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Case 1:20-cr-00330-PAE Document 499 _ Filed 11/23/21 Page 22 of 28 Sciences was asked to conduct a thorough study of scientific research relating to eyewitness testimony and memory. In response, the National Research Council formed a committee, co- chaired by the Honorable Jed Rakoff and Thomas Albright, a prominent cognitive scientist at the Salk Institute for Biological Studies. In 2014, the committee published its report: /dentifying the Culprit: Assessing Eyewitness Identification (Natl. Res. Counc. 2014): “Human visual perception and memory are changeable, the ability to recognize individuals is imperfect, and policies governing law enforcement procedures are not standard—and any of these limitations can produce mistaken identifications with serious consequences” /d. The committee recommended that judges admit expert testimony as a way of educating juries on the science of memory. An alternative recommendation, having the court deliver a carefully crafted jury instructions that could accomplish this same educational goal, requires the daunting task of devising the right instructions. See Rakoff J & Loftus EF, The intractability of inaccurate eyewitness identification (2018). eyewitness identification, expert testimony regarding the accuracy of that identification is admissible and properly may be encouraged ...”); United States v. Downing, 753 F.2d 1224, 1232 (3d Cir. 1985) (reasoning that “expert testimony on eyewitness perception and memory [should] be admitted at least in some circumstances”); United States v. Smith, 736 F.2d 1103, 1107 (6th Cir. 1984) (“The day may have arrived, therefore, when Dr. Fulero’s testimony can be said to conform to a generally accepted explanatory theory.”)). As also noted by the court in Smithers, “[s}tate court decisions also reflect this trend.” (citing State v. Buell, 22 Ohio St.3d 124, 489 N.E.2d 795 (1986) (overruling per se rule and holding expert testimony admissible to inform jury about factors generally affecting memory process)). Moreover, the court noted that “several courts have held that it is an abuse of discretion to exclude such expert testimony.” (citing United States v. Stevens, 935 F.2d 1380, 1400-01 (3d Cir. 1991) (reversing and remanding for new trial); Smith, 736 F.2d at 1107 (holding error harmless in light of other inculpatory evidence); Downing, 753 F.2d at 1232 (holding error harmless in light of other inculpatory evidence); State v. Chapple, 135 Ariz. 281, 660 P.2d 1208 (1983) (reversing and remanding for new trial)). 18 DOJ-OGR-00007487