Oregon Supreme Court Shifts Burden of Proof for Eyewitness Testimony

Spring 2013

By Daniel C. Re

On November 29, 2012, the Oregon Supreme Court filed its unanimous decision in the consolidated cases of State v. Lawson and State v. James.1 The landmark ruling fundamentally altered the standard for eyewitness testimony at trial, and garnered national media attention.2
In both cases, the defendants were convicted in large part due to eyewitness identification testimony. The trial courts and the courts of appeal had allowed admission of the eyewitness testimony under the test established in State v. Classen.3 The Oregon Supreme Court’s review of Lawson and James was to determine whether the Classen test was consistent with current scientific research and understanding of eyewitness identification. After an extensive review of the current scientific data, the Supreme Court concluded that the Classen test was inadequate. The court established a new procedure that shifts the burden of proof to prosecutors to show that an eyewitness’s identification is sufficiently reliable, a standard more consistent with the Oregon Evidence Code.
I. Facts in Lawson
In Lawson, the defendant was convicted of aggravated murder, aggravated attempted murder, and robbery. The victims, a husband and wife, were shot at night in their camp trailer. Earlier that day, the victims had talked to defendant at their campsite. The wife was transported to the hospital by ambulance and helicopter. She was delirious and said she did not know who shot her and had not seen the shooter’s face.
The defendant’s trial took place more than two years after the shooting. During that time, police interviewed the wife many times and her belief that defendant was the shooter changed from not knowing who shot her to being positive she was shot by the defendant. Initially, the wife could not identify the defendant from a photo lineup. In the next interview, the wife said the shooter put a pillow over her face and she could not see him. In a later interview, she said that despite the pillow, she did see the shooter but she again failed to pick the defendant from a photo lineup. Subsequently, she stated that she believed the defendant was the shooter, but she was not sure. During one interview, the wife said that the shooter wore a dark shirt and baseball cap. One month before trial, police showed her a single photo of the defendant wearing a dark shirt and a baseball cap. Just before trial, police had her observe the defendant at a pretrial conference. Only after those events occurred did the wife pick the defendant out of the same photo lineup that she had been unable to identify him from earlier. At trial, the wife testified that she was positive the defendant was the shooter.
II. Facts in James
In James, the defendant was convicted of robbing a grocery store and other associated crimes. The conviction was based primarily on eyewitness identification testimony of two store employees who confronted the defendant as he was leaving the store. Prior to that confrontation, the store employees observed the defendant and an accomplice stuffing forty ounce bottles of beer into a backpack. The defendant physically assaulted the employees and then left the store and drove off with his accomplice. The theft was immediately reported to the police. The witnesses described the defendant as a Native American, approximately six feet tall, weighing about 220 pounds and wearing a white shirt and baggy blue jeans. During the confrontation with the defendant in the store, the eyewitnesses had a very good look at the defendant from close range.
Later that day, a police officer spotted the defendant based on the description given by the witnesses. The officer questioned the defendant but he denied being at the store. The officer, with consent, searched the accomplice’s backpack and found an unopened forty ounce bottle of malt liquor. The defendant then consented to return to the store where he was immediately identified by the witnesses.
III. The Classen Test
Classen established a two-step test to determine admissibility of eyewitness identification testimony when a defendant files a motion to suppress that testimony. In Classen, the court recognized that suggestive circumstances affect the reliability and, therefore, the admissibility of eyewitness identification. The Classen test was designed to protect the reliability of the testimony. Classen first required the court to decide if the process leading to the identification by the eyewitness was suggestive or needlessly departed from procedures to avoid suggestiveness. If the court found that the procedure was suggestive, the state was then required to show that the identification testimony had a source independent of the suggestive procedure or that other aspects of the identification substantially excluded the risk that the identification result from the suggestive procedure.4
A. Scientific Data
In its opinion, the court noted that since 1979, when Classen was decided, there have been more than 2,000 scientific studies on the reliability of eyewitness identification.5 Those studies have identified factors known to affect the reliability of such identifications. Those factors are divided into two categories:
1. System variables, which refer to the procedure used to obtain identifications, such as lineups, showups, and suggestive questioning, which can cause post-event memory contamination; and, suggestive feedback and recording confidence;6
2. Estimator variables, which refer to characteristics of the witness that cannot be manipulated by the state, like stress, witness attention, duration of exposure, environmental conditions, perpetrator characteristics, speed of identification, and memory decay.7
B. The Revised Procedure
The Classen test assumed the eyewitness identification testimony was admissible, and, if the defendant objected, it was incumbent on him to prove why the testimony should not be admissible.  In the current case, the court reasoned that while this standard meets due process, it was not consistent with admissibility of evidence under the Oregon Evidence Code.8 Another issue with Classen was that it resulted in trial courts relying heavily on the eyewitness’s testimony to determine whether the identification had been influenced by suggestive procedures, an inherently problematic practice.9 New research, however, established that suggestive procedures could inflate eyewitness testimony and such inflation detracted from the testimony’s reliability. As a result, the Classen test had to be revised.
Based on the scientific research, the court established the following procedure under the Oregon Evidence Code to determine admissibility of eyewitness identification evidence:
1. The state, as proponent of that evidence, must establish that the witness had adequate opportunity to observe or personally perceive the facts the witness will testify to and that the witness did, in fact, observe or perceive them, thereby gaining personal knowledge of those facts;10
2. Since the state is using lay opinion testimony, it must establish that the testimony is rationally based on the perception of the witness and is helpful to a clear understanding of the testimony or determination of the fact in issue;11
3. If the state succeeds in establishing that the evidence is admissible under parts 1 and 2, the defendant can have the testimony suppressed by proving that the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, undue delay or needless cumulative evidence;12
4. If the defendant succeeds under part 3, the court can either exclude the eyewitness testimony or fashion a remedy that cures the unfair prejudice or other danger attendant to using that evidence.13
The court further noted that research regarding eyewitness identification is ongoing and that based on new research no party was precluded from establishing other factors or from challenging factors set out in the opinion.14
III. Court’s Application of the Revised Procedure to Lawson and James
In Lawson, the court expressed concern over the reliability of the wife’s identification testimony in light of its revised procedure for eyewitness testimony. The court’s concern stemmed from the following facts: the wife’s tremendous stress when she first observed the shooter; the poor viewing conditions; the two year time period between the shooting and the wife’s court identification; and significant suggestive procedures used by the police.15 Because of these circumstances, under the new standard, the court reversed defendant’s conviction and remanded the case for a new trial.
In James, the court held that application of the revised procedure could not have resulted in the exclusion of the eyewitness identification. The court reasoned that since witnesses provided a detailed description of the defendant to the police within minutes of the robbery and the police identified the defendant as a suspect in the robbery based on their description of the witnesses within five hours, the eyewitness testimony would be allowed under the new standard. Additionally, the witnesses were face-to-face with the defendant and had the personal knowledge to identify him. Although some of the identification procedures were suggestive, the court found that the witnesses’ identifications were based on their original observations and were not influenced by suggestive procedures. The court affirmed the defendant’s conviction.
*Daniel C. Re is an attorney in private practice in Oregon. He has been a member of the Oregon State Bar since September, 1980. He is a shareholder in the Bend, Oregon firm of Hurley Re PC.
1 State v. Lawson/James, 352 Or. 724, 291 P.3d 673 (2012).
2 Editorial, A Check on Bad Eyewitness Identifications, N.Y. Times, Dec. 5, 2012, http://www.nytimes.com/2012/12/06/opinion/a-check-on-bad-eyewitness-identifications.html?_r=0.
3 285 Or. 221, 590 P.2d 1198 (1979).
4 Lawson/James, 352 Or. at 737, 746, 749.
5 Id. at 739–740
6 Id. at 741–744, Appendix at 769–789.
7 Id. at 744–746, Appendix at 769–789.
8 Id. at 746–747.
9 Id. at 748.
10 Id. at 752–753.
11 Id. at 753–754.
12 Id. at 756–758.
13 Id. at 759.
14 Id. at 741.
15 During police interviews, the wife was asked leading questions that suggested defendant’s guilt and, due to her condition, she was especially susceptible to memory contamination. The wife was twice unable to identify defendant from photo lineups and only identified him after seeing suggestive photographs of the defendant and after viewing him at a preliminary hearing.


Oregon Supreme Court Shifts Burden of Proof for Eyewitness Testimony 

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