State of Missouri, Respondent, vs. Kane Carpenter, Appellant.

STATE OF MISSOURI, ) ) Respondent, ) ) v. ) No. SC98088 ) KANE CARPEN TER, ) ) Ap p e lla nt. ) APP EAL FROM THE CIRCUIT COURT OF COLE COUNTY The Honorable Patricia S. Joyce, Judge Kane Carpenter ("Carpenter") appeals his convict io n after a jury trial on one count of robbery in the first degree. The case against him was largely, but not entirely, based on the identific atio n provided by the victim at a "show up" that occurred only minutes after the crime occurred. Even though this identification was central to the state's case, the circuit court excluded expert witness testimo ny regarding various factors – inc lu d in g the suggest ive nature of "show up" identifications – that can imp a c t the reliab ility o f eyewitness identificatio ns. Because the circuit court erred in excluding this evidence, this Court vacates Carpenter's convict io n and remands the case fo r a new trial. Opinion issued September 1, 2020

2 Background On October 23, 2016, a young white man (" Victim") was walking west on Capitol Avenue in Jefferso n City, Missouri, at approximately 7:45 in the evening. Vic tim wa s lis te n i n g to mus ic o n wire d earbuds connected to an iP hone in his pocket. It was dark, and the nearest street light was some distance away. Victim noticed he was being fo l lowed by two young black men wearing hoodies pulled low to obscure their faces. Because the two were closing quickly on Victim, he started to cross the street to put some distance between himself and them. The two black men stopped Victim in the mid d le of the street, one in front of him and one behind. The man in front asked Victim if he could use his phone. Victim said he did not have a phone and was listening to an iP o d instead. The man in front pulled up his t-shirt, displaying what appeared to Victim to be the woodgrain handle of a .38 pistol tucked into his waistband, and said to Victim: "Give me what you have or I'll shoot you." He then took the iP hone and wired earbuds from Vic tim while the man behind Victim reached around and took the e-cigarette fro m Victim's hand and the nicotine cartridge from his pocket. The two then ran a short ways west on Capitol and turned south onto Lafayet te. The entire encounter took less than one minu te . Victim pursued the two men down Lafayette and saw them cut through a residential yard to head east through an alley a half block south. Seeing a couple at the intersection of Lafayette and High Street, Victim ran past the alley down to High Street and asked to borrow their phone to report the robbery. Again, only seconds had passed since the crime occurred.

3 Victim's 911 call was received at 7:49 p.m. He said he had been robbed by two young black men, one in a black hoodie and one in a red hoodie. This description went out on the police radio at 7:50 p.m. Officers F is he r and Schuler (who was training Officer Fisher) were in their vehicle outside the police station when this call went out. They were only two or three blocks away and responded to Victim's location within seconds. Sergeant Lenart responded to the scene in a separate vehicle and quickly learned that Victim had last seen the two perpetrators running east in the alley between Lafayette and Cherry. Sergeant Lenart drove east to Cherry and turned north. He saw C arpenter and another young black ma n walking east across C herry at the point where the alley crossed the street. Both were wearing t-shirts, and neither was wearing a hoodie. Sergeant Lenart stopped his vehicle, hailed the two, and asked if he could talk to them. Carpenter stopped immediatel y and, after taking a couple of steps suggest ing he may run, the other young man stopped as well. It was 7:52 p.m. Carpenter was standing next to a bush when Sergeant Lenart approached. Though Sergeant Lenart did not see Carpenter throw anything on the ground, he soon found an iP hone connected to wired earbuds lying on the ground six or seven feet from Carpenter on the other side of the bush. C arpenter was not carrying a gun and no gun was found in his vicinit y. O fficer Lehman arrived, exited his vehicle to join Sergeant Lenart, and noted that Carpenter appeared to be sweating and breathing heavily as if he had been running. Sergeant Lenart radioed O ffic e rs F is he r and Schuler to report that he had detained two young men nearby and request that Victim be brought to the location to see if he could identify them as the perpetrators.

4 At 7:54 p.m., Officers Fisher and Schuler received Sergeant Lenart's call and drove Victim the short distance to his location. On the way, Victim was told that he would see two men who may have been involved in the robbery and would be asked if he recognized them. He was admonished that these two were found in the area and generally matched the descriptio n he had given, but not to identif y them as the perpetrators unless he was certain. When they arrived, C arpenter and the other young man were handcuffed and seated on the curb. O fficer Fisher shone the spotlight on them. Without leaving the vehic le, Victim identified the two men as the ones who had robbed him and Carpenter, specifically, as the man who had displayed the pistol and threatened to shoot him. Victim noted Carpenter was not wearing the red hoodie he had been wearing during the robbery. Victim identified the iP hone as his and was able to enable it with his finge rprint in lieu of a password. Carpenter and the other man were arrested and removed from the scene. Shortly thereafter, Sergeant Lenart and Officer Greenwalt began to search back fro m the lo c a tio n where Carpenter and the other man were arrested to the point where Vic tim ha d last seen the m running away. Beginnin g at the point of where the two entered the alley from Lafayette, the officers found Victim's e-cigarette and the vial of nicotine. Both were broken and scattered. Further along the alley, the officers found a driver's license belonging to the young man who had been arrested with C arpenter. Just off the alley near Cherry Street, the officers found two hoodies, one black and one red. Several officers looked for, but were unable to find, the pistol or anything that Victim may have mis ta k e n fo r a p is to l.

5 Prior to trial, Carpenter's counsel served notice that he would call Dr. James Lampine n to testify a t tria l as an expert about the factors that can impact the reliability of eyewitness identifications generally. The state filed a motion to exclude this te s timo n y on the ground that such expert testimo ny should not be admitted under State v. Lawhorn, 762 S.W.2d 820 (Mo. banc 1988), State v. Whitmill, 780 S.W.2d 45 (Mo. banc 1989), and subsequent cases. The circuit court granted the state's motion. To save time at trial, both parties and the court agreed Carpenter could make a proffer of Dr. Lampinen's testimony on the F rid a y before the Monday when tria l would begin. At trial, Victim testified he was "one hundred percent certain" Carpenter was the one who threatened and robbed him. After the state rested its case, Carpenter's counsel sought to have Dr. Lampinen testify. The state renewed its objection based on Lawhorn and Whitmill, and the court sustained that objection and excluded the expert testimony. Following the close of all the evidence, Carpenter tendered and the circuit court gave Instruct io n N o. 9, which lis ts 17 factors the jury should consider in evaluat i ng eyewitness identification evidence. 1 The jury found C arpenter guilt y of robbery in the first degree. Carpenter appeals, arguing as his sole point that the circuit court erred in excluding Dr. Lampinen's testimony. This Court has jurisdiction over Carpenter's appeal under article V, section 10 of the Missouri Constitution. 1 This instruction was based on MAI-CR 310.02, which this Court approved in 2015 and which is set forth in full and discussed at length in Section V of this opinion.

