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Fltm September 2, 2011 05:21 PMAppellate Court Records

IN THE SUPREME COURT OF THE STATE OF OREGON

STATE OF OREGON,Plaintiff-Respondent,

v.SAMUEL ADAM LAWSON,

Defendant-Appellant.

Douglas County Circuit CourtCase No. 03CR1469FECourt ofAppeals No. A132640Supreme Court No. S059234

BRIEF OF AMICUS CURIAE THE INNOCENCE NETWORK

On Appeal from the Judgment of the Circuit Court for Douglas CountyHonorable RONALD POOLE, Judge

Affirmed by Written Opinion: December 15,2010Before: Wollheim, P.J., Brewer, C.J. (authored majority opinion),and Sercombe, J. (dissenting)

Barry C. ScheckPeter J. NeufeldDavid LoftisKaren A. NewirthThe Innocence Project100 Fifth AvenueThird FloorNew York, NY 10011(212) 364-5340

Matthew McHenry (OSB #043571)LEVINE & MCHENRY LLC1001 SW Fifth Avenue, Suite 1414Portland, OR 97204503.546.3927Email: matthew@ levinemchenry .comThomas H. GoldenEmily D. KiteWillkie Parr & Gallagher LLP787 Seventh AvenueNew York, NY 10019(212) 728-8657Email: [email protected]


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TABLE OF CONTENTS

INTEREST OF AMICUS CURIAE ...........................................................................!QUESTIONS PRESENTED AND PROPOSED RULE ........................................... 2STATEMENT OF THE CASE .................................................................................. 3SUMMARY OF ARGUMENT ................................................................................. 3STATEMENT OF FACTS ........................................................................................ 6THE SCIENTIFIC RESEARCH ON EYEWITNESS IDENTIFICATIONAND MEMORY ...................................................................................................... 10ARGUMENT ...........................................................................................................11

1. The Classen Framework Does Not Achieve The Goal ofUsing"Reliability as a Linchpin" to Protect Due Process and FairTrial Interests .......................................................................................11A. Classen's "Independent Source/Reliability" Test isConfounded Because Scientific Research Has Proventhat the Use of Suggestive Procedures and ConfirmingFeedback Falsely Inflate ''Reliability Factors." ........................12B. Classen Overemphasizes Police Misconduct and DoesNot Address Numerous Other Factors that AffectReliability .................................................................................. 19C. Classen Fails to Provide Jurors With "Context" andGuidance to Correct Misconceptions About EyewitnessMemory .....................................................................................222. A New Legal Framework to Accommodate Scientific Findings ........26A. Summary ...................................................................................28B. As the Proponent ofTrace Evidence, the Prosecution Hasthe Burden ofGoing Forward to Offer Proof that aReasonable Jury Could, on the Evidence Presented, Makethe Requisite Factual Determination that theIdentification Evidence Is Reliable ........................................... 34

CONCLUSION ............................................................................. , .........................58


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11

TABLE OF AUTHORITIESCasesErodes v. State,614 S.E.2d 766 (Ga. 2005) ...................................................................44, 45,49Commonwealth v. Johnson,668 A.2d 97 (Pa. 1995) .................................................................................... 38Dunnigan v. Keane,

137 F.3d 117 (2d Cir. 1998) ............................................................................ .19Jones v. State,

909 A.2d 650 (Md. 2006) ................................................................................. 38Manson v. Brathwaite,432 U.S. 98 (1977) ....................................................................................passimPeople v. Chipp,552 N .E.2d 608 ( 1990) ..................................................................................... 38State v. Chen,2011 WL 3689387 (N.J. Aug. 24, 2011) ........................................................ .19State v. Classen,285 Or. 221,590 P.2d 1198 (1979) ...........................................................passimState v. Clopten,223 P .3d 1103 (Utah 2009) .............................................................................. 23State v. Cromedy,727 A.2d 457 (1999) ........................................................................................44Stovall v. Denno,288 U.S. 293 (1967), overruled on other grounds by Griffith v. Kentucky,4 79 u.s. 314 ( 1987) ........................................................................................... 3State v. Henderson (Henderson I) ,2009 WL 510409 (NJ. Feb. 26, 2009) .......................................................... 26


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ll l

State v. Henderson (Henderson II),2011 WL 3715028 (N.J. Aug. 24, 2011) ..................................................passim

State v. Hibl,714 N.W.2d 194 (Wis. 2006) ........................................................ .19, 20, 29,30

State v. Hubbard,48 P .3d 953 (Utah 2002) ................................................................................. 28State v. Lawson,

239 Or. App. 363,244 P.3d 860 (Ct. App. 2010) .....................................passimState v. Long,721 P.2d 483 (Utah 1986) ................................................................................45State v. Lujkins,309 N.W.2d 331 (S.D. 1981) ........................................................................... 38State v. Marra,

610 A.2d 1113 (Conn. 1992) ............................................................................ 56State v. Romero,

922 A.2d 693 (2007) ........................................................................................ 44State v. Walden,905 P.2d 974 (Ariz. 1995) ............................................................................... 38United States v. Brownlee,454 F.3d 131 (3d Cir. 2006) ............................................................................ .44United States v. Wade,388 u.s. 218 (1967) ......................................................................................... 23Watkins v. Sowders,449 u.s. 341 (1981) .........................................................................................17Statutes, Rules and RegulationsO.R.S. 40.030 .................................................................................................. 35, 38


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IV

O.R.S. 40.085 ............................. , ......................................................................... 55O.R.S. 40.160 ........................................................................................................ 38O.R.S. 40. 405 .................................................................................................36, 38Accomplice Testimony Instruction in Manual of Model Criminal Jury Instructions,Rule 4.9 (9th Cir. 2005) ........................................................ , .................................56

Other AuthoritiesBenton, Tanja Rapus, et al., Has Eyewitness Testimony Research Penetrated theAmerican Legal System? A Synthesis ofCase History, Juror Knowledge, andExpert Testimony, in 2 The Handbook for of Eyewitness Psychology: Memory forPeople (R.C.L. Lindsay et al. eds., 2007) ................................................................ 23Benton, Tanja Rapus, et al., Eyewitness Memory is still Not Common Sense:Comparing Jurors, Judges and Law Enforcement to Eyewitness Experts, 20Applied Cognitive Psycho. 115 (2006) ....................................................................24Boyce, Melissa, et al., BeliefofEyewitness Identification Evidence, in TheHandbook of Eyewitness Psychology: Memory of People 501 (R.C .L. Lindsay etal. eds., 2007) ............................................................................................................. 2Brigham, John C. & Bothwell, Robert K., The Ability ofProspective Jurors toEstimate the Accuracy ofEyewitness Identifications, 7 Law & Hum. Behav. 19(1983) ....................................................................................................................... 24Clark, Steve E. & Wells, Gary L., On the Diagnosticity ofMultiple-WitnessIdentifications, 32 Law & Hum. Behav. 406 (2008) ............................................... 50Cutler, Brian, et al.,Juror Sensitivity to Eyewitness Identification Evidence,14 Law & Hum. Behav. 185 ( 1990) ........................................................................ 24Doyle, James, True Witness: Cops, Courts, Science, and the Battle AgainstMisidentification (2004) .......................................................................................... 29


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vEpstein, Jules, The Great Engine That Couldn't: Science Mistaken Identifications,and the Limits ofCross-Examination, 36 Stetson L. Rev. 727 (2007) .................... 23Garrett, Brandon L., Convicting the Innocent: Where Criminal Prosecutions GoWrong (2011) ...........................................................................................................17Judges, Donald P. , Two Cheers for the Department ofJustice's EyewitnessEvidence: A Guide For Law Enforcement, 53 Ark. L. Rev. 231 (2000) ................ .13Loftus, Elizabeth, et al., Eyewitness Testimony: Civil and Criminal(4th ed. 2007) ..................................................................................................... 24, 29Munsterberg, Hugo, On the Witness Stand (Mark Hatala ed., Greentop AcademicPress 2009) (1908) ................................................................................................... 43Nat'l Inst. Of Justice, U.S. Dep't of Justice, Eyewitness Evidence: A Guide forLaw Enforcement (1999) .........................................................................................29Office of the Attorney Gen., Wis. Dep't of Justice, Model Policy and Procedure forEyewitness Identification (2005) ............................................................................. 29O'Toole, Timothy P., Manson v. Brathwaite Revisited: Towards A New Rule ofDecision/or Due Process Challenges to Eyewitness Identification Procedures, 41Val. U. L. Rev. 109 (2006) ...................................................................................... 12Rosenberg, Benjamin E., Rethinking the Right to Due Process in Connection WithPretrial Identification Procedures: An Analysis and a Proposal, 79 Ky. L.J. 259(1991) .......................................................................................................................13Schacter, DanielL., The Seven Sings ofMemory 5 (2011) ....................................29Schmechel, RichardS., et al., Beyond the Ken? Testing Jurors' Understanding ofEyewitness Reliability Evidence, 46 Jurimetrics 177 (2006) ............................ 24, 47Wells, Gary L.,Eyewitness Identification: Systemic Reforms, 2006 Wis. L. Rev.615 ...................................................................................................................... 23, 29Wells, Gary L. & Bradfield, AmyL., "Good, You Identified the Suspect":Feedback to Eyewitnesses Distorts Their Reports of he Witnessing Experience, 83J. Applied Psycho . 360 (1998) ................................................................................15


