September 2, 2011 06:44 PM

IN THE SUPREME COURT OF THE STATE OF OREGON | STATE OF OREGON, | | Douglas County Circuit Respondent on Review, | Court No. 03CR1469FE | v. | CA A132640 | SAMUEL ADAM LAWSON, | SC S059234 | Defendant-Appellant. | ________________ BRIEF OF AMICI CURIAE COLLEGE AND UNIVERSITY PROFESSORS BRIAN H. BORNSTEIN, NEIL BREWER, JOHN C. BRIGHAM, BRIAN CUTLER, KENNETH A. DEFFENBACHER, JENNIFER E. DYSART, NANCY FRANKLIN, EDITH GREENE, VALERIE P. HANS, HARMON M. HOSCH, SAUL KASSIN, MARGARET BULL KOVERA, MICHAEL LEIPPE, ROD LINDSAY, ELIZABETH LOFTUS, STEVEN D. PENROD, KATHY PEZDEK, GRAHAM E. PIKE, J. DON READ, SIEGFRIED L. SPORER, NANCY STEBLAY, TIM VALENTINE, NEIL VIDMAR, GARY L. WELLS, DANIEL B. WRIGHT, and A. DANIEL YARMEY IN SUPPORT OF DEFENDANT SAMUEL ADAM LAWSON ________________ Brief on the Merits Supporting Defendant-Appellant ________________ Affirmed by written opinion: December 15, 2010 Before: Wollheim, PJ, Brewer, CJ (author of majority opinion), and Sercombe, J (dissenting) MARC SUSSMAN #77368 Marc Sussman, P.C. 1906 SW Madison Portland, Oregon 97205 Telephone: 503-221-0520 Email: sussmarc@qwest.net Attorney for Amici Curiae College and University Professors

MILBANK, TWEED, HADLEY & McCLOY LLP 1 Chase Manhattan Plaza New York, New York 10005 Telephone: 212-530-5088 Of Counsel to Attorney for Amici Curiae College and University Professors DANIEL J. CASEY #952277 Post Office Box 82818 Portland, Oregon 97282 (503) 774-3283 djcpdx@msn.com Attorney for Petitioner on Review JOHN KROGER #077207 Attorney General MARY H. WILLIAMS #911241 Solicitor General JANET A. KLAPSTEIN #782753 Senior Assistant Attorney General 1162 Court Street Northeast, Suite 400 Salem, Oregon 97301 (503) 378-4402 janet.klapstein@doj.state.or.us Attorneys for Respondent on Review

TABLE OF CONTENTS STATEMENT OF AMICI CURIAE .........................................................................1 SUMMARY OF ARGUMENT ................................................................................1 RELEVANT FACTS ................................................................................................7 ARGUMENT ..........................................................................................................10 I. SCIENTIFIC RESEARCH DEMONSTRATES THE UNRELIABILITY OF EYEWITNESS IDENTIFICATIONS....................10 A. ESTIMATOR VARIABLES AFFECTING THE RELIABILITY OF EYEWITNESS IDENTIFICATIONS ...............14 1. The Acquisition or Encoding Stage: The Experience of a Violent, Highly Stressful Event, in Dim Lighting, Lasting a Short Time Negatively Affects the Ability to Encode Information Completely and Accurately.......................................................16 a. Stress: High levels of stress have a negative effect on memory, reduce identification accuracy, and increase the risk of mistaken identification. .................................16 Lighting & Distance Conditions: Low illumination and further distances decrease witness recall and identification accuracy....................................................19 Exposure Duration: The less time that a witness views a face, the less reliable the identification. ............20 Disguise: Various types of common props, such as hats, glasses, changing hairstyle, or facial hair, increase the risk of a mistaken identification. ................22

b.

c. d.

2.

The Storage Stage: Memory decays with time. .......................23 a. Retention Interval: The more time that passes between an incident and an identification, the less reliable the identification. ...............................................23 Unconscious transference: A memory of one actor can be replaced with an image of a different person who is familiar to the witness. ........................................26
i

b.

3.

The Retrieval Stage:..................................................................27 a. Response Latency: Identification decisions made quickly are more likely to be accurate then identification decision made slowly. ..............................27

B.

SYSTEM VARIABLES AFFECTING THE RELIABILITY OF EYEWITNESS IDENTIFICATIONS ...............28 1. 2. 3. 4. 5. 6. Blind Administration: ...............................................................28 Pre-identification Instructions:..................................................30 Lineup Construction: ................................................................31 Suggestive Feedback:................................................................32 Multiple Viewings: ...................................................................37 Showups:...................................................................................38

II.

THE EXISTING LEGAL FRAMEWORK..................................................40 A. B. C. THE CLASSEN FRAMEWORK........................................................40 THE CONFOUND .........................................................................41 SYSTEM AND ESTIMATOR VARIABLES EMBEDDED IN THE CLASSEN FACTORS ..........................................................44 1. 2. 3. 4. 5. D. Opportunity to View: ................................................................44 Degree of Attention: .................................................................45 Timing and Completeness of the Description: .........................46 Confidence: ...............................................................................47 Passage of Time: .......................................................................48

THE CLASSEN FRAMEWORK AS APPLIED IGNORES MANY OF THE SYSTEM AND ESTIMATOR VARIABLES SCIENTIFICALLY PROVEN TO AFFECT RELIABILITY ...................................................................................49 1. Clothing Bias: ...........................................................................49
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2. 3. 4. E. III.

Showup......................................................................................50 Multiple Viewings (Mugshot Exposure, Mugshot Commitment, and Unconscious Transference):........................50 Suggestive Questioning ............................................................52

OTHER EVALUATOR/SYSTEM VARIABLES NOT RELEVANT HERE BUT OMITTED BY CLASSEN .......................53

TRADITIONAL TOOLS OF THE ADVERSARY SYSTEM CANNOT BE RELIED UPON TO OVERCOME THE PREJUDICIAL EFFECT OF INCORRECT EYEWITNESS IDENTIFICATIONS ....................................................................................53

CONCLUSION.......................................................................................................58

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APPENDIX TO BRIEF OF AMICI CURIAE COLLEGE AND UNIVERSITY PROFESSORS Table of Contents Appendix A: Summary Biographies of the Amici Appendix B: Scientific Articles App-2 App-23

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TABLE OF AUTHORITIES Page(s) CASES Manson v. Brathwaite, 432 U.S. 98 (1977).......................................................................................passim Neil v. Biggers, 409 U.S. 188 (1972)............................................................................................58 State v. Classen, 285 Or. 221, 590 P.2d 1198 (1979) .............................................................passim State v. Clopten, 223 P.3d 1103 (Utah 2009).................................................................................57 State v. Henderson, No. A-8-08, 2011 N.J. LEXIS 927 (N.J. Aug. 24, 2011) ............................passim State v. Lawson, 239 Or. App. 363, 244 P.3d 860 (Ct. App. 2010).............................47, 48, 50, 55 United States v. Libby, 461 F. Supp. 2d 3 (D.D.C. 2006)..................................................................55, 56 United States v. Wade, 388 U.S. 218 (1967)..................................................................................6, 51, 57 OTHER AUTHORITIES A. Daniel Yarmey et al., Accuracy of Eyewitness Identifications in Showups and Lineups, 20 Law & Hum. Behav. 459, 464 (1996) ......................40 A. Daniel Yarmey, Retrospective Duration Estimations for Variant and Invariant Events in Field Situations, 14 Applied Cognitive Psychol. 45 (2000).............................................................................................................23 A. Daniel Yarmey, Verbal, Visual, and Voice Identification of a Rape Suspect Under Different Levels of Illumination, 71 J. Applied Psychol. 363 (1986)...........................................................................................................20 Amina Memon et al., Exposure Duration: Effects on Eyewitness Accuracy and Confidence, 94 Brit. J. Psychol. 339, 345 tbl. 1 (2003) ..............21