6 Analys is "A trial court enjoys considerable discretion in the admission or exclusion of evidence, and, absent clear abuse of discretion, its action will not be grounds for reversal." Cox v. Kan. City Chiefs Football Club, Inc., 473 S.W.3d 107, 114 (Mo. banc 2015) (quotation omitted). Generally, a c irc uit court's decision will be considered an abuse of discretion when it is "clearly against the logic of the circumstances then before the court and is so unreasonable and arbitrary that it shocks the sense of justice and indicates a lack of careful, deliberate consideration." Id. (c ita tio n o mitte d ). However, when the parties fail to accurately inform the circuit court of the applicable law and this re s ults in a rulin g based upon an incorrect legal premise, the ruling is an abuse of d is c re tio n. A trial court can abuse its discretion through the inaccurate resolution of factual issues or through the application of incorrect legal principles. Where the facts are at issue, appellate courts extend substantial deference to trial court decisions. However, when the issue is primarily legal, no deference is warranted and appellate courts engage in de novo review.

State v. Taylor, 298 S.W.3d 482, 492 (Mo. banc 2009). The state argued at trial that Dr. Lampine n' s testimo ny should be excluded under State v. Lawhorn, 762 S.W.2d 820 (Mo. banc 1988), and subsequent cases. In Lawhorn, this Court affirmed the exclusion of expert testimony regarding certain factors impacting the re liabil it y of eyewitne ss identif ica t io ns. It began by noting that, "[g]enera ll y, expert te s timo n y is a d mis s ib le if it is c le a r tha t the s ub je c t o f s uc h te s timo n y is o ne up o n whic h the jurors, for want of experience or knowledge, would otherwise be incapable of drawing a proper conclusion from the facts in evidence." Id. at 822 (emphasis added).

7 See also State v. Taylor, 663 S.W.2d 235, 239 (Mo. banc 1984) (" The rule in M is s o ur i is that expert opinion testimony should never be admitted unless it is clear that the jurors themselves are not capable, for want of experience or knowledge of the subject, to draw correct conclusions from the facts proved." (quotation o mitte d )). The defendant in Lawhorn sought to offer expert evidence "to explain that researc h ind ic ates the existence o f 'the other race effect,' which causes persons to have difficulty identifying individuals of a different race, and that the effects of the passage of time, stress at the time of the crime, and the retrieval level in facial recognition memory of the human brain, all c o mb ine to d imin is h a witne s s' [sic] ability to make an accurate identification." Lawhorn, 762 S.W.2d at 823. This C ourt held the circuit court did not abuse its discretion in excluding this evidence because "such matters are within the general realm of common experience of members of a jury and can be evaluated without an expert's assistance." Id. In addition, this Court rejected the expert evidence because it would tend to distract the jury from the relevant issues and would, ultima te l y, invade the province of the jury, which alone must assess the credibility of each witness. Id. Afte r Lawhorn, such evidence has routine l y – if not unifo r ml y – been excluded. I. Lawhorn and its progeny were abrogated by § 490.065.2 Car penter argues that this C ourt should overrule Lawhorn due to the mount ing scientific evidence on the subject gathered in the intervening decades. This is unnecessary, however, because Lawhorn and its progeny no longer control this issue. Those cases, which were decided as part of the common law o f e vid e nc e in c rimin a l

8 cases, were abrogated in 2017 by the enactment of section 490.065.2. 2 This s e c tio n, which now controls the admissibility of expert evidence in criminal cases, provides: In all actions except those to which subsection 1 of this section[ 3 ] a p p lie s : (1)A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a)The expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b)The testimony is based on sufficient facts or data; (c)The testimony is the product of reliable principles and methods; and (d)The expert has reliably applied the princip le s and methods to the facts of the case; (2)An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinio n substant ia l ly outweighs their prejudic ia l effect; (3)(a) An opinion is not objectionable just because it embraces an ultimate issue. (b)In a criminal case, an expert witness shall not state an opinion about whether the defendant did or did not have a mental state or condition that constitute s an element of the crime charged or of a defense. Those matters are for the trier of fact alone; (4)Unless the court orders otherwise, an expert may state an opinion and give the reasons for it witho ut first testifyin g to the underlyi ng facts or 2 Unless otherwise stated, all statutory citations are to RSMo Supp. 2018. 3 Section 490.065.1 provides the test for admitting expert testimony in cases brought under chapter 451, 452, 453, 454, or 455 or in actions adjudicated in juvenile courts under chapter 211 or in family courts under chapter 487, or in all proceedings before the probate division of the circuit court, or in all actions or proceedings in which there is no right to a jury trial[.]

9 data. But the expert may be required to disclose those facts or data on cross-examinat io n. § 490.065.2 (emphasis added). N othing in this statute requires that jurors mus t b e wholly ignora nt of the topic on which the expert wo uld te s tify or utterly incapable of drawing a proper conclus io n from the facts in evidence witho u t it. Instead, the threshold test is merely whether the expert's testimo ny (which may or may not includ e opinions) will "help" the jury understand the evidence or decide the contested issues. To be sure, the more a matter is within the common knowledge of the jury (assuming such common knowledge also is correct), the le s s lik e ly it is tha t e xp e rt te s timo n y about that matter will be helpful to the jury. But this is a continuum. Section 490.065.2 no longer follows the binary analys is of Lawhorn and Taylor under which expert testimo ny was admiss ib le only where the jury could not proceed without it. Instead, a qualified expert can offer testimony based on sufficient facts and reliable principles that have been reliably applied whenever such testimony will help the jury understand the evidence and decide the disputed issues. As discussed below, expert testimony about the reliability of eyewitness identifications meets the requirements of section 490.065.2. 4 See People v. Lerma, 47 4 Section 490.065.2 is identical to the Rule 702 of the Federal Rules of Evidence. Where Missouri law adopts language from the Federal Rules of Evidence, federal cases applying those rules are persuasive – though not binding – authority. State v. Williams, 548 S.W.3d 275, 285 (Mo. banc 2018). The leading case on Rule 702 is Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), which stressed that Rule 702 is intended to broaden the scope of admissible expert testimony. Applyin g Daubert and Rule 702, federal courts have approved the use of expert testimony concerning the reliability of expert witnesses. See, e.g., United States v. Brownlee, 454 F.3d 131, 144 (3d Cir. 2006) (finding the lower court erred in excluding expert testimony concerning the "confidence-accuracy correlation" with respect to eyewitness identifications); United States v. Smith, 156 F.3d 1046, 1053 (10th Cir. 1998) ("[E]xpert

