I am Tom Freeland, a lawyer in Oxford, Mississippi. The picture in the header is my law office. I'm on Twitter as NMissC

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Mississippi Supreme Court’s opinion in Carrothers v. State: Important case on experts & reliability of eyewitnesses

On Thursday, the Mississippi Supreme Court released an important decision in Carothers v. Statethe core of which involved the admissibility of an expert witness the defendant offered on the science of the unreliability of eyewitness identification testimony.  The majority opinion, by Chandler, rejects admission largely on the theory that the expert did not observe the eyewitness testify, and based his opinions on erroneous facts.  In concurrence (joined in part by a couple of others), Justice Randolph expands on that part of the opinion, and suggests he’d never support letting the testimony into evidence in any event.

The trial judge bases for excluding the testimony seem very thin– that the testimony could confuse the jury, and that the opinions had some facts wrong.  I’m not sure confusing jurors is such a bad thing, but, then, perhaps it’s better not to disturb their troubled sleep.

Justice Coleman has a dissent that I really like.  The Chandler opinion really reads like cross-examination bullets and not a basis to exclude the evidence, and Justice Coleman focuses in on that actual Daubert standard and to my eye gets it right.   He had three other votes.

Justice Coleman has been an intelligent and independent justice on the court, to my eyes.  I have been pleased to read his opinions as his time on the court has gone along.

There’s also a Batson issue that Justices Chandler and Randolph don’t see exactly the same but resolve the same, and Justice King (joined by Kitchens) opines requires reversal.

One annoying feature:  Two justices join in Randolph’s opinion”in part,” and two join in Justice Coleman’s opinion “in part” but don’t say what part.  With Justice Randolph, one case guess whether it’s the expert or the Batson part (and since Justice Chandler wrote the majority opinion while joining Justice Randolph in part, I suppose one could draw a conclusion by comparison), but with Justice Coleman’s, it’s really hard to say.  It would only take one sentence to clarify, folks!  And this one matters in discerning just how close expert opinions about eyewitnesses may be to being admitted.

Maybe it’s just that all the opinions total 139 pages and everyone (me included– large parts I’ve just skimmed) got overwhelmed.

Update: Reading further into the decision list, I hit a case interpreting the state’s sex offender registry statute.  The vote turns up 4 to affirm (registration should occur even though prosecution was dismissed in California because registration in California was required) 4 to reverse (the Mississippi registration statute specifically says no registration where the prosecution was dismissed, and this one was, although after probation), with Justice Coleman the fifth vote for the majority, in which he agrees with the result but joins in part.  But does not say what part! Rendering the affirming opinion a plurality with no explanation! That’s five different justices concurring in part with no explanation on one decision list! Please stop!

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