Amy Bradfield Douglass & Dawn McQuiston-Surrett, Post-Identification Feedback: Exploring the Effects of Sequential Photospreads and Eyewitnesses' Awareness of the Identification Task, 20 Applied Cognitive Psychol. 991 (2006) ...........................................................................33 Amy Bradfield Douglass & Nancy Steblay, Memory Distortion in Eyewitnesses: A Meta-Analysis of the Post-Identification Feedback Effect, 20 Applied Cognitive Psychol. 859 (2006).......................................35, 36 Amy L. Bradfield et al., The Damaging Effect of Confirming Feedback on the Relation Between Eyewitness Certainty and Identification Accuracy, 87 J. Applied Psychol. 112 (2002) ....................................................33 Barry Scheck et al., Actual Innocence (2000) ...........................................................5 Brandon L. Garrett, Convicting The Innocent: Where Criminal Prosecutions Go Wrong 48 (2011) .......................................................................6 Brian Cutler & Margaret Bull Kovera, Evaluating Eyewitness Identification (2010) ...........................................................................................23 Brian H. Bornstein, Kenneth A. Deffenbacher, Steven Penrod, & E. Kiernan McGorty, Effects of Exposure Time and Cognitive Operations on Facial Identification Accuracy ...................................................21 Brian L. Cutler, A Sample of Witness, Crime, and Perpetrator Characteristics Affecting Eyewitness Identification Accuracy, 4 Cardozo Pub. L., Poly & Ethics J. 327, 336 (2006) ....................................26, 27 Brian L. Cutler et al., Juror Sensitivity to Eyewitness Identification Evidence..............................................................................................................48 Brian L. Cutler et al., Nonadversarial Methods for Improving Juror Sensitivity to Eyewitness Evidence .....................................................................58 Brian L. Cutler & Steven D. Penrod, Mistaken Identification: The Eyewitness, Psychology, and the Law 255-68 (1995) ........................................58 Brian L. Cutler, Steven D. Penrod, & Todd K. Martens, Improving the Reliability of Eyewitness Identification: Putting Context Into Context .............24 Carolyn Semmler et al., Effects of Postidentification Feedback on Eyewitness Identification and Nonidentification Confidence.............................34

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Carolyn Semmler & Neil Brewer, Assessing the Accuracy of Eyewitness Identification Evidence: The Role of Metacognitive Factors (July 2007) ...................................................................................................................15 Carolyn Semmler & Neil Brewer, Postidentification Feedback Effects on Face Recognition Confidence: Evidence for Metacognitive Influences.............34 Charles A. Morgan III et al., Accuracy of Eyewitness Memory for Persons Encountered During Exposure to Highly Intense Stress, 27 Int'l J.L. & Psychiatry 265 (2004) ................................................................18, 19 Christian A. Meissner et al., Person Descriptions as Eyewitness Evidence ...........20 Christian A. Meissner & John C. Brigham, Thirty Years of Investigating the Own-Race Bias in Memory for Faces: A Meta-Analytic Review ...................5 Colin G. Tredoux et al., Eyewitness Identification ..................................................16 Daniel B. Wright & Elin M. Skagerberg, Postidentification Feedback Affects Real Eyewitnesses ...................................................................................35 Daniel L. Schacter, The Seven Sins of Memory: How the Mind Forgets and Remembers 5 (2001) ....................................................................................38 David F. Ross et al., Unconscious Transference and Mistaken Identity: When a Witness Misidentifies a Familiar but Innocent Person .........................42 David F. Ross et al., When Accurate and Inaccurate Eyewitnesses Look the Same: A Limitation of the Pop-Out Effect and the 10- to 12Second Rule, 21 Applied Cognitive Psychol. 677 (2007) ..................................27 Dawn McQuiston-Surrett et al., Sequential vs. Simultaneous Lineups: A Review of Methods, Data, and Theory, 12 Psychol. Pub. Poly & L. 137, 163 (2006)...................................................................................................33 Edith Greene, Judges Instruction on Eyewitness Testimony, 18 J. Appl. Soc. Psychol. 252, 260 (1988) ............................................................................58 Edward Connors et al., Convicted by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence after trial (2009) ............................................................................................................5 Elin M. Skagerberg, Co-Witness Feedback in Line-ups, 21 Applied Cognitive Psychol. 489 (2007) ...........................................................................34

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Elizabeth F. Loftus et al., Eyewitness Testimony: Civil and Criminal 22, at 13 (4th ed. 2007) ...................................................................................13, 14 Elizabeth F. Loftus et al., Semantic Integration of Verbal Information into a Visual Memory, 4 J. Experimental Psychol.: Hum. Learning & Behav. 19 (1978).................................................................................................34 Elizabeth F. Loftus et al., Some Facts About Weapon Focus, 11 Law & Hum. Behav. 55 (1987).......................................................................................15 Elizabeth F. Loftus, et al., Time Went By So Slowly: Overestimation of Event Duration by Males and Females, 1 Applied Cog. Psychol. 3, 3 (1987)..................................................................................................................22 Elizabeth F. Loftus, Eyewitness Testimony (2d ed. 1996).......................................34 Elizabeth F. Loftus & Guido Zanni, Eyewitness Testimony: The Influence of the Wording of a Question, 5 Bull. Psychonomic Socy 86 (1975) ...............34 Elizabeth F. Loftus & John C. Palmer, Reconstruction of Automobile Destruction: An Example of the Interaction Between Language and Memory, 13 J. Verbal Learning & Verbal Behav. 585 (1974) ...........................34 Elizabeth F. Loftus, Leading Questions and the Eyewitness Report, 7 Cognitive Psychol. 560, 566 (1975) .............................................................34, 35 Gary L. Wells & Amy L. Bradfield, Distortions in Eyewitnesses' Recollections: Can the Postidentification-Feedback Effect Be Moderated? 10 Psychol. Sci. 138 (1999)............................................................34 Gary L. Wells & Amy L. Bradfield, Good, You Identified the Suspect: Feedback to Eyewitnesses Distorts their Reports of the Witnessing Experience, 83 Journal of Applied Psychology 360 (1998)...............................36 Gary L. Wells & Amy L. Bradfield, Measuring the Goodness of Lineups: Parameter Estimation, Question Effects, and Limits to the Mock Witness Paradigm, 13 Applied Cognitive Psychol. S27, S30 (1999)..................................................................................................................32 Gary L. Wells & Deah S. Quinlivan, Suggestive Eyewitness Identification Procedures and the Supreme Courts Reliability Test in Light of Eyewitness Science: 30 Years Later, 33 Law & Hum. Behavior, 1 (2009)....................................................................................................................5

