The Lawletter Vol 38 No 1
A voluminous body of scientific knowledge on the subject of eyewitness identification has developed over the last 30 years, as well as extensive commentary and research by psychologists and jurists on the dangers of misidentification and the unreliability of eyewitness identification. Acknowledging and compiling this corpus, the Supreme Court of Oregon, in State v. Lawson, 291 P.3d 673 (Or. 2012), recently revised the methodology for determining the admissibility of eyewitness testimony in Oregon courts.
Until Lawson, challenges to eyewitness testimony involved the two-step analysis articulated in State v. Classen, 590 P.2d 1198 (Or. 1979). Under Classen, the defendant bore the burden of showing, under the first prong of the analysis, that "the process leading to the offered identification was suggestive or needlessly departed from procedures prescribed to avoid such suggestiveness." Lawson, 291 P.3d at 683 (quoting Classen, 590 P.2d at 1203). If the defendant showed that the process of identification was suggestive, the second prong required the prosecution to demonstrate to the court that "the proffered identification ha[d] a source independent of the suggestive confrontation . . . or that other aspects of the identification at the time it was made substantially exclude the risk that it resulted from the suggestive procedure." Id. at 683-84 (quoting Classen, 590 P.2d at 1203).
In determining whether an identification had been made independent of suggestive procedures, courts were directed to consider a nonexclusive list of factors, including
the opportunity that the witness had at the time to get a clear view of the persons involved in the crime and the attention he or she gave to their identifying features, the timing and completeness of the description given by the witness after the event, the certainty expressed by the witness in that description and in making the subsequent identification, and, of course, the lapse of time between the original observation and the subsequent identification.
Id. at 684 (quoting Classen, 590 P.2d at 1203).
The Oregon court in Lawson observed that although the intent in Classen had been to come up with an evidentiary standard, placing the burden on the defendant to prove that the eyewitness identification was suggestive was more appropriate to a due process analysis, in which the defendant bears the initial burden of proving a constitutional violation. Id. at 689; see, e.g., Perry v. New Hampshire, 132 S. Ct. 716, 730 (2012) ("[T]he Due Process Clause does not require a preliminary judicial inquiry into the reliability of an eyewitness identification when the identification was not procured under unnecessarily suggestive circumstances arranged by law enforcement."). In contrast, in evidentiary matters, it is the proponent of the evidence—in this case, the State—who bears the initial burden of establishing admissibility. Id. The problem with the second step of the Classen inquiry was that it allowed "trial courts applying the Classen factors to rely heavily on the eyewitnesses' self‑reports to establish the existence or nonexistence of suggestibility factors." Lawson, 291 P.3d at 689.
Finding that the rule in Classen was inadequate to ensure that unreliable eyewitness evidence will be excluded, the Oregon Supreme Court devised a process that closely mirrors the Rules of Evidence. Under the revised rule, "when a criminal defendant files a pretrial motion to exclude eyewitness identification evidence, the state as the proponent of the eyewitness identification must establish all preliminary facts necessary to establish admissibility of the eyewitness evidence." Id. at 696-97. If the testimony is challenged on the basis of lack of personal knowledge or that it is impermissible lay opinion, "those preliminary facts must include, at minimum, proof . . . that the proffered eyewitness has personal knowledge of the matters to which the witness will testify, and proof . . . that any identification is both rationally based on the witness's first‑hand perceptions and helpful to the trier of fact." Id. at 697.
If the State satisfies its burden of proving that the eyewitness testimony is relevant and, thus, generally admissible, "the burden shifts to the defendant to establish . . . that, although the eyewitness evidence is otherwise admissible, the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by considerations of undue delay or needless presentation of cumulative evidence." Id. In the event that the defendant successfully makes such a showing, "the trial court can either exclude the identification, or fashion an appropriate intermediate remedy short of exclusion to cure the unfair prejudice or other dangers attending the use of that evidence. . . . [within] the sound exercise of the trial court's discretion." Id.
While Lawson obviously applies only in Oregon, practitioners in all jurisdictions will want to review it for its compilation of the scientific research in the body of the opinion, as well as in an appendix. Moreover, at least one court has identified the Supreme Court of Oregon decision in Lawson, as well as a recent decision by the Supreme Court of New Jersey, State v. Henderson, 27 A.3d 872 (N.J. 2011), as signals of a growing awareness that the current standard for evaluating eyewitness testimony set forth in Manson v. Brathwaite, 432 U.S. 98 (1977), is inconsistent with scientific knowledge. See United States v. Greene, No. 11-4683, 2013 WL 28556, at *12 n.3 (4th Cir. Jan. 3, 2013); see also State v. Avery, 2013 WI 13, ¶ 114 n.4, 826 N.W.2d 60, 86 n.4 (Bradley, J., dissenting).