10 N.E.3d 985, 992-93 (Ill. 2016) (noting the "clear trend" toward the admission of expert testimony "for the purpose of aiding the trier of fact in understanding the characteristics of eyewitne ss identifica tio n "); Commonwealth v. Walker, 92 A.3d 766, 782-83 (Pa. 2014) (observing that courts in 44 states, the District of Columbia, and all federal circuit courts that have ruled on the issue, permit expert testimony on eyewitness identifications "for the purpose of aiding the trier of fact in understanding the characteristics of eyewitness identifica tio n"). II.Expert testimony about eyewitness identifications is sufficiently reliable Because section 490.065.2 was never cited to the circuit court as controlling, the parties did not address its requirements and the c irc uit court made no specific findings concerning them. On appeal, the state concedes there was no argument below challenging the reliability of the scientific research and conclusions concerning the reliab ility of eyewitness identif ic at io ns about which Dr. Lampine n would have testified. Nor could there have been. In the decades since Lawhorn, this area has received great attentio n from the scientific community, and its findings and conclusions are as nearly unanimo us as it is possible to be. See State v. Guilbert, 49 A.3d 705, 720-21 (Conn. 2012) (collecting studies showing "a near perfect scientific consensus" concerning the testimony on eyewitness identification may properly be admitted under Daubert in certain circumstances[.]"); United States v. Harris, 995 F.2d 532, 535 (4th Cir. 1993) (finding expert testimony concerning eyewitness identifications a dmis s ible under Rule 702 to explain, among other factors, "cross-racial identification, ... identification after observation under stress, and psychological phenomena as the feedback factor and unconscious transference"). Cf. State v. Clopten, 223 P .3d 1103, 1112 (Utah 2009) ("[T]he testimony of a qualified expert regarding factors that have been shown to contribute to inaccurate eyewitness identifications should be admitted whenever it meets the requirements of rule 702 of the Utah Rules of Evidence").

11 potentia l unreliab ility of eyewitness identificatio ns and holding that judicia l hostility to such evidence in criminal cases is "out of step with the widespread judicial recognition that eyewit nes s identifica t io ns are potentia lly unrelia b le in a variety of ways unknown to the average juror"); State v. Henderson, 27 A.3d 872, 916 (N.J. 2011) (explaining scientific research on eyewitness identification has been "tested and retested, subjected to scientif ic scrutiny through peer-reviewed journals, evaluated through the lens of me ta-analyses, and replicated at times in real-world settings" such that it now represents the "gold standard in terms of the applicability of social science research to the law"). Accordingly, the reliability requirements in section 490.065.2(1)(b)-(d) are met. III.Expert evidence would have helped this jury understand and evaluate the eyewitness identification in this case Rather than take on the quixotic task of attempting to undermine the reliability of the wealth of scientific evidence on which Dr. Lampinen's testimony was based, the state argues that jurors are familiar with the factors that can affect the reliability of an eyewitness's identification and, therefore, the jury was not incapable of resolving the issues around C arpenter's guilt or innoce nce without Dr. Lampinen's testimo ny. Though such an argume nt may have been valid under the binary analys is required by Lawhorn and Taylor, it fa ils in the more forgiving context of section 490.065.2. Under this statute, the only question is whether his te s timo n y would help the jury understa nd and evaluate the eyewitness identification evidence in this case and consider the factors set forth in Instruct io n N o. 9. In other words, the question is would the jury be better off with this infor ma t io n than without it. Plainly, the answer is yes. See Brownlee, 454 F.3d at 142

12 (explaining "jurors seldom enter a courtroom with the knowledge that eyewitness identifications are unreliable" and, even though "science has firmly established the inhere nt unrelia b il it y of huma n perception and memory, this reality is outside the jury's common knowledge and often contradicts jurors' commonsense understand ings") (citatio n omitted); Clopten, 223 P.3d at 1108 (explainin g expert testimony can play an importa nt role in helping a jury understand how various factors affect the reliab ilit y of eyewitness identif icat io ns because jurors may not understand the "defic ie nc ie s in human perception and memory and thus give great weight to eyewitne ss identifica t io ns "). The fla w in the state's argume nt (and with much of the reasoning in Lawhorn) is tha t it fa ils to d is tinguish between credibility and accuracy. One of the jury's principal roles as factfinder is to decide when a witness is seeking to mislead the jury rather than genuine l y tellin g the truth as the witness b e lie ve s it to b e . This is wha t is meant in mo s t ins tances when courts say that it is solely within the jury's province to gauge the credibility of the witne s ses. For example, expert testimo ny that a witness with a personal or financial interest in the outcome of a matter may have a motive to mislead the jury is of no help to a jury and should not be admitted. Accuracy, however, is another matter. Henderson, 27 A.3d at 889 ("We presume that jurors are able to detect liars from truth tellers. But as scholars have cautioned, most eyewitnesses think they are telling the truth even when their testimo ny is inaccura te[.] "). Here, there is no question that Vic tim wa s telling the truth as he believed it to be. The question was whether Vic tim c o uld testify genuine l y about something that he was "one hundred percent certain" about ... and still be wrong. Jurors tend to give great weight to

