Per Se Ban On Eyewitness Expert Testimony in Louisiana: Why the Court Should Grant Certiorari

Author: Gabriel Fletcher, Associate Member, University of Cincinnati Law Review

On November 2, 2015, the United States Supreme Court denied certiorari to Darrill Henry in a Louisiana case concerning eyewitness expert testimony.[1] Louisiana has a per se ban on eyewitness expert testimony.[2] Eyewitness testimony is a key component of our criminal justice system; however, a per se ban on eyewitness expert testimony is bad public policy. To reduce the rate of wrongful convictions, experts should have the opportunity to explain to jurors the pitfalls of eyewitness testimony. For some defendants, being convicted based on faulty eyewitness testimony will result in years of incarceration. And in some cases, defendants will face the terrifying prospect of the death penalty even though they are innocent. Eyewitness testimony has already negatively impacted the lives of many.[3] To lower the chance of a wrongful conviction, criminal defendants should have every opportunity to raise reasonable doubt in the mind of the fact finder because the stakes are so high. The Supreme Court should have granted certiorari to Darrill Henry.

Henry v. Louisiana

In June of 2004, Durelli Watts, age 89, and Ina Gex, 67, were murdered.[4] Watts was stabbed multiple times and set on fire along with her home.[5] Gex arrived at her mother’s home to check on her and the perpetrator shot her three times while she was standing on the porch and then shot her a fourth time in the head after going through her belongings.[6] The perpetrator then walked down the street away from the Watts’s home.[7] Three of Watts’s neighbors served as witnesses for the prosecution and stated that they each saw “a man wearing red shirt, blue [pants] and a brown hat walking from Watt’s home.” [8] Henry argued that he was factually innocent, that the eyewitness identifications were unreliable and suggestive,[9] and that the identifications should be suppressed by the court.[10] Henry’s motions to suppress the statements and identifications were denied.[11] Based on the three witnesses’ testimonies—with no corroborating physical evidence— Henry was convicted on the two counts of first degree murder and sentenced to life in prison.[12]

The Court of Appeals of Louisiana affirmed Henry’s conviction and upheld Louisiana’s per se ban on eyewitness expert testimony.[13]

The Three Eyewitness Accounts

The three eyewitnesses’ accounts are similar, but the court’s failure to allow jurors the opportunity to hear all the relevant information may have resulted in a man being wrongfully convicted. Eyewitness accounts should be able to hold up to scrutiny, but they never had to in this case because expert testimony was excluded.

One witness, Garcia, passed the perpetrator on the street from an estimated 20 to 25 feet away as she headed toward Watts’s home.[14] Garcia stated that suspect’s hat was pulled very low, which caused a shadow to cover his eyes and it looked as though he may have been wearing sunglasses.[15] She also stated that “the hat covered the suspect’s braids.”[16] Garcia also said that as she viewed a photo lineup, which included Henry, that she covered the faces from the eyes up to make her identification.[17]

Davis, another witness, claimed she witnessed a man shoot Watts on the porch two times, search her handbag, and then shoot her in the head a third time.[18] Davis said she watched the perpetrator as he walked from the porch and exited the neighborhood.[19] Davis conferred with Dominick, the third witness, at the scene and was told that Gex, not Watts had been shot.[20] Davis also stated that the shooter turned around several times while walking away, which gave her a chance to get multiple views of the defendant.[21] Davis identified Henry from a photo lineup of six individuals.[22]

The final witness, Dominick, stated that he heard gunshots and walked to the window, at which time he witnessed Gex fall on the porch.[23] Stepping out of the house, he claims that he witnessed a man shoot Gex in the head and fire another shot.[24] A day later, a police sketch artist drew a sketch of the shooter with Dominick’s help.[25] Subsequently, Dominick was shown two photograph lineups and failed to make a positive identification in either lineup.[26] Dominick told investigators that he normally wore glasses, but he was not wearing them at the time of the murders.[27] After failing to identify the defendant in a photo lineup, Dominick stated that he was placed in a jail cell on pending charges—in the same holding cell as the defendant—and was then able to recognize defendant.[28]

The witnesses were all shown a photo lineup of six individuals. Of all the individuals in the lineup, Henry was the only person wearing a red shirt.[29]

Eyewitness Expert Testimony: Why It Is Needed

Eyewitness testimony is the crux of our criminal justice system. Without eyewitness testimony courts would struggle to convict offenders. But eyewitness identification is often flawed. And, law enforcement practices involving eyewitness testimony need to be updated to produce more reliable outcomes.

