Paper Presented at Federation of Law Societies National Criminal Law Program Victoria, British Columbia July, 2009, SECTION 6.2
Author: Mark J. Sandler
It is well recognized that inaccurate eyewitness identification evidence is a systemic cause – perhaps the leading cause – of wrongful convictions. Eyewitnesses frequently “get it wrong.” This reflects not only the inherent difficulties in identifying people, particularly strangers, but how easily identifications can be tainted through flawed processes and become the product of suggestibility or contamination.
Even in the absence of investigative misconduct (deliberate or accidental), witnesses’ own expectations and desires may motivate them to too readily identify someone as the perpetrator. As Dr. Rod Lindsay, a leading authority on eyewitness testimony has stated, “[t]he combination of witness desire to please police (note the Morin case), expectation that the police have arrested the guilty party, and desire to feel safe or to have the guilty party punished are an ideal combination for priming witnesses to choose someone from a line-up. The reference to the Morin case is to the wrongful conviction of Guy Paul Morin for the murder of his young neighbour in Queensville, Ontario. The public inquiry that followed his exoneration revealed, among other things, that certain Crown witnesses, including forensic experts, aligned themselves psychologically to the police investigators or the prosecution; one civilian witness felt “part of the prosecution team.”
Of course, the inherent difficulties in accurately identifying perpetrators, or even the over-readiness to identify someone, need not translate into wrongful convictions. After all, triers of fact can choose to disregard eyewitness testimony. However, the disturbing number of proven instances in which triers of fact have acted upon mistaken identifications may be explained, in part, by the fact that eyewitnesses are, for the most part, honest and well-intentioned. Their credibility (as opposed to their reliability) is often not in issue. It is more challenging (particularly for jurors) to discard testimony which is credible, although unreliable. As well, this testimony is often delivered with a high level of confidence, including expressions of certainty. Even with cautionary instructions, jurors may not fully appreciate the disconnect between confidence and accuracy. Indeed, studies suggest that jurors place undue reliance on eyewitness identification evidence in comparison to other types of evidence.
It is well arguable that judges, given the notoriety of the frailties of eyewitness testimony in the legal community and education directed to that issue, better appreciate the dangers associated with this evidence than jurors do; hence, the inclination of experienced defence counsel – all other factors being equal – to favour judge alone trials in prosecutions highly dependent upon eyewitness identifications. That being said, eyewitness identification continues to figure prominently in both jury and non-jury criminal cases.
This paper briefly examines several of the legal issues surrounding eyewitness identification evidence. It is beyond the scope of this paper to address other forms of identification evidence although some raise similar issues.
The Need for Special Caution
It is settled law that trial judges must specially caution juries as to the dangers associated with eyewitness identification evidence. Watt’s Manual of Criminal Jury Instructions recommends final jury instructions that include:
The case against (NOA)(or, the persons charged) depends entirely, or to a large extent, on eyewitness testimony.
You must be very cautious about relying on eyewitness testimony to find (NOA) (or, anyone) guilty of any criminal offence [or the offence(s)] charged. In the past, there have been miscarriages of justice, persons have been wrongly convicted, because eyewitnesses have made mistakes in identifying the person(s) whom they saw committing a crime.
Eyewitness testimony is an expression by a witness of (his/her)belief or impression. It is quite possible for an honest witness to make a mistake in identification. Honest people do make mistakes. An apparently convincing witness can be mistaken. So can a number of apparently convincing witnesses.
When you decide how much or little to believe of or rely upon this evidence, everything that I told you earlier about assessing evidence applies to eyewitnesses. In addition, you should keep in mind several factors that relate specifically to the eyewitness(es) and (his/her/their)identification of(NOA)(or, the persons charged) as the person(s) who committed the offence(s) charged.
The model instruction then recommends that the judge address at least three categories of evidence: the circumstances in which the witness made his/her observations; the description(s) given by the witness after he/she made the observations; and the circumstances of the witness’s identification of the accused as the person whom he/she saw. For each category, the judge is to outline the kinds of questions that the jurors should consider, and review the relevant evidence pertaining to that category. For example, in relation to the circumstances in which the witness made his/her observations, the model instructions include:
The circumstances in which the witness made his/her observations
- Did the witness know the person before s/he saw him/her at the time?
- Had the witness seen the person on a prior occasion?
- How long did the witness watch the person s/he says is the accused?
- How good or bad was the visibility?
- Was there anything that prevented or hindered a clear view?