13 an eyewitness's confidence in the identification they have made. See Gary L. Wells & Amy L. Bradfield, "Good You've Identified the Suspect": Feedback to Eyewitnesses Distorts Their Reports of the Witnessing Experience, 83 J. Applied Psychol. 360, 361 (1998) ("There is good empirical evidence to indicate that the confidence with which e ye witn e s s e s give id e ntific a t io n te s timo n y is the mo s t imp o rta nt s ingle q ua lit y o f te s timo n y in terms of whether participant-jurors will believe that the eyewitness correctly identified the actual perpetrator."). Dr. Lampine n's testimo ny would have explained the various factors in Instruct io n N o. 9 that can leave an eyewitness genuinely and believably "certain" about an identification and, nevertheless, wrong. See, e.g., Jeffrey S. Neuschatz et al., A Comprehensive Evaluation of Showups, 1 Advances in Psychol. & Law 43, 60, 63 (M.K. Miller & B.H. Bornstein eds., 2016) (explain ing those who make identifica tio n in a "show up" have much greater confide nce in their identifica t io ns even though the accuracy of those identifications was worse than identifications in a lineup); Laura Smalarz & Gary L. Wells, Post-Identification Feedback to Eyewitnesses Impairs Evaluators' Abilities to Discriminate Between Accurate and Mistaken Testimony, 38 Law & Hum. Behav. 194, 200 (2014) ("Mistaken eyewitnesses who had received feedback ultimately delivered testimony that was just as credible as the testimony of accurate eyewitnesses."). Certainly this would have "helped " the jury understand and evaluate Victim's identifica tio n in light of Instruct io n N o. 9 and, ultimate ly, decide the most important fact in issue, i.e., whether Carpenter robbed Victim. Accordingly, the final requirement for admissibility under section 490.065.2(1)(a) is met. See Clopten, 223 P.3d at 1113 (expert testimony on factors affecting reliability of eyewitness

14 identifica tio ns meets the require me nt to "assist the trier of fact"); Walk er, 92 A.3d at 789 (factors affecting reliability of eyewitness identifications are "beyond [the knowledge] possessed by the average layperson" (a lte ra t io n in o rigina l)). 5

IV.Expert testimony about the factors that can affect the reliability of eyewitness identifications does not invade the province of the jury The state argues that assessing the credibility of witnesses is solely the province of the jury and Dr. Lampinen's testimony was properly excluded because it would have intruded upon that prerogative. This C ourt disagrees. As explained above, the issue in this case was accuracy, not credibility, and Dr. Lampinen's testimony would have been helpful to the jury in assessing the accuracy of Victim's identification of Carpenter. Dr. Lampinen did not attempt to apply the factors addressed in his testimony to the facts of this case, far less to reach any conclusion or opinion as to the accuracy of the identifica tio n. This is the sole province of the jury, and, in order to do that work, the jury would have been helped by the expert information Dr. Lampinen would have provided. Clopten, 223 P.3d at 1114 (expert testimony on the factors affecting reliability of eyewitness identifications "should not be excluded as intrud ing on the province of the jury"); Benn v. United States, 978 A.2d 1257, 1274 (D.C. 2009) (expert testimony about 5 See also Tanja R. Benton et al., Eyewitness Memory Is Still Not Common Sense: Comparing Jurors, Judges and Law Enforcement to Eyewitness Experts, 20 Applied Cognitive P sychol. 115, 120 (2006) [hereinafter Benton Study] (showing roughly half of prospective jurors were unaware of the suggestive nature and effect of "show up" identifications); State v. Lawson, 291 P .3d 673, 705 (Or. 2012) ( c iting Benton Study, 20 Applied Cognitive P sychol. at 120) (explaining fewer than half of jurors correctly understand the relationship between accuracy and confidence and only half understand that confidence can be manipulated); Henderson, 27 A.3d at 910 ( c iting Benton Study, 20 Applied Cognitive P sychol. at 120) (explaining fewer than half of jurors understand "the effects of the accuracy-confidence relationship, weapon focus, and cross-race bia s").

15 reliab ilit y of eyewitne ss identif ic at io ns does not usurp funct io n of jury); Guilbert, 49 A.3d at 729 (expert testimo ny about factors affecting reliability of eyewitness identifica tio n generally is a d mis s ib le , b ut a n "expert should not be permitted to give an opinion about the credibility or accuracy of the eyewitness testimony itself; that determinat io n is solely within the province of the jury"); People v. McDonald, 690 P.2d 709, 722 (Cal. 1984) (expert testimo ny about the reliability of eyewitness identifications "does not seek to take over the jury's task of judging credibility ... [because] it does not tell the jury that any particular witness is or is not truthfu l or accurate in his identifica tio n"), overruled on other grounds by People v. Mendoza, 4 P.3d 265 (C a l. 2000). V. Availability of cross-examination, closing argument, and MAI-CR 310.02 are not sufficient justifications to exclude otherwise admissible expert evidence The state argues that Dr. La mp ine n 's te s timo n y was properly excluded because Carpenter had suffic ie nt other means to challenge the accuracy of Victim's identification. Aga in, it re lie s o n Lawhorn for this proposition. See Lawhorn, 762 S.W.2d at 823 (stating expert testimony on eyewitness identification is "superfluous" because "the weaknesses of identifications can be explored on cross-examinat io n and during counsel's fina l argume nt s to the jury"). As discussed below, each of the means available to Carpenter other than expert testimony (i.e., the availability of cross-examina t io n, closing argume nt, and MAI-CR 310.02) are inadequate. More importantly, however, the entire tenor of this argument (and this C ourt's analys is in Lawhorn) is skewed. It is not for the state to say how (or how much) Carpenter is entitled to defend himself. Subject to the

16 law of evidence, which in this case includes section 490.065.2 and the ordinary confines of legal relevance, 6 Carpenter was entitled to adduce whatever evidence he believed best met the charges against him. As explained above, Dr. La mp ine n' s te s timo n y was admissible because it would have helped the jury understand that Vic tim c o uld honestly believe Carpenter robbed him – and testify credibly and with "one hundred percent certainty" to that effect – a nd s till b e wro ng. Alternatives to admissible evidence do not make such evidence inadmissible. Even if this were not so, the alternat ives relied upon by the state do not justify exclud ing Dr. Lampinen's otherwise admissible expert testimony. The first alternative cited by the state is that Carpenter's counsel was entitled to (and did) cross-exam the Victim about some (but fewer tha n a ll) of the factors that may have made his identifica tio n unreliab le. In the portion of Lawhorn in which this C ourt held expert evidence about eyewitness identification was "superfluous" because cross-examina t io n was suffic ie nt, Lawhorn, 762 S.W.2d at 823, the C ourt relied upon State v. Kemp, 507 A.2d 1387, 1390 (Conn. 1986). Afte r Lawhorn, however, the C onnectic u t S up re me C ourt overruled Kemp and recognized that cross-examination is inadequate to properly assess the reliability of an eyewitness identification. Guilbert, 49 A.3d at 725-26. Guilbert explains : 6 Legal relevance concerns whether the "probative value of the evidence outweighs unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, or cumulativeness." State v. Wood, 580 S.W.3d 566, 575 (Mo. banc 2019) (citation omitted). The state does not contend there was any unfair prejudice in Dr. Lampinen's testimony, let alone that such would have outweighed the probative value of that evidence.

