Now in Legal Rebels:
Posted Nov 30, 2012 03:38 pm CST
The Oregon Supreme Court has revised its procedures governing the admissibility of eyewitness evidence in an opinion that ordered a new trial for a man identified after police showed his photo to his accuser.
The court acted based on 30 years of research regarding eyewitness identification, the Oregonian reports. Karen Newirth of the Innocence Project calls the opinion “a landmark decision that makes the Oregon Supreme Court a national leader on a critical issue of criminal justice,” according to the story. The Associated Press also has coverage.
The opinion (PDF) cited new information from scientific studies, including: Under most circumstances, witness certainty is a poor indicator of eyewitness accuracy. Accurate identifications tend to be made more quickly than inaccurate identifications. Witnesses are better able to identify people with distinctive features, and people of their own race. High levels of fear or stress impact a person’s ability to make accurate identifications.
Since 1979, Oregon courts had used a two-step procedure to assess the admissibility of eyewitness testimony. First, courts were to determine whether the underlying identification was suggestive. If so, courts were to determine whether the witness was able to ID the suspect based on information independent of the suggestive elements, such as the chance to view the suspect clearly.
The procedure put the burden on the defendant to establish the procedure was suggestive, the court said. The second prong of the test also “fails to recognize the difficulty of attempting to distinguish between the original memory and the new memory corrupted by later suggestiveness,” the court said.
Under the new test, if a defendant objects to an eyewitness identification, prosecutors have the burden to establish validity. The trial court should consider what the witness actually perceived and determine whether the ID was “rationally based” on those perceptions, the court said. When there is evidence of suggestive police procedures, the state must show by a preponderance of the evidence that the identification was based on a permissible basis rather than an impermissible one.
Courts can still exclude the evidence if its probative value is substantially outweighed by the danger of unfair prejudice. They may also “fashion an appropriate intermediate remedy short of exclusion” such as allowing an identification, but barring a witness from testifying he is 100 percent certain of his ID.
The opinion overturned the conviction of Samuel Lawson, accused of shooting Sherl Hilde and her husband, Noris Hilde, at a national forest campsite in 2003. Sherl Hilde survived, but her husband died soon after the shooting.
The Hildes had pitched their tent the weekend before to claim their campsite, and when they arrived for their camping trip, the defendant had moved in to the tent. When the couple confronted Lawson, he apologized, saying he thought the tent had been abandoned, and left. Sherl Hilde was unable to identify an assailant until police showed her Lawson’s photograph and took her to the courthouse to observe his pretrial hearing—information not disclosed to the defense, according to the Oregon opinion.