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1INTEREST OF AMICUS CURIAE

The Innocence Network (the "Network") is an association of

organizations dedicated to providing pro bono legal and/or investigativeservices to prisoners for whom evidence discovered post-conviction can provideconclusive proof of innocence. The sixty-six current members of the Networkrepresent hundreds of prisoners with innocence claims in all 50 states and theDistrict ofColumbia, as well as Australia, Canada, the United Kingdom, and

New Zealand.1

The Innocence Network and its members are also dedicated toimproving the accuracy and reliability of the criminal justice system in futurecases. Drawing on the lessons from cases in which the system convictedinnocent persons, the Network advocates study and reform designed to enhancethe truth-seeking functions of the criminal justice system to ensure that future

wrongful convictions are prevented.The vast majority of individuals exonerated by DNA testing were

originally convicted based, at least in part, on the testimony of eyewitnesseswho turned out to be mistaken. Many of those misidentifications were made inthe context of suggestive behavior by law enforcement or other sources, such asthe media. As a result, in order to minimize the risk of wrongful convictionsbased on eyewitness misidentifications, the Network has a compelling interest

1 A list ofmember organizations is attached hereto as Appendix A.


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in the adoption of a legal framework, together with law enforcementprocedures, that reduce the risk of a finding of guilt based on misidentification.

In this case, the Innocence Network seeks to present a broadperspective on the issues presented in the hope that the risk of future wrongfulconvictions will be minimized.

QUESTIONS PRESENTED AND PROPOSED RULEQuestions Presented:

(1) Did the Court of Appeals err in concluding that thestate had met its burden, under State v. Classen, 285Or. 221 (1979), of proving that an eyewitnessidentification obtained through concededly suggestiveprocedures was nonetheless independently reliable?(2) Was the Court of Appeals correct in suggestingthat any error in admitting eyewitness testimony insuggestive-identification cases can be cured at trial bycross-examination, expert testimony, closingarguments, and jury instructions?

Proposed Rule:Amicus urges the Court to prescribe a new standard of

admissibility for eyewitness identification testimony incorporating more thanthirty years of widely accepted scientific research. Under the proposed legalframework, the prosecution would have the burden of establishing, at a pretrialhearing, reliability of the evidence presented. Further, the new framework

2

would incorporate rules for weighing identification evidence, including placingthe greatest weight on variables proven to best indicate reliability. Finally, the


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3new framework would incorporate detailed findings of fact, "contextual" jury

instructions and expert testimony to ensure that jurors accurately understand thereliability of eyewitness identifications, the effects of system and estimatorvariables as well as suggestive or otherwise contaminating events, andscientifically established indicators of accuracy or inaccuracy.

STATEMENT OF THE CASEAmicus adopts and incorporates the Statement of the Case as

presented by Appellant in his Brief to this Court.SUMMARY OF ARGUMENT

The United States Supreme Court has long acknowledged thatidentification procedures can be so ''unnecessarily suggestive and conducive toirreparable mistaken identification" that a defendant is denied due process oflaw when the identification is admitted as evidence in trial. See, e.g., Stovall v.Denno, 388 U.S. 293, 301-302 (1967).Z This Court has gone even further,acknowledging in Classen "the widely recognized risk that such identificationmay often be unreliable at best and at worst may be the psychological productof the identification procedure itself." State v. Classen, 285 Or. 221, 227, 590

P.2d 1198, 1200 (1979). This case presents a prototypical example of an

2 Overruled on other grounds by Grifjith v. Kentucky, 479 U.S. 314, (1987).


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Id.

jury's inherent ability to evaluate evidence offered byeyewitnesses who honestly believe their testimony isaccurate.

The instant case provides this Court with the opportunity to

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reevaluate its own 30-year-old legal framework for evaluating the admissibilityof eyewitness identification evidence (set forth in Classen5) in light of morethan 30 years of extensive, reliable and consistent scientific research concerningeyewitness identification and memory that has been amassed on the subjectsince Classen was decided. The conviction of Samuel Lawson- who hasconsistently maintained his innocence from the time he began cooperating withlaw enforcement and who has never been conclusively connected to this crime,except for through the testimony of a single eyewitness - demonstrates thatOregon's current legal framework governing the admissibility of eyewitnessidentification evidence poses an unacceptable risk of wrongful convictions andinadequately protects the rights of defendants in several critical ways. First,Classen's "independent source/reliability" test is confounded because scientificresearch has proven that the use of suggestive procedures and confirming

feedback falsely inflate "reliability factors." Second, the Classen test undulyfocuses on police misconduct and does not address the numerous other factors5 This Court decided Classen after the Supreme Court's decision in Manson v.Brathwaite, and largely adopted the Supreme Court's framework.


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6that affect reliability. Third, Classen fails to provide jurors with necessaryinformation and guidance to correct misconceptions about eyewitness memory.

For these reasons, Amicus Curiae Innocence Network urges theCourt not only to reverse Mr. Lawson's conviction but also to prescribe arevised test for admissibility of eyewitness identification that incorporatesmodem science of eyewitness identification and memory and works to protectagainst the risk of wrongful convictions based on eyewitness misidentification.

STATEMENT OF FACTS6There is ample reason that could identify no one for

two years after she had been shot and her husband murdered. The shootingoccurred in the dark of night at an Oregon campground, and she was shot fromoutside of her trailer as she closed a window. State v. Lawson, 239 Or. App.

363, 365-6,244 P.3d 860, 861 (Ct. App. 2010). Her husband called 911, butwas shot as he went outside to speak with the operator. Immediately after sheand her husband were shot, a man approached the trailer in which she layinjured and demanded the keys to their truck. The man placed a cushion overher face and, accordingly, Ms. view of the perpetrator was obstructed.!d.

6 Amicus adopts the facts as set forth in the Petitioner's brief. We highlight,however, those facts relevant to our discussion.


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7When the paramedics reached Ms. she was critically

wounded, shot in the chest and had no movement in her legs. !d. Herevacuation from the campgrounds was arduous, two ambulances and then ahelicopter transported her to the hospital. !d. at 368-369. At points, she wasrambling and hysterical. Her statements to the first responders, andsubsequently to hospital personal, cast grave doubts on whether she had everseen the shooter. Id. at 368-9, 395-6. She told a sheriff shortly after being shotthat the shooter said he did not kill her as she had not seen his face. !d. at 368.She then repeated to hospital workers that she had not seen the shooter's face soher life had been spared. At one point during her evacuation she even identifiedthe helicopter pilot as the shooter. !d. at 368, 395.

The details that followed in the coming weeks buttressed herinitial assertions that she had not seen the shooter's face. For example,although Ms. described characteristics like the perpetrator's hat and shirt,she could not identify any of his specific features, such as his skin color, haircolor, eye color, scars or tattoos. !d. at 397. Further, a hospital worker presentduring one of Ms. police interviews testified that Ms. hadindicated "that it had been dark, that there had been a pillow over her face, andthat [Ms. was apologetic that she could not see the attacker." !d. at 369.

There was additional, powerful exculpatory evidence as to Mr.Lawson. Two days following the shooting, Ms. was shown a photo array


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8which contained Mr. Lawson's picture. !d. at 396-397. Ms. did notidentify the shooter in that array. A month after the shooting, Ms. againfailed to identify Mr. Lawson from a photographic array and she declined to tryto identify the perpetrator in a lineup. !d. While it is undisputed that Mr.Lawson had been at Ms. campsite that day, her testimony about whetherthe shooter was the same person who had been at the campsite earlier wasinconsistent, and in any event she provided little detail describing the shooterfor two years and could not identify Mr. Lawson in fairly implementedidentification procedures. !d. at 396.

It is against this backdrop that we must look at the identificationprocedures the state concedes were tainted with suggestion. To do so, we mustanalyze those procedures - and the conupting effect they may engender -through the lens of the current science on memory, its fallibility, and its relationto witness identification. It is now axiomatic that memory is not like a videorecorder where events are stored and can easily be played back. When onewitnesses an event and it is encoded, such events can be distorted and evencontaminated by subsequent events. So much so that one's ability to recall theevent can become wholly unreliable. The facts here present the paradigmaticexample of how such a danger can be realized: there can scarcely be anyconfidence of what Ms. actually saw and there is grave danger that hermemory was contaminated by patently illegal police procedures.


