135 Ariz. 281 (1983) 660 P.2d 1208

STATE of Arizona, Appellant/Cross-Appellee,
v.
Dolan CHAPPLE, Appellee/Cross-Appellant.

No. 5054.

Supreme Court of Arizona, En Banc.

January 11, 1983. Rehearing Denied March 1, 1983.

*283 Robert K. Corbin, Atty. Gen. by William J. Schafer, III, Jack Roberts, Asst. Attys. Gen., Charles F. Hyder, Maricopa County Atty. by Marc Budoff, Deputy County Atty., Phoenix, for appellant/cross-appellee.

Henry, Kimerer, LaVelle & Erlichman by Michael D. Kimerer, Pamela J. Franks, Randall J. Kries, Phoenix, for appellee/cross-appellant.

FELDMAN, Justice.

Dolan Chapple was convicted on three counts of first degree murder, one count of unlawfully transporting marijuana and one count of conspiring to unlawfully transport marijuana. He was sentenced to a term of life imprisonment without possibility of parole for twenty-five years on each of the murder counts, to a term of imprisonment for not less than twenty-five years nor more than life on the transportation count, and to a term of imprisonment for not less than twenty-five nor more than thirty years on the conspiracy count. The sentence on each count is to run concurrently with the sentences on all other counts. The defendant appealed from this judgment and sentence. This court has jurisdiction pursuant to A.R.S. § 13-4031.

FACTS

The instigator of this bizarre drama was Mel Coley, a drug dealer who resided in Washington, D.C., but who was also connected with dealers in Kansas City. Coley had a history of dealing with a supplier named Bill Varnes, who lived near Phoenix. In fact, Coley, Varnes and a man named James Logan had been arrested once near *284 Yuma, Arizona in connection with a heroin transaction. Release was accomplished fairly quickly, giving rise to a suspicion in Coley's mind that someone had "talked" to the authorities.

Coley had made a large number of drug deals through Malcolm Scott, a "middleman" who lived near Phoenix. Scott was also well acquainted with Varnes and had recently returned from Kansas City, where Scott had helped Varnes in a drug transaction involving marijuana and probably some heroin. The trip to Kansas City was not without complications, since Varnes had been "holding-out" on the Kansas City dealers who were purchasing from him. They were unhappy over this and had threatened to take whatever action is appropriate in the drug business to collect the money they felt Varnes owed them. Coley evidently was involved in these problems and shared the feelings of his Kansas City colleagues toward Varnes.

Coley telephoned in early December 1977 and told Scott that he was interested in purchasing approximately 300 pounds of marijuana. He asked Scott to act as middleman in the transaction. Scott was to get $700 for his efforts. Scott testified that he called one or two of the Arizona suppliers with whom he was acquainted and found they could not supply the necessary quantity. He then called his sister, Pamela Buck, who was a "good friend" of Varnes and had worked with him in some drug deals. Scott asked Buck to contact her friend Varnes and see whether he could handle the sale.^[1] Buck talked to Varnes and reported to her brother that Varnes could supply the necessary amount of marijuana at an agreed upon price. Scott relayed this information to Coley. Scott instructed Buck not to tell Varnes that Coley or anyone from Washington, D.C. was involved in the deal.

On the evening of December 10 or the early morning of December 11, 1977, Coley arrived at the Phoenix airport from Washington, D.C. Scott met him at the airport and found that Coley was accompanied by two strangers who were introduced as "Dee" and "Eric."^[2] Scott drove the three men to a trailer located at his parents' farm near Higley in Pinal County, Arizona. Scott had used this trailer in the past as a meeting place to consummate drug transactions. This meeting place was part of the service which Scott provided for his "finder's fee."

Coley, Dee and Eric spent the night at the trailer, while Scott returned to his residence in Mesa. The next morning Scott returned to the farm and took Coley to the airport where they picked up a brown leather bag. Back at the trailer, Scott observed Coley, Eric and Dee take four guns from the bag and clean them. Scott examined and handled one of the guns. Buck had also arrived at the trailer in Higley, and she and Dee were dispatched to Varnes' trailer in order to purchase a sample of the marijuana.

Later that morning the conversation between Coley, Eric and Dee indicated that it was likely there would be a "rip-off" of the marijuana and that Coley did not intend to pay for the goods. When Buck expressed to her brother the fear that Varnes would seek revenge if his goods were stolen, Scott told her not to worry because Varnes might never be seen again.