- How far apart were the witness and the person whom s/he saw?
- How good was the lighting?
- Did anything distract the witness’ attention at the time s/he made the observations?
(Review relevant evidence about circumstances.)
The kinds of questions will, of course, vary depending on the individual case.
The model instructions do explain in general terms why the special caution is needed, reinforced by recognition of the role that mistaken identifications have played in past miscarriages of justice. Despite that commendable language, scientists working in this area question the efficacy of jury instructions generally in preventing jurors from unduly relying on eyewitness testimony. This point is revisited below.
The reasons of trial judges, sitting without a jury, should similarly articulate the need for special caution in approaching this testimony. Failure to do so may result in appellate reversal.
Where the witness has expressed certainty about the identification made, the jury should, in most cases, also be instructed about the dubious relationship between the certainty of a witness’s eyewitness identification and its accuracy. Again, trial judges sitting without a jury should instruct themselves in similar terms.
It is generally inadequate for jury instructions to simply recite a “boilerplate” caution surrounding eyewitness identification evidence without focusing on its “weaknesses” or the specific features of the evidence that invite concern or scrutiny. As stated by the Ontario Court of Appeal in R. v. Baltovich, “the need for a direction warning the jury of any specific weaknesses [in the identification evidence] has long been recognized.” Similarly, a self-caution as to the inherent dangers of eyewitness identification may not immunize a trial judge’s reasons from appellate reversal if unaccompanied by some articulation of the specific features of the case that invite concern and how they are resolved.
Circumstances that Invite Caution or Scrutiny
Features of the evidence that invite concern or scrutiny may arise in a variety of ways. The witness may have made his/her observations under circumstances that make any subsequent identification less reliable. On the other hand, the external conditions under which the observations were made might have been ideal, but the witness suffers from his/her own deficiencies which undermine his/her ability to observe, accurately recall or communicate what was seen. Equally important, subsequent flawed identification processes, suggestibility or contamination may seriously, if not fatally, undermine the reliability of any identification that has been made.
Here is a non-exhaustive list of features of evidence drawn from the jurisprudence that might figure prominently in questioning the accuracy of eyewitness identification:
- Brevity of observation.
- Lighting or environmental conditions when observations are made.
- Distance between the witness and the perpetrator.
- The fact that the perpetrator and/or the witness were moving during the observation period.
- The length of time between observation and the subsequent identification or description of the events by the witness.
- The perpetrator was a stranger.
- The lack of significance of the events to the witness when observed.
- The witness’s shock or distress or impairment due to alcohol or drugs.
- The witness’s vantage point (eg obstructed or side profile).
- The witness’s poor eyesight.
- The witness’s focus (eg. on a gun rather than the perpetrator’s face).
- The lack of distinctive features of the perpetrator or his/her clothing.
- Inability in the earliest description of the perpetrator to recall any detail or truly distinguishing features.
- A description of the perpetrator contains features not shared by the accused.
- A description of the perpetrator does not contain prominent features of the accused that would be expected to be seen.
- Significant changes in the descriptions of the perpetrator or “improvements” in descriptions through time.
- An earlier identification of someone else as the perpetrator.
- Information communicated to the witness prior to a line-up that creates the expectation that the perpetrator is known to the police and is in the line-up (or the existence of that expectation despite what was or was not communicated).
- Information communicated to the witness prior to a line-up that promotes the importance of making a positive identification.
- Involvement of the investigating officer or others in a way that consciously or subconsciously singles out the suspect.
- The witness’s motivation to make a positive identification:(eg. removing a criminal from the streets, desire to please the investigators).
- Poor identification processes: show-ups, or a simultaneous display of multiple photographs, rather than a sequential photographic display.
- Photographs that highlight the suspect or predispose the witness to select him or her.
- Expressed limitations or qualifications upon the identification (“I’m not positive or sure”).
- Contamination as between eyewitnesses or conversely, significant discrepancies as between eyewitness’s descriptions.
- Witnesses observing the suspect’s image in media accounts, at the police station or otherwise before a line-up.
- Reinforcement or affirmation (deliberate or subconscious) of the witness’s selection of the suspect once made, as affecting the witness’s subsequent confidence or certainty in the identification.
- Disagreement or disappointment with the witness’s selection of someone other than the suspect, as affecting a subsequent identification.
- A validly conducted identification that follows an earlier tainted or flawed identification process.
- Reliance on an in-dock identification.