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9Two years after the incident, Ms. could not identify her

shooter. Rather than employ a non-suggestive technique- as had beenpreviously done - the police not only informed her that they had apprehendedthe man responsible for the shooting, but also employed what are widelyregarded as the most suggestive identification techniques. First, roughly amonth before trial, a detective took Ms. to a pre-trial hearing to view Mr.Lawson. There, in the courtroom, he showed her a single photograph of Mr.Lawson. !d. at 370-71. The same detective then had Ms. observe Mr.Lawson in the courtroom where he sat as a defendant during a pretrial hearing,charged with shooting Ms. and murdering her husband. !d. Followingthis observation, Ms. later that day saw a picture of Mr. Lawson in anofficer 's notebook as he was going through it in the district attorney's office.Only then, after all of those suggestive events, did Ms. identify Mr.Lawson as the perpetrator. Ms. then at trial expressed extraordinarycertainty before the juror of Mr. Lawson's identity. !d. at 383-84.

Other troubling factors here bear directly on a court 's ability toassess the reliability of Ms. identification. No contemporaneousaccount of the tainted procedures was recorded; the police wrote no reportsconcerning the single photo identification or courtroom identification. (Trial Tr.53-54, Nov. 9, 2005) There was not even any documentation of the selectionfrom the photo array in the district attorney's office. Id. The information


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10concerning those proceedings was not turned over to the defense, but onlyrevealed by the witness herself during cross-examination. Indeed, the policefailed to properly disclose to the defense the two previous identificationprocedures where Ms. had failed to identify Mr. Lawson during non-suggestive procedures. (Trial Tr. 131-32, Nov. 8, 2005; Trial Tr. 45-46, Nov. 9,2005).

The witness's claim of certainty, powerful before jurors, yetinextricably interwoven with taint, gives rise to the issues here. A carefulreview of the case compels the conclusion that the very framework under whichOregon courts admit eye-witness identification testimony and determine itsreliability is at odds with the scientific research in the area. As such, the currentframework is one that invariably will lead to unreliable evidence in courtroomsand wrongful convictions. It is that framework that must yield to science tomake way for more accurate adjudication of identification issues.THE SCIENTIFIC RESEARCH ON EYEWITNESS IDENTIFICATION

AND MEMORYAmicus adopts by reference the scientific research findings set

forth in the briefofAmicus Curiae University and College Professors.


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11ARGUMENT

1. The Classen Framework Does Not Achieve The Goal of Using"Reliability as a Linchpin" to Protect Due Process and Fair TrialInterests

In State v. Classen, 285 Or. 221, 232 (1979), this Court set forth atwo-part test for determining the admissibility of eyewitness identificationtestimony. Under that test, the defendant must first show that the process"leading to the offered identification was suggestive or needlessly departedfrom procedures prescribed to avoid such suggestiveness." !d. I f so, the"prosecution must satisfy the court that 'the proffered identification has asource independent of the suggestive confrontation' or photographic display, orthat other aspects of the identification at the time it was made substantiallyexclude the risk that it resulted from the suggestive procedure." !d. Classenidentified a list of non-exclusive factors, identical to Manson's "reliabilityfactors," to assist courts in making the second inquiry: (1) the witness'sopportunity to view and attention given to the perpetrator's identifying features;(2) the timing and completeness of the witness's description of the perpetratorafter the event; (3) ''the certainty expressed by the witness" in her description;and (4) "the lapse of time between the original observation and the subsequentidentification." !d. at 232-33 (citing Manson v. Brathwaite, 432 U.S. 98(1977)).


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12While the Classen court directed that these reliability factors

should not be treated as a checklist7, we submit that Oregon courts have donejust that. This is not a problem unique to Oregon: as legal scholars haveobserved, "[t]he Manson factors have become reduced to a checklist todetermine reliability, and a checklist is a poor means of making a subtle, fact-intensive, and case specific determination as to whether a given eyewitnessidentification is reliable, despite the use of suggestive police procedures."Timothy P. O'Toole, et al., Manson v. Brathwaite Revisited: Towards A NewRule of Decision for Due Process Challenges to Eyewitness IdentificationProcedures, 41 Valparaiso University Law Review 109, 113 (2006).

A. Classen's "Independent Source/Reliability" Test isConfounded Because Scientific Research Has Proven that theUse of Suggestive Procedures and Confirming FeedbackFalsely Inflate "Reliability Factors."The first issue is the scientific "confound" that lies at the heart of

the Classen two-part test. Under Classen, courts must balance the conuptingeffects of unduly suggestive identification procedures against "independentsource/reliability factors" to determine the ''ultimate issue": "whether anidentification made in a suggestive procedure has nevertheless been7 The Classen court also acknowledged that other factors may be relevant,"such as the age and sensory acuity of the witness, or a special occupationalconcern with people's appearance or physical features, or the frequency of his orher contacts with individuals sharing the general characteristics of the personidentified." !d. at 233.


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14and juries will find the identification reliable, a truly perverse outcome. TheManson Court assumed exactly the opposite - that juries would realize thatsuggestive procedures ''vitiate the weight of the [identification] evidence" andwould, accordingly, "discount" it. Manson, 432 U.S. at 112 n.12. The Lawsonappellate court made a similar error "in the crucible of the adversary process, ajury is usually in no worse position than a judge acting in a gatekeeper'scapacity to determine the effect, if any, of improperly suggestive policetechniques on the accuracy of eyewitness identification testimony." Lawson,239 Or. App. at 386.

Like the two lower courts in Lawson, courts have been insensitiveto this cause-and-effect relationship between suggestion and reliability for threedecades, applying the two-part test in a bifurcated manner that treats eachanalysis as two independent inquiries, instead of as symbiotic elements thatmust be assessed as a whole. For example, in this case, in assessing whetherMs. identification had an "independent source", the trial court ignoredthe suggestive procedures it had identified and instead focused on Ms.lengthy opportunity to observe the individual who had been at her campground

earlier in the day, the fact that after the crime she "saw the defendant's profilefrom a relatively short distance, observed his attire and heard his voice," andher "certainty" that the individual she had seen earlier was the same individualwho had shot her. /d at 381. This last fact simply ignores the significant body


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15of scientific research demonstrating that suggestive procedures inflate awitness's certainty while the vast majority of studies have confirmed that littleor no correlation exists between a witness's certainty and the accuracy of theidentification. The appellate court endorsed the trial court's finding, relying onthe eyewitness's testimony that she "deliberately and surreptitiously moved herhead in order to see the perpetrator" found that:

!d. at 382.

her glance at him, although fleeting, was not the sortof casual observation ofwhich the court wasdismissive in Classen. Thus, although Sheri viewedthe perpetrator only briefly, and in circumstances thatcertainly were not optimal for viewing, we concludethat at least certain aspects of this factor weigh infavor of a conclusion that Sheri's identification wasindependently reliable.

In so fmding, the Court ofAppeals relied on the eyewitness's selfreport of the quality of attention without ever considering that the suggestiveidentification procedures would have likely inflated not only the eyewitness'sconfidence, but also her memory of the conditions of her observation and thequality of her observation. By treating the analysis of an "independent source"as entirely distinct from the analysis of the suggestive procedures, both lower

courts in this case failed to recognize the very effect suggestive procedures haveon the self-reporting reliability factors articulated by Classen. See Gary L.Wells & AmyL. Bradfield, "Good, You Identified the Suspect": Feedback toEyewitnesses Distorts Their Reports of he Witnessing Experience, 83 J.


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Applied Psychol. 360,374-75 (1998) (Finding that the type of feedbackproduced strong effects on the witness's retrospective reports of (a) theircertainty, (b) the quality of the view they had, and (c) the clarity of theirmemory. Those witnesses who were merely told "good, you identified theactual suspect" became even more certain of their (false) identification,remembered having had a better view, and became more confident in thestrength of their memories.)

The confound also provides a perverse incentive to lawenforcement who believe a suspect is guilty and hope an eyewitness canprovide evidence to support their case - the more suggestive an identificationprocedure, the more likely a witness will make an identification, the moreconfirming feedback the witness will receive, and the more likely the witness

will be certain about the identification itself, the opportunity to view, and thedegree of attention paid. Accord Henderson II at *44 ("rather than act as adeterrent, the Manson/Madison test may unintentionally reward suggestivepolice practices. The irony of the current test is that the more suggestive theprocedure, the greater the chance eyewitnesses will seem confident and reportbetter viewing conditions. Courts in tum are encouraged to admitidentifications based on criteria that have been tainted by the very suggestivepractices the test aims to deter.")

