Thoughts on Lawson, the New Eyewitness ID Case
by: Bronson D. James • December 3, 2012 • no comments
So, what do we make of State v. Lawson, the Oregon Supreme Court's landmark eyewitness ID case? Here are a few initial thoughts. The only caveat I would offer is that the opinion is lengthy and I'm still digesting it. So these opinions may change over time.
First, I think it is critical for anyone facing witness ID issues to do two things. You must read all of the 82 pages of Lawson, all of them, including the appendix and footnotes. Second, you absolutely must read State v. Classen, Manson v. Brathwaite, and Perry v. New Hampshire. Why? Because Lawson exists within a body of caselaw on eyewitness ID, and you cannot recognize the uniqueness of Lawson, nor explain that uniqueness to a court, without understanding the legal landscape that defines Lawson's differences.
Key among those differences is Lawson's grounding in the Oregon Evidence Code. By placing reliable eyewitness IDs in the OEC, as opposed to federal due process or the Oregon Constitution, Lawson accomplishes two critical things: (1) it protects against tainted IDs regardless of source and (2) it shifts the initial burden of establishing ID reliability to the state.
Prior to Lawson, and still in effect under federal law, only suggestive police procedures result in suppression of a tainted out of court ID. But now, if the witness saw the photo on pdxmugshots.com, or busted.com, on their own time and without police involvement, you can still suppress that ID. This is huge.
With regard to the burden, basically anytime there's an eyewitness ID, the defense should be filing a motion in limine asking for exclusion of the evidence. That motion should be based on OEC 602, 701, and 403. Under both 602 and 701 the state bears the burden of persuasion. The state must show that the ID is based on perception (not suggestive influence), and the resulting 701 lay opinion is "rationally based.".
Under this new paradigm, you can expect the state to make more use of memory experts, people who were the province of the defense bar before. Take note, Dan Reisberg has always said that he will advise any side, and is non-partisan. But the fact is, he has never been called as a state witness. Expect that to change. You may find yourself, like in certain civil cases, in a race to lock up the best experts in a case before the other side can contact them. So identify ID issues early, and get your calls into the expert ASAP.
So what are the nuts and bolts of an ID hearing now? Well, Lawson splits the issues into two categories, estimator variables, and system variables. Under estimator variables, the state must show that the witness had sufficient opportunity to view, the nature of the observation, comparative race factors, time and light factors, etc. All of this goes toward the 602 analysis. So the state will have to call the witness.
Then, the state will have to call anyone involved in assisting with the ID to discuss system variables. How was the throw down conducted? Was it sequential? What instructions were given? Was there post-ID feedback? Etc. This goes to both the 602 and 701 considerations.
And if those lines of inquiry do not result in suppression, then the burden shifts to the defense, and the court must engage in a 403 analysis. Here, the defense will put on its own expert to discuss how certain estimator variables, combined with systemic choices, reduce both the probative value of the ID and its accuracy. For this, you can pretty much use Lawson as a checklist, particularly the appendix which lays out many system variables and the science surrounding them.
A few other things to recognize about Lawson: First, the opinion contemplates the limited admissibility of witness testimony. So always be prepared to have a fallback position short of full exclusion, that just excludes particularly problematic portions of the ID. Second, the opinion favorably cites cases that have made use of special jury instructions on eyewitness ID. If any portion of the ID comes in, you need to start asking for instructions. Remember, an instruction must be correct in all respects to make a failure to give it error. So err on the side of shorter instructions that get right to the point without excess verbiage.
So, here is a handy defense checklist for ID issues, and how to challenge them:
1. Identify the ID issue immediately, and secure your expert.
2. File a motion in limine challenging the ID. Specifically call out the estimator and system variables you plan on discussing at the hearing. Ask for a pre-trial hearing.
3. Issue your own subpoena on the eyewitness, plus everyone involved in the ID system variables.
4. Have your expert in the courtroom to hear the testimony of the witnesses.
5. At the end of the state's presentation, move for a ruling under 602 and 701. If that fails, then call your own expert to the stand.
6. Have your expert talk about all the 602 and 701 information already brought forth by the state, but then focus on the 403 problems with the procedures.
7. Move for exclusion under 403.
8. If complete exclusion fails, ask for partial exclusion.
9. Use the hearing to craft limiting jury instructions, tell the court at the hearing that you will be requesting special instructions.
10. Get a transcript of the hearing and immediately give it to your expert. You now have prior testimony of both the witness, and the system variable persons (this is called pretrial discovery, a concept largely forgotten in Oregon. Enjoy a taste of how the rest of the world operates). Use this to keep them honest at trial, if part or all of the ID is admitted. If anything changes, use that to renew your evidentiary objections, plus use the changes to further your direct of the expert about the significance of those changes.
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ed.note: here is a link to the 6 page New Jersey jury instruction approved by the NJ Supreme Ct and referred to by Justice De Muniz in his Lawson talk at the recent OCDLA winter conference. Alex