According to the Innocence Project, eyewitness misidentification is the leading cause of wrongful convictions in the United States.[30] And multiple eyewitness accounts do not protect against wrongful convictions. In fact, up to a quarter of the organization’s first 175 exonerations that included eyewitnesses at the original trial were shown to involve a misidentification by two eyewitnesses.[31] Even when three or more eyewitnesses testified, inaccurate identifications occurred in 13% of cases.[32]

In Henry, the defense argued that the lineup was suggestive and the identifications were unreliable. An expert would have laid out several factors for the jury to consider during their deliberations. First, the presence of a weapon and violence has a negative impact on a witness’s ability to make an accurate identification.[33]  Studies show that witnesses to non-violent offenses are more likely to remember the face of the assailant.[34] In this case, Garcia, Davis, and Dominick alleged to have witnessed the murder of Gex and Watts, which was violent and brutal; therefore, the studies indicate that the ability of these witnesses to accurately remember the perpetrator’s face would have been diminished.

Second, the literature states that the accuracy of identifications has some association with the length of time one is able to view the perpetrator of a crime.[35] Studies have suggested a linear relationship between duration and accuracy while other studies have suggested that the relationship between time and accuracy begin to become smaller as duration increases.[36] In the present case, Garcia, Davis, and Dominick viewed the defendant from afar and they did not have a substantial window of time to view his face. The witnesses’ duration of exposure to the perpetrator may have been in the timeframe that suggests the accuracy of the witnesses should be called into question. The three witnesses claimed to have viewed the perpetrator for a short time as he walked down the street away from the scene of the crime.

Third, studies show that longer delays between the crime and the identification produce “fewer correct identifications and more incorrect identifications.”[37] Memories begin to fade and deteriorate with time.[38] In the present case, Garcia was asked to identify the defendant’s photo after twenty-two days,[39] Dominick was asked to identify the defendant’s photo after a month and two days,[40] and Davis was asked to identify the defendant’s photo after two and a half months.[41] The time that elapsed between the crime and photo identification may have negatively impacted the witnesses’ ability to identify the perpetrator.[42]

Fourth, mugshot-induced bias, suggestive instructions, and suggestive lineup procedures can all lead to misidentification.[43] Lineups usually total five to six people: a suspect and four or five filler photos.[44] When a suspect matches the description of the perpetrator and the filler photos do not, the suspect is more likely to be identified regardless of actual guilt.[45] Garcia, Davis, and Dominick were exposed to a potential suggestive lineup procedure. In the photo lineup only Henry was wearing a red shirt out of the six photos. Since Henry was the only person in the lineup with a red shirt, research indicates that the chances for misidentification were increased.

Fifth, witness confidencealso creates a problem.[46] Research indicates that there is a low correlation between the confidence an eyewitness exudes and the accuracy of identifications.[47] However, juries may find that a confident witness appears more credible than an eyewitness who seems unsure.[48] So, while a less assertive witness may be more credible in a certain case, juries would be more likely to question their testimony.[49]

Finally, jurors fail at properly evaluating eyewitness testimony reliability.[50] Research shows that the general public is still very trusting of eyewitness testimony even when studies indicate that it is unreliable.[51] In this case, it is unclear whether or not the jury was aware of this potential bias toward eyewitness testimony.

Expert eyewitness testimony does have pitfalls. First, the costs associated with expert testimony can be quite high and in some cases may only produce marginal benefits for the jury.[52] Second, there is no clear standard for the admission of expert eyewitness testimony.[53] Courts need to establish a relevance standard that recognizes the factors that usually contribute to misidentifications. Once courts recognize the factors, they can cut down on the arguable use of expert eyewitness testimony.[54] In this case, many of the misidentification factors were present and as a matter of public policy the U.S. Supreme Court should have granted certiorari in order to create a standard test for jurisdictions to follow. Darrill Henry is now serving a life sentence based only on questionable eyewitness testimony.


The U.S. Supreme Court missed an opportunity to create a standard surrounding the use of expert eyewitness testimony. In the process they ignored the plight of a man who now appears to be out of judicial remedies. In the interests of public policy the court should have taken the case and established a relevance standard that could have helped to recognize misidentification factors that an expert eyewitness’s testimony could help to safeguard against.

