Presented by Team Hill

1. New View on Evidence: The Oregon Supreme Court’s New Rule on the Admissibly of Eyewitness Identification Evidence Presented by Team Hill

3. Facts of the Cases: Lawson • Married couple, Noris and Sherl Hilde, both shot while camping. • Mr. Hilde quickly died of his wounds. • Ms. Hilde survives the attack, but is severely injured. • Police question Ms. Hilde within days of the attack while she is hospitalized, medicated, and sedated. Ms. Hilde indicates that she did not see her attacker • Two weeks later, while Ms. Hilde was still medically fragile, she again stated that she couldn’t see the perpetrator because it was dark and the perpetrator put a pillow over her face. • Several weeks later, Ms. Hilde now says she saw the perpetrator briefly, but can’t ID him from a photo lineup. • A week later, Ms. Hilde states that her attacker was a man she met earlier in the day, but still remains unable to ID him from a photo lineup. • Ms. Hilde is shown Mr. Lawson’s photo several times before trial. • At trial, Ms. Hilde identifies Ms. Lawson as her attacker. She states at trial that she would “never forget his face as long as I live.”

4. Facts of the Case: James • A Safeway employee discovered two men stuffing beer bottles into a backpack. • That employee and a manager briefly scuffled with the two men. • The Safeway employees called police. • Several hours later, a police officer found two men generally matching the description of the perpetrators and carrying a backpack. Both men appeared inebriated. • The officer found a beer bottle in the backpack. • The officer handcuffed the two men and took them to Safeway for identification. • The two Safeway employees identified the men as the perpetrators be viewing them through the open door of the police car while they were still handcuffed.

5. The Classen Test • Established in 1979 by State v. Classen, 285 Or 221. • Classen establishes a two-step process to admit evidence of an eyewitness identification in order to “minimize the danger of convicting the innocent on the basis of unreliable information.” 352 Or at 746. • STEP ONE: The trial court must determine “whether the process leading to the offered identification was suggestive or needlessly departed from procedures prescribed to avoid such suggestiveness.” Classen, 285 Or at 232. • STEP TWO: If the identification process was suggestive, the party proffering the eyewitness identification evidence must demonstrate that the witness has knowledge of the identify of the individual apart from the suggestive procedure. • Inquiry examples include: • Did the witness clearly see the individual identified? • What description did the witness give? • How certain was the witness?

6. The Lawson Test • The Lawson Court recognized that there have been substantial advances in our understating of eyewitness perception and memory in the last 30+ years. • The Court identified a number of factors that affect the reliability of eyewitness identification evidence. • Factors include system variables (things in control of the questioner) and estimator variables (i.e., characteristics of the witness and environmental conditions).

7. System Variables • Blind Administration • Preidentification Instructions • Lineup Construction • Simultaneous versus Sequential Lineups • Showups • Multiple viewings (i.e., mugshot exposure, mugshot commitment, source monitoring errors, source of confusion) • Event Memory Contamination (i.e., suggestive questioning, cowitness Contamination, and other sources of post-event memory contamination) • Suggestive Feedback and Recording Confidence

8. Estimator Variables • Stress • Witness Attention • Duration of Exposure • Environmental Viewing Conditions • Witness Characteristics and Condition • Description • Perpetrator Characteristics (i.e., distinctiveness, disguise, and own-race bias) • Speed of Identification (response latency) • Level of Certainty • Memory Decay (retention interval)

9. Profferor’s Burden of Proof • The new test sets out a new burden-shifting test in pretrial motions. Once challenged, the profferor must prove by a preponderance of the evidence that it has met a number of evidentiary hurdles, which include: • The person has qualifications to be a witness (OEC 104); • The burden of producing evidence is on the party with the burden of persuasion as to that issue (OEC 307); • Proof that the person offered as an eyewitness to identify someone has personal knowledge of the matters to which the person will testify (OEC 602); and • The identification is rationally based on the witness’s first-hand perceptions and is also helpful to the trier of fact (OEC 701).

10. Challenger’s Burden of Proof • Once the profferor has satisfied its burden, the challenger may still have the evidence excluded if it can show that the evidence is unduly prejudicial under OEC 403, weighing the probative value and prejudicial effect. • This factor forces trial courts into a “heightened role as an evidentiary gatekeeper because ‘traditional’ methods of testing reliability – like cross-examination – can be ineffective at discrediting unreliable or inaccurate eyewitness identification evidence.” 352 Or at 758.

11. Practical Realities of the New Test • Courts are unlikely to exclude large numbers of eyewitness identifications • Courts may limit certain prejudicial aspects of a witness’s testimony. • For example, admitting the identification, but limiting testimony on the level of the witness’s certainty. • Parties may be more likely to begin using expert witnesses to instruct witnesses on system and estimator variable issues.

12. Questions Raised by Lawson • When should parties challenge eyewitness identifications? • While Lawson specifically addressed eyewitness evidence in pretrial settings, what happens during trial?

13. Questions?