17 Cross-examination, the most common method, often is not as effective as expert testimony at identifying the weaknesses of eyewitness identification testimony because cross-examination is far better at exposing lies than at countering sincere but mistaken beliefs. An eyewitness who expresses confide nce in the accuracy of his or her identification may of course believe sincerely that the identification is accurate. Furthermore, although cross- examina t io n may expose the existence of factors that undermine the accuracy of eyewitness identifications, it cannot effectively educate the jury about the import of these factors. Id. (footnotes o mitte d ). This C ourt agrees. Cross-examination plays a central, critical role in our factfinding process, and it is at its most effective when uncovering bias, inconsistencies and other matters that bear directly on credibility, i.e., on whether the witness is telling the truth as she believes it to be. But it is less effective when exploring accuracy, particularly when the witness is unaware of the factors that ma y affect such accuracy. See People v. Boone, 30 N.Y.3d 521, 531 (2017) (noting that, when an eyewit nes s is "utterly confide nt about an identification, expressing the identification or recollection of identification with subjective certainty," she can be "entirely unshakable on cross-examina t io n" even when s he is mis ta k e n ); Commonwealth v. Crayton, 21 N.E.3d 157, 169 (Mass. 2014) ("[W]e have previously recognized how difficult it is for a defense attorney to convince a jury that an eyewitne ss 's confide nt identification might be attribut ab le to the suggest ive influe nce of the circums ta nces surround in g the identifica t io n."); Clopten, 223 P.3d at 1110 ("Because it is unlikely that witnesses will be aware [of the factors affecting the reliab ility of the identifica tio n], they may express far more confidence in the identifica tio n than is warranted."). See also Jacqueline McMurtrie, The Role of the Social Sciences in Preventing Wrongful Convictions, 42 Am. Crim. L. Rev. 1271, 1277 (2005)

18 ("The Role of Social Sciences") ("[Cross-examination] is not particularly effective when used against eyewitnesses who believe they are telling the truth."). The present case illustrates this concern. For example, Victim can admit he was looking at the gun rather than the robber througho ut most of the robbery, but he may not understand that this stress and distraction may have impacted the accuracy of his identification. Plainly, he believed it did not. Without expert testimony, therefore, the jury is le ft o nly with Vic tim' s p o s s ib ly inc o rrect understand i ng of this – and other – factors. See Henderson, 27 A.3d at 910 ("Although many may believe that witnesses to a highly stressful, threatening event will 'never forget a face' because of their intense focus at the time, the research suggests that is not necessarily so."); Guilbert, 49 A.3d at 737 (holding the effect of stress on eyewitness identification was outside of "common knowledge " and "would have been helpful to the jury"). S imila r l y, Vic tim migh t k no w that he and the perpetrators were o f different races but likely had no knowledge whether and to what degree this difference in races could affect the reliability of his identification. Finally, cross-examination could never elicit from Victim the inhere nt l y suggest ive nature of "show up" identifications because he had no knowledge of the relevant science or police procedures. Police may be aware of this science but, in this case, Officer Fisher was asked about it and did not know. Therefore, as to these three factors, among others, cross-examinat io n was of no value to C arpenter and no help to the jury in evaluat in g the identification evidence in this case. "[C ]ourts around the country have recognized that traditio na l methods of informing factfinders of the pitfalls of eyewitness identific atio n—c ross-exa mi na t io n,

19 closing argume nt, and generalized jury instruc t io ns—frequently are not adequate to inform factfinders of the factors affecting the reliability of such identifications. " Lawson, 291 P.3d at 695 (Or. 2012) (collecting cases). See also Walk er, 92 A.3d at 786 ("[W]e reject reliance upon cross-examina t io n and closing argume nt s as suffic ie nt to convey to the jury the possible factors impacting eyewitness identification and as justification for an absolute bar of such expert testimony[.]"); Clopten, 223 P.3d at 1110 ("[W]e cannot rely on cross-examination as a surefire way to uncover the possibility of mistaken identifica tio n. "); State v. Copeland, 226 S.W.3d 287, 300 (Tenn. 2007) ("[T]he research also indicates that neither cross-examinat io n nor jury instruc t io ns on the issue are suffic ie nt to educate the jury on the problems with eyewitne ss identifica tio n[.] "). The state also argues that Carpenter did not need Dr. Lampinen's testimony because the jury was given Instruction No. 9, whic h lis ts the same 17 factors affecting the reliab ility of eyewitne ss identif ic at io ns that Dr. Lampinen's testimony would have covered. This instruct io n states: Eyewitness identification must be evaluated with particular care. In order to determine whether an identification made by a witness is re lia b le o r mis ta k e n, yo u s ho uld c o ns id e r a ll o f the fa c to rs me ntio n e d in Instruct io n N o. 1 concerning your assessment of the credibilit y of any witness. You should also consider the following factors. One, the witness's eyesight; Two, the light ing conditio ns at the time the witness viewed the person in question; Three, the visib il it y at the time the witness viewed the person in question; Four, the distance between the witness and the person in question; Fiv e, the angle from which the witness viewed the person in question;

20 Six, the weather conditions at the time the witness viewed the person in question; Seven, whether the witness was familiar with the person identified; Eight, any intoxication, fatigue, illness, injury or other impair me nt of the witness at the time the witness viewed the person in question; Nine, whether the witness and the person in question are of different races or ethnic ities ; Ten, whether the witness was affected by any stress or other d is tra c t io n o r event, such as the presence of a weapon, at the time the witness viewed the person in question; Eleven, the lengt h of time the witness had to observe the person in question; Twelv e, the passage of time between the witness's exposure to the person in question and the identification of the defendant; Thirteen, the witness's level of certainty of [his] [her] identification, bearing in mind that a person may be certain but mistaken; Fourteen, the method by which the witness identif ied the defendant, includ ing whether it was [i. at the scene of the offense;] [ii. (In a live or photographic lineup.) In determining the reliability of the identificat io n made at the line up, you may consider such factors as the time elapsed between the witness's opportunity to view the person in question and the line up, who was in the lineup, the instruc t io ns given to the witness during the lineup, and any other circumstances which may affect the reliability of the identification;] [iii (In a live or photographic show-up.) A "show-up" is a procedure in which law enforcement presents an eyewitness with a single suspect for identifica tio n. In determining the reliability of the identifica tio n made at the show-up, you may consider such factors as the time elapsed between the witness's opportunit y to view the person in question and the show-up, the instruct io ns given to the witness during the show-up, and any other circums ta nc es which may affect the reliability of the identifica tio n;] Fifteen, any description provided by the witness after the event and before identify ing the defendant ; Sixteen, whether the witness's identification of the defendant was consistent or incons ist e nt with any earlier identif ic at io n( s) made by the witness; and