[1] SCOTUSblog Supreme Court of the United States Blog (Nov. 2, 2015), available at

[2] State v. Henry, 147 So. 3d 1143 (La. Ct. App. 2014) writ denied, 164 So. 3d 831 cert. denied, No. 15-50, 2015 WL 4243359 (U.S. Nov. 2, 2015).

[3] John Caniglia, Ricky Jackson leaves prison: “The English language doesn’t have the words to express how I’m feeling right now.”, The Plain Dealer (Nov. 14, 2014), Examining the story of Ricky Jackson who was wrongfully convicted for 39 years because of eyewitness testimony. Ricky was convicted with two others who were exonerated, as well; See also Eyewitness Misidentification, Innocence Project (Oct. 25, 2015),

[4] Henry, 147 So. 3d at 1146.

[5] Id.

[6] Id.

[7] Id.

[8] Id. at 1152.

[9] Id.

[10] Id.

[11] Id. at 1146.

[12] Id. at 1146.

[13] Id.

[14] Id. at 1147.

[15] Id. at 1155.

[16] Id. at 1155.

[17] Id. at 1155.

[18] Id. at 1149. Ms. Gex was shot 4 times total. Also, Davis claimed she watched from her window. This information indicates that she witnessed the events unfold from a considerable distance.

[19] Id. at 1149.

[20] Id. at 1149. (Indicating that Davis’s witness account may not be as accurate as presumed, if she could not tell the difference between Watts and Gex from her window).

[21] Id. at 1149.

[22] Id. at 1154.

[23] Id. at 1148.

[24] Id. at 1148.

[25] Id. at 1148.

[26] Id. at 1148.

[27] Id. at 1155.

[28] Id. at 1148. “On cross-examination, Mr. Dominick confirmed that he made a 911 call, gave a taped statement to the police, met with a sketch artist, viewed two photographic lineups, and testified before the Orleans Parish Grand Jury. In addition, he stated that he noticed the defendant carrying a gun as he left Ms. Watts’ residence. On further cross-examination, Mr. Dominick conceded that he had been charged with 139 counts of pornography involving children and also that he had pleaded guilty to five counts of forcible rape, six counts of stalking, three counts of extortion and one count of second-degree kidnapping.”

[29] Id. at 1150.

[30] George Vallas, A Survey of Federal and State Standards for the Admission of Expert Testimony on the Reliability of Eyewitnesses, 39 Am. J. Crim. L. 97, 100 (2011). In 1981, two children were attacked while walking home in Cleveland. The perpetrator had a gun and assaulted the two children, one sexually. Police created a composite sketch with the help of the victims. Later, the police caught Raymond Towler due to an officer noticing his resemblance to the sketch during a routine traffic stop. Both victims and another witness chose Towler out of a photo lineup and based on the identifications, Towler was arrested, charged, and convicted of rape, assault, and kidnapping. Towler’s alibi and the lack of evidence did not deter the prosecution. After 20 years and with the help of the Ohio Innocence Project, Towler’s conviction was overturned due to DNA excluding him as the perpetrator.

[31] Id.

[32] Id. The third Circuit is on record stating, “mistaken eyewitness identifications are responsible for more wrongful convictions than all other causes combined.”

[33] Vallas, supra at 100.

[34] Id.

[35] Id.

[36] Id.

[37] Id.

[38] Id.

[39] Henry, 147 So.3d 1143 at 1148.

[40] Id. at 1148.

[41] Id. at 1149.

[42] Id. “In one study, for instance, convenience store clerks were asked to identify customers from a photo array after periods of either two or twenty-four hours. The attempts after twenty-four hours led to substantially more false identifications than those that occurred after two hours.”

[43] Vallas, supra  at 105.

[44] Id. at 106.

[45] Id. at 106.

[46] Id. at 1149.

[47] Vallas, supra at 107.

[48] Id. “A substantial body of research has demonstrated that there is a low correlation between eyewitness confidence and the accuracy of the identification. Highly confident eyewitnesses are only slightly more likely to make an accurate identification than eyewitnesses who are more uncertain.”

[49] Id.

[50] Id. at 107.

[51] Id. “As one commentator has noted, average jurors are not sensitive to the malleability of human memory, but rather consider it to be similar to a video recording, which can be replayed with near perfect accuracy.”

[52] Id. at 134.

[53] Id.

[54] Id. at 132.

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