That evening, Scott and his sister met at the trailer with Coley, Eric and Dee. Varnes arrived with two companions, Eduardo Ortiz and Carlos Elsy. Ortiz and Elsy began to unload the marijuana and put it in the trailer. Buck was in the trailer with Coley, Eric and Dee at this time. Scott was some distance away, sitting on the porch of his parents' house. Buck was *285 told by Dee or Coley that after the marijuana was unloaded she should lock herself in the bathroom.

After Ortiz and Elsy had finished unloading the marijuana and stacking it in the living room of the trailer, Dee suggested to Varnes that they go in the bedroom and "count the money." They started toward the bedroom and Buck went into the bathroom. A few moments later, Buck heard several shots, opened the bathroom door and ran out. Scott heard the shots while he was on the porch and saw a door of the trailer open. Elsy ran out, pursued by either Eric or Dee. After seeing Buck run out of the door at the other end of the trailer, Scott went back to the trailer and found Varnes dead in the bedroom of a gunshot wound to the head and Ortiz in the living room dead of a gunshot wound to the body. Subsequent ballistic tests showed they had been shot with different weapons. Elsy was outside, dead from a blow to the back of the head.

Dee and Eric then removed the marijuana from the trailer and loaded it into a car which Coley had directed Scott to buy the previous day.^[3] Scott, Eric and Dee loaded the three bodies into the trunk of Varnes' car. That car was driven out to the desert, doused with gasoline and set afire. The trailer was cleaned to remove evidence of the crime and the carpet in the trailer was burned. The parties then left the scene of the crime and returned to Scott's house in Mesa. Eric and Dee asked for directions regarding the route to Kansas City and then left in the car containing the marijuana. Coley gave Scott and Buck $500 each. He then called the airport and reserved a seat to leave for Washington, D.C. under the name of "James Logan." Scott returned to the trailer and completed the cleanup. Fear or remorse, or both, drove Scott to seek the aid of a lawyer, who succeeded in negotiating an immunity deal for Scott and in getting him to surrender to the sheriff.

Defendant does not contest any of the foregoing facts. Defendant is accused of being "Dee." He denies this. At his extradition hearing in Illinois, seven witnesses placed him in Cairo, Illinois during the entire month of December 1977, three of them testifying specifically to his presence in that town on December 11, the day of the crime. The same witnesses testified for him in the trial at which he was convicted. No direct or circumstantial evidence of any kind connects defendant to the crime,^[4] other than the testimony of Malcolm Scott and Pamela Buck, neither of whom had ever met the defendant before the crime and neither of whom saw him after the crime except at the trial. Defendant was apprehended and tried only because Malcolm Scott and Pamela Buck picked his photograph out of a lineup more than one year after the date of the crime; he was convicted because they later identified both the photographs and defendant himself at trial.

The State's position was that the identification was correct, while the defendant argued at trial that the identification was erroneous for one of two reasons. The first reason advanced by defendant is that Scott and Buck were lying to save themselves by "fingering" him. To buttress this contention, defendant established that Scott and Buck had made a "deal" with the State whereby they were granted complete immunity for their part in the crime unless the facts showed that they had knowingly participated in the killings. Defendant also argues that Coley, who did not testify at the trial, is part of the "arrangement" with the State since he, too, made a deal by entering into a plea bargain for second degree murder with a sentence of ten to fifteen years. Eric being still at large, this left defendant, who was identified initially only through photographs, as the sole object of prosecution. These contentions were evidently *286 rejected by the jury and are not in issue here.

Defendant further argued at trial, and urges here, that even if Scott and Buck are not lying, their identification was a case of mistaken identity. The argument is that Scott and Buck picked the wrong picture out of the photographic lineup and that their subsequent photographic and in-court identifications were part of the "feedback phenomenon" and are simply continuations or repetitions of the same mistake. To support this contention of mistaken identification, defendant offered expert testimony regarding the various factors that affect the reliability of identification evidence. For the most part, that testimony was rejected by the trial court as not being within the proper sphere of expert testimony.

With these facts in mind, we consider the various issues raised by this appeal. Where necessary, additional facts will be given in connection with each of those issues.

