September 9, 2011 02:15 PM

IN THE SUPREME COURT OF THE STATE OF OREGON

STATE OF OREGON, Plaintiff-Respondent, Respondent on Review,

Umatilla County Circuit Court Case No. CF080348

Court of Appeals No. A140544 v. Supreme Court No. S059306 STANLEY DALE JAMES, JR., Defendant-Appellant Petitioner on Review. PETITIONERS BRIEF ON THE MERITS Review of the decision of the Court of Appeals on an appeal from a judgment of the Circuit Court for Umatilla County Honorable Thomas Kolberg, Judge Opinion Filed: January 5, 2011 Author of Opinion: Brewer, Chief Judge Concurring Judges: Haselton, Presiding Judge, and Armstrong, Judge

PETER GARTLAN #870467 Chief Defender RYAN T. O'CONNOR #053353 Senior Deputy Public Defender Office of Public Defense Services 1175 Court Street NE Salem, OR 97301 Ryan.OConnor@opds.state.or.us Phone: (503) 378-3349 Attorneys for Petitioner on Review

JOHN R. KROGER #077207 Attorney General MARY H. WILLIAMS #911241 Solicitor General SAMUEL A. KUBERNICK #045562 Assistant Attorney General 400 Justice Building 1162 Court Street NE Salem, OR 97301 samuel.a.kubernick@doj.state.or.us Phone: (503) 378-4402 Attorneys for Respondent on Review

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i TABLE OF CONTENTS Nature of Proceeding ............................................................................................1 Questions Presented and Proposed Rules of Law ................................................1 Summary of Argument .........................................................................................4 Statement of Material Historical and Procedural Facts ........................................7 Argument ..............................................................................................................9 I. Classen announced an Oregon common-law rule of evidence prior to the creation of the Oregon Evidence Code. ..........................................................11 II. A trial court should exclude under OEC 403 an eyewitness identification that is the product of a suggestive procedure. .................................................14 A. This court has approved of a trial courts use of OEC 403 to exclude evidence of an eyewitness identification that is the product of a suggestive procedure......................................................................................................14 B. The policy driving the common-law rule from Classen mirrors the considerations in OEC 403. .........................................................................18 C. Evidence should be inadmissible as a class under OEC 403 when it is unreliable and likely to unduly overwhelm a jury. ......................................19 III. Scientific research shows that eyewitness identifications that are the product of suggestive procedures unduly influence a jury, despite the widelyaccepted unreliability of the identifications. ...................................................24 A. Memories are pieced together from the observation of the event, affected by influences while stored in the brain, and again altered by the conditions under which the memory is recalled. .........................................24 B. Eyewitness identification evidence is even more unreliable than believed in 1979. ..........................................................................................25 C. The use of a suggestive procedure renders an eyewitness identification significantly more unreliable. ......................................................................27

ii D. Traditional methods of impeaching a witness do not cure the harm caused by admitting eyewitness identification that is the product of a suggestive procedure....................................................................................29 E. Other jurisdictions have created exclusionary rules that reflect the widely accepted view that an identification that is the product of a suggestive procedure is minimally probative and too unfairly prejudicial and misleading to be admitted at trial..........................................................30 IV. An eyewitness identification made using a suggestive procedure should be excluded under OEC 403 and a subsequent identification should be admitted only if it is reliable enough that its probative value is not substantially outweighed by the danger of unfair prejudice. ..........................32 V. Alternatively, this court should amend the common-law rule and require the per se exclusion of eyewitness identifications that are the product of suggestive procedures. ................................................................................39 VI. The errors were harmful........................................................................44

CONCLUSION...................................................................................................47

TABLE OF AUTHORITIES Cases

Commonwealth v. Johnson, 420 Mass 458, 650 NE 2d 1257 (1995) ................................................... 30, 34 Delaware v. Van Arsdall, 475 US 673, 106 S Ct 1431, 89 L Ed 2d 674 (1986) ......................................47 Gilbert v. California, 388 US 263, 87 S Ct 1951, 18 L Ed 2d 1178 (1967) ......................................10 Li v. State of Oregon, 338 Or 376, 110 P3d 91 (2005).......................................................................17

iii Manson v. Brathwaite, 432 US 98, 97 S Ct 2243, 53 L Ed 2d 140 (1977) .............................................. ........................................................ 3, 10, 11, 14, 18, 25, 26, 31, 33, 37, 39, 44 Neil v. Biggers, 409 US 188, 93 S Ct 375, 34 L Ed 2d 401 (1972) ..........................................10 New Jersey v. Henderson , __ A2d __ (NJ Feb 29, 2009) (2009 WL 510409)........................................28 New Jersey v. Henderson, __ A3d __, __ (NJ Aug 24, 2011) (2011 WL 3715028) .......................... 10, 26 New York v. Adams, 53 NY 2d 241, 423 NE 2d 379, 440 NY S 2d 902 (1981)..............................30 Perry v. New Hampshire, No 10-8974 (US 2011) ....................................................................... 10, 11, 40 Rico-Villalobos v. Guisto, 339 Or 197, 118 P3d 246 (2005).....................................................................17 Simmons v. United States, 390 US 377, 88 S Ct 967, 19 L Ed 2d 1247 (1968) ................................. 10, 12 State ex rel Juvenile Dept v. 314 Or 444, 840 P2d 78 (1992)................................................................ 18, 39 State v. Barrett, 350 Or 390, 255 P3d 472 (2011).....................................................................17 State v. Brown, 297 Or 404, 687 P2d 751 (1984)...................................... 20, 21, 22, 23, 24, 35 State v. Classen, 285 Or 221, 590 P2d 1198 (1979)... 1, 2, 3, 4, 5, 6, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 24, 25, 26, 33, 34, 37, 39, 41, 43, 44 State v. Clopten, 223 P3d 1103 (Utah 2009) ..............................................................................30

iv State v. Davis, 336 Or 19, 77 P3d 1111 (2003).......................................................................44 State v. Hall, 339 Or 7, 115 P3d 908 (2005).........................................................................33 State v. Hansen, 304 Or 169, 743 P2d 157 (1987).............................................................. 22, 24 State v. James, 240 Or App 324, 245 P3d 705, rev allowed, 350 Or 532 (2011)......................1 State v. Johanesen, 319 Or 128, 873 P2d 1065 (1994).................... 4, 14, 15, 17, 19, 24, 32, 35, 37 State v. Lawson, 239 Or App 363, 244 P3d 860 (2010), rev allowed, 350 Or 532 (2011)... 1, 11 State v. Long, 721 P2d 483 (Utah 1986) ................................................................................31 State v. Lyon, 304 Or 221, 744 P2d 231 (1987).............................................................. 22, 24 State v. OKey, 321 Or 285, 899 P2d 663 (1995).....................................................................23 State v. Rodriguez, 317 Or 27, 854 P2d 339 (1993).......................................................................17 State v. Southard, 347 Or 127, 218 P3d 104 (2009)...................................... 20, 21, 23, 24, 32, 35 Stovall v. Denno, 388 US 293, 87 S Ct 1967, 18 L Ed 2d 1199 (1967) ......................................10 United States v. Baller, 519 F2d 463 466 (4th Cir), cert den, 423 US 1019 (1975).............................21 United States v. Wade, 388 US 218, 87 S Ct 1926, 18 L Ed 2d 1149 (1967) ............................... 10, 25

v Wisconsin v. Dubose, 285 Wis 2d 143, 699 NW 2d 582 (2005) ........................................... 29, 31, 33 Constitutional Provisions and Statutes US Const, Amend XIV .................................................................. 1, 8, 11, 25, 44 Or Const, Art VII (Amended), 3......................................................................44 OEC 103..............................................................................................................44 OEC 401....................................................................................................... 16, 20 OEC 402....................................................................................................... 18, 39 OEC 403.................................................................................................................. ...1, 2, 4, 5, 6, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 32, 33, 34, 35, 36, 37, 38, 39 OEC 702....................................................................................................... 20, 23 ORS 136.425.......................................................................................................19 ORS 136.675.......................................................................................................19 ORS 136.685.......................................................................................................19 ORS 136.695.......................................................................................................19 ORS 164.405.........................................................................................................1 Other Authorities