21 Seventeen, [other factors.] [any other factor which may bear on the reliab ility of the witness's identific atio n of the defendant.] It is not essential the witness be free from doubt as to the correctness of the identification. However the state has the burden of proving the accuracy of the identification of the defendant to you, the jury, beyond a reasonable doubt before you may find [him] [her] guilt y. MAI-CR 3d 310.02 (endnotes omitted). 7

Like reliance on cross-examina t io n and closing argume nts, courts that have considered expert evidence about the reliability of eyewitness identifications have concluded that generalized cautionary instructions like MAI-CR 310.02 do not, by themselves, render such evidence inadmissible. See Clopten, 223 P.3d at 1110 (explaining science has shown that cautionar y instruc t io ns are not effective in helping jurors spot mistake n identifica tio ns); Guilbert, 49 A.3d at 726 ("[R]esearch has revealed that jury instruct io ns that direct jurors in broad terms to exercise caution in evaluat ing eyewitness identifications are less effective than expert testimony in apprising the jury of the potentia l unreliab i lit y of eyewitness identific atio n testimo ny. "). 8 Accordingly, 7 Among the Notes on Use approved by this Court to accompany MAI-CR 310.02 is Note 1, which states: "Use only those factors that apply to the evidence presented at trial, appropriately renumbering the paragraphs and subparagraphs." Carpenter tendered this instruction with only one change, i.e., he included only the first and third paragraphs under the fourteenth factor. The state had no objection or suggested alteration, and Instruction No. 9 was given as tendered. 8 See also Henry F. Fradella, Why Judges Should Admit Expert Testimony on the Unreliability of Eyewitness Testimony, 2 Fed. Cts. L. Rev. 1, 25 (2007) ("Jury instructions do not explain the complexities about perception and memory in a way a properly qualified person can."); Richard A. Wise et al., A Tripartite Solution to Eyewitness Error, 97 J. Crim. L. & Criminology 807, 833 (2007) ("[J]ury instructions lack the flexibilit y and specificity of expert testimony" and, by themselves, "do not serve as an effective safeguard against mistaken identifications and convictions[.]") (quotation omitted); P eter J. Cohen, How Shall They Be Known? Daubert v. Me r r e ll D ow Pharmaceutical and Eyewitness Identification, 16 P ace L. Rev. 237, 273 (1996) (explaining detailed jury instructions "list the factors that might contribute to misidentif icat ion

22 MAI-CR 310.02 is not a sufficient basis for excluding otherwise admissible expert testimo ny on the same subject. But there is a deeper irony in the state's argument that should be exposed. This C ourt routine l y states, "A jury instruct io n must be supported by substant ia l evidence and the reasonable inferences to be drawn therefrom." State v. Avery, 275 S.W.3d 231, 233 (Mo. banc 2009). See also State v. Deck, 303 S.W.3d 527, 543 (Mo. banc 2010) (counsel "has wide latitude in closing argume nt s, but closing argume nts must not go beyond the evidence presented"). Obviously, MAI-CR 310.02 is a departure fro m this ge ne ra l rule in that it highlig ht s factors that the overwhe lmi ng weight of scientif ic evidence shows can affect the reliability of an eyewitness identification without discussing that science. It is to be given in cases in whic h an eyewitness identificat io n is at issue even though no expert has testified regarding that science. Th is Court hoped, when it approved this ins truc t io n , that defendants could obtain the benefit of this science without the delay and expense of having to adduce expert testimony in each case. But to argue, as the state does here, that the availability of this instruct io n is itself a suffic ie nt ground to exclude otherwise admissible expert testimony stands the ordinary rule that instructions must be based on evidence on its head. The C ourt could no more accept that argume nt than it could rule in criminal cases that – so long as a self-defe nse instruc t io n is given – evidence o f s e lf-defense can be excluded or, in civil cases, that evidence of the plaintiff's negligence can be excluded so long as a comparative fault instruct io n is given. but do not explain the impact these factors can have on memory accuracy ... they [also do not] instruct [the jury] on the physiology and psychology of the memory process").

23 Finally, the state's argument that Carpenter did not need Dr. Lampinen's evidence because Carpenter's ability to cross-examine Victim and argue MAI-CR 310.02 in closing argume nt s to the jury is simply wrong. N othing in MAI-CR 310.02 tells the jury whether the presence of a particular factor increases or decreases reliability, and nothing in that instruc t io n explains to the jury why these factors have the effect they do or how they can interact. Dr. Lampine n's testimony would have given this context to MAI-CR 310.02. It would have explained what effect the listed factors can have on the reliability of an eyewitness identification, why those factors can have that e ffe c t and, most important, how one or more factors can degrade reliability and still leave the eyewitness genuine ly believing that he or she is "one hundred percent certain" about that identifica tio n. Cross-examination cannot provide this evidence, and nothing in MAI-CR 310.02 allows Carpenter's counsel to e xp la in this science in closing argument unless the jury has heard evidence on that subject. Some of the factors set out in MAI-CR 310.02 may be within the c o mmo n knowledge of the jury, but this – b y its e lf – does not matter. What matters for purposes of section 490.065.2 is that Dr. Lampine n's testimo ny, and the scientific context it gives to those factors, would have been helpful to the jury in deciding Carpenter's fate. In particular, it wo uld he lp the jury understa nd that these factors can affect the reliability of an eyewitness identification while not affecting the eyewitness's confidence in that identification. The availability of cross-examina t io n and closing argument does not mean that Carpenter had to proceed without this othe rwis e a d mis s ib le te s timo n y.