THE PHOTOGRAPHIC LINEUP

On appeal, the defendant first contends that he was denied due process of law because the photographic lineup from which he was identified was unnecessarily suggestive.

In Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968), the United States Supreme Court held that "convictions based on eyewitness identifications at trial following a pretrial identification by photograph will be set aside ... only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification."

The Supreme Court has developed a two-step analysis which is to be applied in determining whether a defendant has been denied due process of law because of a suggestive pretrial identification procedure. Manson v. Brathwaite, 432 U.S. 98, 109-14, 97 S.Ct. 2243, 2250-53, 53 L.Ed.2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 198-99, 93 S.Ct. 375, 381-82, 34 L.Ed.2d 401 (1972). Under this analysis, the trial court must first determine whether the pretrial identification procedure was unnecessarily suggestive. If it is found to be unnecessarily suggestive, the court must then examine the totality of the circumstances surrounding the identification in order to determine the reliability of the identification. Id. The questions of suggestibility and reliability are factual issues and their determination is therefore within the trial court's discretion. State v. Kelly, 123 Ariz. 24, 26-27, 597 P.2d 177, 179-80 (1979).

Turning to the facts of this case, the defendant contends that the photographic display from which he was identified was unnecessarily suggestive because the hair of the persons shown in the photographs was cropped short to make it more closely resemble the witnesses' description of Dee's hair.^[5] We disagree. Since the hair on all nine of the photographs was shortened, we fail to see any abuse in the trial court's finding that the alteration in the photographs did not influence the witnesses' identification of the defendant's picture as Dee. Compare State v. Alexander, 108 Ariz. 556, 503 P.2d 777 (1972) (photographic identification procedure held unnecessarily suggestive where out of the 17 photos shown the witness, only the two depicting the defendant had been altered to include a mustache and goatee); Styers v. Smith, 659 F.2d 293 (2d Cir.1981) (photographic identification procedure held unnecessarily suggestive because the photos of the suspects were in color, while the rest were in black and white); State v. Henderson, 116 Ariz. 310, 569 P.2d 252 (App. 1977) (lineup was unnecessarily suggestive because made up of individuals twelve to sixteen years younger than suspect).

The defendant also contends that the photographic display was unnecessarily *287 suggestive because of the location of his photo in that display. The photographs were arranged in the December 27, 1978 lineup as follows:

        # 1     # 2     # 3
        # 4     # 5     # 6
        # 7     # 8     # 9

Photograph # 6 was a picture of the defendant. Photograph # 7 is the picture of the person whom Buck and Scott had previously tentatively identified as "Eric." The defendant contends that the fact that his photograph numerically preceded that of Eric in the photographic lineup was unnecessarily suggestive. We disagree. If position alone was sufficient to influence the witnesses' choice, # 8, who was not the defendant, had an equal or greater chance of being selected as Dee. Cf. United States v. Bruner, 657 F.2d 1278, 1294 (D.C. Cir.1981).

We conclude that the trial court did not abuse its discretion in holding that the photographic display from which the defendant was identified was not unnecessarily suggestive.^[6] Therefore, we need not reach the question of reliability.

INFLAMMATORY PHOTOGRAPHS

Defendant contends that the trial court erred by admitting pictures of the charred body and skull of the victim, Bill Varnes. The four pictures were admitted in conjunction with the testimony of Detective Hanratty, the investigating officer, and Dr. Thomas Jarvis, the medical examiner. In vivid color, the photographs portray Varnes' burned body, face and skull, the entry wound of the bullet, a close-up of the charred skull with a large bone flap cut away to show the red-colored, burned dura matter on the inside rim of the skull with the pink brain matter beneath and a pencil pointing to the location of the bullet embedded in the brain. The last photograph shows the brain as the bullet is being removed. On appeal, defendant contends that these pictures were gruesome and inflammatory and therefore should not have been admitted.

We have previously stated the law on this issue as follows:

Photographs having probative value are admissible in evidence whether they are in black and white or color. They must, of course, be relevant to an issue in the case and may be admitted in evidence to *288 identify the deceased, to show the location of the mortal wounds, to show how the crime was committed and to aid the jury in understanding the testimony of the witnesses. If the photographs have any bearing upon any issue in the case, they may be received although they may also have a tendency to prejudice the jury against the person who committed the offense. The discretion of the trial court will not be disturbed on appeal unless it has been clearly abused.