Christian A. Meissner & John C. Brigham, Thirty Years of Investigating the Own-Race Bias in Memory for Faces: A Meta-Analytic Review, 7 Psychol, Pub Poly & L 3, 21 (2001) ..................27 Dan Simon, The Limited Diagnosticity of Criminal Trials, 64 Vand L Rev 143 (2011)....................................................................... 26, 29

vi Elizabeth F. Loftus & James M. Doyle, Eyewitness Testimony: Civil and Criminal (3d ed 1997) ...........................................................21, 25, 34, 40, 41 Gary Wells and Deah Quinlivan, Suggestive Eyewitness Identification Procedures: Why the U.S. Supreme Court Needs to Revisit Manson v. Braithwaite, 33 Law and Human Behavior 1 (2009)......................................26 John C. Brigham & Robert K. Bothwell, The Ability of Prospective Jurors To Estimate the Accuracy of Eyewitness Identifications, 7 L & Hum Behav 19 (1983) ..............................................................................................................29 Kenneth A. Deffenbacher, et al, A Meta-Analytic Review of the Effects of High Stress of Eyewitness Memory, 28 Law & Hum Behav 687 (2004).................41 Kenneth A. Deffenbacher, et al, Forgetting the Once-Seen Face: Estimating the Strength of an Eyewitnesss Memory Representation, 14 J Experimental Psychol 139 (2008)..........................................................................................40 Laird C. Kirkpatrick, Oregon Evidence (5th ed 2007) .......................... 18, 20, 21 Margery Malkin Koosed, Reforming Eyewitness Identification Law and Practices to Protect the Innocent, 42 Creighton L Rev 595 (2009) ......................................................29 Michael S. Wogalter, et al, A National Survey of US Police on Preparation and Conduct of Identification Lineups, 10 Psychol Crime & L 69 (2004) .....................................................28

Neil Brewer, et al, The Confidence Accuracy Relationship in Eyewitness Identification, 8 J Experimental Psychol Applied 44 (2002) .......................................................25 New Jersey v. Henderson, Report of Special Master (2010) .....................................................................27 Ralph Norman Haber & Lyn Haber, A Meta-Analysis of Research on Eyewitness Lineup Accuracy, Paper presented at the Annual Convention of he Psychonomics Society, Orlando, Florida 8 (Nov 16, 2011).................................................................................26

vii Richard A. Wise, Clifford S. Fishman, Martin A. Safer, How to Analyze the Accuracy of Eyewitness Testimony in a Criminal Case, 42 Conn L Rev 435 (Dec 2009) ......................................................................28 Richard S. Schmehel et al, Beyond the Ken? Testing Jurors Understanding of Eyewitness Reliability Evidence, 46 Jurimetrics 177 (2006)...............................................................10 Or Laws 1957, ch 567, 1..................................................................................19 ORAP 9.20............................................................................................................1

PETITIONERS BRIEF ON THE MERITS

Nature of Proceeding This is a criminal case in which the Court of Appeals affirmed the trial courts ruling admitting out-of-court eyewitness identifications and a subsequent in-court identification of the defendant. State v. James, 240 Or App 324, 245 P3d 705, rev allowed, 350 Or 532 (2011). Petitioner, defendant hereafter, maintains that the eyewitness identifications should have been excluded from trial under OEC 403, State v. Classen, 285 Or 221, 590 P2d 1198 (1979), or the Due Process Clause in the Fourteenth Amendment to the United States Constitution.1

Questions Presented and Proposed Rules of Law First Question Presented In Classendecided prior to the enactment of the Oregon Evidence Codethis court created a state common-law rule for suggestive eyewitness identification evidence that mirrored the requirements of the Fourteenth Amendments Due Process Clause. Given the enactment of the Oregon

This case is consolidated for oral argument with State v. Lawson, 239 Or App 363, 244 P3d 860 (2010), rev allowed, 350 Or 532 (2011). The petition for review also presented a question related to the denial of defendants motion for judgment of acquittal on second-degree robbery, ORS 164.405. Petitioner relies on his petition for review and his brief in the Court of Appeals for the argument related to that issue, as permitted under ORAP 9.20(4).

2 Evidence Code, does the admission of eyewitness identification evidence properly fall under the Evidence Code? And, if so, which provisions should govern the admissibility of eyewitness identification evidence? First Proposed Rule of Law The Classen court created a common-law evidentiary rule that required the trial court to exclude an unreliable identification that is the product of a suggestive procedure because of the risk that a jury would place undue weight on an eyewitness identificationunless the state could establish that the identification was otherwise reliable. After the enactment of the Oregon Evidence Code, the presumption is that the code governs questions concerning the admissibility of evidence. The common-law policy concerns driving the Classen rule mirror several factors at play under OEC 403, and trial and appellate courts should use OEC 403 to determine whether eyewitness identification may be admitted into evidence at trial. Second Question Presented Under OEC 403, do the dangers of unfair prejudice and misleading the jury substantially outweigh the suspect probative value of an identification that is the product of a suggestive procedure? Second Proposed Rule of Law An eyewitness identification that is the product of a suggestive procedure is inadmissible under OEC 403 because its minimal probative value is

3 substantially outweighed by the dangers of unfair prejudice and misleading the jury. Third Question Presented Alternatively, if the common-law rule of evidence from Classen survived the enactment of the Oregon Evidence Code, should this court amend the Classen rule to reflect widely-accepted scientific research? Third Proposed Rule of Law A common-law rule of evidence may survive if the Oregon Evidence Code does not cover the area. If this court concludes that the rule from Classen is such a rule, then the Classen rule should be modified to reflect widelyaccepted scientific research on eyewitness identification evidence. Fourth Question Presented Did the trial court violate due process under the test from Manson v. Brathwaite, 432 US 98, 97 S Ct 2243, 53 L Ed 2d 140 (1977), when it admitted the out-of-court and in-court eyewitness identifications? Fourth Proposed Rule of Law The admission of the eyewitnesses out-of-court and in-court identifications violated due process because the police unnecessarily used a suggestive show-up for the out-of-court identification and neither the out-ofcourt nor the in-court identification were independent of the suggestive procedure.

4 Summary of Argument 1. In 1979, this court in Classen announced an Oregon common-law rule of

evidence that required the exclusion of unreliable eyewitness identification evidence in a criminal trial. The legislature enacted the Oregon Evidence Code in 1981. The legislature intended the code to replace common-law rules unless a common-law rule addresses an area not covered by the code. The code applies to Oregon criminal trials and presumptively governs the admissibility of eyewitness identification evidence. OEC 403 replaced common-law as the source of the rule requiring the exclusion of unreliable eyewitness identification evidence. In State v. Johanesen, 319 Or 128, 873 P2d 1065 (1994), this court approved of a trial courts exclusion under OEC 403 of impeachment evidence of an eyewitness identification that was the product of a suggestive procedure. Further, the rule from Classen required the exclusion of an eyewitness identification that is the product of a suggestive procedure because the evidence was unreliable, created by the prosecution, and likely to be overvalued by the jury, thereby corrupting the truth-finding function of trial. OEC 403 reflects those concerns by requiring the exclusion of minimally probative evidence that creates a risk of undue prejudice or misleading the jury. 2. This court has engaged in appellate balancing of evidence under OEC

403 and categorically excluded certain classes of evidence (like polygraphs or

5 diagnoses of sexual abuse in the absence of physical evidence of abuse) that are minimally probative and likely to corrupt the truth-finding function of a trial because the jury will overvalue the evidence. Eyewitness identification evidence that is the product of a suggestive procedure should be categorically excluded for the same reasons.2 Eyewitness identification evidence that is the product of a suggestive procedure is minimally probative: although it has some tendency to establish the identity of the defendant, it is so unreliable that it only slightly advances that fact. The evidence creates the risk of unfair prejudice because it is unreliable, it is state-created using a suggestive procedure, and it will be overvalued by the jury. The evidence misleads the jury because jurors rely on an eyewitness identification, regardless of its reliability, over and above all other classes of evidence. Consequently, evidence of an eyewitness identification that is the product of a suggestive procedure is inadmissible in a criminal trial under OEC 403. Subsequent eyewitness identifications are inadmissible under OEC 403 unless they are independent of the identification that was the product of the suggestive procedure and thus reliable enough that the probative value outweighs the danger of unfair prejudice and misleading the jury.

To illustrate the differences between defendants proposed rule under OEC 403, Classen, and the Due Process test, defendant attaches a summary of the tests and a chart illustrating how the tests would be applied to a hypothetical case involving multiple eyewitness identifications. APP-1.

6 Here, the out-of-court eyewitness identifications were the product of a suggestive show-up. Accordingly, they should have been excluded from trial under OEC 403. One victim identified defendant as the perpetrator during his in-court testimony. That evidence also should have been excluded under OEC 403 because the record does not establish it was independent of the suggestive procedure. Thus, its minimal probative value was substantially outweighed by the danger of unfair prejudice and misleading the jury. 3. If this court concludes that the common-law rule from Classen survived

the enactment of Oregon Evidence Code, then it should modify the rule to categorically exclude evidence of an eyewitness identification that is the product of a suggestive identification procedure. Even if this court declines to adopt a per se rule, it should modify the factors a court considers to determine whether an identification is reliable to reflect current scientific knowledge. Even under the rule announced in Classen, the out-of-court and in-court identifications should have been excluded. 4. The out-of-court and in-court identifications also should have been

excluded under the Due Process Clause. The out-of-court identifications were the product of a needlessly suggestive show-up. The state failed to establish that the out-of-court identifications or the in-court identification were made independently from the show-up. Accordingly, the trial court erred in admitting the identifications.

