Weatherred v. State

Jon David Weatherred (defendant) was convicted of murdering the man who was in a relationship with his ex-girlfriend. Although there was circumstantial evidence against Weatherred, the only direct evidence placing Weatherred at the crime scene was the testimony of two eyewitnesses. One eyewitness, N.R., was a 12-year-old neighbor who saw a man from behind in the garage belonging to the victim’s girlfriend for about three seconds. When N.R. was shown a picture of Weatherred in a photo with a group of hunters around two days after the murder and in a photo lineup of six men about three weeks after the crime, she could not identify Weatherred. Weatherred was the only man present in both photos. However, over three months later, N.R. observed a live lineup and identified Weatherred as the man she had seen in her neighbor’s garage. The other witness, B.M., had seen a man in her driveway around the time of the murder for between four and 10 seconds, and she selected Weatherred in the hunting-party photo and the photo lineup. However, B.M. had seen Weatherred’s photo in a newspaper. B.M. also identified Weatherred in the live lineup and was very confident in her identification when she testified at Weatherred’s trial. At trial, Weatherred proffered the testimony of an expert, Dr. Kenneth Deffenbacher, who accounted for various facts, having reviewed the photographs shown to N.R. and B.M. and the photos showing where they had allegedly seen Weatherred, and having been present for their testimony. Deffenbacher would have testified that eyewitness identifications were affected by several variables, such as photo bias, which could occur when a witness viewed a stranger for a short time, was later shown a photograph of the stranger without making an identification, and later identified the stranger in a lineup. This made it unclear whether or to what degree the witness identified the suspect based on the original glimpse rather than on the subsequent photo. Deffenbacher also would have testified regarding how memories fade over time, such that a person’s memory of a person viewed for less than 10 seconds might be down to 30 percent accuracy after 90 days. Contrary to what might seem intuitive to the average juror, Deffenbacher would have testified that there was no correlation between a witness’s confidence in an identification and its accuracy. The state objected pursuant to Texas Rule of Evidence 702 (Rule 702). The trial judge excluded Deffenbacher’s testimony. Weatherred later submitted scientific articles and studies on eyewitness identification. After his conviction, Weatherred appealed.