The Basics

This wikilog article is a draft, it was not published yet.

by: Ryan • September 12, 2011 • no comments

As you likely know from numerous previous posts, eyewitness identification challenges are before both the Oregon Supreme Court and the United States Supreme Court. Further, there was a fantastic opinion from the New Jersey Supreme Court as well. It's unlikely that this trend is coincidental: numerous exonerations - thanks to DNA - have painfully demonstrated how unreliable eyewitness claims can be.

To paraphrase Julian Barnes, there is a difference between what you remember and what you witnessed.

The argument behind excluding identification is simple: it doesn't matter how good the defense lawyer is at cross-examination, it doesn't matter how many experts you call undermining the identification, a bad ID is very powerful and very persuasive and it sends a lot of innocent people to prison.

I'm not going to predict what the law will become. I don't know how much a case like St v. Lawson, currently pending before the Oregon Supreme Court, will change the analysis of St v. Classen, if at all. I simply want to lay out the simple principles of challenging an eyewitness identification under Oregon law, so that a challenge doesn't seem quite so intimidating and the analysis so recondite.

In essence, there is just a two-step process for excluding an in-court identification. The first is determining whether the original out-of-court identification was suggestive.

I. Was the Original Identification Suggestive?

[As] Classen demonstrates, the primary concern with "suggestive" procedures is the lack of properly-constituted line-ups or photographic throw-downs at which a witness has an opportunity to choose a suspect from a group. 285 Or at 225-30. Clearly, under the test set forth in Classen, a procedure in which a witness is shown only a pair of joint suspects and asked to identify them is an unduly suggestive procedure. We reject without further discussion the state's suggestion that the show-up procedure at issue in this case was not unduly suggestive.

State v. James, 240 Or App 324, 327 (2011)

Something that was merely implicit in the James analysis had previously been made explicit by the court in State v. Rector, 82 Or App 466 (1986).

This court has held that, [f]or a [photo] display to be impermissibly suggestive it must somehow lead the witness to identify the person on some basis other than the witness' memory." State v. Maher, 72 Or App 543, 546, rev den 299 Or 314 (1985). An identification is unduly suggestive if it unfairly singles out or points to a defendant as the suspect to be identified for a known crime or for a known reason.

Id. at 477. [Emphasis added.]

Federal case law is consistent on this point. Show-up identification procedures have long been recognized as "inherently suggestive" because the individual display of only one suspect to an eyewitness "suggests that the police think they have caught the perpetrator of the crime." United States v. Brownlee, 454 F3d 131, 138 (3d Cir. 2006); see also Stovall v. Denno, 388 US 293, 302 (1967) (noting forty years ago that "[t]he practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned.").

In James, the witness identified the defendant and his co-defendant while both were handcuffed and in the back of the patrol vehicle, which implicitly conveyed to the witness the officer's belief that the arrested person is the one seen by the witness. Note also this court's opinion in State v. Najibi, 150 Or App 194 (1997), where the state conceded that the identification was suggestive when the witnesses, prior to being shown the defendants' mugshots, were told that the defendants had already been arrested.

In contrast, the court did not find the procedures suggestive in State v. Nguyen, 176 Or App 258 (2000), where the defendant was merely standing next to the patrol vehicle, and it was not clear from the record if the handcuffs were visible to the witness. In other words, the circumstances were not the type to convey the police officer's belief in the defendant's guilt. Further, the officer's statement to the eyewitness in Nguyen involved no encouragement or pressure on the witness to make an identification, "nor did it carry the implication that they were the ones that she had seen."

II. Once an Identification is Determined to Have Been Suggestive, The Burden is on the STATE to Prove an Independent Reliability

Once the identification had been rightly identified as suggestive, the burden shifts to the prosecution to demonstrate an independent reliability. Classen at 232.

Pertinent to that determination is the following non-exhaustive list of factors:

1. "The opportunity that the witness had at the time to get a clear view of the persons involved in the crime and the attention he or she gave to their identifying features";
2. "The timing and completeness of the description given by the witness after the event";
3. "The certainty expressed by the witness in that description and in making the subsequent identification"; and
4. "The lapse of time between the original observation and the subsequent identification."

285 Or at 232-33.

This post is already longer than I intended. There are ample resources to determine what facts and evidence will satisfy the state's burden of reliability. Further, you can find arguments that the court should rely on a different set of standards than those laid out in Classen. For example, why should the "certainty expressed by the witness" count for anything, since we know there is no direct correlation between certainty and accuracy, and there may in fact be an inverse correlation?

In sum, I've presented just the start of the analysis, but I want defense lawyers to remember that once a suggestive identification has been made, the burden is on the state, and we shouldn't let them off the hook without good reason.