7 Statement of Material Historical and Procedural Facts The Court of Appeals decision adequately summarizes the historical facts: 3 On December 11, 2006, two men entered a Safeway store in Pendleton and began stuffing beer into a backpack. Two employees spotted the men and attempted to prevent them from leaving the store with the beer. One of the men stealing the beer struck one of the employees in the face, and the two men escaped. The employees called the police, who responded within minutes. The employees provided the following description of the men who had stolen the beer: One was a fairly large guy; Indian male, 6 to 62, 220 pounds, wearing baggy blue jeans, white tank-top shirt; the other was a small guy, an Indian male approximately 5 tall, 110 pounds, wearing a black coat with a hood and baggy blue pants, carrying a black backpack. Both employees indicated that they would be able to identify the perpetrators. Five hours later, the officer who investigated the Safeway robbery received a report of a disturbance at a Burger King restaurant. When the officer arrived at the Burger King, he recognized the men about whom the complaint had been made as exactly matching the descriptions of the Safeway robbery suspects. In particular, he noted that, although the type of clothing was not unusual, wearing a tank-top shirt without a coat in December was unusual, as was the notable difference in height between the two suspects. Defendant-the taller of the two suspects-was placed in a patrol car with his companion, and they agreed to go with the officer to the Safeway to get the matter cleared up. When they arrived at the Safeway, the two employees came out of the store and immediately identified defendant and his companion as the men who had stolen the beer from the store earlier in the day. At the time the identifications were made, defendant remained seated and handcuffed in the patrol car. In his pretrial motion, defendant argued that the show-up procedure by which the two witnesses identified him was unduly

Defendant discusses in greater detail the facts relevant to the identification issue in the argument section.

8 suggestive. The trial court agreed, but found that, under the test announced in Classen, there were sufficient indicia that the identifications were independently reliable and, therefore, were not subject to exclusion from evidence. James, 240 Or App at 326-27. On appeal, defendant assigned error to the trial courts denial of his motion to suppress the out-of-court and in-court identifications. App Br at 7. He renewed the argument that Classen required the exclusion of the out-ofcourt and in-court identifications, explaining that this court in Classen developed an evidentiary rule governing the admissibility of witness identification evidence that mirrored the requirements of the Fourteenth Amendment. App Br at 12-13. The Court of Appeals agreed with the trial court and defendant that the show-up was an unduly suggestive procedure: Clearly, under the test set forth in Classen, a procedure in which a witness is shown only a pair of joint suspects and asked to identify them is an unduly suggestive procedure. We reject without further discussion the states suggestion that the show-up procedure at issue in this case was not unduly suggestive. James, 240 Or App at 327. The court then examined whether despite the unduly suggestive showup procedure, other aspects of the identifications demonstrated reliability and substantially excluded the risk that the identification resulted from the suggestive procedure. Id. at 327-29. The court held that the trial court properly admitted the out-of-court and in-court identifications:

9 In applying [the Classen] factors here, we conclude that they weigh significantly in favor of a conclusion that the witness identifications were based on a source independent of the suggestive show-up procedure. First, with respect to the opportunity the witnesses had to observe the perpetrators at the time of the crimes, the crimes occurred inside a supermarket that was open to the public, and the witnesses engaged in a face-to-face confrontation with the suspects at that location. Next, the descriptions given by the witnesses to the police were provided within minutes of the crimes and contained details including the race, height, weight, and clothing of both perpetrators. Both of those factors weigh heavily in favor of the identifications being reliable. The next factor concerns the time between the crime and the identification-in this case, approximately five hours. That relatively short amount of time does not weigh significantly against the admissibility of the identifications. See, e.g., State v. Mackey, 86 Or App 691, 695, 740 P2d 231, rev den, 304 Or 279, 744 P2d 1003 (1987) (rejecting a similar argument, in part, because the [identification] occurred within a few hours after the robbery). Finally, we note that both witnesses expressed certainty in their identifications; they indicated when they provided the detailed descriptions that they would be able to identify the perpetrators of the crimes, and later, in fact, when confronted with defendant and his companion, again expressed certainty that they were the men who had perpetrated the crimes. The trial court correctly concluded that, although the showup procedure used in this case was unduly suggestive, the challenged identifications were sufficiently reliable, and therefore admissible. James, 240 Or App at 328-29 (first bracketed text added).

Argument Since at least the 1930s, scientific research has recognized the probability of false convictions based on erroneous eyewitness identifications. Classen, 285 Or at 227. In a series of cases from 1967 through 1977, the United States

10 Supreme Court utilized the Due Process Clause to exclude particularly unreliable eyewitness identifications. Manson v. Brathwaite, 432 US 98, 97 S Ct 2243, 53 L Ed 2d 140 (1977); Neil v. Biggers, 409 US 188, 93 S Ct 375, 34 L Ed 2d 401 (1972); Simmons v. United States, 390 US 377, 88 S Ct 967, 19 L Ed 2d 1247 (1968); Stovall v. Denno, 388 US 293, 87 S Ct 1967, 18 L Ed 2d 1199 (1967); Gilbert v. California, 388 US 263, 87 S Ct 1951, 18 L Ed 2d 1178 (1967); United States v. Wade, 388 US 218, 87 S Ct 1926, 18 L Ed 2d 1149 (1967). In 1979, this court adopted an Oregon common-law rule of evidence similar to the due process rule in Classen. Since 1979, the scientific community has made significant advancements in understanding human memory. New Jersey v. Henderson, __ A3d __, __ (NJ Aug 24, 2011) (2011 WL 3715028 at 16). Widely-accepted scientific research establishes that eyewitness identifications are even less reliable than commonly believed when this court issued Classen. Richard S. Schmehel et al, Beyond the Ken? Testing Jurors Understanding of Eyewitness Reliability Evidence, 46 Jurimetrics 177, 180 (2006). The United States Supreme Court will soon consider, in Perry v. New Hampshire, No 10-8974 (US 2011), whether to revisit Manson and align the due process test with the significant body of scientific

11 research. In this case and Lawson, this court has an opportunity to articulate the methodology for assessing the admissibility of eyewitness identification evidence under the Oregon Evidence Code or common law in light of the scientific research so as to further the ends of justice by excluding unreliable, unduly prejudicial, and misleading evidence from Oregon criminal trials. I. Classen announced an Oregon common-law rule of evidence prior to the creation of the Oregon Evidence Code. This court faced the same legal question in Classen as it faces now in this case and Lawson: how to analyze the admissibility of an eyewitness identification of a suspect. Justice Linde, the author of the opinion,5 acknowledged that the United States Supreme Court had analyzed the issue under the Fourteenth Amendments Due Process Clause in a serious of cases culminating with Manson. He explained that the Court had recognized the central role that police-initiated identifications play in securing convictions and the strong interest against admitting unreliable evidence generated by the police procedures:

The Court will hear oral argument in Perry on November 2, 2011, six days before oral argument in this case. Some of the amici in Lawson have filed amici briefs in Perry. The Innocence Project and the American Psychological Association filed separate amici briefs based primarily on the work of the same professors who filed the amicus petition for review in Lawson. Defendants discussion of the science involving memory and eyewitness identification owes much to those amici filings. Two justices concurred to discuss the courts backlog of cases; no justice took issue with the eyewitness identification analysis.
5

12 [T]he Court [held that] due process is satisfied if a court can find that the proffered identification possesses certain features of reliability. The stated reason * * * was that the exclusion of an improperly obtained identification is required only to protect the defendants evidentiary interest, that is to say, his right not to be convicted on unreliable evidence partly created by the prosecution itself, rather than to enforce observance of a legal right standing on its own feet, such as the right against an illegal arrest, search, or seizure.[] The features of reliability for federal purposes, in turn, were to be sought in scrutinizing each case on its own facts, Simmons v. United States, 390 US at 384, 88 S Ct 967, for the relative importance of five factors bearing on the probable reliability of the identification. Neil v. Biggers, 409 US at 199, 93 S Ct 375; Manson v. Brathwaite; 432 US at 114, 97 S Ct 2243. Classen, 285 Or at 224-25 (emphasis added). Justice Linde relied on an Oregon common-law rule of evidence, drawn from Oregon cases dating back to the 1880s, that a trial court should exclude classes of unreliable evidence that undermine the truth-finding function of a trial: Evidence law has long provided for excluding certain evidence as a class when its questionable reliability vitiates the value of its possible truthfulness in the particular case, apart from any question of constitutional law. One familiar example is the exclusion of coerced confessions; others are the exclusion of evidence obtained by polygraph tests, hypnosis, or truth drugs. See State v. Wintzingerode, 9 Or 153 (1881) (confessions obtained by promises or by threats); State v. Green, 271 Or 153, 164-171, 531 P2d 245 (1975) (polygraph evidence); People v. Harper, 111 Ill App 2d 204, 250 N.E.2d 5 (1969) (sodium amobarbital); Jones v. State, 542 P2d 1316 (Okl Cr App 1975) (hypnosis). These rules of evidence are not dependent on federal law. It is necessary, therefore, to consider application of their principle to the use of the challenged identification evidence. Classen, 285 Or App at 226 (emphasis added).