State v. Mohr, 106 Ariz. 402, 403, 476 P.2d 857, 858 (1970) (citations omitted) (emphasis supplied).

The facts of this case and the presence of the issue of inflammatory photographs in many other cases recently argued to this court lead us to reexamine the often quoted language from State v. Mohr. That language should not be interpreted to mean that any photograph which is relevant may be admitted despite its tendency to prejudice the jury. If this were the rule, any photograph of the deceased in any murder case would be admissible because the fact and cause of death are always relevant in a murder prosecution. Relevancy is not the sole test of admissibility for the trial court. Where the offered exhibit is of a nature to incite passion or inflame the jury — and the photographs in the case at bench certainly fall within that category — the court must go beyond the question of relevancy and consider whether the probative value of the exhibit outweighs the danger of prejudice created by admission of the exhibit. State v. Beers, 8 Ariz. App. 534, 538-40, 448 P.2d 104, 108-10 (1968). Beers correctly points out that after the relevancy question has been satisfied, the court must then apply Wigmore's Rules of Auxiliary Probative Policy, 4 Wigmore, Evidence § 1171 (3d ed. 1940). We first adopted this rule in these words:

"Relevancy is thus not the sole test of the admissibility of evidence; admissibility depends, rather, on a balancing of the various effects of the admission of such evidence, considered in the light of recognized rules of law governing the administration of criminal justice."

State v. Beers, 8 Ariz. App. at 539, 448 P.2d at 109 (quoting State v. Little, 87 Ariz. 295, 307, 350 P.2d 756, 763 (1960)). The Wigmore test has since been codified in Rule 403, Ariz. R. of Evid., 17A A.R.S.

Thus, the correct rule is that exhibits which may tend to inflame the jury must first be found relevant. The trial court must then consider the probative value of the exhibits and determine whether it outweighs the danger of prejudice. State v. Beers, supra; Rule 403, supra. In making this determination, the trial court must examine the purpose of the offer. In State v. Thomas, 110 Ariz. 120, 515 P.2d 865 (1973), we identified the following uses for which photographs of a corpse may be admitted in a homicide prosecution: to prove the corpus delicti, to identify the victim, to show the nature and location of the fatal injury, to help determine the degree or atrociousness of the crime, to corroborate state witnesses, to illustrate or explain testimony, and to corroborate the state's theory of how and why the homicide was committed. Id. at 130, 515 P.2d at 875. If any of these questions is contested, either expressly or implicitly, then the trial court may find that the photographs have more than mere technical relevance; it may find that the photographs have "bearing" to prove a contested issue in the case and may, therefore, be admissible notwithstanding a tendency to create prejudice. State v. Mohr, supra.

However, if the photographs have no tendency to prove or disprove any question which is actually contested, they have little use or purpose except to inflame and would usually not be admissible. State v. Steele, 120 Ariz. 462, 464-66, 586 P.2d 1274, 1276-78 (1978); State v. Powers, 117 Ariz. 220, 223-24, 571 P.2d 1016, 1019-20 (1977); State v. Makal, 104 Ariz. 476, 478, 455 P.2d 450, 452 (1969); People v. Wallach, 110 Mich. App. 37, 67, 312 N.W.2d 387, 402 (1981).

In this case the State had the burden of proving all the elements of first degree murder as well as responding to *289 defendant's sole argument that he was not Dee. In meeting this burden, the State not only had to establish that the defendant was at the scene of the crime, but also that he was responsible for murder. The State argues that the photographs were relevant to these purposes for several of the reasons enumerated in Thomas, supra. We agree that the photographs were relevant to the issues raised by the State's burden of establishing a case for first degree murder. We also agree with the State's claim that the photographs are useful to prove that Dee (who told Buck that he had "shot that ____ ____ in the head") had committed one of the killings.

While both of these arguments establish the relevancy of the photographs, under the facts of this case we find they had little probative value. The fact that Varnes was killed, the medical cause of his death, and what was done with his body after death were not in controversy. The defense did not dispute, controvert or contradict the State's testimony from the two witnesses on this subject, Detective Hanratty and Dr. Jarvis, and even offered to stipulate to the cause of death. The facts illustrated in the photographs were simply not in dispute or at issue. As the prosecution accurately told the jury in final argument, the only issue to be tried was whether Malcolm Scott and Pamela Buck were correct in identifying the defendant as Dee.

