Author: Dan Simon

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Judicial Reforms and Eyewitness Testimony

I would like to underscore Brandon’s point about reform efforts that are currently underway. While for the most part, the criminal justice process is stuck in a bad place (thanks to a large degree to the US Supreme Court), it is refreshing to note that a few local and state jurisdictions are moving ahead with thoughtful reforms.

Just two weeks ago, the Oregon Supreme Court handed down a groundbreaking decision regarding the admissibility of eyewitness identification testimony. The decision in Oregon v. Lawson is noteworthy for at least 4 aspects (http://www.publications.ojd.state.or.us/docs/S059234.pdf).

(1) The Court explicitly endorsed the view that the admissibility of identification testimony should hinge on its reliability. This decision constitutes a notable break from the US Supreme Court, which recently decided that exclusion of evidence based on Federal Due Process grounds is intended for regulating the police, not for guaranteeing the reliability of the testimony. The Supreme Court thus denied relief to a defendant who could not prove that the suggestibility of an identification was the product of police misconduct (see Perry v. New Hampshire; http://www.supremecourt.gov/opinions/11pdf/10-8974.pdf). Importantly, the Oregon court thus punctuated the primacy of accuracy over competing goals of the criminal justice process.

(2) In sharp contrast to the majority’s decision in Perry v. New Hampshire, the Oregon court relied heavily on social science, namely, on experimental psychological research. As such, the Lawson decision conveys a sensibility towards the limited accuracy of eyewitness identification testimony as well as to the myriad of factors that affect its accuracy. The Court also cited Brandon’s “Convicting the Innocent” to punctuate the contribution of eyewitness misidentification to the problem of false convictions.

(3) The Oregon court acknowledged the defendants’ predicament of bearing the burden of proof to show suggestibility “when the state — as the administrator of that procedure — controls the bulk of the evidence in that regard.” The Court thus draws attention to the “informational disadvantage,” which is one of the less familiar factors that skews the adversarial process against criminal defendants (see “In Doubt,” pp. 44, 182).

(4) In conclusion, the Court shifted the burden of proof onto the prosecution, requiring that the state first show that the ID testimony was not obtained by meas of suggestive procedures. Such a showing does not preclude the defendant from countering the prosecution’s evidence. This is a bold and innovative move. I expect that it will not only curb the admissibility of ID testimony in court, but also make a favorable impact upstream, by inducing the police to conduct ID procedures in a more meticulous manner.

It should be noted that the Oregon decision comes on the heels of New Jersey’s landmark decision regulating lineup procedures (Steve v. Henderson: http://njlaw.rutgers.edu/collections/courts/supreme/a-8-08.opn.html), which was followed up by a reform of the pertinent jury instructions (http://www.judiciary.state.nj.us/pressrel/2012/jury_instruction.pdf).

Also notable in this regard is legislative effort in Texas that has sprouted a thoughtful Model Policy for conducting eyewitness identification procedures (the Model Policy was drafted by the Bill Blackwood Law Enforcement Management Institute of Texas at the Sam Houston State University:http://www.lemitonline.org/publications/ewid.html).