13 The Oregon rule from Classen focuses on whether a suggestive procedure undermined the reliability of an eyewitness identification: As a practical matter, in the context of a motion by a defendant to suppress identification evidence on the ground that it is the product of a suggestive procedure, the decision on its admissibility involves two steps. First, the court must determine whether the process leading to the offered identification was suggestive or needlessly departed7 from procedures prescribed to avoid such suggestiveness. If so, then the prosecution must satisfy the court that the proffered identification has a source independent of the suggestive confrontation or photograph display * * * or that other aspects of the identification at the time it was made substantially exclude the risk that it resulted from the suggestive procedure. _____________________________________________ 7 Whether a questioned identification procedure was necessitated by the circumstance or needless does not affect its suggestiveness, as far as evidence law is concerned, but is relevant if a due process issue is reached under Simmon, Biggers, and Manson, supra. Classen, 285 Or at 232. Thus, under Classen 1) a defendant moves to exclude evidence of identification on the grounds that the process was suggestive. Id. If the trial court so finds, then 2) the prosecution has the burden to persuade the court that the particular identification was nonetheless reliable. Id. If so, then the court admits the evidence. If not, the court should exclude the identification evidence. Id. 232-33.

14 Classen instructs a trial court to consider the Manson factors in determining whether an identification using a suggestive procedure was otherwise reliable, including the opportunity that the witness had at the time to get a clear view of the persons involved in the crime and the attention he or she gave to their identifying features, the timing and completeness of the description given by the witness after the event, the certainty expressed by the witness in that description and in making the subsequent identification, and, of course, the lapse of time between the original observation and the subsequent identification. These are not to be taken as a mechanical checklist of constitutional facts. Obviously other facts may also be important, such as the age and sensory acuity of the witness, See State v. Bush, 29 Or App 315, 563 P2d 747 (1977), or a special occupational concern with peoples appearance or physical features, or the frequency of his or her contacts with individuals sharing the general characteristics of the person identified. Id. at 232-33. The Classen court reiterated that the ultimate issue [is] whether an identification made in a suggestive procedure has nevertheless been demonstrated to be reliable despite that suggestiveness. Id. at 233. II. A trial court should exclude under OEC 403 an eyewitness identification that is the product of a suggestive procedure. A. This court has approved of a trial courts use of OEC 403 to exclude evidence of an eyewitness identification that is the product of a suggestive procedure.

Justice Lindes opinion clearly identified Oregon common law as the source of the Classen rule in 1979, two years before the legislature enacted the Oregon Evidence Code. See State v. Johanesen, 319 Or 128, 133-34, 873 P2d 1065 (1994) (explaining that in Classen [b]ecause Oregon had no clear

15 evidentiary rule on suggestively obtained identifications, this court fashioned a new evidentiary rule). In Johanesen, this court analyzed the admissibility of eyewitness identification evidence under OEC 403. That case concerned whether photographic identification evidence [that the eyewitness identified someone other than defendant] offered by a defendant in a criminal case was admissible to impeach the eyewitnesss prior identification of the defendant. Johanesen, 319 Or at 134. Specifically, the defendant offered testimony of a defense investigator who conducted a photographic display in which the eyewitness identified someone other than defendant as the possible robber. Id. at 131-32. The defense investigator admitted during a hearing that he had not followed proper procedures in conducting the photographic display. Id. at 132. The state moved to exclude the evidence, and the trial court granted the states motion because the defense photographic identification evidence was inadmissible under the standards that apply to police photographic displays. Id. This court first concluded that the rule from Classen did not control because the due process concerns underlying the evidentiary rule in Classento protect the reliability of the verdict, i.e., to minimize the danger of convicting the innocent on the basis of unreliable identification evidence did not apply when a defendant offered the evidence to impeach the eyewitness. Id.

16 This court then applied the Oregon Evidence Code, concluded that the evidence was relevant under OEC 4016, and analyzed the admissibility under OEC 403.7 This court explained that [i]n making this OEC 403 determination with respect to out-of-court photographic identification evidence offered by a criminal defendant, factors of the kind identified by this court in [Classen] are relevant, although, as noted Classen itself is not controlling. Id. at 138. This court held the trial court did not err under OEC 403 when it excluded the defendants proffered identification impeachment evidence and it approved of the trial courts reasoning that a curative instruction could not undo the evidences misleading effect on the jury. Id. at 138-39. This court based its holding on a review of the Classen factors and its conclusion that the trial court had properly found the identification process suggestive and the identification unreliable. Id.

OEC 401 provides:

Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
7

OEC 403 provides:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay or needless presentation of cumulative evidence.

17 This court now has the opportunity to expressly tether the common-law rule from Classen to a provision of the Oregon Evidence Code, as it did with the impeachment evidence in Johanesen. It should do so in adherence to the first things first methodology. State v. Rodriguez, 317 Or 27, 31, 854 P2d 339 (1993). This court has repeatedly explained that if statutory sources of law provide a complete answer to the legal question that a case presents, we ordinarily decide the case on that basis, rather than turning to constitutional provisions. State v. Barrett, 350 Or 390, 398, 255 P3d 472 (2011) (quoting Rico-Villalobos v. Guisto, 339 Or 197, 205, 118 P3d 246 (2005)) (internal quotation marks omitted). This court adheres to that methodology even when the parties arguments address only matters of constitutional law. Barrett, 350 Or at 398 (quoting Li v. State of Oregon, 338 Or 376, 391, 110 P3d 91 (2005)). OEC 403 governs the admissibility of eyewitness identification evidence for several reasons. First, all evidence is subject to OEC 403 balancing unless the legislature expressly provides to the contrary. Second, this court in Johanesen already approved of the use of OEC 403 to exclude unreliable eyewitness identification evidence. Third, Classen identifies eyewitness identification evidence as a class of unreliable evidence. Fourth, this court has identified other classes of evidence as inadmissible under OEC 403 based on appellate court balancing. And fifth, eyewitness identification evidence

18 presents the same concerns that prompted this court to exclude other classes of evidence under OEC 403.8 B. The policy driving the common-law rule from Classen mirrors the considerations in OEC 403.

The Classen rule puts the trial court in the familiar role of the gatekeeper keeping minimally probative, unreliable evidence from the jury: The rule must take into account, on the one hand, the importance of eyewitness testimony in identifying (or exculpating) a suspected offender and, on the other hand, the widely recognized risk that such identification may often be unreliable at best and at worst may be the psychological product of the identification procedure itself. The extensive research and commentary by psychologists and jurists on the dangers of misidentification and ways to minimize them stretches back at least half a century. Classen, 285 Or at 227. The 1981 legislature intended the Oregon Evidence Code to govern the admissibility of all evidence in Oregon trials, except as otherwise provided by the Oregon Evidence Code, by the Constitutions of the United States and Oregon, or by Oregon statutory and decisional law. OEC 402; State ex rel Juvenile Dept v. 314 Or 444, 454-55, 840 P2d 78 (1992). The

legislature included decisional law in OEC 402 in order to continue certain rules of exclusion outside the evidence code that are recognized by prior case law. Laird C. Kirkpatrick, Oregon Evidence 402.03[3], 169 (5th ed 2007).

A one-page summary of defendants proposed test under OEC 403, and the current tests from Classen and Manson is attached at APP-1. The accompanying chart illustrates the application of the tests to a hypothetical case involving multiple eyewitness identifications are attached at APP-2.

19 In Beasely, this court explained that OEC 402 impliedly recognizes that decisional evidentiary rules, in areas not covered by the Code, survive the adoption of the Code. 314 Or at 449-50. The admissibility of eyewitness identification evidence presumptively falls within the evidence code because the code applies to criminal trials. OEC 101(2). In Johanesen, this court analyzed the admissibility of identification evidence proffered by the defense under OEC 403. Finally, the concerns identified in Classen are captured in OEC 403. Accordingly, OEC 403 is the sub-constitutional provision that replaced the Classen common-law rule.9 C. Evidence should be inadmissible as a class under OEC 403 when it is unreliable and likely to unduly overwhelm a jury.