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Gary L. Wells & Donna Murray, Eyewitness Confidence, in Eyewitness Testimony: Psychological Perspectives 155 (Gary L. Wells & Elizabeth F. Loftus eds., 1984) ...........................................................................37 Gary L. Wells & Elizabeth A. Olsen, Eyewitness Testimony, 54 Annual Rev. Psychol. 277, 280-90 (2003) ................................................................15, 27 Gary L. Wells et al., Accuracy, Confidence, and Juror Perceptions in Eyewitness Identifications, 64 J. Applied Psychol. 440 (1979) .........................48 Gary L. Wells, et al., Distorted Retrospective Eyewitness Reports as Functions of Feedback and Delay, 9 J. Experimental Psychol.: Applied 42, 100 (2003).......................................................................................23 Gary L. Wells et al., Eyewitness Evidence: Improving Its Probative Value, 7 Psychol. Sci. Pub. Int. 45, 51-68 (2006) ..............................................15 Gary L. Wells et al., From the Lab to the Police Station: A Successful Application of Eyewitness Research, 55 Am. Psychologist 581, 582 (2000)..................................................................................................................54 Gary L. Wells et al., Recommendations for Properly Conducted Lineup Identification Tasks, in Adult Eyewitness Testimony: Current Trends and Developments 22324 (David F. Ross et al. eds., 1994)...............................5 Gary L. Wells et al., The Selection of Distracters for Eyewitness Lineups, 78 J. Applied Psychol. 835, 842 (1993)..............................................................33 Gary L. Wells, Eyewitness Identification: Systemic Reforms, 2006 Wis. L. Rev. 615, 622-23 (2006).................................................................................14 Gary L. Wells & Lisa E. Hasel, Facial Composite Production by Eyewitnesses, 16 Current Directions Psychol. Sci. 6, 6-7 (2007) ......................28 Gary L. Wells, What Do We Know About Eyewitness Identification?, 48 Am. Psychologist 553 (1993) .............................................................................32 Geoffrey R. Loftus & Erin M. Harley, Why Is It Easier To Identify Someone Close Than Far Away?, 12 Psychonomic Bull. & Rev. 43, 63 (2005).............................................................................................................20 Geoffrey R. Loftus, Picture Perception: Effects of Luminance on Available Information and Information-Extraction Rate, 114 J. Experimental Psychol.: General 324, 354 (1985)...............................................20
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Gertrud Sofie Hafstad et al., Post-identification Feedback, Confidence and Recollections of Witnessing Conditions in Child Witnesses, 18 Applied Cognitive Psychol. 901 (2004) .............................................................34 Glanville Williams, The Proof of Guilt (1963)........................................................27 Gunter Koehnken et al., Forensic Applications of Line-Up Research, in Psychological Issues in Eyewitness Identification 205 (Siegfried L. Sporer et al. eds., 1996) ......................................................................................39 H. Richard Schiffman, & Douglas J. Bobko, Effects of Stimulus Complexity on the Perception of Brief Temporal Intervals, 103 J. Experimental Psychol. 156 (1974) .....................................................................22 Hugo Munsterberg, On the Witness Stand (Mark Hatala ed., 2009) .......................22 Innocence Project, Reevaluating Lineups: Why Witnesses Make Mistakes And How To Reduce the Chance of a Misidentification 3 (2009)........................5 Irwin G. Sarason, & Rich Stoops, Test Anxiety and the Passage of Time, 46 J. Consulting & Clinical Psych. 102 (1978) ..................................................22 J. Don Read, et al., Changing Photos of Faces: Effects of Exposure Duration and Photo Similarity on Recognition and the AccuracyConfidence Relationship, 16 J. Experimental Psychol.: Learning Memory & Cognition 870 (1990).......................................................................23 J. Don Read, et al., The Unconscious Transference Effect: Are Innocent Bystanders Ever Misidentified?, 4 Applied Cognitive. Psychol. 3 (1990)..................................................................................................................27 James C. Bartlett & Amina Memon, Eyewitness Memory in Young and Older Adults, in 2 The Handbook of Eyewitness Psychology: Memory for People 309, 332 (R.C.L. Lindsay et al. eds., 2007) ......................................16 James D. Sauer et al., Multiple Confidence Estimates as Indices of Eyewitness Memory, 137 J. Experimental Psychol.: General 528 (2008)..................................................................................................................28 Jeffrey S. Neuschatz et al., The Effects of Post-Identification Feedback and Age on Retrospective Eyewitness Memory, 19 Applied Cognitive Psychol. 435, 449 (2005) ....................................................................................37

Jeffrey S. Neuschatz et al., The Mitigating Effects of Suspicion on PostIdentification Feedback and on Retrospective Eyewitness Memory, 31 Law & Hum. Behav. 231 (2007) ........................................................................34 Jennifer E. Dysart et al., The Intoxicated Witness: Effects of Alcohol on Identification Accuracy From Showups, 87 J. Applied Psychol. 170 (2002)..................................................................................................................16 Jennifer E. Dysart et al., Show-ups: The Critical Issue of Clothing Bias, 20 Applied Cognitive Psychol. 1009, 1019 (2006) ............................................40 Jennifer N. Sigler & James V. Couch, Eyewitness Testimony and the Jury Verdict, 4 N. Am. J. Psychol. 143, 146 (2002)...................................................57 Joanna D. Pozzulo & R.C.L. Lindsay, Identification Accuracy of Children Versus Adults: A Meta-Analysis, 22 Law & Hum. Behav. 549 (1998)...........................................................................................................16 John C. Brigham & Robert K. Bothwell, The Ability of Prospective Jurors To Estimate the Accuracy of Eyewitness Identifications, 7 Law & Hum. Behav. 19, 22-24 (1983) .......................................................................56 John C. Yuille & Patricia A. Tollestrup, Some Effects of Alcohol on Eyewitness Memory, 75 J. Applied Psychol. 268 (1990) ...................................16 John S. Shaw, III & Kimberley A. McClure, Repeated Postevent Questioning Can Lead to Elevated Levels of Eyewitness Confidence, 20 Law & Hum. Behav. 629 (1996) ...................................................................38 K.E. Patterson, & A.D. Baddeley, When Face Recognition Fails, 3 J. Experimental Psychol.: Hum. Learning & Memory 406 (1977)........................23 Kathy Pezdek, Content, Form, and Ethical Issues Concerning Psychological Expert Testimony on Eyewitness Identification, in Expert Testimony on the Psychology of Eyewitness Identification 29, 37 (Cutler ed., 2009) ...........................................................................................42 Kenneth A. Deffenbacher et al., A Meta-Analytic Review of the Effects of High Stress on Eyewitness Memory, 28 Law & Hum. Behav. 687 (2004)..................................................................................................................17 Kenneth A. Deffenbacher et al., Forgetting the Once-Seen Face: Estimating the Strength of an Eyewitnesss Memory Representation, 14 J. Experimental Psychol.: Applied 139, 142 (2008)......................................25
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Kenneth A. Deffenbacher et al., Mugshot Exposure Effects: Retroactive Interference, Mugshot Commitment, Source Confusion, and Unconscious Transference, 30 Law & Hum. Behav. 287, 289, 306 (2006)..................................................................................................................26 Kerri L. Pickel, Remembering and Identifying Menacing Perpetrators: Exposure to Violence and the Weapon Focus Effect, in 2 The Handbook of Eyewitness Psychology: Memory for People 339, 339-60 (R.C.L. Lindsay et al. eds., 2007).......................................................................47 Kirin F. Hilliar et al., Now Everyone Looks the Same: Alcohol Intoxication Reduces the Own-Race Bias in Face Recognition, 34 Law & Hum. Behav. 367 (2010).................................................................................16 Margaret Bull Kovera et al., Identification of Computer-Generated Facial Composites, 82 J. Applied Psychol. 235 (1997) .....................................29 Melissa A. Pigott et al, A Field Study on the Relationship Between Quality of Eyewitnesses Descriptions and Identification Accuracy, 17 J. Police Sci. & Admin. 84 (1990)................................................................25, 26 Michael R. Leippe et al., Cueing Confidence in Eyewitness Identifications: Influence of Biased Lineup Instructions and PreIdentification Memory Feedback Under Varying Lineup Condition, 33 Law & Hum. Behav. 194 (2009) ........................................................................48 Nancy Mehrkens Steblay, A Meta-Analytic Review of the Weapon Focus Effect, 16 Law & Hum. Behav. 413 (1992)........................................................15 Nancy Mehrkens Steblay, Social Influence in Eyewitness Recall: A MetaAnalytic Review of Lineup Instruction Effects, 21 Law & Human Behav. 283 (1997)...............................................................................................31 Nancy Steblay et al., Eyewitness Accuracy Rates in Police Showup and Lineup Presentations: A Meta-Analytic Comparison, 27 Law & Hum. Behav. 523, 523 (2003).......................................................................................40 Nancy Steblay et al., Eyewitness Accuracy Rates in Sequential and Simultaneous Lineup Presentations: A Meta-Analytic Comparison, 25 Law & Hum. Behav. 459 (2001) ........................................................................33 Neil Brewer & Gary L.Wells, The Confidence-Accuracy Relationship in Eyewitness Identification: Effects of Lineup Instructions, Foil Similarity, and Target-Absent Base Rates, 12 Journal of Experimental Psychol.: Applied 11 (2006) ...............................................................................28
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Peter Shapiro & Steven Penrod, Meta Analysis of Facial Identification Studies, 100 Psychol. Bull. 140, 140 (1986).......................................................12 R.C.L. Lindsay et al., Can People Detect Eyewitness Identification Accuracy Within and Across Situations?, 66 J. Applied Psychol 79 (1981)..................................................................................................................48 R.C.L. Lindsay et al., Default Values in Eyewitness Descriptions, 18 Law & Hum. Behav. 527, 528 (1994) ........................................................................33 R.C.L. Lindsay et al., How Variations in Distance Affect Eyewitness Reports and Identification Accuracy, 32 Law & Hum. Behav. 526 (2008)..................................................................................................................20 Richard A. Wise & Martin A. Safer, A Survey of Judges Knowledge and Beliefs About Eyewitness Testimony, Court Review 6, 12 (2003) ...............56, 57 Richard Gonzalez et al., Response Biases in Lineups and Showups, 64 J. Personality & Soc. Psychol. 525 (1993).............................................................41 Robert Buckhout, Eyewitness Testimony, 15 Jurimetrics J. 171 (1975), (reprinted from 231 Sci. Am. 23 (1974) .............................................................44 Robert K. Bothwell et al., Cross-Racial Identification, 15 Personality & Soc. Psychol. Bull. 19 (1989) .............................................................................15 Robert K. Bothwell, Kenneth A. Deffenbacher & John C. Brigham, Correlation of Eyewitness Accuracy and Confidence: Optimality Hypothesis Revisted, 72 Journal of Applied Psychol. 691 (1987) .....................37 Robert Rosenthal & Donald B. Rubin, Interpersonal Expectancy Effects: The First 345 Studies, 3 Behav. & Brain Sci. 377, 377 (1978)..........................30 Roy S. Malpass et al., Lineup Construction and Lineup Fairness, in 2 The Handbook of Eyewitness Psychology: Memory for People 55, 155-56 (R.C.L. Lindsay et al. eds., 2007).......................................................................32
Roy S. Malpass et al., The Need for Expert Psychological Testimony on Eyewitness Identification, in Expert Testimony on the Psychology of Eyewitness Identification 3, 14 (Brian L. Cutler ed., 2009) ...............................................................................11,