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17In this case, we cannot know whether law enforcement

intentionally used suggestive procedures to first obtain an identification of Mr.Lawson from Ms. and then solidify her commitment to that identification.Law enforcement's explanation for its use of suggestive procedures- that Ms.

was frightened of the perpetrator- does not explain why suggestiveprocedures were used, when non-suggestive methods (photo arrays or livelineups) could have been used in ways that did not increase her fear.Ultimately, the state was unable to offer a credible explanation for why lawenforcement elected to use suggestive procedures after non-suggestiveprocedures failed to gamer any evidence. We do, however, know that this wasthe practical effect of law enforcement's repeated use of suggestiveidentification procedures. Like so many eyewitnesses before her8, Ms.went from a witness who was unable to identify Mr. Lawson in twophotographic arrays and repeatedly stated that she had not seen the perpetratorand could not identify him, to a witness who "did not have any doubts,[] wouldnever forget his face, and . . . always knew that the shooter was defendant."8 In his exhaustive study of the first 250 DNA-based exonerations, ProfessorBrandon L. Garrett noted with surprise that in 92 of 161 cases (or 57% of cases)involving a "certain" eyewitness identifying an individual later exonerated byDNA, "witnesses reported they had not been certain at the time of the earlieridentifications. Witnesses said that they had been unsure when they firstidentified the defendant, or they had trouble making an identification becausethey had not seen the culprit's face." Brandon L. Garrett, Convicting theInnocent: Where Criminal Prosecutions Go Wrong at 49 (2011).


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18Lawson, 239 Or. App. 398. As Justice William Brennan recognized, "[T]hereis almost nothing more convincing than a live human being who takes the stand,points a finger at the defendant, and says 'That's the one!"' Watkins v. Sowders,449 U.S. 341, 352 (1981)( Brennan, J., dissenting). Unfortunately, almost all ofthe eyewitnesses whose identification led to the wrongful conviction ofmorethan 190 exonerated individuals, were certain at the time of their identifications.Brandon L. Garrett, Convicting the Innocent: Where Criminal Prosecutions GoWrong 49 (2011).9

9 The impact that suggestive procedures have on not only a witness's certaintybut also on memory, is illustrated by the case of the wrongful conviction ofRonald Mr. was convicted of breaking into a woman'sapartment and raping her at knifepoint; the basis for the conviction was theeyewitness identification testimony of the rape victim, Jennifer SeeJennifer I Was Certain, But I Was Wrong, N.Y. Times, Jun. 18,2000. Ms. has described how, during the attack, she tried to observeas much as possible about the man who raped her, to make sure that, if giventhe opportunity, she would be able to identify him and help convict him. Id. at15. Ms. did survive the attack and provided a description of herattacker to investigators, subsequently identifying Mr. in two separatelineup procedures, after which investigators gave her affirming postidentification feedback. ld. Ms. was "completely confident" in heridentification: she was "sure" that she had picked the "right guy." Id. at 15.In 1987, during a retrial following an appellate court reversal ofMr.conviction, Bobby Poole - later identified through DNA to be the realperpetrator - was brought into court after word surfaced of his admission to thecrime. Id. at 15. Ms. told the court that she had never seen BobbyPoole in her entire life and had no idea who he was. Id. After Ms.again identified Mr. as the perpetrator, Mr. was convicted asecond time. ld.


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B. Classen Overemphasizes Police Misconduct and Does NotAddress Numerous Other Factors that Affect Reliability.While Oregon courts - and, indeed the lower courts in Lawson -

do consider the suggestive influence of private actors, the structure of theClassen framework overemphasizes state-orchestrated suggestion whileunderemphasizing the important effect suggestion from private actors may

19

have. Given our contemporary scientific knowledge that eyewitness memory issusceptible to contamination from a wide spectrum of sources, it makes nosense to scrutinize identification evidence only through the prism of policemisconduct. Unlike the law, science does not differentiate between "necessary"and ''unnecessary" suggestion, since the necessity of suggestive policeprocedures is unrelated to its contaminating effects on memory. See State v.Chen, 2011 WL 3689387 (N.J. Aug. 24, 2011); Henderson II at *1 (focusing onthe contaminating effects of co-witness identifications); State v. Hibl, 714N.W.2d 194,203 (Wis. 2006) (noting that unintentional, non-law enforcement

In 1995, DNA testing excluded Ronald for Ms. rape, andimplicated inculpated Bobby Poole, who ultimately confessed to the crime.James Thorner, Ron Freedom: Tenacity Paid Off: Innocent Man CarriesScars from His Decade in Prison, Greensboro News & Record (N.C.), July 10,1995, at A2. Ms. now explains that seeing Mr. in the lineupsand in court "meant that his face eventually just replaced the original image of[her] attacker," Dykman, supra, at 7L, to the extent that Mr. was eventhe man in her nightmares about the rape. supra, at 16. Thesuggestive procedures by which Mr. was identified not only increasedMs. certainty in her identification and but actually altered hermemory of the event.


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20suggestiveness can become a "key factor" in identification errors). Moreover,as the Second Circuit observed, "[t]he linchpin of admissibility ... is notwhether the identification testimony was procured by law enforcement officers,as contrasted with civilians, but whether the identification is reliable."Dunnigan v. Keane, 137 F.3d 117, 128 (2d Cir. 1998), cert. denied, 525 U.S.840 (1998).

To be sure, suggestive police procedures can taint the memory ofan eyewitness and render any subsequent identification unreliable, but equallypernicious contamination of eyewitness memory is often brought about bysources unconnected to law enforcement - family members, friends, otherwitnesses to the same event, media reports, or simply the passage of time.

Moreover, in some cases, suggestion itself may not be dispositiveon the issue of reliability because estimator variables- i.e., event-relatedfactors, beyond State control, that can impact identification reliability - couldbe so demonstrably weak that the identification evidence should be suppressed,or at least the jury should be instructed to treat it with great caution and distrust.See Henderson II* 4 (''under Manson/Madison, defendants must show thatpolice procedures were 'impermissibly suggestive' before courts can considerestimator variables that also bear on reliability. As a result, although evidenceof relevant estimator variables tied to the Neil v. Biggers factors is routinelyintroduced at pretrial hearings, their effect is ignored unless there is a finding of


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21impermissibly suggestive police conduct.") (internal citations omitted). Seealso Hibl, 714 N.W.2d at 204 (''There may be some conceivable set ofcircumstances under which the admission of highly unreliable identificationevidence could violate a defendant's right to due process, even though a state-constructed identification procedure is absent.").

Because the trial court concluded (and the state ultimatelyconceded) that the procedures used by law enforcement were undulysuggestive,10 the lower court did not directly consider the conduct of privateactors or estimator factors more generally at the first stage of the inquiry. Ithas, however, been established that in addition to the estimator variables- thosevariables relating to the witness, the perpetrator, and the event- that reduce thelikelihood that Ms. identification was accurate, at least one private actorengaged in suggestive identification procedures. (An employee of therehabilitation facility where Ms. was recuperating showed her a singlepicture of Mr. Lawson, attached to a newspaper article identifying him as asuspect in her shooting and the murder of her husband.) The trial court declinedto consider this evidence in ruling on the defendant's motion to strike the state'sidentification evidence, holding that it ''was suggestive because there was onlyone photograph, and it was accompanied by a newspaper article relating to the10 The suggestive procedures alone warranted suppression of the in-court andout-of-court identifications by the eyewitness in this case.


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22case. However, this was not an act of law enforcement, and the State cannot beheld accountable as Officer Merrifield had only provided Ms. thedefendant's name to this point." (State v. Lawson, App. Br. at 30, App. Ct. NO.A 132640 ) . Despite acknowledging the suggestiveness of the private actor'sconduct, the trial court erroneously refused to consider it in its reliabilitydetermination. This Court should now take the opportunity to renovate thelegal framework so that courts can consider the totality of the circumstancesthat contribute to the unreliability of an eyewitness identification. As the NewJersey Supreme Court found in Henderson II:

Suggestiveness can certainly taint an identification,which justifies examining system variables. The sameis true for estimator variables like high stress,weapon-focus, and own-race bias. Because both setsof factors can alter memory and affect eyewitnessidentifications, both should be explored pretrial inappropriate cases to reflect what Mansonacknowledged: that 'reliability is the linchpin indetermining the admissibility of identificationtestimony.'

Henderson II at *48 (internal citation omitted).C. Classen Fails to Provide Jurors With "Context" and Guidanceto Correct Misconceptions About Eyewitness Memory.

After re-focusing the analysis of eyewitness identification evidenceon reliability and ensuring that juries would not be deprived of critical, if"flawed" evidence, the Manson Court was "content to rely upon the good senseand judgment of American juries." Manson, 432 U.S. at 116. The Court felt


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23that "[j]uries are not so susceptible that they cannot measure intelligently theweight of identification testimony that has some questionable feature." AccordLawson, 239 Or. App. at 386.

