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Oregon’s Eyewitness Decision: Back to Basics

December 13, 2012 10:52:37 am
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By James M. 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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Posted by Fulloyun
Friday, January 04, 2013 12:09

I think that Utah takes it even further than free lnhuces . Its called child care . Children who are not capable of attending school as normal kids do (like walk there, study, participate in discussions etc) are encouraged to (maybe even required) attend. There is a child in our neighborhood that has Down’s Syndrome. She cannot talk, is inattentive, not potty trained, is wild acting, like ADD or whatever its called. She has been in the public school since first grade and is now in the third or fourth and since she has not improved at all, there is a paid aid that is assigned to sit with her all day and take care of her. This gives her mother 7-8 hours daily of Elena free time to go shopping, volunteer at the Temple or whatever she wants to do during the school year as long as she is home when school lets out. She has to take care of her during the summer and spring breaks but other than that, she has school funded day care . The lady next door fought all the way to the Governor back about 20 years ago for her daughter who was totally retarded, could not walk or control her body movements, could not talk and was completely non-responsive to anything and Marie wanted her to be allowed to go to the public school. She ended up at 14 or so in a home because they could no longer take care of her, but she thought the public school owed her an education or baby sitter .I would rather provide lunch than what Utah does. However, I agree, take away the free lunch or even the paid ones and make them carry lunch or go hungry. There are exceptions to the parents will make sure the kids get something to eat, but if they actually checked, they would find that an awful lot of the free lnhuces should not be (lets not forget the free breakfasts) provided.Good point, SRO, I guess you see it happening.

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