12

Roy S. Malpass et al., Public Policy and Sequential Lineups, 14 Legal & Criminological Psychol. 1, 5-6 (2009) ...............................................................33 Roy S. Malpass & Jerome Kravitz, Recognition for Faces of Own and Other Race, 13 J. Personality & Soc. Psychol. 330 (1969)................................16
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Roy S. Malpass & Patricia G. Devine, Eyewitness Identification: Lineup Instructions and the Absence of the Offender, 66 J. Applied Psychol. 482, 485 (1981)...................................................................................................31 Ryann M. Haw & Ronald P. Fisher, Effects of Administrator-Witness Contact on Eyewitness Identification Accuracy, 89 J. Applied Psychol. 1106, 1107 (2004) ................................................................................30 Samuel R. Gross et al., Exonerations in the United States 1989 through 2003, 95 J. of Crim. L. & Criminology 523, 530-31 (2005) ................................6 Sarah M. Greathouse & Margaret Bull Kovera, Instruction Bias and Lineup Presentation Moderate the Effects of Administrator Knowledge on Eyewitness Identification, 33 Law & Hum. Behav. 70, 71 (2009).............................................................................................................29 Siegfried L. Sporer, et al., Choosing Confidence, and Accuracy: A MetaAnalysis of the Confidence-Accuracy Relation in Eyewitness Identification Studies, 118 Psychological Bulletin 315 (1995) ..........................37 Stephen Darling et al., Selection of Lineup Foils in Operational Contexts, 22 Applied Cognitive Psychol. 159, 165-67 (2008)...........................33 Steven E. Clark & Jennifer L. Tunnicliff, Selecting Lineup Foils in Eyewitness Identification Experiments: Experimental Control and Real-World Simulation, 25 Law & Hum. Behav. 199, 212 (2001) ....................33 Steven E. Clark, A Re-examination of the Effects of Biased Lineup Instructions in Eyewitness Identification, 29 Law & Human Behav. 395 (2005)...........................................................................................................31 Steven E. Clark et al., Lineup Administrator Influences on Eyewitness Identification Decisions, 15 J. Experimental Psychol.: Applied 63, 6673 (2009).............................................................................................................30 Steven M. Smith et al., Postdictors of Eyewitness Errors: Can False Identifications Be Diagnosed? 85 J. Applied Psychol. 542 (2000)....................34 Steven Penrod & Brian Bornstein, Generalizing Eyewitness Reliability Research, in 2 The Handbook of Eyewitness Psychology: Memory for People 529, 535 (R.C.L. Lindsay et al. eds., 2007)......................................13, 20 Susan Dixon & Amina Memon, The Effect of Post-Identification Feedback on the Recall of Crime and Perpetrator Details, 19 Applied Cognitive Psychol. 935 (2005) ...........................................................................34
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Tara Anthony et al., Cross-Racial Facial Identification: A Social Cognitive Integration, 18 Personality & Soc. Psychol. Bull. 296 (1992)..................................................................................................................15 Thomas E. O'Rourke et al., The External Validity of Eyewitness Identification Research: Generalizing Across Subject Populations, 13 Law & Human Behav. 385 (1989) .....................................................................16

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1 BRIEF OF AMICI CURIAE COLLEGE AND UNIVERSITY PROFESSORS IN SUPPORT OF DEFENDANT SAMUEL ADAM LAWSON STATEMENT OF AMICI CURIAE Amici curiae (Amici) are college and university professors who have conducted research on eyewitness identification or who otherwise have relevant experience with the problems of eyewitness identification. Short biographies of the Amici appear at the end of this brief. The interest of these Amici is to provide the Court with relevant scientific research concerning the facts at issue in this case and these eyewitness identification related issues on which review was granted:

(1) Did the Court of Appeals err in concluding that the state had met its
burden, under State v. Classen, 285 Or. 221 (1979), of proving that an eyewitness identification obtained through concededly suggestive procedures was nonetheless independently reliable? (2) Was the Court of Appeals correct in suggesting that any error in admitting eyewitness testimony in suggestive-identification cases can be cured at trial by cross-examination, expert testimony, closing arguments, and jury instructions? (3) Does the state's failure to disclose to the defense that the victim had been shown a single photograph of defendant before trial, and brought to a pretrial hearing to see him, violate the defendant's state and federal constitutional right to compulsory process, and his federal due process right to the production of exculpatory evidence? SUMMARY OF ARGUMENT Over 30 years ago, this Court acknowledged in State v. Classen, 285 Or. 221, 227, 590 P.2d 1198, 1200 (1979), the widely recognized risk that [eyewitness] identification may often be unreliable at best and at worst may be