Unfortunately, longstanding research shows that jurors have greatdifficulty distinguishing between accurate and inaccurate eyewitnesses. SeeTanja Rapus Benton et al., Has Eyewitness Testimony Research Penetrated theAmerican Legal System? A Synthesis ofCase History, Juror Knowledge, andExpert Testimony, in 2 The Handbook of Eyewitness Psychology: Memory forPeople 453,475-87 (R.C.L. Lindsay et al. eds., 2007). Mistaken eyewitnessesare telling what they believe to be the truth, and thus the cognitive facultiesjurors usually deploy in making credibility judgments about lying witnesses do


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24not work well in this context.11 Even more troubling, research shows jurorshave some fundamental misconceptions about eyewitness memory. 12 Jurors

tend to believe that memory works like a videotape, generally misunderstand

11 This also explains why cross-examination - the supposed great engine foruncovering truth - often sputters in the face of an honest but mistakeneyewitness. As such, it is insufficient, on its own, to guard against wrongfulconvictions based on mistaken identifications (as both the DNA exonerationsand empirical study show), and serves as an inadequate substitute for experttestimony or jury instructions. Jules Epstein, The Great Engine That Couldn't:Science, Mistaken Identifications, and the Limits ofCross-Examination, 36Stetson L. Rev. 727 (2007); Gary L. Wells, Eyewitness Identification: SystemicReforms, 2006 Wis. L. Rev. 615 ("Cross-examination, a marvelous tool forhelping jurors discriminate between witnesses who are intentionally deceptiveand those who are truthful, is largely useless for detecting witnesses who aretrying to be truthful but are genuinely mistaken."); see State v. Clopten, 223P .3d 1103, 1110 (Utah 2009) (because eyewitnesses may express almostabsolute certainty about identifications that are inaccurate, research shows theeffectiveness of cross-examination is badly hampered); see U.S. v. Wade, 388U.S. 235,235 (1967) ("even though cross-examination is a precious safeguardto a fair trial, it cannot be viewed as an absolute assurance of [an eyewitness's]accuracy and reliability.").12 See, e.g., Melissa Boyce et al., BeliefofEyewitness Identification Evidence,in The Handbook of Eyewitness Psychology: Memory for People 501 (R.C.L.Lindsay et al. eds., 2007); Elizabeth F. Loftus et al., Eyewitness Testimony:Civil and Criminal (4th ed. 2007); John C. Brigham & Robert K. Bothwell, TheAbility ofProspective Jurors to Estimate the Accuracy ofEyewitnessIdentifications, 7 Law & Hum. Behav. 19 (1983); Brian L. Cutler et al., JurorSensitivity to Eyewitness Identification Evidence, 14 Law & Hum. Behav. 185-191(1990); RichardS. Schmechel, et al., Beyond the Ken? Testing Jurors'Understanding of Eyewitness Reliability Evidence, 46 Jurimetrics 177 (2006);Tanja Rapus Benton et al., Eyewitness Memory is Still Not Common Sense:Comparing Jurors, Judges and Law Enforcement to Eyewitness Experts, 20Applied Cognitive Psycho!. 115 (2006).


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25the effect of confirming feedback on the self-reported factors inManson, do notunderstand the effects of biased witness warnings, and are not inherentlysensitive to estimator variables such as weapon focus, violence during theevent, retention intervals between the event and the identification procedure,foil bias, disguises, and cross-race identifications. In fact, jurors tend to relyheavily on eyewitness factors that are not good indicators of accuracy(particularly the witness's confidence in her identification), overestimateeyewitness identification accuracy rates, and are not familiar with the principlethat memory is susceptible to contamination just like trace evidence. It is,therefore, critically important to correct these scientifically incorrect notionsand to provide jurors with "context" or guidance about eyewitness testimonythat is firmly grounded in sound science.

In this case, the trial court categorically failed in its gatekeepingduty by allowing wholly unreliable eyewitness evidence to reach the jury. Evenif we were to presume that the evidence should have been admitted, the juryinstructions provided by the court failed to provide the jury with anymeaningful guidance for assessing the eyewitness identification evidence in

light of the flagrant misconduct by law enforcement in this case. At aminimum, the jury should have been cautioned to carefully scrutinize theeyewitness testimony given the factors indicating unreliability.


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262. A New Legal Framework to Accommodate Scientific Findings

In light of the explosion of peer-reviewed research in the field ofeyewitness identification and the long understood but now irrefutable leadingrole of eyewitness error in wrongful convictions, Amicus urges the OregonSupreme Court to renovate the Classen test by adopting a dynamic new legalarchitecture for the assessment, regulation, and presentation of eyewitnesstestimony. The proposed framework represents not the abrogation but rather

the modernization of the Manson/Classen framework by reflecting the scientificknowledge represented by the scientific research published in the field over thepast three decades.

In the Henderson case, the New Jersey Supreme Court directed aSpecial Master to conduct an examination of scientific studies regarding the

reliability of eyewitness identification following its determination that the trialrecords was inadequate to "test the current validity of the [New Jersey] statelaw standards on the admissibility of eyewitness identification" and directedthat a plenary hearing be held

to consider and decide whether the assumptions andother factors reflected in the two-partManson/Madison test, as well as the five factorsoutlined in those cases to determine reliability, remainvalid and appropriate in light of recent scientific andother evidence.


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27State v. Henderson ("Henderson!"), 2009 WL 510409, at *2 (NJ. Feb. 26,2009).

The hearing focused on a comprehensive consideration of thescientific evidence that has accumulated over more than 30 years on the topic ofeyewitness identification, summarized in an 80-page report (the "Report"). Therobust hearings lasted over ten days and examined more than 200 publishedscientific studies, articles, and books. Additionally, over seven expert witnessesoffered by defendant-appellant, the State, and amici, including the InnocenceProject, an affiliate ofAmicus Innocence Network, testified at the hearings. 13

The new legal framework proposed herein is the product of theevidence adduced at that hearing, which evidence was endorsed by the NewJersey Supreme Court:

We find that the scientific evidence considered at thehearing is reliable. That evidence offers convincingproof that the current test for evaluating thetrustworthiness of eyewitness identifications should13 The following experts participated in the hearings: Gary L. Wells,Distinguished Professor of Liberal Arts and Sciences, Department ofPsychology, Iowa State University; James M. Doyle, Director, Center forModem Forensic Practice, John Jay College ofCriminal Justice, CUNY; JohnMonahan, JohnS. Shannon Distinguished Professor of Law; Steven Penrod,Distinguished Professor of Psychology, John Jay College ofCriminal Justice,CUNY; Jules Epstein, Associate Professor of Law, Widener University Schoolof Law; Roy Malpass, Professor of Psychology, University ofTexas, El Paso;and James M. Gannon, former Deputy Chief of Investigations, Office of theMorris County Prosecutor. Report at 3-4. We understand that many of theseexperts also appear as Amicus in this case.


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be revised. Study after study revealed a troubling lackof reliability in eyewitness identifications. Fromsocial science research to the review of actual policelineups, from laboratory experiments to DNAexonerations, the record proves that the possibility ofmistaken identification is real. Indeed, it is nowwidely known that eyewitness misidentification is theleading cause ofwrongful convictions across thecountry.We are convinced from the scientific evidence in therecord that memory is malleable, and that an array ofvariables can affect and dilute memory and lead tomisidentifications. Those factors include systemvariables like lineup procedures, which are within thecontrol of the criminal justice system, and estimatorvariables like lighting conditions or the presence of aweapon, over which the legal system has no control.

Henderson II at *1.

28

The Innocence Project, an affiliate ofAmicus Innocence Network,proposed a similar new legal architecture to the Henderson court and SpecialMaster. While the Special Master largely adopted the Innocence Project'sproposed legal framework, the New Jersey Supreme Court did not accept it inits entirety, but did accept certain significant portions, including pretrialhearings designed to consider the totality of the evidence and comprehensivejury instructions. We nevertheless submit that the Oregon Supreme Court

should follow the lead of the Special Master and adopt the proposed legalframework in its entirety as presented herein.

A. SummaryIn Classen, this Court recognized that


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Whatever the present state of the law in the [UnitedStates Supreme] Court, the fact remains that a widevariety of experienced persons consider and haveconsidered the pre-trial identification as a crucialfactor in the fair and accurate determination of guilt orinnocence, and a factor as to which certain kinds oferror, once committed, are particularly hard to remedyand peculiarly likely to lead to unjust results.

Classen, 285 Or. at 231. See also State v. Hubbard, 48 P.3d 953,963 (Utah

29

2002) ("Even if law enforcement procedures are appropriate and do not violatedue process, eyewitness identification testimony must still pass the gatekeepingfunction of the trial court and be subject to a preliminary determination -whether the identification is sufficiently reliable to be presented to the jury.");Hibl, 714 N.W.2d at 204 (''There may be some conceivable set ofcircumstances under which the admission ofhighly unreliable identificationevidence could violate a defendant's right to due process, even though a state-constructed identification procedure is absent.").


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30Given the view of scientists in the field that eyewitness memory is

best understood as trace evidence14 subject to degradation and contamination,and consistent with traditional rules of evidence, once the defendant places thereliability of the eyewitness identification at issue, the prosecution, as theproponent of the evidence, should bear the burden of going forward. 15 Thisburden, which is essentially nothing more than establishing the "conditionalrelevance" of the evidence, is easily met by establishing through the eyewitnessa rational basis for her perception and memory and offering proof from thepolice concerning the out-of-court identification procedures they employed.