All of the above potentially undermine accurate identifications. This proposition is largely, if not entirely, uncontroversial. The challenge is to recognize the existence of these circumstances and determine how they affect the overall assessment of the identification that has taken place. To take an obvious example,no one reasonably disputes that the reliability of an identification is adversely affected by telling a witness in advance that the perpetrator is definitely present in the line-up. Jurors must be alerted to the existence and significance of that problem. Judges sitting without a jury must address this weakness. Indeed, such evidence may contribute to an appellate court’s determination that a conviction based on such a flawed identification is unreasonable and unsupported by the evidence.
The more interesting issue arises where controversy may exist as to whether certain identification processes make an identification less reliable or as to whether the particular type of identification (for example the cross-racial identification) is inherently less reliable. This invites consideration of how, if at all, the trier of fact is to resolve that issue: through judicial notice, reliance on literature or expert testimony.
Admissibility of Expert Testimony
In R. v. McIntosh the Ontario Court of Appeal considered whether the trial judge erred in refusing to admit defence evidence from a psychologist on the frailties of eyewitness identification. The witness would have commented on the factors present during the crime, a robbery, that would impair the ability of witnesses to make an accurate identification; the problem of cross-racial identification; the quality of memory recall for perceived events over different time spans; the influence of “post event information” on memory; the validity of the photographic lineup and misconceptions of jurors respecting them; the difficulties with an “in dock” identification and the police procedures relating to the identification of the two accused.
Finlayson J.A., speaking for the Court, noted the Crown’s “passivity” at trial and on appeal with respect to this type of evidence. He found this posture unsurprising given the Crown’s reliance on the “soft sciences” in other cases. Given the limited argument before the Court, he was not prepared to determine whether this type of evidence was ever admissible. However, he forcefully questioned the judiciary’s over eagerness to abdicate fact finding responsibilities to purported experts in behavioural sciences and assume that a particular witness possesses special knowledge and experience going beyond that of the trier of fact.
Having noted the Supreme Court of Canada’s criteria for the admission of expert evidence in criminal cases enunciated in R. v. Mohan (relevance, necessity in assisting the trier of fact, the absence of an exclusionary rule, and a properly qualified expert), he expressed serious reservations as to whether the psychology of witness testimony is an appropriate area for opinion evidence at all or, put another way, is even a recognized branch of psychology. Even if it is, opinion evidence describing the problems in identification is not, in his view, directed to matters that are outside the normal experience of the trier of fact. The problems in cross-racial identification reflected by the psychologist’s research support the public perception and therefore are not beyond the jurors’ own experience.
Finlayson J.A. favoured the use of jury instructions to convey the frailties of eyewitness evidence rather than expert testimony, stating:
This is not to say that a reminder as to cross-racial identification is not appropriate in a case where it is an issue. However, the argument that impresses me is that such a reminder from the trial judge is more than adequate, especially when it is incorporated into the well established warnings in the standard jury charge on the frailties of identification evidence. Writings, such as those of Dr. Yarmey, are helpful in stimulating an ongoing evaluation of the problem of witness identification, but they should be used to update the judge’s charge, not instruct the jury. I think that there is a very real danger that such evidence would “distort the fact-finding process.”
More than that I am concerned that much of what Dr. Yarmey and those who support him are saying is that our jury system is not adequate to the task of determining the guilt of an accused person beyond a reasonable doubt where identification evidence is pivotal to the case for the Crown. Much of Dr. Yarmey’s evidence might well give us pause to consider whether our present jury instruction is adequate to the task, but to admit such evidence in the particular case may foster apprehension in the timorous juror and give him or her an excuse for not discharging that juror’s duty to the community that he or she has sworn to serve.
An additional problem is that this evidence introduces yet another potentially contentious issue into the trial. If the defence is entitled to call this opinion evidence, the Crown is entitled to rebut it. This means that the jury has to be instructed as how conflicts in the opinions of experts are to be resolved, and when resolved, as to the limited use of the evidence. The jury must also be told that to the extent that the opinion evidence contradicts anything said by the trial judge in his or her charge, the jury must reject the evidence and accept what is said by the judge. Would it not be simpler to have the trial judge give the instruction in the first place?
He ultimately concluded that the concerns expressed by the proffered witness turned out to have limited application to the case itself, and that the trial judge’s jury instructions properly placed any frailties of the evidence in the context of the case as a whole.
McIntosh has been cited by various Canadian courts in support of the proposition that this kind of evidence ought not to be received. The contention that the evidence is unnecessary (as it is within the common experience of triers of fact) figures prominently in these decisions.