2 the psychological product of the identification procedure itself. The Court noted the value of scientific research, pointing to extensive research and commentary by psychologists and jurists on the dangers of misidentification and [that] ways to minimize them stretches back at least half a century. Id. In fact, the science of eyewitness identification was then in its infancy, and has experienced explosive growth in the past 30 years. Topics that were largely guesswork then have been elucidated by rigorous, peer-reviewed research that is now widely accepted and has been hailed as the gold standard of scientific research. State v. Henderson, No. A8-08, 2011 N.J. LEXIS 927, at *128 (N.J. Aug. 24, 2011) (Experimental methods and findings have been tested and retested, subjected to scientific scrutiny through peer-reviewed journals, evaluated through the lens of metaanalyses, and replicated at times in real-world settings. . . . [C]onsensus exists among the experts who testified on remand and within the broader research community.) This research has explored and can provide guidance on the mental processes of forming, storing and retrieving memories, as well as the extent to which memories can be distorted by time and external influences. In line with the state of research at the time and precedent from the U.S. Supreme Court, Manson v. Brathwaite, 432 U.S. 98 (1977), the Classen Court set forth a two-part test designed to evaluate, first, whether the proffered eyewitness identification was the product of a suggestive identification, and

3 second, whether that identification was nevertheless reliable such that it should be admitted in evidence. The Court set forth a non-exhaustive list of factors for courts to consider under the second prong, and directed that each factor be separately weighed and balanced (hereinafter, reliability factors). As the scientific research focused on perception, memory, cognition and recall of the last 30 years makes clear, the Manson-Classen test is an ineffective tool to assess whether an identification is reliable. This research shows the reasons that identifications can be inaccurate even in the absence of an unnecessarily suggestive lineup or photo array. As an initial matter, certain reliability factors identified by the Classen Court can be corrupted or distorted by suggestive identification procedures. In other words, suggestive procedures not only taint an identification generally, but can also taint the witnesss memory and cognition with respect to certain reliability factors. So, for example, four Classen reliability factors an eyewitnesss opportunity to observe, the degree of attention paid, the certainty of the identification, and the description of the wrongdoer are all self-reported factors that scientific research has demonstrated can be directly affected by suggestive identification procedures. Second, while the Classen Court demonstrated that the enumerated reliability factors are not exhaustive, courts applying the Manson two-pronged test have treated them as a fixed checklist, ignoring many other factors that

4 have been identified through scientific research as affecting the accuracy and reliability of an eyewitness identification. As the New Jersey Supreme Court recently observed in Henderson, the legal framework for assessing the reliability of an eyewitness identification must be sufficiently flexible and dynamic to allow courts to review[] evolving, substantial, and generally accepted scientific research [so long as that scientific research constitutes] reliable scientific evidence that is generally accepted by experts in the community. Henderson, at *144. Finally, a substantial body of scientific research demonstrates that factfinders (whether judges or juries) have difficulty assessing the reliability of eyewitness identifications, crediting some less relevant aspects (such as certainty), while ignoring more probative circumstances (such as the witnesss documented opportunity to observe the perpetrator). When fact finders are not educated about the scientific research concerning eyewitness identifications, whether through expert testimony, comprehensive jury instructions or both, see id. at *113 (noting that there is a need to promote greater juror understanding of the relevant scientific findings), there is the possibility of a conviction based on an unreliable identification. Indeed, eyewitness misidentification evidence may be the leading contributing factor to wrongful convictions and is four times more likely to

5 contribute to a wrongful conviction than a false confession. In a study of 250 cases in which defendants were exonerated after conviction, Professor Brandon L. Garrett stated that the role of mistaken eyewitness identifications in these wrongful convictions is now well known. Eyewitnesses misidentified 76% of the exonerees (190 of 250 cases).2 Moreover, the greater availability of access to DNA in rape cases, the higher rate of misidentification in robbery cases as compared to rape cases (a 2:1 ratio), and the large number of robberies committed each year suggest that: [T]he clearest and most important lesson from the recent spike in rape
1

In a Department of Justice report studying 28 felony convictions subsequently overturned on the basis of DNA evidence, 85% of the convictions resulted primarily from erroneous eyewitness identifications. 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, 2324 (2001). Similarly, a study of over 200 cases in which convicted defendants were exonerated by DNA evidence found that mistaken eyewitness identifications accounted in whole or in part for 75% of the wrongful convictions. Innocence Project, Reevaluating Lineups: Why Witnesses Make Mistakes And How To Reduce the Chance of a Misidentification 3 (2009). See generally Gary L. Wells & Deah S. Quinlivan, Suggestive Eyewitness Identification Procedures and the Supreme Courts Reliability Test in Light of Eyewitness Science: 30 Years Later, 33 Law & Hum. Behavior, 1 (2009); Edward Connors et al., Convicted by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence after trial (2009); Barry Scheck et al., Actual Innocence (2000). A study of over 1,000 wrongful convictions has clarified that recall errors by witnesses are the leading cause of wrongful convictions. See Gary L. Wells et al., Recommendations for Properly Conducted Lineup Identification Tasks, in Adult Eyewitness Testimony: Current Trends and Developments 22324 (David F. Ross et al. eds., 1994). Brandon L. Garrett, Convicting The Innocent: Where Criminal Prosecutions Go Wrong 48 (2011).
2

6 exonerations is that the false convictions that come to light are the tip of an iceberg. Beneath the surface there are other undetected miscarriages of justice in rape cases without testable DNA, and a much larger group of undetected false convictions in robberies and other serious crimes of violence for which DNA identification is useless.3 Science can assist courts in reducing the risk of wrongful conviction based on mistaken eyewitness identification in three ways. First, scientific research points to the need for reconsideration of the traditional MansonClassen framework and reliability factors. Second, scientific research can assist this Court in formulating a renovated legal architecture that reflects the state of the scientific research in this area. Third, scientific research supports the adoption of a revised procedure for Wade hearings, which would involve presentation by expert witnesses and examination of eyewitnesses and law enforcement agents who administered the eyewitness identification procedures. This research sheds light on the specific circumstances relevant in this appeal, strongly suggesting that the eyewitness in this case had no reliable basis for her in-court identification of the defendant, Samuel Lawson.

Samuel R. Gross et al., Exonerations in the United States 1989 through 2003, 95 J. of Crim. L. & Criminology 523, 530-31 (2005)

7 RELEVANT FACTS Amici adopts the facts as set forth in Petitioners brief and the Appeals Court decision, highlighting the facts relevant to our analysis. , the

eyewitness in this case, testified that on August 21, 2003, she was shot in the chest while inside a trailer by a person who was outside, and therefore not seen by her. After she was shot, Ms. husband left the trailer to try to call was shot it was after

911, whereupon he was also shot. At the time Ms. 10 PM, and the trailer was either dimly lit or unlit. Ms.

testified that she was afraid of being killed by the person who

had shot her, so that when she heard him approach the trailer, she turned her head away from the door so she would not see his face. According to her trial testimony, the man asked for the keys to the truck and Ms. asked

whether he was going to kill her. He asked her whether she had seen his face, and she said she had not. He then covered her face with a seat cushion. She testified that as he looked around the trailer for the keys she decided to try to see who had shot her and her husband and slowly turned her head. She testified, I saw him coming into the light and I saw his face. This trial testimony which offered a detailed description of her assailant, whom she would later identified as the defendant is inconsistent with numerous statements made by Ms. the hours after the incident, Ms. on the night of the shootings. In

repeatedly told emergency workers

8 including the 911 operator, first responders, and a physician that she did not know who shot her. She told an emergency room nurse repeatedly that she had not seen her assailants face, and that she had been allowed to live because of that. Ms. statements in the hours after the incident connected the

assailant to the defendant in terms of the vehicle that the assailant was driving (a yellow truck). According to an ambulance attendant (who also said she was rambling and hysterical), Ms. said the man who shot her was wearing a

black or dark shirt and cap and that she had seen him earlier in the day at the campground. Two days later, in response to leading questions by a police officer, Ms. agreed that the man she saw earlier that day was the person

who shot her and her husband. Ms. statements over the following days, reflected in police

reports, are also inconsistent with the detailed narrative she offered at the trial. She was asked whether a man had entered the trailer that night, and she indicated that he sort of came into the trailer, half in and half out. In November 2003, she told a police officer that after the shootings she saw a man walk by the trailer. In the months after the shootings, Ms. never provided a physical

description of the shooters face, only describing his clothing very generally and stating that he was young and slender. In October 2003, she told the police

