Oregon’s Eyewitness Decision: Back to Basics

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James Doyle

Dean John Henry Wigmore, the most renowned of American evidence scholars, issued a prediction in 1937 about the relationship between the criminal justice system and modern psychology’s investigations into the unreliability of eyewitness evidence.

“When the psychologists are ready for the courts,” declared Wigmore, “the courts will be ready for the psychologists.”

On November 30, the Oregon Supreme Court demonstrated that Wigmore was actually right. Courts are—or at least one court is—ready for the psychology of eyewitness identification.

In fact, the Oregon opinion in State v. Lawson shows that the courts have been ready all along; they just didn’t know it.

State v. Lawson, far more than the New Jersey Supreme Court’s much-ballyhooed effort in State v. Henderson, deserves to be treated as a landmark.

The fact that 75% of recent exonerations in criminal cases involved eyewitnesses has added new urgency to the issue, but the possibility of eyewitness error has never been a secret.

The issue of eyewitness evidence has traditionally been treated as a freakish outlier, a problem to be met with its own special rules and tests. The Oregon court rejects this approach, and knits eyewitness issues back into the basic fabric of state evidence law.

The Warren Court had taken aim at the problem of eyewitness evidence in the 1970’s by ordering that it must be suppressed if—but only if— the identification was produced by police misconduct: by “unnecessarily suggestive” lineups, show-ups, or photo-arrays that made the identification unreliable. The Warren Court ‘s remedy for these situations was the “nuclear option” of complete exclusion of the eyewitness evidence.

Very few judges have been willing to completely exclude eyewitness testimony (and effectively dismiss the cases). Even so, the exclusion remedy has transfixed judges and lawyers like jack-lighted deer.

The Oregon Supreme Court broke the misconduct/exclusion spell by facing up to the modern scientific findings that indicate that suggestion itself is not the real issue; the problem is the fundamental nature of human memory.

State v Lawson shows how the ancient toolbox that the law of evidence offers can be mobilized to apply modern psychological findings to the challenges of eyewitness memory evidence.

The Oregon court formally accepted contemporary scientific problems and abandoned the convenient legal fiction that memory is a stable, permanent video recording, and recognized that memory is malleable and reconstructive:

Because of the alterations to memory that suggestiveness can cause, it is incumbent on courts and law enforcement personnel to treat eyewitness memory just as carefully as they would other forms of trace evidence, like DNA, bloodstains, or fingerprints, the evidentiary value of which can be impaired or destroyed by contamination…Once contaminated, a witness’s original memory is difficult to retrieve; it is, however, only the original memory that has any forensic or evidentiary value.

Once this scientific fact is acknowledged, the routine, basic questions that a judge must always resolve before admitting evidence—not the zero sum, in/out, tests of the Warren Court era—move to the forefront.

Here’s an example. Any party, in any case, that wants to admit evidence bears the preliminary burden of showing a judge that the testimony is based on the witness’s personal knowledge.

Now that science has shown us that eyewitness memory may have its source in “post-event” information coming from a co-witness or a police procedure, in many eyewitness cases, the judge will have to face the question of whether the evidence has its source in personal knowledge or was “contaminated” by outside information.

Similarly, the traditional law of evidence requires that when an ordinary person—as opposed to, for example, medical or other scientific evidence—is called to offer an opinion (i.e., “In my opinion, that’s the guy who robbed me”) the party calling the witness must show the judge that it is more likely than not that the witness’s opinion is rationally based on the witness’s own perception.

Now that psychology has shown that witnesses frequently offer opinions that are not based on their own perceptions, but rather on “facts” or feedback that they have absorbed from media reports, investigators’ questions, or unconscious feedback, the judges are required to analyze and answer questions that had formerly been glossed over.

Perhaps most importantly, the Oregon Supreme Court emphasized that whether or not anyone has committed misconduct, judges are required to carefully balance the probative value of eyewitness evidence against that evidence’s prejudicial effect in light of the findings of modern psychology.

Because modern social science teaches us that “it is only the original memory that has evidentiary or forensic value” the court reasoned, many elements of eyewitness proof that have traditionally been waved into evidence without a second thought should now be subjected to careful scrutiny.

For example, the routine practice of largely ceremonial “in-court” identification of a defendant seated at the counsel table at trial adds very little actual probative value to the original photo-array identification.

But an in-court identification does have a considerable prejudicial effect on the jurors.

Eyewitnesses’ statements of confidence in their choices have very little actual probative value—especially after the memory “trace” has been subjected to confidence-boosting. “feedback”—but research shows that it has devastating prejudicial impact on a trial jury.

The DNA exoneration lists are full of cases in which the mistaken eyewitness moved from “looks like the robber” on the night of the crime to “I’ll never forget that face” in the courtroom.

The scientists would say that the jurors in these cases didn’t learn much if, anything of value from the courtroom statement of post-feedback confidence.

Oregon’s radical return to the fundamental traditional principles of evidence law mobilizes the capacity for the surgical removal of these prejudicial elements of eyewitness proof , while preserving the core original identification where it is probative.

It allows for a process that University of Virginia Law Professor and innocence scholar Brandon Garrett calls “partial exclusion.”

The question is no longer a catastrophic question of “all in v. all out.”

This is a big deal.

Eyewitness memory evidence can be contaminated accidentally, just like blood or other trace evidence. The difference is that no memory can be sent back to the lab to be tested for contaminants.

The only test we can apply to memory evidence are the traditional thresholds that are embodied in evidence law. We haven’t been using them. Now we can.

The Oregon Supreme Court has shown us why we should.

James Doyle is a Boston attorney and the author of True Witness: Cops, Courts, Science and the Battle Against Misidentification (Palgrave 2005.) He is a 2012 Visiting Fellow at the National Institute of Justice. The opinions expressed here are his own. He welcomes comments from readers.

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