The recent role that science (such as hair microscopy and forensic pathology) has played in wrongful convictions does invite a close scrutiny of expert admissibility, and the too ready acceptance that expert opinions are well grounded in validated science. The not-so-subtle subtext of McIntosh is that the prior introduction of junk science, such as child abuse accommodation syndrome, has made the Court particularly wary about expert evidence in the “soft sciences.” As well, there is something appealing about reducing the length and complexity of trials by allowing judges to instruct jurors or themselves, without the introduction of competing or complex scientific testimony, on the matters that should concern them.
However, as noted by Justice Casey Hill, this approach has its own difficulties:
The courts here and in the United States continue to resist opening up the eyewitness identification subject to a contest of expert witnesses. At the same time, the courts, as reflected in cases like McIntosh, Smith and Cromedy, attribute to juror common sense and common knowledge an understanding of aspects of eyewitness identification. This approach, superficially attractive, is not without problems:
(1) if expert evidence respecting eyewitness identification issues i.e. cross-racial effects, frailties of simultaneous photo line-ups undertaken without blind administration protocol, the weak link between witness confidence and identification accuracy, etc. is unnecessary as the subject matter is so notorious as to not require expert evidence why are we taking such pains to remind or instruct jurors about matters they presumptively know?
(2) the behavioural science community would disagree that ordinary people do know the ins and outs of eyewitness identification issues – the experts believe they would be delivering a counter-intuitive message to triers of fact and thereby correcting their misperceptions
(3) how does a trial judge, in updating her/his jury charge or bench book material, unaided by the calling of expert evidence before the trier(s) of fact, engage in extra-record reading relating to eyewitness identification issues? Receive expert evidence on the correct jury charge or legal self-direction? Invite such evidence or the filing of relevant behavioural science articles?
These issues stand to be clarified as the courts struggle with the boundaries of judicial notice and the admissibility of expert evidence respecting eyewitness identification processes.
The problems identified by Justice Hill are highlighted by Finlayson J.A’s use of “cross-racial identification” as the kind of frailty best dealt with through jury instruction.
There is a substantial body of jurisprudence, drawing upon behavioural science studies, that supports the proposition that cross-racial identifications are particularly difficult, and may easily produce unreliable results. But studies have also questioned whether this phenomenon applies to all cross-racial identifications. Are some groups better than others in bridging the “racial divide” in identifications? Are difficulties in cross-racial identifications connected with the limited contact that members of one race may have with another? If so, is a caution still appropriate where the witness has extensive contact with members of the accused’s race?
It is questionable whether a trial judge can resolve these issues in a scientifically supportable way based on a review of literature, rather than through expert testimony. How is the trial judge to resolve the conflicting scientific literature? Moreover, if the literature and behavioural scientists differ on these issues, can it truly be said that the truths surrounding cross-racial identifications are within the common knowledge of judges or juries or the subject of judicial notice? Finlayson J.A. commented that addressing the frailties of cross-racial identifications in jury instructions avoids the spectre of competing experts or having to instruct the jury to resolve any conflict between the testimony and the jury instructions in favour of the latter. But doesn’t the fact that properly qualified experts may disagree with each other and with the jury instructions put in question the foundation for the jury instruction in the first place?
An accused may see little harm, in this particular example, if trial judges instruct a jury that cross-racial identifications may be particularly unreliable, assuming that it is the Crown that relies upon that identification to support its case. At worst, the caution may be over-inclusive and not applicable to this particular identification. But even assuming that a cautionary jury instruction on the frailties of cross-racial identification is appropriate, does it sufficiently bring home these frailties to the jury?
The latter is a real concern for several reasons. If, as reflected earlier in this paper, jurors do place undue reliance on identification evidence as compared to other types of evidence, their willingness to do so may be highly resistant even to cautionary instructions. Second, it is one thing for a trial judge to explain, in a general way, the recognized frailty of cross-racial identification. It is quite another thing for a properly qualified expert to both explain, illustrate and perhaps even demonstrate what the problem is, based on scientific research that meets Mohan/Daubert reliability standards. The jury instruction may be accurate; but hardly compelling or persuasive. In any event, the assumption that frailties in eyewitness identification are well within the common knowledge or experience of triers of fact is highly questionable. Not only do studies suggest the contrary, but certain well supported conclusions about eyewitness identifications (such as the desirability for sequential rather than simultaneous photographic displays) are counter-intuitive. Others (such as the dangers of post-line-up reinforcement or affirmation) may accord with common sense, but only when fully explained. And even if these conclusions generally accord with common sense, the science may be needed to articulate the depth of the problem.