Justice Linde explained in Classen that Oregon courts have long kept classes of unreliable evidence from juries. He offered four examples: coerced confessions, polygraphs results, evidence obtained from truth drugs, and evidence obtained by hypnosis. Classen, 285 Or at 227. This court in Johanesen explained that trial courts should use OEC 403 when confronted with the admissibility of what Classen termed an unreliable class of evidence.10

If this court concludes that the common-law rule from Classen survived the enactment of the Oregon Evidence Code, defendant asks this court to modify that rule, as explained below in section V. Since at least 1957, the legislature has required trial courts to exclude a confession or admission made under the influence of fear produced by threats. ORS 136.425(1); Or Laws 1957, ch 567, 1. Evidence obtained through hypnosis is admissible only if secured in accordance with ORS 136.675 and ORS 136.685. ORS 136.695.
10

20 Johanesen, 319 Or at 138; see also Kirkpatrick, Oregon Evidence 403.04[2] (summarizing cases in which Oregon appellate courts have held evidence inadmissible under Rule 403). After 1981, this court has applied OEC 403 to categorically exclude classes of scientific evidence. The analysis of the admissibility of scientific evidence requires a court to apply OEC 401, OEC 702, and OEC 403 to identify and evaluate the probative value of the evidence, consider how it might impair rather than help the factfinder, and decide whether truth finding is better served by exclusion or admission. State v. Brown, 297 Or 404, 409, 687 P2d 751 (1984). This court has excluded certain scientific evidence as a class under OEC 403 because of the risk juries will overvalue the scientific evidence. See State v. Southard, 347 Or 127, 140 n 11, 218 P3d 104 (2009) (explaining that, in Brown, [t]his court did not defer to the trial court in determining the admissibility of scientific evidence under OEC 403.). Accordingly, when the probative value of a class of scientific evidence is low (or it is unreliable), this court has categorically excluded the evidence because of the risk that the truthfinding function will be corrupted by the jurys over reliance on that minimally probative evidence: There are good reasons not every ostensibly scientific technique should be recognized as the basis for expert testimony. Because of its apparent objectivity, an opinion that claims a scientific basis is apt to carry undue weight with the trier of fact. In addition, it is difficult to rebut such an opinion except by other

21 experts or by cross-examination based on a thorough acquaintance with the underlying principles. Kirkpatrick, Oregon Evidence 702.04[1][f] at 608-09 (quoting United States v. Baller, 519 F2d 463 466 (4th Cir), cert den, 423 US 1019 (1975) to explain reason for reliability requirement in Brown test) (internal quotation marks omitted)). For those same reasons, this court reviews the admissibility of scientific evidence under OEC 403 for legal error. Southard, 347 Or at 140-42; see also Kirkpatrick, Oregon Evidence 702.04[1][i] at 610 (The Oregon standard of de novo review seems more appropriate [than the federal abuse of discretion standard] in light of the specific requirements for appraising the reliability of scientific evidence and the need for consistent application of these standards.). The same concerns apply to eyewitness identification evidence that is the product of a suggestive procedure. Scientific research reveals that jurors rely on eyewitness identification evidence even more than scientific evidence. Elizabeth F. Loftus & James M. Doyle, Eyewitness Testimony: Civil and Criminal 1.5, 5 (3d ed 1997). As explained in greater detail below, research establishes that jurors do not accurately distinguish between reliable and unreliable eyewitness identifications, just as jurors have difficulty evaluating whether expert witness testimony is reliable. Thus, cross-examination or other methods of impeaching a suggestive eyewitness identification are largely

22 ineffective. A categorical rule of exclusion advances Oregon juries truthfinding function based on probative and reliable evidence. For example, this court held that OEC 403 requires the exclusion of polygraph test results even if the parties stipulate to its admission. State v. Lyon, 304 Or 221, 233, 744 P2d 231 (1987); see also Brown, 297 Or at 445 (holding that polygraph evidence is inadmissible under OEC 403 when properly objected to in a civil or criminal trial). In Brown, this court accepted that under proper conditions, polygraph evidence may possess some probative value and may, in some cases, be helpful to the trier of fact. 297 Or at 438. However, this court held that OEC 403 required its exclusion from all Oregon trials. The court reasoned that jurors are likely to overvalue polygraph evidence. Id. at 440-41. Subsequently, this court held that even when the parties stipulate to the admissibility of a polygraph examination OEC 403 requires the exclusion of the evidence because [a] stipulation neither enhances the uncertain reliability of the polygraph examination nor blunts the prejudicial effect of polygraph results upon the jury. Lyon, 304 Or at 232. Similarly, in State v. Hansen, this court held it was error under OEC 403 to admit profile or syndrome evidence that some child abusers use grooming behavior to get close to the victim. 304 Or 169, 176, 743 P2d 157 (1987). This court explained that the evidence had practically nil relevance to whether a particular defendant had sexual relations with a

23 particular victim, and thus the evidence had minimal probative value. Meanwhile, the danger of unfair prejudice to the defendant substantially outweighed the probative value because of the unwarranted inference that, because [the] defendant engaged in acts that sexual abusers engage in, she, too, is a sexual child abuser. Id. More recently, this court held that OEC 403 requires the exclusion of a medical diagnosis that a child has been sexually abused in the absence of physical evidence of sexual abuse. Southard, 347 Or 127 at 140-41. In Southard, this court first concluded the evidence satisfied the requirement for admissible scientific evidence under OEC 702 and Brown and State v. OKey, 321 Or 285, 306, 899 P2d 663 (1995). 347 Or at 138. Even though the evidence was relevant and otherwise satisfied the requirements of the Oregon Evidence Code, this court held that it was inadmissible under OEC 403. This court compared the evidence to the polygraph evidence discussed in Brown and concluded that the medical diagnosis of sexual abuse presented similar problems that warranted the exclusion of polygraph evidence. Id. at 140. The probative value of the evidence was low, because the diagnosis did not tell the jury anything that it was not equally capable of determining on its own. Id. at 140. On the other hand, The risk of prejudice, however, was great. The fact that the diagnosis came from a credentialed expert, surrounded with the hallmarks of the scientific method, created a substantial risk that the jury may be overly impressed or prejudiced by a perhaps

24 misplaced aura of reliability or validity of the evidence. Brown, 297 Or at 439. As in Brown, the diagnosis is particularly problematic because the diagnosis, which was based primarily on an assessment of the boys credibility, posed the risk that the jury will not make its own credibility determination, which it is fully capable of doing, but will instead defer to the experts implicit conclusion that the victims reports of abuse are credible. See id. at 440-41 (reasoning that polygraph evidence could effectively take over the jurys traditional function of judging the credibility of witnesses). In our view, the risk of prejudice substantially outweighs the minimal probative value of the diagnosis. Id. at 140-41 (emphasis added). Thus, this court held that a medical diagnosis of sexual abuse, like polygraph evidence, must be excluded. Id. at 143. As Brown, Lyon, Hansen, and Southard illustrate, OEC 403 is a significant tool for ensuring that a class of minimally probative evidence does not overwhelm the jury. This court in Classen and Johanesen recognized that unreliable eyewitness identification evidence belongs in that same category (along with coerced confessions), namely, evidence that should be kept from the jury because of its low probative value and the risk that a jury will be unduly influenced by it. III. Scientific research shows that eyewitness identifications that are the product of suggestive procedures unduly influence a jury, despite the widely-accepted unreliability of the identifications. A. Memories are pieced together from the observation of the event, affected by influences while stored in the brain, and again altered by the conditions under which the memory is recalled.

Human memory is much less reliable than commonly believed. Most people think of their memory as a video recorder that captures experience in

25 real time and can be accurately replayed. Loftus, Eyewitness Testimony 2.2 at 10. In fact, psychologists categorize memory into three stages: (1) the acquisition stage, (2) the retention stage, and (3) the retrieval stage. Id. Memories are altered at each stage of the process based on a persons internal processes and outside influences. Id. But people experience memory as a seamless video and lack the ability to distinguish between an accurately recalled memory and a memory that has been subsequently altered or re-created. Neil Brewer, et al, The Confidence Accuracy Relationship in Eyewitness Identification, 8 J Experimental Psychol Applied 44, 44-45 (2002). B. Eyewitness identification evidence is even more unreliable than believed in 1979.

Consensus about the unreliability of an eyewitness identification that is the product of a suggestive procedure formed the basis for the United States Supreme Courts decisions that ultimately led to the Fourteenth Amendment Due Process rule of exclusion articulated in Manson. See Wade, 388 US at 228 (The vagaries of eyewitness identification are well-known[.]); Biggers, 409 US at 198 (It is the likelihood of misidentification which violates a defendants right to due process.). This court similarly acknowledged the scientific and legal consensus about the unreliability of eyewitness identifications: The extensive research and commentary by psychologists and jurists on the dangers of misidentification and ways to minimize them stretches back lat least half a century. Classen, 285 Or at 227.

26 Since Classen, voluminous studies have shown that the legal tests in Manson and Classen do not go far enough in ensuring that unreliable and unfairly prejudicial eyewitness identification evidence does not unduly influence a jury. Henderson, __ A3d at __ (WL at 16); see also, Gary Wells and Deah Quinlivan, Suggestive Eyewitness Identification Procedures: Why the U.S. Supreme Court Needs to Revisit Manson v. Braithwaite, 33 Law and Human Behavior 1 (2009), available at: http://www.psychology.iastate.edu/faculty/gwells/Wells_articles_pdf/Manson_ article_in_LHB_Wells.pdf (last viewed 9/8/11). A meta-analysis of studies of experiments on lineup identification accuracy revealed that identification statistics from across the studies were remarkably consistent: in both sets of studies, 24% of witnesses identified fillers.11 Henderson, __ A3d at __ (WL at 17) (citing Ralph Norman Haber & Lyn Haber, A Meta-Analysis of Research on Eyewitness Lineup Accuracy, Paper presented at the Annual Convention of he Psychonomics Society, Orlando, Florida 8-9 (Nov 16, 2011)). Other studies suggest a 33% filler identification rate. See Dan Simon, The Limited Diagnosticity of Criminal Trials, 64 Vand L Rev 143, 153 (2011) (citing various studies). Studies of data from real cases involving police investigations in Sacramento and London indicate that about 20% of eyewitnesses identified fillers. Henderson, __ A3d at __ (WL at 17) (citations to studies omitted).

