Lawson and Eyewitness Identification Evidence

Ryan filed a memorandum in the Oregon Court of Appeals that summarized Lawson and applied it to one of his cases on appeal. A PDF of the section of the memo on Lawson is attached to this post. Below, Ryan summarizes what he believes are the most significant points to take away from Lawson.

The need for a new rule

First, Justice DeMuniz's landmark opinion for the Oregon Supreme Court in Lawson makes clear that the old Oregon test for the admission of eyewitness identification evidence, which was based on SCOTUS Fourteenth Amendment case law, allowed in too much unreliable eyewitness identification evidence. Second, the test, announced in the late 1970s in a case called State v. Classen, also failed to allow judges to base their rulings on evolving science. Third, Justice DeMuniz explained, the test from Classen was a common-law rule that was inconsistent with the legislature's intent that the Oregon Evidence Code (OEC) provide the first step in analyzing the admissibility of evidence in Oregon trials.

The evidence-code approach

The new test, the first of its kind in any jurisdiction in the United States, applies familiar evidence code rules to eyewitness identification evidence. Remember, eyewitness identification evidence is a "discrete class of evidence," and Lawson addresses the serious problem that many eyewitnesses believe they are correctly identifying a perpetrator even though their memory has been altered in some way.

The proponent of the evidence, usually the prosecution, must establish by a preponderance of evidence that it is relevant under OEC 401, was perceived by the witness under OEC 602, is rationally based on the witness's perceptions under OEC 701(1), and is helpful to the trier of fact under OEC 701(2). The opinion makes clear that the prosecution may not meet its burden under OEC 602 and OEC 701 when police have used suggestive identification procedures or when other influences--like media reports--may have tainted the eyewitness's memory. In that way, Lawson represents a shift in evidence code law because, historically, the proponent of the evidence has had little trouble meeting its burdens under OEC 602 and 701. Oregon lawyers and courts are blazing new ground here with greater (or perhaps just different) scrutiny given to this discrete class of evidence under OEC 602 and 701.

If the proponent meets its burden, then the opponent should object to the admission of the evidence under OEC 403 (this should be done in the original motion in limine to exclude the evidence). The Lawson opinion crafts a specific type of OEC 403 inquiry for eyewitness identification evidence. It says "most" eyewitness identification evidence will be admitted. But, and this is an important "but," most eyewitness identification evidence will probably not be contested on these grounds (e.g. Witness: I saw my boyfriend, Joe, punch Steve in the face), and, "most" cases (hopefully) do not involve suggestive influences from law enforcement or other sources. The opinion strongly implies that when suggestive influences are involved, a trial court should exercise its discretion to impose some remedy under OEC 403. It should exclude the evidence, exclude part of the evidence, or instruct the jury about the potential unreliability of the evidence.

It will take Oregon courts and lawyers some time to figure out how Lawson works in application. In the meantime, litigants and judges should embrace the Oregon Supreme Court's progressive approach and work to apply current science and the evidence code to ensure that only reliable eyewitness identification evidence gets admitted to Oregon trials.

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