The Oregon Supreme Court in a unanimous decision [ http://www.publications.ojd.state.or.us/docs/S059234.pdf ] last week upended how eyewitness identification is to be used in criminal trials. The landmark ruling shifts the burden of proof to prosecutors to show that such identification is sufficiently reliable to be admissible as evidence at trial. Misidentification is the country’s leading cause of wrongful convictions. By altering the legal standard, Oregon has set an example that other states and the federal courts would be wise to follow.
Under the previous approach, trial courts had to assume eyewitness identifications were admissible unless defendants could show that they were unreliable; trial courts also relied heavily on the eyewitnesses’ reports of their own reliability even though that was at issue.
In ruling that such evidence should be subject to stricter standards, the court took into account three decades of scientific research showing that memory and perception can be highly unreliable. “Because of the alterations to memory that suggestiveness can cause,” the court said, “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.”
The justices further ruled that, even if the state proves that an identification is likely to be well-founded, a judge can still bar its use if the defendant establishes that it might be the result of “suggestive police procedures.”
The court announced its new approach in a decision dealing with two cases. In one case involving a robbery at a Safeway store, it found the identifications admissible because the witnesses gave the police a detailed description of two suspects, including the defendant, just minutes after the crime. Hours afterward, when the officer who investigated the robbery heard about a problem at a nearby restaurant, the men causing the disturbance matched the descriptions of the Safeway suspects. The police took them back to the Safeway where they were identified as the perpetrators and eventually charged with robbery.
But in the second case, the court found that the reliability of the eyewitness identification — and the suggestiveness of the police procedure — warranted sending the case back for a new trial. The defendant was found guilty of murdering a man and shooting his wife at an Oregon campground. The wife had only a fleeting chance to see the person who shot her husband after she was critically wounded. She was “under tremendous stress and in poor physical and mental condition,” which impaired her “ability to encode information into memory,” the court said.
Two years passed before she made the identification, which happened only after the police took her to a pretrial hearing to observe the man they said had been arrested in the shootings and showed her his picture in a notebook. Under the court’s new approach, that kind of highly suggestive police procedure is likely to make the identification inadmissible.
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