14 As a result of the groundwork-laying research of Dr. Loftus, along withfindings in the field of neurology, see DanielL. Schacter, The Seven Sins ofMemory 5 (2001), eyewitness identification experts believe that the mostaccurate way to conceptualize eyewitness evidence is as trace evidence. Gary L.Wells, Eyewitness Identification: Systemic Reforms, 2006 Wis. L. Rev. 615,622; Nat'l Inst. of Justice, U.S. Dep't of Justice, Eyewitness Evidence: A Guidefor Law Enforcement (1999); Elizabeth F. Loftus et al., Eyewitness Testimony:Civil and Criminal (4th ed. 2007); James Doyle, True Witness: Cops, Courts,Science, and the Battle Against Misidentification 92-94 (2004); Office of theAttorney Gen., Wis. Dep't of Justice, Model Policy and Procedure forEyewitness Identification (2005) Trace evidence from a crime scene can bepurely physical in nature, such as fingerprints, footprints, fibers, blood, orsemen, but can also be memorial, in the form of memory traces. In this way, aneyewitness's stored memory trace is akin to a physical trace left behind by aperpetrator that could help establish the perpetrator's identity.15 The New Jersey Supreme Court declined to adopt the analogy between traceevidence and eyewitness identifications. Henderson II at *48. Whether or notthis Court accepts the analogy, the initial burden should nevertheless be on thestate as the party offering the eyewitness evidence to demonstrate itsconditional relevance.


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31Making the critical inquiry into the existence and extent of memory tracecontamination- regardless of its source - is entirely consistent with Manson'sview of reliability as the linchpin for the admissibility of identificationevidence. See Hibl, 714 N.W.2d at 205 ("That [trial] courts serve a limitedgate-keeping function, even for constitutionally admissible eyewitnessidentification evidence, comports with. .. [Manson's] maxim that 'reliabilityis the linchpin in determining the admissibility of identification testimony.' ")(citation omitted).

As opposed to the current ali-or-nothing approach ofManson/Class en, under the framework here proposed, gate-keepingresponsibilities of trial courts do not end with their decisions regardingadmissibility. Rather, trial courts and the parties will have ready access to themost important information underlying the reliability of identification evidencefacilitating the formulation of meaningful intermediate remedies. After apretrial hearing in which basic but critical information about the reliability of aneyewitness identification is elicited, trial courts will be in a position to informthe parties before the trial starts about what instructions, if any, it will give to

the jury concerning important estimator and system variables that have beenshown to increase or decrease the probability of identification accuracy. Theseinstructions would also include law enforcement procedures that do notcomport with best practices. Such instructions, when they are given, will assist


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32the jury in assessing the reliability of identification evidence, and, perhaps moreimportantly, having advance knowledge of such instructions will help theprosecution and defense correspondingly to shape their approach to voir dire,openings, witness examinations, and closing arguments. In Henderson II theNew Jersey Supreme Court held that enhanced jury instructions would form anessential part of its new legal framework for eyewitness identification evidence:

[T]he court system should develop enhanced jurycharges on eyewitness identification for trial judges touse. We anticipate that identification evidence willcontinue to be admitted in the vast majority of cases.To help jurors weigh that evidence, they must be toldabout relevant factors and their effect on reliability.

Henderson II at *2.Similarly, the Innocence Network's framework allows trial courts

to make sound decisions regarding in limine motions. For example, whencertainty statements have not been taken from a witness at the time of an out-of-court identification, courts might decide to preclude the witness from makingany statement about her level of certainty at the time of the trial. The new legalframework set forth by the New Jersey Supreme Court in Henderson II admitsthe possibility of intermediate remedies and contextual instructions for jurors.With respect to the former, the Henderson Court found:

Finally, in rare cases, judges may use their discretionto redact parts of identification testimony, consistentwith Rule 403. For example, if an eyewitness'confidence was not properly recorded soon after an


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identification procedure, and evidence revealed thatthe witness received confirmatory feedback from thepolice or a co-witness, the court can bar potentiallydistorted and unduly prejudicial statements about thewitness' level of confidence from being introduced attrial.

Henderson II at *51.This proposed framework would also provide an incentive for

either the defense or prosecution to present expert testimony at pretrialhearings, as experts might be able to provide trial courts with useful analysis

33

not only regarding the ultimate issue of admissibility, but also about appropriatejury instructions. In tum, hearing from experts at the pretrial hearing willgenerally assist trial courts in their evaluation and circumscription of experttestimony, allowing them to make well-informed decisions about whether topermit such testimony at trial, and if so, to set clear limits about what the expertcan and cannot say.

In sum, this framework will result in more informed admissibilitydeterminations, the promulgation of appropriate trial-based mechanisms toenhance juries' assessment of such evidence, and more accurate verdicts. 16

16 It is worth noting that while, at first glance, it might seem that requiringeyewitnesses testimony at pre-trial hearings burdens the prosecution and thewitnesses themselves, if such testimony bears strong indicia of reliability, it willoften result in guilty pleas in cases that would otherwise go to trial, therebyobviating the need for the eyewitnesses to testify at trial, and otherwise savingthe State valuable pecuniary and prosecutorial resources.


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34B. As the Proponent of Trace Evidence, the Prosecution Has theBurden of Going Forward to Offer Proof that a Reasonable

Jury Could, on the Evidence Presented, Make the RequisiteFactual Determination that the Identification Evidence IsReliable.Scientific research has identified the many factors that can increase

the risk of identification error. The vast majority of these are not revealedthrough the minimal available pre-hearing discovery that exists under thecurrent framework. Courts should review eyewitness evidence in the same

fashion in which they assess the collection and analyses of other types of traceevidence, and apply with equal force the legal standards that govern theadmissibility of such evidence. While the New Jersey Supreme Courtultimately disagreed, the Special Master explained in his Report:

[l]t would be both appropriate and useful for thecourts to handle eyewitness identifications in the samemanner they handle physical trace evidence andscientific evidence, by placing at least an initialburden on the prosecution to produce, at a pretrialhearing, evidence of the reliability of the evidence.Such a procedure would broaden the reliabilityinquiry beyond police misconduct to evaluate memoryas fragile, difficult to verify and subject tocontamination from initial encoding to ultimatereporting. That would effectively set at naught boththe Manson/Madison rule that reliability is to beexamined only upon a prior showing of impermissiblesuggestion on the part of state actors and the Ortizrule, 497 A.2d 552, 554 (NJ. App. Div. 1985), thatrequires the defendant to make, and the prosecution toovercome, an initial showing of such suggestion.

[Report at 84-85 .]


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35Amicus agrees with the Special Master: the burden of production

should be placed on the prosecution. More specifically, under the frameworkproposed by the Innocence Network, the defendant bears the burden of placingthe reliability of the identification evidence at issue, which he can do byalleging, via motion or affidavit, that the eyewitness's identification was inerror (i.e., either that he was not present at the scene of the crime, and thuscould not have committed it, or that while he may have been present at thecrime scene and/or seen by the eyewitness, he was not the person whocommitted the crime). By challenging the accuracy of the eyewitness'sidentification, the defendant places the reliability of such evidence at issue.

The prosecutor's burden of proof in making its threshold reliabilityshowing is appropriately low, in that it need only establish conditional

relevance - that a reasonable jury could make the requisite factualdetermination that the identification evidence is reliable based on the evidencebefore it. See O.R.S. 40.030(2). While this burden is minimal compared tothe burden that the defendant shoulders when seeking to suppress theidentification evidence, it can be met only if the prosecution produces evidence

with respect to two necessary elements: the reliability of the perception andmemory of the eyewitness and the specific identification procedures used toobtain the identification.


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36The instant case illustrates why it is critical that the prosecution

bear the burden of going forward. As this Court well knows, evidence of themost egregious type of suggestive identification procedures conducted by lawenforcement investigating Mr. Lawson was not turned over to the defendant andwas, in fact, only discovered through cross-examination of the witness, in thepresence of the jury. Amicus submits that, under the proposed framework, all ofthe suggestive (and non-suggestive) procedures used to try to elicitidentifications would have been before the Court and tested by the defendant atthe pre-trial stage. Had this happened, it is doubtful that the prosecution wouldhave been able to bear its burden, suppressing the identification at the earlieststage of the proceeding, saving considerable resources for all involved.

1. Eyewitness Must Testify.As an evidentiary matter, eyewitness testimony is a form of lay

opinion testimony and thus should be governed in part by Oregon Rule ofEvidence Rule 701, O.R.S 40.405. Under Rule 701, a lay witness may onlytestify to opinions or inferences that are rationally based on the perception ofthe witness and that are helpful to a clear understanding of testimony of thewitness or the determination of a fact in issue.