9 she could not be sure that the man who asked for the keys was the same person man she saw earlier that day because she had seen his face only in profile that night. She expressed uncertainty that she could testify in court that it was the same man. That day, she declined to take part in a profile line-up procedure. Two years and three months after the shooting, Ms. made an in-

court identification of the Defendant as the person who came into her trailer that night. She said there was no doubt in her mind that he was the man who shot her and her husband and emphasized, Ill never forget his face as long as I live. This confident in-court identification followed multiple viewings of photographs of the defendant. First, on August 23, 2003, two days after the shootings, Ms. was shown a photo array containing an image of the

Defendant but did not identify him as the perpetrator. Second, on September 22, 2003, one month later, she was shown a second photo array containing an image of the defendant and again did not identify him. Third, while she was in rehabilitation, she saw a newspaper article with a photograph of the Defendant identifying him as the person arrested for the crimes. Fourth, sometime in September 2005, one of the detectives brought Ms. to the courthouse for a

pretrial hearing, so she could see Defendant in person. While sitting in the back of the courtroom waiting for the proceedings to begin, the detective showed Ms. a single photograph of the Defendant wearing a baseball cap. When the

proceedings started, Ms.

10 saw Defendant in court. Finally, she happened

to see a picture of the defendant while she was preparing for her testimony in an evidence binder that the investigative officer was going through in front of her. The State of Oregon now concedes that these constitute suggestive identification procedures. The trial court nevertheless refused to strike from the record Ms. in-court identification of the Defendant on the basis that

there was an independent source for the identification: her own separate memory of the man who asked for the keys that night. Under Classen, the jury was charged with evaluating whether her in-court identification was reliable. The science, discussed below, suggests that it was not. ARGUMENT I. SCIENTIFIC RESEARCH DEMONSTRATES THE UNRELIABILITY OF EYEWITNESS IDENTIFICATIONS Since Classen, social scientists have conducted thousands of eyewitness identification experiments. As the New Jersey Supreme Court found in Henderson, these experiments show that memory is malleable, and that an array of variables can affect and dilute memory and lead to misidentifications. Henderson, at *15-16. As Henderson notes, during the 1970s there were only four published articles in psychology literature containing the words eyewitness and identity in their abstracts. Id. at *57. By contrast, more than 2,000 studies related to eyewitness identification have been published in the past 30 years. Id.

11 Authoritative researchers generally present the results of their experiments in peer-reviewed psychology journals. Id. at *58. Henderson observes, The peer review process is a method of quality control that ensures the validity and reliability of experimental research. Id. at *58 (quoting Roy S. Malpass et al., The Need for Expert Psychological Testimony on Eyewitness Identification, in Expert Testimony on the Psychology of Eyewitness Identification 3, 14 (Brian L. Cutler ed., 2009)). The process is designed to ensure that studies have passed a rigorous test and are generally considered worthy of consideration by the greater scientific community before they are published. Id. at *59 (quoting Malpass et al., supra, at 14). Of the hundreds of laboratory studies relied on by Henderson, many of which are described in this brief, nearly all have been published in prominent, peer-reviewed journals. Id. at *59. The scientific rigor of eyewitness identification research is established not only by its quantity, as demonstrated by hundreds of published studies, or its quality, as shown by its presence in reputable peer-reviewed psychology journals, but also by the consistency of its findings on particular variables, which are best captured by meta-analytic reviews within the academic literature. As Henderson explains, [a] meta-analysis is a synthesis of all obtainable data collected in a specified topical are. Id. (quoting Malpass et al., supra, at 15). Meta-analyses combine data sets from large numbers of

12 published studies performed by different researchers in different labs under different circumstances (and can also include the results of field studies), and convert them into a common metric know as the effect size.4 The benefits of a meta-analysis are that greater statistical power can be obtained by combining data from many studies. Id. (quoting Malpass et al., supra, at 15). By merging a number of data sets that address the same question, id. at *57-59, meta-analyses can ascertain the mean effect size, or meta-effect size, across a number of studies, serving as a more powerful estimate than the effect size demonstrated by a single study under a single set of assumptions and conditions. The more consistent the conclusions from aggregate data regarding the magnitude of impact of an independent variable, the greater confidence scientists have in those conclusions.5 Id. at *59. By systematically us[ing] prior research findings to generate a fairly precise estimate of the effect sizes detected in a body of research, [meta-analyses] . . . provide a succinct summary of the status of scientific research in a particular domain.6

Peter Shapiro & Steven Penrod, Meta Analysis of Facial Identification Studies, 100 Psychol. Bull. 140, 140 (1986).
5 6

See also id. (detailing the findings of several meta-analyses).

See Steven Penrod & Brian Bornstein, Generalizing Eyewitness Reliability Research, in 2 The Handbook of Eyewitness Psychology: Memory for People 529, 535 (R.C.L. Lindsay et al. eds., 2007) (detailing the findings of several meta-analyses).

13 Scientists analyzing the nature of memory have focused on its three discrete stages: (1) the acquisition or encoding stage, when a witness perceives an event and information is thereby entered into the memory system; (2) the retention or storage stage, the period between acquisition and the witnesss attempt to recall the information; and (3) the retrieval stage, when the witness attempts to recall the stored information.7 This three-stage analysis is central to the concept of human memory, and [p]sychologists who conduct research in this area try to identify and study the important factors that play a role in each of the three stages.8 Those psychologists, including a number of the Amici, have identified in particular numerous factors that may adversely affect an eyewitnesss memory at each stage. At the acquisition stage, memory is subject to both event-specific variables (such as duration of the event or presence of a weapon at the crime scene) and witness-specific variables (such as age or race).9 At the retention stage, additional factors such as the passage of time or post-event information may contaminate the witnesss memory.10
7

See Elizabeth F. Loftus et al., Eyewitness Testimony: Civil and Criminal 2-2, at 13 (4th ed. 2007).
8 9 10

Id. Id.

Id. Because memory is subject to many sources of contamination, researchers have recommended that it be regarded as similar to a fingerprint, hair sample, or other trace evidence from a crime scene. See, e.g., Gary L. Wells, Eyewitness Identification: Systemic Reforms, 2006 Wis. L. Rev. 615, 622-23 (2006).

14 Building on this body of research regarding the nature of memory generally, scientists have conducted a large number of empirical studiesmost using controlled experimental methodsthat document the adverse impact of various factors on the accuracy of eyewitness identification. As the New Jersey Supreme Court found in Henderson, [T]he science abundantly demonstrates the many vagaries of memory encoding, storage, and retrieval; the malleability of memory; the contaminating effects of extrinsic information; the influence of police interview techniques and identification procedures; and the many other factors that bear on the reliability of eyewitness identifications. Henderson, at *127-28. Due to the breadth and depth of this research, almost any overview of it is necessarily incomplete, and we therefore focus principally on the factors that most directly undermine the validity of the existing legal framework and those that arise directly in this case.11 A. ESTIMATOR VARIABLES AFFECTING THE RELIABILITY OF EYEWITNESS IDENTIFICATIONS

Researchers agree that the accuracy of eyewitness identifications is significantly affected by two types of factors: estimator variables, which relate to the eyewitnesss direct experience of the event, and system variables, which relate to the identification procedures following the event.