Fillers are people other than the suspect who are brought in to fill out the lineup.

11

27 Many factors affect the accuracy and completeness of an eyewitness account. Id. For example, at the acquisition stage, event factors affect memory. The conditions during the event, its duration, whether violence was used, and witness factors, like stress or fear, the witnesss age, gender, and expectations all impact the acquisition of a memory. Id. at 11. The rate of misidentification also increases significantly if the eyewitness and the suspect are of different races. See Christian A. Meissner & John C. Brigham, Thirty Years of Investigating the Own-Race Bias in Memory for Faces: A MetaAnalytic Review, 7 Psychol, Pub Poly & L 3, 21-22 (2001) (surveying 39 research articles with nearly 5,000 participants and concluding that cross-race identifications much more likely to be erroneous than same-race identifications). At the retention stage, memory is affected by how long the memory has been stored and post-event information that contaminate the memory. Id. At the retrieval stage, memory is affected by system factors, like the procedure used by the police and the method of questioning, as well as a witnesss confidence level. Id. C. The use of a suggestive procedure renders an eyewitness identification significantly more unreliable.

Suggestive identification procedures corrupt a persons memory of an event. New Jersey v. Henderson, Report of Special Master (2010), 19-35, available at http://www.judiciary.state.nj.us/pressrel/2010/pr100621a.htm

28 (last accessed 9/8/11).

12

A police officer who knows who the suspect is in a

show-up, photo throwdown, or lineup, can give subtle unintentional cues that lead an eyewitness to identify the person the officer believes committed the crime. See Henderson, __ A3d at __ (summarizing research on system variables in eyewitness identification cases, including show-ups); see also, Richard A. Wise, Clifford S. Fishman, Martin A. Safer, How to Analyze the Accuracy of Eyewitness Testimony in a Criminal Case, 42 Conn L Rev 435, 457-63 (Dec 2009) (summarizing ways that suggestive procedures can corrupt an eyewitness memory of an event). In fact, the scientific community recognizes that the risk of corruption from a suggestive identification procedure is so great that one cannot discern whether an identification made using a suggestive procedure is, in fact, independent of the suggestive procedure itself: In short, once law enforcement has contaminated an eyewitnesss memory of the perpetrator of the crime by conducting a biased eyewitness interview or identification procedure, the error cannot be corrected by subsequently conducting fair procedures. Id. at 472 (citing Michael S. Wogalter et al, A National Survey of US Police on Preparation and Conduct of Identification Lineups, 10 Psychol Crime & L 69, 78 (2004)); see also Wisconsin v. Dubose, 285 Wis 2d 143, 164, 699 NW 2d

The New Jersey Supreme first considered argument in Henderson in 2009, and it remanded the case for a Special Master to hold a hearing on the scientific research on eyewitness identification evidence. New Jersey v. Henderson, __ A2d __ (NJ Feb 29, 2009) (2009 WL 510409). The Report of the Special Master formed the basis for the courts opinion in Henderson and contains a wealth of information on eyewitness identification evidence, including a survey of how other jurisdictions address the issue.

12

29 582 (2005) (reviewing studies and concluding that [b]ecause a witness can be influenced by the suggestive procedure itself, a court cannot know exactly how reliable the identification would have been without the suggestiveness); Margery Malkin Koosed, Reforming Eyewitness Identification Law and Practices to Protect the Innocent, 42 Creighton L Rev 595, 624-29 (2009) (summarizing social science and legal arguments for a per se exclusionary rule). D. Traditional methods of impeaching a witness do not cure the harm caused by admitting eyewitness identification that is the product of a suggestive procedure

Because witnesses cannot distinguish between an accurately and an inaccurately recalled memory, the people to whom the memory is communicated (the jury at trial) also cannot distinguish between the two. See John C. Brigham & Robert K. Bothwell, The Ability of Prospective Jurors To Estimate the Accuracy of Eyewitness Identifications, 7 L & Hum Behav 19, 2224 (1983) (finding that nearly 84 percent of mock jurors overestimated the accuracy rates of eyewitness identifications). To put it another way, if a witness believes a false memory, especially an inaccurate eyewitness identification, a jury will be unable to detect a false memory. See Simon, The Limited Diagnosticity of Criminal Trials at 153-54 (Studies find that simulated jurors are just as likely to believe accurate and inaccurate identifications.). Accordingly, cross-examination does not serve its intended function to expose

30 the unreliability of faulty eyewitness identification, just as cross-examination does not expose the unreliability of polygraph test results, admissions that are the product of truth serum, or coerced confessions. See State v. Clopten, 223 P3d 1103, 1110 (Utah 2009) (recognizing the ineffectiveness of crossexamination). E. Other jurisdictions have created exclusionary rules that reflect the widely accepted view that an identification that is the product of a suggestive procedure is minimally probative and too unfairly prejudicial and misleading to be admitted at trial.

Some state courts recognize the foundational cracks in eyewitness identification (exposed by the decades of the scientific research) and by the spate of DNA exonerations in cases involving faulty eyewitness identifications and, in response, have adopted a rule that all eyewitness identifications that are the product of suggestive procedures must be excluded from trial. For example, the New York Court of Appeals articulated a per se rule under its state constitutions due process clause to exclude eyewitness identifications that are the product of a suggestive identification procedure. New York v. Adams, 53 NY 2d 241, 251, 423 NE 2d 379, 383, 440 NY S 2d 902 (1981). The Supreme Judicial Court of Massachusetts also recognizes under its state constitutional due process clause a per se rule excluding evidence of an eyewitness identification that is the product of a suggestive procedure. Commonwealth v. Johnson, 420 Mass 458, 465, 650 NE 2d 1257 (1995). In rejecting the states argument that it should adopt the more flexible test from

31 Manson, the Massachusetts high court cited studies and cases detailing the unreliability of eyewitness identification and the undue influence eyewitness identification evidence exerts on jurors, even when the defendant explains the suggestive conditions that lead to the identification. Id. The court concluded that the test from Manson is unacceptable because it provides little or no protection from unnecessarily suggestive identification procedures, from mistaken identifications and, ultimately, from wrongful conviction. Id. at 466. The court also observed that there is little or no societal cost from the categorical rule because the exclusion of unreliable evidence furthers the truthfinding process. Id. at 467. Other states have adopted state constitutional rules that modify the Manson test without enacting a per se rule excluding identifications that are the product of suggestive procedures.13 See Dubose, 699 NW 2d at 593-94 (holding under the Wisconsin Constitutions Due Process Clause that evidence obtained from an out-of-court show-up is inherently suggestive and will not be admissible unless, based on the totality of the circumstances, the procedure was necessary. A show-up will not be necessary, however, unless the police lacked

Some states courts, like Utah and New Jersey, require trial courts to instruct jurors about the unreliability of eyewitness identification evidence. See, e.g., State v. Long, 721 P2d 483, 492 (Utah 1986) (announcing rule and providing examples of acceptable instructions); Henderson, Report of Special Master at 61 (surveying approaches taken by state and federal courts).

13

32 probable case to make an arrest or, as a result of other exigent circumstances could not have conducted a lineup or photo array.). Like New York and Massachusetts, this court should also require the per se exclusion of an eyewitness identification made using suggestive identification procedures. IV. An eyewitness identification made using a suggestive procedure should be excluded under OEC 403 and a subsequent identification should be admitted only if it is reliable enough that its probative value is not substantially outweighed by the danger of unfair prejudice. A court applying OEC 403 first determines the probative value of the contested evidence. Southard, 347 Or at 139. Assessing the probative value requires a court to determine the persuasive force of the evidence. Johanesen, 319 Or at 128. A suggestive identification procedure undermines the reliability of the identification and, similarly, the probative value of the identification. As explained above, decades of scientific research have established a scientific consensus that a suggestive identification procedure produces an unreliable identification. The suggestive procedure influences a persons identification of a suspect and drastically increases the odds that the person will identify the person who police have selected as the suspect. The suggestiveness of the procedure cannot be separated from eyewitnesss decision to identify a suspect.

14

33 Dubose, 285 Wis 2d at 164. Thus, evidence that an eyewitness identified a

defendant following a suggestive procedure has little legitimate probative value in advancing the prosecutions burden of establishing that the defendant committed the offense. Evidence is excluded under OEC 403 if the probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay or needless presentation of cumulative evidence. The limited probative value of an eyewitness identification that is the product of a suggestive procedure is substantially outweighed by the danger of unfair prejudice and misleads the jury, and it should be excluded from trial under OEC 403.

The due process test from Manson and the test from Classen utilize a sort of independent source rule to attempt to determine whether an identification that is the product of a suggestive procedure was otherwise reliable. Classen, 285 Or at 232. An independent source rule makes sense when the evidence at issue is tangible, like when analyzing whether drugs discovered as a result of an Article I, section 9, violation were also discovered in a legal manner independent of the constitutional violation. See State v. Hall, 339 Or 7, 25, 115 P3d 908 (2005) (describing independent source). But such a rule is unworkable and denies reality when used with testimonial evidence or evidence that comes from a persons memory. It is simply implausible to suggest, for example, that a coerced confession was obtained independent of the coercion. In the same way it is implausible to say that a persons recollection of a suspect as the person who committed the crime is independent of a suggestive identification procedure. It may be that the coerced confession or the unreliable identification becomes harmless because other evidence (like another confession or identification) establishes the same facts. But that is a different analysis.