In addition, since the focus at pretrial hearings should be on thereliability of the evidence, including memory contamination from all possiblesources, the best way to evaluate such contamination is by hearing directly from


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37the source of the trace evidence - the eyewitness.17 Most elusive are both thepre-identification contamination to which the witness may have been exposedthrough contact with co-witnesses, family, friends, the media, the Internet,prosecutors, and law enforcement, and the post-identification confirmingfeedback that the witness may have received from these same sources whichcould affect the witness's self-reports regarding both the circumstances underwhich he observed the perpetrator and his confidence in the accuracy of theidentification. To assess potential contamination and overall reliability, courtsshould have as much information as possible regarding contact betweenwitnesses, or between the witness and other actors, both after the incident andafter the identification procedures, and only testimony from the eyewitness canadequately address this issue.

For eyewitness identification evidence to be admissible, then, theprosecution must establish that, based on the facts and circumstances underwhich the eyewitness made her observations (i.e., estimator variables), and inlight of the information to which the eyewitness has been exposed following theobservation (from the various sources discussed above), the lay opinion

evidence is rationally based on the eyewitness's perception and memory. To17 The perceptions and recollections of the eyewitness are also relevantregarding what occurred at an identification procedure, because they may differmarkedly from the perceptions and recollections of the police officer whoconducted it.


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38make this "rational basis" showing, the prosecution must produce theeyewitness to testify as to the circumstances under which he saw the perpetratorand permit an inquicy into post-event infonnation to which he has beenexposed.

2. Police Must Testify Regarding the Identification ProceduresUsed.

The second element that the prosecution must establish to meet itsburden going forward would derive from the testimony of police witnessesconcerning the out-of-court identification procedures utilized (i.e., systemvariables).

3. Placing the Burden on the Prosecution Is Consistent withTraditional Rules ofEvidence.

This burden shift, endorsed by the Special Master in Henderson, isnot revolutionacy; to the contracy, traditional rules of evidence nonnally requirethat the party seeking admission of evidence bear the burden of establishing itsevidential)' foundation. In Oregon, the judiciacy has long perfonned the gate-keeping function of determining the reliability of evidence for the purposes ofadmission. See, e.g., Oregon Rule of Evidence Rule 104,403, O.R.S 40.040' 40.160.40.405.

Indeed, some jurisdictions already require that the prosecution bearthe burden of going forward with regard to eyewitness identification evidence.See State v. Walden, 905 P.2d 974,985 (Ariz. 1995) ('The state has the burden


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39of proving by clear and convincing evidence that the pretrial identificationprocedures were not unduly suggestive."); Jones v. State, 909 A.2d 650,661(Md. 2006) ("It is not reasonable to require specific factual allegations ofsuggestivity before a defendant may call a witness in a suppression motion.");People v. Chipp, 552 N.E.2d 608,613, (N.Y. 1990) ('The People have theinitial burden of going forward to establish the reasonableness of the policeconduct and the lack of any undue suggestiveness in a pretrial identificationprocedure."); Commonwealth v. Johnson, 668 A.2d 97, 103 (Pa. 1995) ('Theburden is on the Commonwealth to establish that the identification procedurewas not suggestive."); State v. Lufkins, 309 N.W.2d 331,335 (S.D. 1981)(noting that, by statute, South Dakota mandates that "defendant is entitled to apreliminary hearing").

This customary "proponent-based" burden of proving reliability isalso consistent with other types of scientific evidence for which the prosecutionseeks admissibility.

4. If he Prosecution Meets its Burden ofGoing Forward, theBurden Shifts to the Defendant to Prove that There Is aSubstantial Likelihood ofa Mistaken Identification.Once the prosecution has established the conditional relevance of

the identification evidence, the burden shifts back to the defendant to prove, bya preponderance of the evidence, that the identification is nonetheless unreliableand hence should be suppressed. Specifically, the defendant must show that


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40there exists a substantial likelihood of a mistaken identification. The defendantcan make this showing either through cross-examination of the State'switnesses, by introducing his own evidence, or both. I f he defendant meets thisburden, both the out-of-court and prospective in-court identification evidencemust be suppressed. I f he defendant is unable to meet this burden, theevidence should be admitted.

5. Courts Must Establish and Follow Rules for WeighingIdentification Evidence, Including Placing the Greatest, ifNot Exclusive, Weight on Primary Evidence.

In light of scientific research proving the contaminating effect ofpost-event information on witnesses' memories, it is indisputable that not everypiece of identification evidence is equally reliable. Identification evidence isoften a combination of multiple identifications, descriptions, eyewitnesses'

interactions with potential sources of contamination (friends, family, otherwitnesses, media reports, etc.), and witnesses' self-reports of the event,occurring at different points between the incident and trial. Research hasrevealed that these various temporal evidentiary components can also bemarkers of the artificial enhancement, degradation, and contamination of suchevidence. For example, research has demonstrated that because of thecorrupting effect of post-event information, ''primary" identification evidence -the witness's initial description of the perpetrator, event, opportunity to view,and degree of attention, and the event's duration, as well as the first


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41identification procedure, the witness's initial identification (or nonidentification), and the witness's contemporaneous confidence in an initialidentification- is more reliable than the witness's subsequent self-reports oridentifications. Nonetheless, it is very common for trial and appellate judges torely on a witness's confidence statements, descriptions or self-reports at thetime of the hearing or trial, rather than at the time of the identification. But bythe time a witness testifies, it is very likely that his confidence in these self

reports has been inflated in multiple ways. See supra at 12-13. As discussedsupra, had the court in this case relied upon the primary evidence- Ms.initial, uncertain identifications- the lack of reliability would have beenapparent and the identification suppressed. Instead, the court relied upon Ms.

certain identification, which was nothing more than a product of the

post-identification and suggestive procedures used by law enforcement.Therefore, as a general rule, when assessing an identification's

reliability for both admissibility purposes and in order to fashion appropriateintermediate remedies should the evidence be admitted, courts ought to placemuch greater, if not exclusive, weight on the "primary" evidence detailed above

(the witness's initial description of the perpetrator, of her opportunity to view,degree of attention, the witness's first identification, etc.). To the extent thatcourts are to consider the witness's certainty at all, such consideration should belimited to the initial confidence statement taken at the time of the identification


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42rather than at a later period (during the investigation or at a pretrial hearing).As science advances, courts should establish similar reliability markers forother components of identification evidence.

6. To Determine Both the Admissibility of he Evidence as Wellas Whether the Jury Will Need Guidance in Evaluating It,Courts Must Make Detailed Findings During ReliabilityHearings Concerning the Presence ofEstimator and SystemVariables Proven Through Robust Scientific Research toIncrease or Decrease Identification Reliability, IncludingLaw Enforcement's Noncompliance with the AttorneyGeneral's Guidelines and/or the Use ofOther SuggestiveIdentification Procedures.

Pretrial hearing testimony from eyewitnesses and police willenable courts to investigate the presence of all variables that have beenrigorously studied by science, particularly those shown through meta-analyticreviews (i.e., studies that combine the data from a number of published studiesaddressing the same question to ascertain a mean or meta- effect size) toincrease or decrease identification accuracy, and make specific findingsregarding each. See Henderson II at *45-47 (identifying estimator and systemvariables that courts should consider under the new framework).

These findings will enhance the treatment of admittedidentification of evidence in a number of ways: first, such findings will result inmore informed admissibility decisions; second, courts will be in a betterposition to determine the appropriateness of expert testimony to educate thejury about the empirical research regarding the variables that affect


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43identification accuracy; third, fmdings will fonn the basis for narrowly-tailoredjury instructions to ensure that juries are properly guided in their assessments ofthe evidence; and fourth, findings will setve as trial guideposts for the defenseand prosecution during voir dire, opening statements, witness examinations, andclosing arguments.

7. Based on Findings at Pretrial Hearings, Courts MustProvide Juries with Proper Guidance and "Context" soThat They Can Evaluate the Eyewitness EvidenceAppropriately.

A central pillar upon which Manson rests is its faith that jurors candifferentiate between accurate and inaccurate identifications. However, the"fundamental fact of udicial experience" is that juries ''unfortunately are oftenunduly receptive to [eyewitness identification] evidence," Manson, 432 U.S. at120 (Marshall, J ., dissenting). Without an understanding of key factorsaffecting the reliability of eyewitness identifications,jurors are, indeed, at themercy of their own misconceived assumptions. As the Special Masterobsetved, under the current system, ')udges and juries alike are commonly leftto make their reliability judgments with insufficient and often incorrectinformation and intuitions." Report at 77.

Juror sensitization is especially critical in light of urors' provendifficulties in accurately assessing eyewitness testimony. Jurors have beenfound to be overly impressed with witness certainty and often approach


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identification evidence as a question ofwhether the witness is "telling thetruth," as opposed to assessing factors relevant to memory contamination andreliability or evaluating whether the witness is honestly mistaken. 18 As theThird Circuit stated:

"[J]urors seldom enter a courtroom with theknowledge that eyewitness identifications areunreliable." Thus, while science has firmlyestablished the "inherent unreliability of humanperception and memory," this reality is outside "thejury's common knowledge," and often contradictsjurors' "commonsense understandings."