While the exhibits did illustrate the testimony of Hanratty and Jarvis and thus helped the jury comprehend that testimony,^[7] there was simply no conflict with regard to the point at which the bullet entered Varnes' skull, the depth of its penetration, the lobe of the brain in which it was lodged, the damage which it did, or over whether it or some other condition had caused death. Nor was there any value to the photographs on the theory that they were relevant to Buck's testimony that after the killings Dee admitted that he had shot Varnes in the head. This admission may well serve to establish that Dee was the one who killed Varnes, but defendant did not deny that Dee had killed Varnes by shooting him in the head. Defendant argued only that he was not Dee. The photographs showing the bullet hole in the skull and the bullet in the burned brain were not probative on the only issue being tried, which was whether defendant was Dee.

In summary, the narrow issue on which this case turned was identification. The matters illustrated by the photographs were cumulative of uncontradicted and undisputed testimony, as well as the subject of a stipulation offered by the defendant. We find, therefore, that the photographs in question had little probative value on the issues being tried and that their admission in evidence could have almost no value or result except to inflame the minds of the jury. Under such circumstances, there was nothing for the trial court to weigh, nothing on which its discretion could be exercised, and the admission of the photographs was error. State v. Powers, supra; People v. Redston, 139 Cal. App.2d 485, 293 P.2d 880 (1956); Commonwealth v. Bastarache, 10 Mass. App. 499, 409 N.E.2d 796 (1980); State v. Allies, Mont., 606 P.2d 1043 (1980); Oxendine v. State, 335 P.2d 940 (Okl.Cr.App. 1958); State v. Poe, 21 Utah 2d 113, 441 P.2d 512 (1968).

In reaching this conclusion, we recognize that the state cannot be compelled to try its *290 case in a sterile setting. Exhibits which have the tendency to cause prejudice may often be admissible despite offers to stipulate or the absence of controverting or contradicting evidence. Many times the accuracy of a witness' testimony is not conceded and can be better understood when illustrated by photographs. Testimony may be difficult to comprehend without photographs, or exhibits may corroborate or illustrate controverted testimony. In such cases, the exhibits have probative value on issues expressly or tacitly in dispute. In every case in which there is probative value to the exhibit, it is for the trial court to weigh that value against the danger of prejudice and its conclusion on this point will not be disturbed absent a clear abuse of discretion. State v. Chatman, 109 Ariz. 275, 279, 508 P.2d 739, 743 (1973).

In this case, however, there was nothing of significance to weigh and the only possible use of the photographs would have been to inflame the minds of the jury or to impair their objectivity. Since there was so little probative value to these photographs and since their capacity to inflame is obvious, the admission was legally erroneous and an abuse of discretion. The prejudicial effect will be considered later in the opinion.

EXPERT TESTIMONY REGARDING EYEWITNESS IDENTIFICATION

On learning of Mel Coley's participation in the crime, the sheriff's office quickly procured photographs of Coley, which were shown to Scott and Buck in a photographic lineup on December 16, 1977. Both of them identified Coley, thus providing law enforcement with the first step in its efforts to apprehend Dee and Eric. The detectives then showed Scott and Buck various photographs and lineups containing pictures of known acquaintances of Mel Coley. At this same session, Scott pointed to a picture of James Logan and stated that it resembled Dee, though he could not be sure. So far as the record shows, no follow-up was made of this tentative identification. One of the photographic lineups displayed to Scott, but not to Buck, contained a picture of the defendant, Dolan Chapple, but Scott did not identify him as Dee. At a time and in a manner not disclosed by the record, both Scott and Buck made a tentative identification of a photograph of Eric. The photograph portrayed Coley's nephew, Eric Perry.

The police continued to show the witnesses photographic lineups in an attempt to obtain an identification of Dee. Police efforts were successful on January 27, 1979, when Scott was shown a nine-picture photo lineup.^[8] For the first time, this lineup included photos of both Eric Perry, who had already been tentatively identified by Scott and Buck, and of the defendant; however, James Logan's photo was not included. Upon seeing this lineup, Scott immediately recognized Eric's picture again. About ten minutes later, Scott identified defendant's picture as Dee. Scott was then shown the picture of defendant he had failed to identify at a previous session and asked to explain why he had not previously identified it. He stated that he had no recollection of having seen it before. After Scott had identified Dee and before he could talk to his sister, the police showed Buck the same lineup. Buck identified the defendant as Dee and then re-identified Eric.