14

34 The Conference Committee that drafted the Oregon Evidence Code explained that unfair prejudice means an undue tendency to suggest decisions on an improper basis, commonly although not always an emotional one. In deciding whether to exclude on grounds of unfair prejudice, the court should consider the probable effectiveness of a limiting instruction. It should also bear in mind the availability of other means of proof, and of other evidence under Rule 106. OEC 403 Commentary (1981). The admission of an eyewitness identification that is the product of a suggestive procedure causes a defendant unfair prejudice because the prosecution uses unreliable evidence that it manufactured to obtain a conviction. See Classen, 285 Or at 225 (explaining that the due process rule derives from a defendants right not to be convicted on unreliable evidence partly created by the prosecution itself); Johnson, 420 Mass at 470-71 (explaining that the rule excluding improper pretrial identifications bears directly on guilt or innocence. It is designed to reduce the risk that the wrong person will be convicted as a result of suggestive identification procedures employed by the police.). Eyewitness identification evidence that is the product of a suggestive procedure also misleads the jury. The scientific research establishes that jurors believe eyewitness identification testimony even in the face of uncontradicted evidence establishing that the eyewitness could not possibly have identified the person who committed the crime. See Loftus & Doyle, Eyewitness Testimony 1.2 at 2 (describing a study that found that 68 percent of mock jurors voted to

35 convict a defendant based on an eyewitness identification even when expert testimony established that the eyewitnesss vision was too poor to see the suspect during the event). When police use a suggestive identification procedure, the resulting identification is unreliable. Yet even when the defendant offers extensive expert testimony explaining the risks posed by suggestive identification procedures, studies like the one summarized above show that a jury is nonetheless likely to convict based on the eyewitness identification. Thus, the admission of an identification made pursuant to a suggestive procedure poses a significant danger of misleading the jury because it has a tendency to cause jurors to convict a defendant on an improper basis unreliable evidence. Cf. Southard, 347 Or at 141 (quoting Brown and identifying a substantial risk that the jury may be overly impressed or prejudiced by a perhaps misplaced aura of reliability or validity of the evidence). A jury focuses on unreliable eyewitness identification to the exclusion of other relevant and more probative evidence. See Johanesen, 319 Or at 139 (approving of the trial courts conclusion that suggestive eyewitness identification evidence misleads the jury). Jurors are likely to place undue weight on the eyewitness identification. Thus, like other types of inadmissible evidence under OEC 403, an identification that is the product of a suggestive procedure corrupts the truth-finding function of a jury trial because juries rely too heavily on a kind of evidence that has minimal probative value.

36 Here, the trial court and the Court of Appeals correctly concluded that the police used a suggestive procedure when the Safeway employees identified defendant and the shorter man as the men who robbed the Safeway store. Approximately five hours after the employees encounter with the perpetrators, officers arrested defendant and the shorter man and brought them to the eyewitnesses in a marked patrol car. The officers, without providing any disclaimers, asked the eyewitnesses whether the men in the car were the robbers. That type of show-up is undoubtedly suggestive, as the trial court and the Court of Appeals concluded. By their nature, show-ups are suggestive, although if performed within minutes after an encounter, they can be as reliable as line-ups. Henderson, __ A3d at __ (WL at 27). Show-ups increase the risk that witnesses will base identifications on similar distinctive clothing rather than on facial features. Id. at __ (WL at 28). Show-ups are generally the most unreliable of the identification procedures employed by law enforcement. Id. As explained above, a suggestive show-up results in an unreliable identification and one cannot say whether the identification was made independent of the suggestive procedure. The probative value of the showup identification evidence in this case was very low under OEC 403. The danger of unfair prejudice and misleading the jury was high, and those concerns substantially outweighed the evidences minimal probative value. Accordingly,

37 the trial court should have excluded the evidence of the out-of-court identification under OEC 403. An eyewitness identification made subsequent to an identification that is the product of a suggestive procedure may be admissible under OEC 403 depending on its probative value. The danger of unfair prejudice and misleading the jury remains high. A trial court should evaluate the probative value by determining whether the identification was reliable using factors similar to those identified in the Manson and Classen tests. See Johanesen, 319 Or at 138 (applying Classen factors when determining whether eyewitness identification evidence offered by the defendant was admissible under OEC 403). That is, a court should determine whether the non-suggestive procedures combined with the eyewitnesss opportunity observe the suspect during the offense make it likely that the identification is unconnected to the suggestive identification and thus the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice and misleading the jury. In many cases, defendant anticipates that subsequent identifications will be inadmissible. See Henderson, Report of Special Master at 42 (an in-court identification will simply repeat any error that infected a pretrial identification procedure). As explained above, once an eyewitness has identified a suspect pursuant to a suggestive identification procedure, the witnesss corrupted memory becomes part of the memory of the offense. But it is possible that a

38 non-suggestive procedure combined with persuasive evidence that the eyewitness accurately recalled the offenders identity will render the subsequent identification admissible under OEC 403. Here, however, the in-court identification by should have been

excluded under OEC 403. The state offered no evidence that it had mitigated the suggestive effects of the out-court-identification. The record contains little evidence to increase the probative value of the in-court identification by showing that it was independent of the suggestive procedure. Under those circumstances OEC 403 requires the exclusion of the in-court identification. Rather than admitting evidence of the suggestive show-up identification and the in-court identification, the court could have allowed the eyewitnesses description of the people who robbed the Safeway. The state could also have offered the officers testimony explaining that he arrested defendant because he matched the description provided by the eyewitnesses. Both of those events (the offense and the seizure) occurred prior to the suggestive identification procedure. Accordingly, they are the most reliable and probative evidence of the identity of the people who robbed the store. The jury could view defendant and decide for itself whether he matched the description of the man who robbed the store. Of course, if police use proper identification procedures, then the identification evidence is much more reliable and the probative value of the

39 evidence is likely not substantially outweighed by the danger of unfair prejudice and misleading the jury. V. Alternatively, this court should amend the common-law rule and require the per se exclusion of eyewitness identifications that are the product of suggestive procedures. If this court concludes that common-law rule from Classen survived the enactment of the Oregon Evidence Code under OEC 402 and 314 Or at

454-55, then it should change the common-law rule to require the exclusion of eyewitness identifications that are the product of suggestive procedures. For the reasons explained above in the argument based on OEC 403, widelyaccepted scientific research reveals that such evidence is unreliable as a class and is categorically overvalued by juries regardless of cross-examination or countervailing evidence. Accordingly, eyewitness identifications that are the product of suggestive procedures are unreliable and should be categorically inadmissible, like coerced confessions. Classen, 285 Or at 226. Subsequent identifications should be inadmissible unless the prosecution establishes that the identification was independent of the suggestive identification. In making that determination, a court should consider the totality of the circumstances, with a particular emphasis on factors shown in current scientific research to influence the accuracy of eyewitness identification. As explained in detail in the amici petitions for review filed by the Innocence Project and the professors, some of the Manson/Classen factors for

40 determining whether an identification is reliable are inconsistent with the factors shown to render identifications reliable in scientific studies. See also, Henderson, __ A3d at __ (WL at 20-34) (summarizing current scientific research and identifying factors that affect the reliability of an eyewitness identification). If this court rejects petitioners proposed per se rule of exclusion, then it should modify the Classen test to focus a trial court on the opportunity a witness had to view the suspect during the event and on descriptions provided before any suggestive procedures had been used. The totality of the circumstances should be considered, but the following factors have been shown through scientific research to affect the accuracy of an eyewitness identification: 1) passage of time, 2) witness stress, 3) exposure duration, 4) distance, 5) weapon focus, 6) cross-race bias, 7) suggestive identification procedures.15 Other factors, like the time of day, the weather, and the witnesss physical condition, also affect the reliability of the identification. See Loftus & Doyle, Eyewitness Testimony 2-8 at 25-46 (examining witness factors). Memory decays most quickly in the first few hours after an event and the rate of decay lessens over time. Kenneth A. Deffenbacher, et al, Forgetting the Once-Seen Face: Estimating the Strength of an Eyewitnesss Memory Representation, 14 J Experimental Psychol 139, 147-48 (2008). Thus, even a

This list of factors is drawn from the APAs amicus brief in Perry v. New Hampshire.