It is also interesting that McIntosh effectively lumps this area of behavioural science into the other “soft sciences” that are viewed with such skepticism by the Court. Again, recognizing the commendable movement to view more critically the introduction of expert testimony, it is well arguable that in this area, there now exists a body of peer reviewed research, recognized in the relevant scientific field, that permits objective, quantifiable testing and validation. Simply put, this is an area that arguably can survive a challenge based upon the Mohan/Daubert criteria, particularly when the thrust of the proffered opinion is unlikely to confirm the accuracy of an identification (a determination which is the trier’s responsibility), but simply articulate its limitations.
State (Tennessee) v. Copelan is a 2007 decision in which the Supreme Court of Tennessee reversed a trial court’s decision (and overruled previous jurisprudence) to exclude expert testimony on eyewitness identification. The Court recognized advances in this field, citing Boston College Law Professor Mark S. Brodin, a self-described skeptic on the topic of behavioural science evidence. Brodin made the following observations:
Ironically, the form of social science evidence which is most solidly based in “hard” empirical science has met with the most resistance in the courts. Expert testimony concerning the limitations and weaknesses of eyewitness identification is firmly rooted in experimental foundation, derived from decades of psychological research on human perception and memory as well as an impressive peer review literature.
The Court was persuaded by the educational training of the experts and the empirical science employed to the point that it was prepared to depart from the previous exclusionary rule. It noted that many scholarly articles detail the extensive research in this area. DNA exonerations have also validated this research. The Court addressed the “necessity” argument in this way:
Courts traditionally tended to exclude scientific evidence from expert witnesses in these disciplines, primarily on the basis that the testimony addressed matters within the common understanding of jurors, was confusing, or that it invaded the province of the jury to make credibility determinations. However, with the increased awareness of the role that mistaken identification…play[s] in convicting the innocent, a new trend is developing regarding the admissibility of expert testimony.
The Court then cited scientifically tested studies, subject to peer review, that have identified legitimate concerns that jurors are insensitive to many factors that influence eyewitness memory and give disproportionate weight to the confidence of the witness. They overestimate the reliability of cross-racial identification. The Court concluded that “the research also indicates that neither cross-examination nor jury instructions on the issue are sufficient to educate the jury on the problems with eyewitness identification.”
The proffered witness in this case would have explained that there is little or no relationship between certainty and accuracy; described how extraneous factors can affect memory accuracy; expressed particular concern about the cross-racial identification generally and in this case; and indicated how subsequent events (such as the officers’ comment after the identification that the person identified was the primary suspect, and the witness’s later observation of the defendant in the newspaper linking him to the crime) may have reinforced the correctness of the witness’s otherwise questionable identification. In the Court’s view, this evidence was admissible:
In our view, Dr. Brigham’s testimony satisfies the requirements of the McDaniel test in that it is reliable and would have been of substantial assistance to the jury. The proffered testimony was based upon solid empirical data gathered in a scientific setting. The information was subjected to a thorough peer review process. His opinions were formulated from extensive research and would have given the jury a valuable context within which to assess the eyewitness identification. Moreover, the trial judge, who saw and heard the witnesses firsthand, expressed a desire to allow the testimony as particularly helpful under the circumstances of this case.
Despite the strong language in McIntosh, the Ontario Court of Appeal did acknowledge that, given the position of the parties, it was not deciding whether expert testimony on eyewitness identification is ever admissible. If the science supports the proposition that many of the frailties respecting eyewitness identification are not within the common experience of triers of fact, there may be a basis for revisiting the Canadian trend to exclude this kind of expert evidence. Interestingly, Oliphant A.C.J.Q.B. in R. v. Sheppard, supra, in excluding expert testimony on eyewitness identification, left open the possibility that it could be admitted in jury trials. Based in part on the vast array of educational programs available to judges, as well as appellate guidance provided to trial judges in this area, the proffered expert, while properly qualified as such, did not provide him with information that was outside either his experience or knowledge as a trial judge.