More extensive discussions appear in, for example, Gary L. Wells et al., Eyewitness Evidence: Improving Its Probative Value, 7 Psychol. Sci. Pub. Int. 45, 51-68 (2006); Gary L. Wells & Elizabeth A. Olsen, Eyewitness Testimony, 54 Annual Rev. Psychol. 277, 280-90 (2003).

11

15 The following discussion of the scientific research focuses on the factors that are involved in this case12:
12

Scientists have developed research on other important factors that reduce the accuracy of eyewitness identifications that are not present in this case. For example, the phenomenon of weapon focus effect occurs when the presence of a weapon interferes with an eyewitnesss ability to encode a perpetrators face by interrupting the eyewitnesss attention to the perpetrator. Elizabeth F. Loftus et al., Some Facts About Weapon Focus, 11 Law & Hum. Behav. 55 (1987). The weapon-focus effect may also inhibit the memory trace by affecting long-term memory formation. Nancy Mehrkens Steblay, A MetaAnalytic Review of the Weapon Focus Effect, 16 Law & Hum. Behav. 413 (1992). Similarly, there is reliable scientific research concerning cross-race bias, referring to the phenomenon where witnesses have more difficulty identifying persons of another race than their own race. Meissner & Brigham, supra note 1; Tara Anthony et al., Cross-Racial Facial Identification: A Social Cognitive Integration, 18 Personality & Soc. Psychol. Bull. 296 (1992); Robert K. Bothwell et al., Cross-Racial Identification, 15 Personality & Soc. Psychol. Bull. 19 (1989); Carolyn Semmler & Neil Brewer, Assessing the Accuracy of Eyewitness Identification Evidence: The Role of Metacognitive Factors (July 2007) (unpublished paper presented at the Third International Congress of Psychology and Law, Adelaide, Australia) (on file with the International Congress of Psychology and Law); Roy S. Malpass & Jerome Kravitz, Recognition for Faces of Own and Other Race, 13 J. Personality & Soc. Psychol. 330 (1969); Kirin F. Hilliar et al., Now Everyone Looks the Same: Alcohol Intoxication Reduces the Own-Race Bias in Face Recognition, 34 Law & Hum. Behav. 367 (2010). Other factors that affect the accuracy of identification are the consumption of large amounts of alcohol and the age of the witness. Joanna D. Pozzulo & R.C.L. Lindsay, Identification Accuracy of Children Versus Adults: A Meta-Analysis, 22 Law & Hum. Behav. 549 (1998); Jennifer E. Dysart et al., The Intoxicated Witness: Effects of Alcohol on Identification Accuracy From Showups, 87 J. Applied Psychol. 170 (2002); James C. Bartlett & Amina Memon, Eyewitness Memory in Young and Older Adults, in 2 The Handbook of Eyewitness Psychology: Memory for People 309, 332 (R.C.L. Lindsay et al. eds., 2007); John C. Yuille & Patricia A. Tollestrup, Some Effects of Alcohol on Eyewitness Memory, 75 J. Applied Psychol. 268 (1990). Identification accuracy decreases with advanced age; people over 60 years old are half as accurate as 18-19 year-olds. Thomas E. O'Rourke et al., The External Validity of Eyewitness Identification Research: Generalizing Across Subject Populations, 13 Law & Human Behav. 385 (1989).

16 1. The Acquisition or Encoding Stage: The Experience of a Violent, Highly Stressful Event, in Dim Lighting, Lasting a Short Time Negatively Affects the Ability to Encode Information Completely and Accurately. a. Stress: High levels of stress have a negative effect on memory, reduce identification accuracy, and increase the risk of mistaken identification. Research has demonstrated that there is a reliable relationship between a witnesss high level of stress and the accuracy of identifying a perpetrator.13 See Henderson, at *91 (Even under the best viewing conditions, high levels of stress can diminish an eyewitnesss ability to recall and make an accurate identification.). In 2004, three Amici, Dr. Kenneth Deffenbacher, Dr. Steven Penrod, and Dr. Brian H. Bornstein examined all of the studies on the relation of high stress to accuracy in identifications.14 This meta-analysis tried to make sense of research pointing in different directions, narrowing its focus to published studies that would meet the Daubert standard of reliability. They found evidence across all the included research showing that high stress reduced correct identification rates by one-third, from 59% to 39%, compared to identification rates involving low stress.15 They concluded, accordingly, that
13

Colin G. Tredoux et al., Eyewitness Identification, in Encyclopedia of Applied Psychology 875, 878 (Charles Spielberger ed., 2004). Kenneth A. Deffenbacher et al., A Meta-Analytic Review of the Effects of High Stress on Eyewitness Memory, 28 Law & Hum. Behav. 687 (2004).
15 14

Id.

17 there was considerable support for the hypothesis that high levels of stress can negatively impact accurate recall and correct identification rates,16 even though moderate levels of stress can improve cognitive processing. High levels of stress and fear experienced by witnesses ensure that they will not forget the event itself, but it does not follow that they will remember details better. See Henderson, at *91-93. A witnesss attention may be impaired or distracted if he or she focuses on the stress or fear accompanying an event, thus hindering the accuracy of subsequent identifications. Id. The same year as the meta-analysis, Dr. Charles A. Morgan III, an Associate Professor of Psychiatry at Yale University, published a study that sought to explain the different effect of low and high levels of stress.17 The Morgan research involved Army recruits who were subjected to mock prisonerof-war-camp interrogations as part of their survival school training.18 The intention of the study was to assess the accuracy of eyewitness identifications in situations of actual threat or alarm, as compared with most laboratory studies, which involved simulations of crime events (e.g., by videotape) and levels of threat that were difficult to measure. By comparison, at the military survival

16 17

Id.

Charles A. Morgan III et al., Accuracy of Eyewitness Memory for Persons Encountered During Exposure to Highly Intense Stress, 27 Int'l J.L. & Psychiatry 265 (2004).
18

Id. at 265-79.

18 school, extreme stress could be observed and measured in neurobiological processes. In a series of psychobiological investigations, Dr. Morgans team assessed the performance of 509 U.S. Army recruits who were subjected to both high-stress interrogation techniques (involving the threat of physical violence) and low stress (involving tricks designed to elicit secret information). Where physical violence was threatened, the subjects experienced elevated stress hormones, decreased gonadal steroids and other peritraumatic symptoms. One day after their release from the prison-of-war camp, the recruits were asked to identify their interrogators by various means, including lineups and photo arrays, conducted sequentially and simultaneously. Across the board, the subjects were much worse at identifying the interrogators who had threatened them with physical violence, than identifying those who had only tried to trick them. For example, using the live lineup method, only 30% of the recruits correctly identified interrogators who had threatened them with violence, while 60% identified their low-stress interrogators. Just as telling, 56% of the high-stress subjects made a false identification, while only 38% of the low-stress subjects made a false identification.19 Dr. Morgan observed that an increased level of stress hormones such as glucocorticoid and catecholamine can disrupt the encoding of eyewitness information.

19

Id.

19 While these and other studies that indicate that high levels of stress decrease accuracy, there are no competing studies showing that high levels of stress increase reliability. Henderson, at *91-93. b. Lighting & Distance Conditions: Low illumination and further distances decrease witness recall and identification accuracy. Research has found, not surprisingly, that low levels of illumination significantly reduce the ability of witnesses to accurately observe and identify perpetrators.20 One study found that identification accuracy for witnesses who had viewed the perpetrator at the end of twilight was no greater than chance.21 The same study found that recall of details regarding the perpetrator and victim were worse when the observations were made at the end of twilight or at night than during daylight or at the beginning of twilight.22 Another study found that the total amount of extractable information was effectively reduced when luminance was sufficiently low.23

20

See, e.g., A. Daniel Yarmey, Verbal, Visual, and Voice Identification of a Rape Suspect Under Different Levels of Illumination, 71 J. Applied Psychol. 363 (1986). Id. at 366. Id. at 368.