15

41 delay of a few hours between an offense and an eyewitness identification can undermine the reliability of the identification. Heightened stress also diminishes a witnesss ability to accurately recall an event. Kenneth A. Deffenbacher, et al, A Meta-Analytic Review of the Effects of High Stress of Eyewitness Memory, 28 Law & Hum Behav 687, 694 (2004). The duration of the observation period directly affects the reliability of a subsequent identification. Loftus & Doyle, Eyewitness Testimony 2-5 at 15-16. If violence is used during a crime, including brandishing a weapon, a witness is less likely to accurately details of the event, including a description of the perpetrator. Id. at 2-7 at 21-25. As explained above, cross-racial identifications are among the most unreliable. Here, the totality of the circumstances establishes that that the trial court should have excluded evidence of the show-up identification and the in-court identification. The show-up was undoubtedly suggestive. Thus, the out-ofcourt identification should have been excluded unless the state established that other aspects of the identification at the time it was made substantially exclude the risk that is resulted from the suggestive procedure. Classen, 285 Or at 221. The state cannot meet that burden on this record. During the observational period or acquisition stagei.e., during the actual offensea Safeway employee, observed the suspects in a

Safeway store stuffing bottles of beer into a backpack. 10/20/2008 Tr 5. The

42 record does not describe the conditions in the store or whether the observations were made from a considerable distanceOfficer Gomez was the only witness during the pre-trial hearing. When the suspects came close to the employees near the stores exit, they engaged in a physical struggle and the taller suspect tried to punch but missed, striking the assistant manager. That

physical struggle significantly diminished the likelihood that the Safeway employees accurately remembered the suspects facial characteristics. Further, the identification was cross-racial. The suspects were described as Indian, and the employees were not Native American. Officer Gomez testified during the pre-trial hearing that defendant and his co-defendant were the only Native Americans he had seen that day, which necessarily implies that the Safeway employees were not Native American. 10/20/2008 Tr 21. Although the employees described the perpetrators to police within minutes of the event, they generally described their physical size, race, and clothing. They provided no description of the suspects facial features, hair color, hair style, or whether they had facial hair. 10/20/2008 Tr 13-14. The circumstances surrounding the suggestive show-up do not establish the identification was made independently of the suggestive procedure. Five hours after the offense, police arrested defendant and a shorter suspect. The police drove them to the Safeway store, and the employees came outside. Defendant remained seated and handcuffed in the back of a patrol car. One

43 officer went inside the store and brought the two employees outside. That officer did not testify, and the state adduced no evidence of what the officer said to the employees. Gomez removed the co-defendant from the patrol car and left defendant in the car, in handcuffs, with the door open. There is no evidence that the police cautioned the employees that the men might not be the perpetrators or that they did not have to identify anyone. The employees immediately identified defendant and the other man as the robbers and expressed confidence in their identification. However, it is no surprise that they identified the men as the suspects or that they expressed confidence in their identification. As the review of the scientific studies above has shown, eyewitness are very likely to identify virtually anyone in the back of a patrol car as the person who committed the crime, particularly when then person appears to match the racial profile of the person who committed the offense. Moreover, the passage of five hoursa lapse the Court of Appeals relied on to support the reliability of the identificationactually significantly detracts from the show-ups reliability. The cross-racial nature of the identification further detracts from the reliability. Under the circumstances of this case, the state failed to establish the identification made pursuant to the suggestive procedure was independently reliable. The identification should have been excluded from trial under the Classen test.

44 The in-court identifications should also have been excluded. Like in Classen, the state offered no evidence during the pre-trial hearing that in-court identification was untainted by the identification made using the suggestive procedure. 285 Or at 236. For the reasons just explained above, the state cannot meet that burden on this record. For the same reasons, Fourteenth Amendment Due Process requires the exclusion of the suggestive show-up and the in-court identification under Manson. The police unnecessarily used a suggestive show-up to obtain the employees identifications of defendant. The state has not established that the out-of-court identifications were independent of the suggestive procedure. And on this record, the state cannot establish that in-court identification

was reliable despite f the suggestive identification. See Manson, 432 US at 110, 114 (explaining test). Accordingly, the trial court should have excluded the outof-court and in-court identifications under the Due Process Clause. VI. The errors were harmful. This court will reverse based on evidentiary error unless the error was harmless. Or Const, Art VII (Amended), 3; OEC 103(1). In State v. Davis, 336 Or 19, 32-35, 77 P3d 1111 (2003), this court discussed several factors to consider: (1) the relationship between the error and the jurys determination of its verdict, (2) how important the error was to a contested issue in the case, and

45 (3) whether the excluded (or erroneously admitted) evidence was of the same quality as other evidence in the case. Id. at 32-35. Here, the errors likely affected the jurys verdict. The identity of the robbers constituted the central contested issue during the jury trial. The state called two witnesses: defendants guilt came from and Officer Gomez. All the evidence of recitation of the offense, his

identification of defendant, and Gomezs testimony about seizing defendant and about and the other employees out-of-court eyewitness

identifications. See Tr 50-52 (prosecutors opening statement, summarizing anticipated evidence). Defendant testified and he also called Gomez, and his sole defense was that this was a case of mistaken identification. See Tr 52-53 (defendants opening statement). The prosecutor emphasized during closing argument that identified defendant as the man who tried to punch him after a brief struggle at the stores exit. Tr 149. The trial court permitted defendant to deliver his closing argument pro se, and he argued that the Safeway employees had misidentified him: What was stated was two individuals committed those crimes. But when they picked me off the street they said, Oh, theres a big Indian and a little Indian. But I didnt even match the description. The witness was so close, why couldnt helike whathow come he couldnt get the mustache or the black eye that I had when I got pictured and photoed at the county jail?

46 Why wasnt the black eye mentioned? Why wasnt my red bandana mentioned? Why wasnt my earearring mentioned? How come my cologne wasnt smelled because I was smell good, you know? He said he smelled alcohol. Look at me. Im a handsome man. I take care of myself. He didnt even state nothing like that. Tr 151. As explained above, eyewitness identification evidence is very persuasive to jurors. Accordingly, this court cannot say that there is little likelihood that the erroneous admission of the out-of-court or in-court identification affected the jurys verdict. If the trial court had excluded evidence of identifications that were the product of the show-up, then a reasonable juror could have concluded that that in-court

identificationmade nearly 11 months after the eventwas too unreliable to establish that defendant was the big Indian who committed the offenses. If the trial court had also excluded the in-court identification, the only evidence of defendants identity would have been the description the Safeway employees initially gave to the police, the officers description of defendant when he was apprehended, and the pictures of defendant taken during booking. Tr 55 (Gomez testifying about description employees provided); Tr 57-58 (Gomez describing seizing defendant and the smaller man later in the day); Tr 62 (booking photo of defendant received into evidence as defense exhibit 101); Tr 76 ( describing the robbers to Gomez and identifying defendant as testifying that, because of the physical

one of the robbers); Tr 85 (

47 confrontation, he did not notice the large suspects clothing and could not recall whether the large suspect had facial hair); Tr 84-86 ( observations made during the offense); Tr 94 ( describing describing show-up

identification and testifying that it is very easy to identify somebody when the person is in your face); Tr 101 ( testifying that he identified

defendant and the smaller man as the robbers after the show-up). A Due Process Clause violation requires reversal unless the error was harmless beyond a reasonable doubt. Delaware v. Van Arsdall, 475 US 673, 681, 106 S Ct 1431, 89 L Ed 2d 674 (1986). For the reasons explained above, the error was not harmless beyond a reasonable doubt, and defendants convictions should be reversed. CONCLUSION Defendant asks this court to reverse the decisions of the Court of Appeals and trial court and remand to the trial court for further proceedings. Respectfully submitted, PETER GARTLAN CHIEF DEFENDER OFFICE OF PUBLIC DEFENSE SERVICES ESigned ______________________________ RYAN T. O'CONNOR OSB #053353 SENIOR DEPUTY PUBLIC DEFENDER Ryan.OConnor@opds.state.or.us Attorneys for Petitioner on Review Stanley Dale James, Jr.

CERTIFICATE OF COMPLIANCE WITH ORAP 5.05(2)(d) Petition length I certify that (1) this petition complies with the word-count limitation in ORAP 9.05(3)(a) and (2) the word-count of this brief (as described in ORAP 5.05(2)(a)) is 10,673 words. Type size I certify that the size of the type in this brief is not smaller than 14 point for both the text of the brief and footnotes as required by ORAP 5.05(4)(f).

NOTICE OF FILING AND PROOF OF SERVICE I certify that I directed the original Petitioners Brief on the Merits to be filed with the Appellate Court Administrator, Appellate Courts Records Section, 1163 State Street, Salem, Oregon 97301, on September 9, 2011. I further certify that I directed the Petitioners Brief on the Merits to be served upon Mary H. Williams, attorney for Plaintiff-Respondent, on September 9, 2011, by having the document personally delivered to: Mary H. Williams #911241 Solicitor General 400 Justice Building 1162 Court Street NE Salem, OR 97301 Phone: (503) 378-4402 Attorney for Plaintiff-Respondent Respectfully submitted, PETER GARTLAN CHIEF DEFENDER OFFICE OF PUBLIC DEFENSE SERVICES ESigned ________________________________ RYAN T. O'CONNOR OSB #053353 SENIOR DEPUTY PUBLIC DEFENDER Ryan.OConnor@opds.state.or.us Attorneys for Petitioner on Review Stanley Dale James, Jr.
Office of Public Defense Services Appellate Division 1175 Court St. NE Salem, Oregon 97301-4030 Telephone: (503) 378-3349 Fax: (503) 378-2163