24 VI.The proffer was not improper The state argues that, even assuming some parts of Dr. Lampinen's proffer were admissible, the circuit court was entitled to reject the entire proffer because other portions o f the p ro ffe r were no t a d mis s ib le . See Lott v. Kjar, 378 S.W.2d 480, 484 (Mo. 1964) (" If several facts are included in the offer, some admissible and others inadmissible, then the whole (if properly objected to) is inadmissible; in other words, it is for the proponent to sever the good and the bad parts.") (c ita tio n omitted). Specifically, the state argues there was no evidence that two o f the 17 factors Dr. Lampine n testifie d about (i.e., poor eyesight and various forms of imp a ir me n t) were present in this case; therefore, his te s timo n y about those factors was inadmiss ib le . F irs t, it mus t be noted that – at the time Carpenter made the offer of proof from Dr. Lampine n – there was no evidence of anything. With the state's consent, Carpenter made this offer before the trial began. As a result, it seems incongruous for the state to argue that the proffer extended beyond the facts in evidence. At that point, Carpenter might have had an idea what the state's evidence would show, but no more than that. Second, this offer of proof was made only after the parties had briefed and argued and the C ourt had sustained the state's motion in limi ne to exclude all of Dr. Lampinen's te s timo n y. The state's motion was based on Lawhorn and the state's contentio n that Dr. Lampine n could not testify about the scientific evidence concerning any of the factors affectin g the reliability of eyewitne ss identifica tio ns, not that such testimo ny must be limited to the factors plainly at issue in the present case. In fact, the state never made this

25 argume nt, either in the trial court or in the court of appeals, until the case was transferred to this Court. These procedural issu es aside, there is a deeper defect in the stat e's argument, i.e., it misperceives the nature of Dr. Lampinen's testimony and the grounds on which it sh ould have been admitted. He was not opining that Victim's identification of Carpenter was unreliable and listing the parti cular factors he belie ved s upported that opinion. Nothing in his proffer suggests he held that opinion and, even if he did, he would never be permitted to testify about it. Nor was Dr. Lampinen testifying generally as to the factors he had selected from the scientific research concerning the reliability of eyewitness identifications. Instead, Dr. Lampinen was test ifyi ng – explicitly – about Instruction No. 9 and what scie ntific research says about the 17 factors listed there, including t he two factors (i.e., e yesight a nd impairment) that the state now argues were not rele va nt to this case. As explained above, the whole purpose of this testimony was to give context to Instruction No. 9 and, in particular , help the jury apply the factors listed in that instruction and explain how those factors can decrease re liabil ity without degrading the witness's confi dence in the identification. Carpenter was prepared to – and, ulti matel y, did – tender MAI-CR 310.02 as Instruction No. 9 without excising any o f t he 17 factors. At the time Carpenter made the proffer from Dr. Lampinen , therefore, defe nse counsel had no way of knowing what the evidence would be or what (if any) alterations the state or the court would make to MAI- CR 310.02. As it turns out, the state had no objection a nd the court read Instruction No. 9 to the jury without change. If re ference to the two factors (e.g., eyesight and impairment)

26 in MAI-CR 310.02 that the state now argues were improperly addressed in Dr. Lampinen's proffer was so irrelevant to the case, surely the state would have objected to the proffer on that ground and, at the instruction conference, would have asked the court to remove those two factors fro m Instruct io n No. 9 before reading it to the jury as the Notes on Use require. Neither happened, and this Court will not fault Carpenter for ta ilo r in g Dr. Lampinen's p ro ffe r to Instruction No. 9 as it actually was given rather than to what would have been given had the state made a timely objection to that instruction. Accordingly, based on the circumstances of this case, the Court rejects the state's argume nt that the circuit court did not err because there were defects in Dr. Lampinen's proffer. VII.Carpenter was prejudiced by the exclusion of Dr. Lampinen's testimony Finally, the state argues that – even if the trial court erred in excluding Dr. Lampine n 's te s timo n y, as the Court holds it did – Carpenter's conviction s till should be affirmed because this error was not prejudicial. See Rule 84.13(b). Because Carpenter was able to cross-examine Victim and use MAI-CR 310.02 to argue to the jury that it should not credit Victim's identifica tio n of Carpenter, the state contends he was not prejudiced by the exclusion of Dr. Lampinen's testimony, especially in light of the physical evidence corroborating Victim's identification. The C ourt rejects this argume nt. Evid e n t ia r y error alone is not sufficient to vacate a criminal conviction and remand for a new trial. "On direct appeal, this Court reviews the trial court for prejudice, not mere [e vid e n t ia r y] error, and will reverse only if the error was so prejudic ia l that it deprived the defendant of a fair trial." State v. Naylor, 510 S.W.3d 855, 862 (Mo. banc

27 2017) (quotatio n o mitte d ). But the exclusion of Dr. Lampinen's testimony deprived Carpenter of his opportunity to present expert evidence about the most imp o rta n t is s ue the jury had to decide, i.e., whether Victim's identification of Carpenter was mistaken even though Victim genuine ly believed he was "one hundred percent certain" he was right. This degree of certainty was the focus of the state's case and was featured on at least five separate occasions in the state's closing arguments. O f course, the jury would not have had to believe Dr. Lampinen or conclude that Victim's identification of Carpenter was mistaken, but it cannot be said Carpenter's trial was fair when he was deprived of the opportunity to put that evidence before the jury and argue its effect. To be clear, there was evidence corroborating Victim's identific atio n. The police moved extraordinarily quickly in responding to Victim's call and identif yin g and detaining suspects. From Victim's call to the "show up," no more than five or six minu te s elapsed. And there was a trail of discarded property leading directly from the point where Victim saw the young black men disappear into the alley to the point where Sergeant Lenart stopped Carpenter and the other man. But there also was evidence casting doubt on Victim's identificatio n of Carpenter. The robbery was at night. It lasted less than a minute, during mo s t o f whic h Vic tim s a id he wa s s taring at the perpetrator's gun. N o gun was found despite the apparent recovery of everything else the perpetrators were carrying or wearing. Carpenter and Vic tim were of different races. The person who threatened Victim was standing, but Carpenter was sitting when Victim identified him. Carpenter was handcuffed and illuminated by a police spotlight. Despite Victim's "one hundred percent" certaint y in his identifica t io n of C arpenter after this inhere nt l y

28 suggest ive "show up," he later mis id e n t i fie d the shirt Carpenter had been wearing under his hoodie, said Carpenter ha d dreadlocks or cornrows when he did not, and thought Carpenter had a goatee when he was clean shaven. In other words, the state's case turned on Victim's identific atio n of Carpenter, and the evidence corroborating this identifica tio n was far from overwhelming. Any hope C arpenter had of a c q uitta l turned entirely on whether the jury could be persuaded Victim was wrong even though the jury believed Vic tim s inc e re ly believed he was "one hundred percent certain." Few cases are balanced on such a precarious edge and, because it was, the likeli hood that the Dr. Lampine n' s testimo ny would have altered the outcome is simply too high to affir m this convict io n. Conclus ion For the reasons set forth above, the judgme nt of the circuit court is vacated, and the matter is remanded for a new trial. _____________________________ Paul C . Wilson, Judge Draper, C.J., Russell, Breckenridge, and Stith, JJ., concur; Powell, J., dissents in separate opinion filed; Fischer, J., concurs in opinion of Powell, J.