44

United States v. Brownlee, 454 F .3d 131, 142 (3d Cir. 2006) (citations omitted)(remanded for a new trial on grounds that it "wrong to exclude expert testimonyregarding the reliability of the very eyewitness identification evidence on which[defendant] was convicted").

I f ury instructions are the "lamp to guide the jury's feet injourneying through the testimony in search of a legal verdict," then courts muststart illuminating the jurors' path towards more reliable assessments ofidentification evidence. Erodes v. State, 614 S.E.2d 766,769 (Ga. 2005) (citingChase v. State, 592 S.E.2d 656,659 (Ga. 2004) (reversing conviction due to18 As Munstetberg observed in 1908, ''The confidence in the reliability ofmemory is so general that the suspicions ofmemory illusions evidently plays asmall role in the mind of the juryman . . [instead] dominated by the idea that afalse statement is the product of an intentional falsehood." Hugo Munstetberg,On the Witness Stand 36 (Mark Hatala ed., Greentop Academic Press 2009)(1908).


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45jury instruction incorrectly citing witness confidence as indicator of reliability).See State v. Cromedy, 158 NJ.l12, 128 (1999) ("It is well-established in thisState that when identification is a critical issue in the case, the trial court isobligated to give the jury a discrete and specific instruction that providesappropriate guidelines to focus the jury's attention on how to analyze andconsider the trustworthiness of eyewitness identification." (citations omitted));see also State v. Romero, 191 NJ. 59,74-75 (2007) ("[W]hen we perceive . . .that more might be done to advance the reliability of our criminal justicesystem, our supervisory authority over the criminal courts enables usconstitutionally to act.").

Our system of justice should only continue to rely upon the "goodsense and judgment" of uries to assess the reliability of eyewitnessidentification if judges provide them with the necessary guidance to "measureintelligently" the weight of identification evidence, including whether it is theproduct of suggestive procedures proven to increase identification error and/oris weakened by the circumstances under which the eyewitness viewed theperpetrator. Manson, 432 U.S. at 116. "At a minimum, additional judicialguidance to the jury in evaluating [eyewitness identification] testimony iswarranted," since "to convict a defendant on such [flawed] evidence withoutadvising the jury of the factors that should be considered in evaluating it couldwell deny the defendant due process of law." State v. Long, 721 P.2d 483,492-


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4693 (Utah 1986) (holding that "a proper instruction should sensitize the jucy tothe factors that empirical research [has] shown to be of importance indetermining the accuracy of eyewitness identifications"). Simply put, "[w]henidentification is an essential issue at trial, appropriate guidelines focusing thejucy' s attention on how to analyze and consider the factual issues with regard tothe reliability ofa witness's identification of a defendant as the perpetrator arecritical." Brodes, 614 S.E.2d at 771. As the Special Master concluded:"Whether the science confinns commonsense views or dispels preconceived butnot necessarily valid intuitions, it can properly and usefully be considered byboth judges and jurors in making their assessments of eyewitness reliability."Report at 75.

In order for jucy instructions to effectively provide context to thejucy, two common shortcomings must be eradicated. The first is that jucyinstructions are often poorly worded, insufficiently illuminating, and beyond thecomprehension of the average juror. A jucy cannot be guided by instructions itdoes not understand or which offer it little assistance. Thus,jucy instructionsmust convey in comprehensible language our modem-day knowledge of thevarious factors that can increase eyewitness error.

The second impediment to the effectiveness of ucy instructionshas been their timing. Usually courts provide eyewitness identificationinstructions at the conclusion of trial, along with numerous other instructions,


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47and well after the identification witnesses have testified. It is difficult for jurorsto apply the instructions retroactively to the testimony, particularly when theymay have already processed it through their lay understanding andmisconceptions of memocy and eyewitness identification evidence. Therefore,in addition to providing instructions at the conclusion of trial, courts shouldgive the jucy preliminacy instructions prior to the eyewitnesses' testimony. Thispre-testimony /pre-deliberation approach will better guide jurors by bothincreasing their real-time understanding of the identification evidence andenhancing their evaluation of the evidence during deliberations, particularlyregarding previously unfamiliar concepts. In addition, through increased jucyawareness of the impact of various factors on identification reliability, better-timed instructions will be more likely to deter law enforcement from usingsuggestive procedures.

In Henderson II, the development and use of "enhanced" jucyinstructions ''to help jurors evaluate eyewitness identification evidence" iscentral to its new legal framework. Henderson II at *45.

8. Courts Should Carefully Evaluate and Make FindingsRegarding the Following System and Estimator VariablesProven to Impact the Reliability of dentifications, and WhenRelevant, and at a Minimum, Incorporate Them intoContextual Jury Instructions.

In Henderson II, the New Jersey Supreme Court identified a non-exhaustive list of system and estimator variables that courts should consider at a


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pre-trial hearing. Amicus submits that this Court should also direct courts toconsider a non-exhaustive list of system and estimator variables to considerwhen evaluating eyewitness identification evidence, including the following:System Variables

48

(1) Appropriate admonitions to witnesses. Based on the robustness of thescientific findings that proper witness warnings, also known as unbiasedinstructions, lead to fewer false identifications, courts should considerwhether law enforcement in fact gave unbiased instructions whenassessing the reliability of eyewitness identification evidence. Studiesindicate that jurors do not necessarily know about witness warnings andtheir possible effects, and thus, it is important that jurors know bothwhether warnings were given and the effects of such biased/unbiasedinstructions. See Henderson II at *21 ,*46.

(2) Conducting the identification procedure double-blind. Double-blindtesting, a critical staple of science, enhances the reliability ofidentification evidence in numerous ways. While the importance ofdouble-blind administration may be well-understood by scientists, it isnot within jurors ' common knowledge. See RichardS. Schmechel, etal., Beyond the Ken? Testing Jurors' Understanding ofEyewitnessReliability Evidence, 46 Jurimetrics 177,203-04,210 (2006). SeeHenderson II at *20-21, *46.


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49(3) Obtaining a certainty statement in the words of the witness at the

time of the identification, and avoiding any confirming feedbackprior to the obtainment of such a statement. Despite themeaninglessness of a witness's inflated confidence in her identificationon the witness stand, jurors perceive such witnesses to be more accurate,while perceiving witnesses with suppressed confidence as less accurate.But since most eyewitnesses who testify at trial are highly confident intheir identifications, irrespective of their actual accuracy, witnessconfidence is mostly a useless tool for helping jurors distinguish accuratefrom inaccurate witnesses. If a court finds that a certainty statement wasnot obtained in the words of the witness at the time of the identification,the court should preclude the witness from testifying at trial as to herconfidence in her identification. Even if the confidence statement wastaken at the time of identification, if jurors are going to be allowed toconsider the eyewitness's confidence, courts must instruct jurors thatconfidence is not a good predictor of accuracy. 19 See Henderson II at*23-24, *46.

19 Under no circumstances should courts permit such testimony and then simplyinstruct jurors that they may consider the witness's confidence as a factortending towards reliability. See Erodes v. State, 614 S.E.2d 766,769 (Ga. 2005)(refusing to endorse, and advising trial courts to refrain from providing, aninstruction authorizing jurors to consider a witness's level of certainty in his/her


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50(4) Ensuring that no information, written or otherwise, is disclosed to

the witness about the police suspect during the identificationprocedure.

(5) Recording the identification procedure in its entirety, includingrecording filler and non-identifications. It is critical that policedocument not only identifications of suspects, but non-identifications andfiller identifications. When evaluating the identification from a scientificpoint of view, courts should take into consideration when a witness failedto identify the defendant at an initial identification procedure (byidentifying a filler or not choosing anyone) before picking the defendantat a second identification procedure.20 In Wade, the failure of the witnessto identify the suspect in the first procedure was explicitly cited by theSupreme Court as a reliability factor in evaluating the admission of

identification as a factor to be considered in deciding the reliability of thatidentification) (internal footnote omitted)).20 "[It] is clear that [when evaluating the reliability of an identification] onemust consider the response of each eyewitness, not just those who identify thesuspect, in order to assess the likely guilt of the suspect. In fact, almost withoutexception, the probability of guilt associated with an identifying eyewitness isreduced more by the addition of a nonidentifying eyewitness than it is increasedby a second identifying eyewitness." Steven E. Clark & Gary L. Wells, On theDiagnosticity of Multiple-Witness Identifications, 32 Law & Hum. Behav. 406,420 (2008).


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51eyewitness testimony, although it is not repeated specifically in Manson.Wade, 388 U.S. at 241. See Henderson II at *23, *46.

(6) Avoiding co-witness contamination. In cases involving multipleeyewitnesses, jurors should be told of the risks of co-witnesscontamination, the importance of separating witnesses, and to considerthe contact between witnesses before, during, and after the identification.See Henderson II at *34, *46.

(7) Mugshot commitment. When jurors are evaluating an identificationmade by a witness who participated in multiple identification proceduresinvolving the defenda

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