The Ayes have it

The Supreme Court of Oregon has revisited its 30-year old rule that allowed for admission of eyewitness identification resulting from “unduly suggestive pretrial identification procedures.”

State v. Lawson consolidates two cases on the same issue, and decides en banc to recognize significant changes in the understanding and science of eyewitness identification.

The court discussed State v. Classen and its two-step five (nonexclusive) factors to consider whether an identification was “independent of suggestive procedures.” Classen had relied on Manson v. Brathwaite, 432 U.S. 98 (1977), wherein the Supremes “determined that reliability was the linchpin in determinations regarding the admissibility of identification testimony.”

Since 1979 — the year that this court decided Classen — there have been more than 2,000 scientific studies conducted on the reliability of eyewitness identification. Amici curiae in these two cases — particularly the Innocence Network and a group of academics and university professors who have conducted, published, and reviewed a wide range of scientific research on the subject of eyewitness identification – submitted extensive data and analysis to this court regarding many of those studies. Based on our extensive review of the current scientific research and literature, we conclude that the scientific knowledge and empirical research concerning eyewitness perception and memory has progressed sufficiently to warrant taking judicial notice of the data contained in those various sources as legislative facts that we may consult for assistance in determining the effectiveness of our existing test for the admission of eyewitness identification evidence.

The court then engages in a very helpful summary and analysis of the research.

My experience with identifications in the military has been with photographic line-ups. My police experience is different, having had to go on the streets and scrounge up volunteers to come and participate in an ID Parade. I’m not certain that military law enforcement does that many live parades. But the information in the case is worthy of review for the photo cases as well as its general teachings on issues related to eyewitness identification – for proposing voir questions, or for cross-examination questions. Some of this bleeds over into the issue of witness statement reliability and memory. For example,

Suggestive Feedback and Recording Confidence Post-identification confirming feedback tends to falsely inflate witnesses’ confidence in the accuracy of their identifications, as well as their recollections concerning the quality of their opportunity to view a perpetrator and an event.

This can happen when investigators share statements among witnesses or tell witnesses what another witness said, thereby getting the witness to question their own statements and perhaps change them to be consistent.