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07/18/78 COMMONWEALTH v. ERNEST MIDDLETON.

July 18, 1978

COMMONWEALTH
v.
ERNEST MIDDLETON.



The defendant, a young, black male, was convicted in the Superior Court of rape and armed robbery. The only eyewitness to the incident was the victim, a white woman, who, soon after the crime identified the defendant as her assailant by picking his photograph from a book of photographs shown to her by the police. The defendant offered a witness to give expert testimony regarding factors affecting the reliability of eyewitness identifications, including stress and the cross-racial nature of the identification. The Judge refused to admit the testimony. His refusal is the sole basis of this appeal. The defendant opens his argument with the contention that the "trial Judge patently abused his discretion and committed reversible error by arbitrarily excluding the testimony of expert witness." The defendant then states that: "Expert testimony is admissible in the discretion of the Judge where: (1) the witness is qualified and (2) the subject of the testimony is beyond the ordinary experience and knowledge of the average juror and would aid jurors in their deliberations; in the case of certain expert testimony based on scientific evidence, admission of the opinion of the expert depends on [(3)] a determination that it is based on principles generally accepted by the scientific community in that field." See Commonwealth v. Devlin, 365 Mass. 149, 152-153 (1974); Leach & Liacos, Massachusetts Evidence 95 (4th ed. 1967); McCormick, Evidence §§ 13 & 203 (2d ed. 1972). We need go no further, as the Judge, after hearing testimony of the witness' qualifications, her research within her specialty (human memory), her publications, and the studies of other researchers, ruled against admitting the proffered testimony on point (2). We hold that the Judge was right in so ruling, and we do not address any question raised as to his ruling on point (3). On this record we discern no abuse of discretion by the Judge.

Judgments affirmed.

19780718

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