STATE OF MISSOURI, ) ) Respondent, ) ) v. ) No. SC98088 ) KANE CARPENTER, ) ) Appellant. ) DIS SENTING OPINION

and its progeny have been abrogated by section 490.065.2 1 and should no longer be fo llo w e d for the well-articulated reasons cited in the p rinc ip a l o p inio n. However, I do not b e lie ve this case allows this Court to appropriately reach this importa nt and signifi c a n t holding. W hile the circuit court should not have excluded Dr. Lampinen's testimony based on the holding in Lawhorn, the exclusion was valid for a different reason. As the p rinc ip a l opinion holds, an expert opinion is a d mis s ib le if the te s timo n y will "help the trier of fact to understand the evidence or to determine a fact in issue." § 490.065.2(1)(a). Furthermo r e , 1 Statutory references are to RSMo Supp. 2018.

2 a circuit court does not abuse its discretion rejecting an offer of proof if the o ffe r inc lu d e s both a d mis s ib le a nd ina d mis s ib le evidence. State v. Edwards, 918 S.W.2d 841, 845-46 (Mo. App. 1996). While s o me o f Dr. Lampine n' s testimony may have been admissib le, portions of his te s timo n y would not have assisted the jury in understa nd ing the evidence at hand. The proffered te s timo n y was, therefore, inadmiss ib le. For example, Dr. Lampine n opined that impaired eyesight and various other impairments affect the reliability of an eyewitness identification. Regardless of the truth and scientific support for this opinio n, there was no evidence in the case that the eyewitness had poor eyesight or any othe r relevant impairment. Without such evidence, this te s timo n y would not help the jury understand the evidence in the case and was lo gic a ll y irrele va nt. 2 When a s ing le o ffe r o f proof inc lud e s mult ip le expert o p inio ns, each separate opinion must be admissible. Here , Carpenter did not explain the need for expert testimony about mult ip le d is c re te to p ic s b u t instead addressed the need for expert testimony about the subject of eyewitness reliabil it y in general. Dr. Lampinen's p ro ffe red opinion inc lud e d te s timo n y about the effects of race and human perception on memory, but it a ls o included opinions with no relevance to the case at hand, such as the effect of poor eyesight on eyewit nes s identif ica t io ns. The circuit court, 2 Even if there were evidence of poor eyesight or other imp a ir me n ts, the jury does not need expert testimo ny to understand the effect of this evidence. A juror of ordinary intellige nce would understand that poor eyesight may affect the reliability of an eyewitne ss identification. Recall the scene in My Cousin Vinny in which Vinn y Ga mb in i famous ly d is c re d its the eyewitness identification made by a pleasant e ld e rly witne s s with c o mic a l l y thic k glasses: "Maybe you're ready fo r a thicker set." My Cousin Vinny (20th C entury Fox 1992).

3 therefore, was entitled to reject the entire proffer because this portion of the testimony was ina d mis s ib le . See Lott v. Kjar, 378 S.W.2d 480, 484 (Mo. 1964). To support its holding, the p rinc ip a l o p inio n correctly observes that the circuit court rejected the proffered testimony prior to the introduction of evidence and without knowing whether eyesight impairment would be a factor in considering the eyewitne ss identification. In addition, the principal opinion notes the eyewitne ss identifica t io n instruc t io n given to the jury included the e ye s igh t imp a ir me n t factor. Nonethele s s , Dr. Lampine n' s opinions re ga rd in g e ye s ig ht imp a ir me n t did not "help the trier of fact to understand the evidence or to determine a fact in issue" and, therefore, was ina d mis s ib l e pursuant to section 490.065.2. Although the circuit court's reliance on Lawhorn was mis p la c e d , this Court's primary concern is the correctness of the result; to that end, the circuit court's ruling should be upheld if there is any recognized ground on which the cour t could have excluded the evidence. Moore v. Ford Motor Co., 332 S.W.3d 749, 766 (Mo. banc 2011). Here, the circuit court had the discretion to exclude Dr. Lampinen's testimo n y because some of his opinions in his offer of proof were inadmissible beyond the confines o f Lawhorn. When viewed with the considerable discretion enjoyed by the circuit court for admission and exclusion of evidence, the circuit court's decision here was not "clearly against the logic of the circumstances then before the court," nor did it indicate a lack of deliberate consideration. Cox v. Kan. City Chiefs Football Club, Inc., 473 S.W.3d 107, 114 (Mo. banc 2015). Despite the admissibility of a portion of Dr. Lampinen's testimo ny,

4 the proffer as a whole was inadmissible, and the circuit court did not abuse its discretio n by exclud ing the testimo ny. The p rinc ip a l o p inion is an important and highl y anticipa ted change in our law tha t will imp ro ve the fa irne s s o f jury tria ls in this state. The p rinc ip a l o p inio n's analys is, however, hinges on the procedural posture of the circuit court's ruling. Had the circuit court rejected the proffered testimony after the evidence had been presented and redacted the impaired eyesight factor from the eyewitness identification instruction, this case could have a different outcome under the principa l opinio n' s analys is. Going forwar d, p ra c titio ne rs s ho uld take caution that expert testimo ny about eyewitness identification must comport with the facts and evidence in the case to be admissible, and practitioners and circuit courts should carefull y examine the relevance of the testimony to ensure it s a d mis s ib il it y. For the reasons stated, I would affirm the judgment. W hile I wo uld re lis h th e opportunity to join the principal opinion in this monumental decision, I must dissent. ____________________

W . Brent Powell, Judge