Defendant argues that the jury could have found the in-court identification unreliable for a variety of reasons. The defendant argues that the identification of Dee from photographic lineups in this case was unreliable because of the time interval which passed between the occurrence of the event and the lineup and because of the anxiety and tension inherent in the situation surrounding the entire identification process.^[9] The defendant also argues that since Scott and Buck had smoked marijuana *291 on the days of the crime, their perception would have been affected, making their identification through photographs less reliable. Further, defendant claims the January 27, 1979 identification of Dee by Scott and Buck from the photographic lineup was the product of an unconscious transfer. Defendant claims that Scott picked the picture of Dolan Chapple and identified it as Dee because he remembered that picture from the previous lineup (when he had not been able to identify defendant's picture). Defendant urges that the in-court identifications were merely reinforcements of the initial error. Defendant also argues that Eric's presence in the lineup heightened the memory transfer and increased the chance of an incorrect photographic identification. Defendant makes the further point that since the James Logan picture resembled defendant's and was not again displayed to the witnesses, the chance of misidentification was heightened. Further, defendant claims that the identification was made on the basis of subsequently acquired information which affected memory. Finally, defendant argues that the confidence and certainty which Scott and Buck displayed in making their in-court identification at trial had no relation whatsoever to the accuracy of that identification and was, instead, the product of other factors.

It is against this complicated background, with identification the one issue on which the guilt or innocence of defendant hinged, that defense counsel offered the testimony of an expert on eyewitness identification in order to rebut the testimony of Malcolm Scott and his sister, Pamela Buck. The witness called by the defense was Dr. Elizabeth Loftus, a professor of psychology at the University of Washington. Dr. Loftus specializes in an area of experimental and clinical psychology dealing with perception, memory retention and recall. Her qualifications are unquestioned, and it may fairly be said that she "wrote the book" on the subject. The trial court granted the State's motion to suppress Dr. Loftus' testimony. Acknowledging that rulings on admissibility of expert testimony are within the discretion of the trial court, defendant contends that the court erred and abused its discretion in granting the motion to suppress Dr. Loftus' testimony.

The admissibility of expert testimony is governed by Rule 702, Ariz. R. of Evid. That rule states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

In what is probably the leading case on the subject, the Ninth Circuit affirmed the trial court's preclusion of expert evidence on eyewitness identification in United States v. Amaral, 488 F.2d 1148 (9th Cir.1973). In its analysis, however, the court set out four criteria which should be applied in order to determine the admissibility of such testimony. These are: (1) qualified expert; (2) proper subject; (3) conformity to a generally accepted explanatory theory; and (4) probative value compared to prejudicial effect. Id. at 1153. We approve this test and find that the case at bar meets these criteria.

We recognize that the cases that have considered the subject have uniformly affirmed trial court rulings denying admission of this type of testimony. However, a careful reading of these cases reveals that many of them contain fact situations which fail to meet the Amaral criteria or are decided on legal principles which differ from those we follow in Arizona. For instance, in one of the cases often cited on this subject, United States v. Watson, 587 F.2d 365 (7th Cir.1978), the court held that the expert testimony was properly precluded by the trial court because of the lack of the witness' qualifications and the fact that identification had been "prompt and positive" so that expert testimony would be of little use. Id. at 369. Neither of those grounds is applicable to the case at bench. Similarly, in another leading case, United States v. Brown, 540 F.2d 1048, 1053-54 (10th Cir.1976), the court pointed out that *292 there had been no real offer of proof and that expert evidence regarding eyewitness testimony would improperly invade the province of the jury^[10] and would result in undue consumption of time. In the case presently before us, there was a detailed offer of proof, the consumption of time involved in taking the testimony of the expert witness in question was certainly not "undue" in comparison with the importance of the issue before the court, and the worry about invading the province of the jury has been solved for us by the provisions of Rule 704, Ariz. R. of Evid., which permits opinion testimony even though "it embraces an ultimate issue."