Assuming that expert testimony in this area continues to be excluded, counsel and trial judges should hearken back to the less often cited comment of Finlayson J.A. that “[m]uch of Dr. Yarmey’s evidence might well give us pause to consider whether our present jury instruction is adequate to the task.” For the reasons earlier given, it may well be inadequate (and indeed unconvincing) to advise jurors, for example, that there is no correlation between confidence and reliability or as to the dangers of post-line-up reinforcement or affirmation, even if coupled with a general caution on the dangers of eyewitness testimony, unless the trial judge also conveys the depth of the problem. I suggest that this can only truly be done, and jury instructions can only serve as a true proxy for expert testimony, if some detail is provided of what the scientific studies show. The dangers associated with this type of evidence may require no less.
 R.C.L Lindsay,“Eyewitness Evidence” in Forensic Evidence inCanada,2nded. by Chayko G.M. and Gulliver E.D. (Toronto: Canada Law Book, 1999) at 205.
 Ontario<, The Commission on Proceedings Involving Guy Paul Morin: Report(Toronto: Ontario Ministry of the Attorney General, 1998) (Commissioner Fred ).
 R. v. Miaponoose(1996), 110 C.C.C. (3d) 445 at 450-451 (Ont.C.A.);R. v. A.(F.)(2004), 183 C.C.C. (3d) 518 at para. 39 (Ont.C.A.);R. v.Goran,  O.J. No. 1069 (C.A.) at para. 19 [Goran].
 David Watt,Watt’s Manual of Criminal Jury Instructions(Toronto: Thomson Canada Limited, 2002) at 221-222.
 Goran, supranote 3 at para. 26;R. v. Knox(2006), 209 C.C.C. (3d) 76 at paras. 51 and 55 (Ont.C.A.);R. v. Richards(2004), 70 O.R. (3d) 737 at para. 33 (C.A.)[Richards].
 Ducharme J. inR.v. Powell O.J. No. 4196 at para. 10 (Sup.Ct.)[Powell] makesthe important related point that demeanour should play virtually no role in assessing the reliability of an identification.
 R. v. Baltovich(2004), 191 C.C.C. (3d) 289at para.79(Ont. C.A.);R.v. Turnbull,  3 All E.R. 549 at 552 (C.A.);R. v. Canning(1986), 27 C.C.C. (3d) 479 at 479-480 (S.C.C.);R. v. Brand(1995), 98 C.C.C. (3d) 477 at 479 (Ont.C.A.);R. v. Fengstad(1994), 27 C.R. (4th) 383 at 396-397 (B.C.C.A.);R. v. Proulx(1992), 76 C.C.C. (3d) 316 at 350 (Que.C.A.);R. v. Richards, supranote 5at para. 28;R. v. Brown(2007), 216 C.C.C. (3d) 299 at paras. 17-19 (Ont.C.A.).
 For convenience, the term “line-up” is used here to include not only the live assembly of individuals, including a suspect, but photographic displays.
 R. v. Spatola,  4 C.C.C. 241 at 250-251 (Ont.C.A.);R. v. Whittle,  A.J. No. 563 at para. 15 (Alta.C.A.);Goran, supranote 3 at para. 31.
 A helpful summary of the leading authorities on the unreliability of the dock identification is contained inPowell, supranote 6 at paras. 13-14
 R. v. McIntosh(1997), 117 C.C.C. (3d) 385 (Ont.C.A.)[McIntosh].
 R. v. Mohan, 2 S.C.R. 9.
 McIntosh, supranote 11 at paras. 22-24.
 R. v. Woodward, M.J. No. 132 (C.A.);R. v. Sheppard,  M.J. No. 135 (Q.B.)[Sheppard];R. v. Myrie,  O.J. No. 1030 (Sup.Ct.).
 Casey Hill, “Eyewitness Identification Evidence: Emerging Issues”Alan D. Gold Collection of Criminal Law Articles(December 2004) ADGN/RP-196 at paras. 25-26 [QL].
 Daubert v. Merrell Dow Pharmaceuticals, Inc.113 S.Ct 2786 (1993). InDaubert, the Court departed from the previous test for threshold reliability that had rested on whether the expert evidence was generally accepted in the relevant scientific community. Instead, the Court considered a number of factors, including whether the theory or technique had been tested and found subject to falsification; whether it had been subject to peer review and publication; its known or potential error rate; and (as one factor only) its general acceptance.
 State (Tennessee) v. Copeland, 226 S.W. 3d 287(Tenn.2007) [Copeland].
 M.S. Brodin,“Behavioral Science Evidence in the Age of Daubert: Reflections of a Skeptic” (2005)73 U.Cin.L.Rev. 8678 at 889-90.
 Copeland,supranote 17at299
 Copeland, supranote 17at300