Commission on Capital Punishment, Final Report to the General Assembly 64, Dec. 12, 2008 (citing the prevalence of erroneous eyewitness identifications and subsequent wrongful convictions as a reason to abolish the death penalty in Maryland); The Innocence Project, Fact Sheet on Post-Conviction DNA Exonerations, available at http://www.innocenceproject. org/news/Fact-Sheets.php (finding that “Eyewitness [mjisidentification [tjestimony was a factor in 74 percent of post-conviction DNA exoneration cases in the U.S.”) (last visited Jan. 04, 2010). Bomar maintains that because of the apparently frequent convictions based on eyewitnesses’ misidentifications, “[ojther jurisdictions have tempered the judicial hostility towards admitting ... expert testimony on eyewitness reliability in vogue when Bloodsworth was decided, and the decisive trend now ⁴¹² recognizes that expert testimony on eyewitness reliability is a necessary safeguard against wrongful conviction.” He argues that the majority of cases treat expert testimony on eyewitness reliability as “presumptively helpful to the jury” when the State’s case is based primarily on eyewitness testimony. In support of this trend, Bomar offers United States v. Smithers, 212 F.3d 306 (6th Cir.2000); Johnson v. State, 272 Ga. 254 , 526 S.E.2d 549 (2000); and Copeland, 226 S.W.3d at 301 . In Smithers , the Sixth Circuit considered whether the district court abused its discretion in refusing to allow an expert on eyewitness identification.

In examining the means by which courts consider such testimony, the court appraised the development of expert testimony on eyewitness reliability as follows: Courts’ treatments of expert testimony regarding eyewitness identification has experienced a dramatic transformation in the past twenty years and is still in a state of flux. Beginning in the early 1970’s, defense attorneys began to bring expert testimony into the courtroom. Then, courts were uniformly skeptical about admitting such testimony, elaborating a host of reasons why eyewitness experts should not be allowed to testify. This trend shifted with a series of decisions in the 1980’s, with the emerging view that expert testimony may be offered, in certain circumstances, on the subject of the psychological factors which influence the memory process ....

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