Applying the Amaral test to the case at bench, we find from the record that the State has conceded that the expert was qualified and that the question of conformity to generally accepted explanatory theory is not raised and appears not to be a question in this case. The two criteria which must therefore be considered are (1) determination of whether the probative value of the testimony outweighs its possible prejudicial effect and (2) determination of whether the testimony was a proper subject.

(1) PROBATIVE VALUE vs. PREJUDICE

The State argues that there would have been little probative value to the witness' testimony and great danger of unfair prejudice. The latter problem is claimed to arise from the fact that Loftus' qualifications were so impressive that the jury might have given improper weight to her testimony. We do not believe that this raises the issue of unfair prejudice. The contention of lack of probative value is based on the premise that the offer of proof showed that the witness would testify to general factors which were applicable to this case and affect the reliability of identification, but would not express any opinion with regard to the accuracy of the specific identification made by Scott and Buck and would not express an opinion regarding the accuracy percentage of eyewitness identification in general.

We believe that the "generality" of the testimony is a factor which favors admission. Witnesses are permitted to express opinions on ultimate issues but are not required to testify to an opinion on the precise questions before the trier of fact.

Most of the literature assumes that experts testify only in the form of opinions. The assumption is logically unfounded. [Rule 702] accordingly recognizes that an expert on the stand may give a dissertation or exposition of scientific or other principles relevant to the case, leaving the trier of fact to apply them to the facts. Since much of the criticism of expert testimony has centered upon the hypothetical question, it seems wise to recognize that opinions are not indispensable and to encourage the use of expert testimony in non-opinion form when counsel believes the trier can itself draw the requisite inference.

Fed.R. of Evid. 702 advisory committee note.

(2) PROPER SUBJECT

The remaining criterion at issue is whether the offered evidence was a proper subject for expert testimony. Ariz. R. of Evid. 702 allows expert testimony if it "will assist the trier of fact to understand the evidence or to determine a fact in issue." Put conversely, the test "is whether the subject of inquiry is one of such common knowledge that people of ordinary education could reach a conclusion as intelligently as the witness...." State v. Owens, 112 Ariz. 223, 227, 540 P.2d 695, 699 (1975). Furthermore, the test is not whether the jury could reach some conclusion in the absence of the *293 expert evidence, but whether the jury is qualified without such testimony "to determine intelligently and to the best possible degree the particular issue without enlightenment from those having a specialized understanding of the subject...." Fed.R. Evid. 702 advisory committee note (quoting Ladd, Expert Testimony, 5 Vand.L.Rev. 414, 418 (1952)).

In excluding the evidence in the case at bench, the trial judge stated:

I don't find anything that's been presented in the extensive discussions that I have read in your memorandum with regard to the fact that this expert is going to testify to anything that isn't within the common experience of the people on the jury, that couldn't really be covered in cross-examination of the witnesses who made the identification, and probably will be excessively argued in closing arguments to the jury.

This basis for the view that eyewitness identification is not a proper subject for expert testimony is the same as that adopted in United States v. Amaral, supra, and in the great majority of cases which have routinely followed Amaral. See, e.g., State v. Valencia, 118 Ariz. 136, 138, 575 P.2d 335, 337 (App. 1977); People v. Guzman, 121 Cal. Rptr. 69, 71-72, 47 Cal. App.3d 380, 385-86 (1975); Dyas v. United States, 376 A.2d 827, 831-32 (D.C.App. 1977); Nelson v. State, 362 So.2d 1017, 1021 (Fla.App. 1978); People v. Dixon, 87 Ill. App.3d 814, 818, 410 N.E.2d 252, 256 (1980); State v. Porraro, R.I., 404 A.2d 465, 471 (1979).

However, after a careful review of these cases and the record before us, we have concluded that although the reasons cited by the trial judge would correctly permit preclusion of such testimony in the great majority of cases, it was error to refuse the testimony in the case at bench. In reaching this conclusion, we have carefully considered the offer of proof made by the defense in light of the basic concept of "proper subject" underlying Rule 702.

We note at the outset that the law has long recognized the inherent danger in eyewitness testimony. See United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967).^[11] Of course, it is difficult to tell whether the ordinary juror shares the law's inherent caution of eyewitness identification. Experimental data indicates that many jurors "may reach intuitive conclusions about the reliability of [such] testimony that psychological research w