21 22 23

Geoffrey R. Loftus, Picture Perception: Effects of Luminance on Available Information and Information-Extraction Rate, 114 J. Experimental Psychol.: General 324, 354 (1985).

20 Likewise, scientific research provides specifics about the relationship between distance and the ability to identify faces. For people with normal vision, the ability to identify faces begins to diminish at approximately 25 feet, and is nearly impossible at approximately 150 feet.24 c. Exposure Duration: The less time that a witness views a face, the less reliable the identification. Research has demonstrated that there is reliable relationship between the length of time that a witness observes someone and the accuracy of a subsequent identification: limiting exposure time generally reduces accuracy.25 As Henderson found, [n]ot surprisingly, the amount of time an eyewitness has to observe an event may affect the reliability of an identification. Henderson, at *95. Thus a brief or fleeting contact is less likely to produce an accurate

See Geoffrey R. Loftus & Erin M. Harley, Why Is It Easier To Identify Someone Close Than Far Away?, 12 Psychonomic Bull. & Rev. 43, 63 (2005); see also Christian A. Meissner et al., Person Descriptions as Eyewitness Evidence, in 2 The Handbook of Eyewitness Psychology: Memory for People 3 (R.C.L. Lindsay et al. eds., 2007); R.C.L. Lindsay et al., How Variations in Distance Affect Eyewitness Reports and Identification Accuracy, 32 Law & Hum. Behav. 526 (2008). See Brian H. Bornstein, Kenneth A. Deffenbacher, Steven Penrod, & E. Kiernan McGorty, Effects of Exposure Time and Cognitive Operations on Facial Identification Accuracy, Psychol., Crime and L. (forthcoming 2011); Shapiro & Penrod, supra note 4, at 140, 150 (conducting a meta-analysis of 128 existing studies involving nearly 17,000 subjects, and finding a linear trend in the relationship between exposure duration and identification accuracy); Tredoux et al., supra note 13, at 877; Amina Memon et al., Exposure Duration: Effects on Eyewitness Accuracy and Confidence, 94 Brit. J. Psychol. 339, 345 tbl. 1 (2003).
25

24

21 identification than a more prolonged exposure. Id. One study found an accuracy rate of 85% to 95% when subjects were exposed for 45 seconds to the image of the perpetrator during a videotaped reconstruction of robbery, and a subsequent photo array contained the perpetrator. But that rate fell to between 29% and 35% when the exposure lasted only twelve seconds. It has long been recognized, however, that the temporal length of events is generally overestimated by witnesses. 26 As Henderson noted, witnesses consistently tend to overestimate short durations of time, particularly where much was going on or the event was particularly stressful. Henderson, at *96 (citing Loftus, et al., supra note 26, at 10). In a now-classic study, Dr. Elizabeth Loftus conducted experiments showing witnesses a simulated bank robbery that lasted only 30 seconds.27 The witnesses estimated that the event lasted on average 147.3 seconds (almost two and one-half minutes). Only two of 66 witnesses estimated a duration of 30 seconds or less,28 with women

26

Hugo Munsterberg, On the Witness Stand (Mark Hatala ed., 2009); H. Richard Schiffman, & Douglas J. Bobko, Effects of Stimulus Complexity on the Perception of Brief Temporal Intervals, 103 J. Experimental Psychol. 156 (1974); Irwin G. Sarason, & Rich Stoops, Test Anxiety and the Passage of Time, 46 J. Consulting & Clinical Psych. 102 (1978); Elizabeth F. Loftus, et al., Time Went By So Slowly: Overestimation of Event Duration by Males and Females, 1 Applied Cog. Psychol. 3, 3 (1987). Loftus, et al., supra note 26. Id. at 10.

27 28

22 overestimating the duration of the event more than men.

29

Similarly, in his

2000 study, Dr. A. Daniel Yarmey found that witnesses to what he termed variant events non-routinized events that do not occur over and over again as withdrawing money from an ATM machine does on average overestimated the duration of the event, by between 25% (for an event lasting 13 minutes) and more than 100% (for events lasting 24 seconds or less).30 An event lasting 46 seconds was overestimated by 67% and events lasting one minute 20 seconds and two minutes 58 seconds were over-estimated by 40%.31 d. Disguise: Various types of common props, such as hats, glasses, changing hairstyle, or facial hair, increase the risk of a mistaken identification.32 Research has shown that the encoding process for storing information about a face is impaired when a perpetrator is wearing glasses, a hat or has facial hair. 33

29 30

Id. at 7.

A. Daniel Yarmey, Retrospective Duration Estimations for Variant and Invariant Events in Field Situations, 14 Applied Cognitive Psychol. 45 (2000).
31 32

Id.; see also Memon et al., supra note 25.

Brian Cutler & Margaret Bull Kovera, Evaluating Eyewitness Identification, 43-44 (2010). Gary L. Wells, et al., Distorted Retrospective Eyewitness Reports as Functions of Feedback and Delay, 9 J. Experimental Psychol.: Applied 42, 100 (2003); K.E. Patterson, & A.D. Baddeley, When Face Recognition Fails, 3 J. Experimental Psychol.: Hum. Learning & Memory 406 (1977); J. Don Read, et al., Changing Photos of Faces: Effects of Exposure Duration and Photo
33

23 One experiment measured the effects of such disguise on subsequent identification accuracy by using a perpetrator in a staged setting who wore a knit pullover cap covering his hair and hairline in some cases and not in others. Identification accuracy was appreciably reduced for witnesses in the disguise condition, from 45% accuracy in the no-hat condition, to 27% in the disguise condition.34 Studies have also found that changes to perpetrators facial appearances between initial exposure and identification procedure resulted in reduced recognition accuracy. In fact, the rate of accurate identification dropped over 50% (to almost the equivalence of chance) when the target face had changed in some way (changed hair style, added or removed a beard, etc.).35 Studies have also shown that when a perpetrators appearance changes between the time of incident and a lineup, accuracy suffers even the witness had a lengthy exposure to the perpetrator.36 2. The Storage Stage: Memory decays with time. a. Retention Interval: The more time that passes between an incident and an

Similarity on Recognition and the Accuracy-Confidence Relationship, 16 J. Experimental Psychol.: Learning Memory & Cognition 870 (1990). Brian L. Cutler, Steven D. Penrod, & Todd K. Martens, Improving the Reliability of Eyewitness Identification: Putting Context Into Context, 72 J. Applied. Psychol. 629 (1987).
35 36 34

Patterson & Baddeley, supra note 35, at 410. Id.; Read et al., supra note 35; Shapiro & Penrod, supra note 4.

24 identification, the less reliable the identification. The amount of time between an incident and an identification, referred to as the retention interval, affects the accuracy of eyewitness identifications. As is well known, and as Henderson points out, [m]emories fade with time. Henderson, at *100. Moreover, memory decay is irreversible; memories never improve. Id. A 2008 meta-analysis of 53 facial memory studies37 confirmed that memory strength will be weaker at longer retention intervals . . . than briefer ones. Id. (quoting Deffenbacher et al., supra note 53, at 142). The metaanalysis, which looked at both face recognition and eyewitness identification studies, concluded that there is a statistically reliable association between longer retention intervals and decreased face recognition memory.38 An experiment conducted in 1990,39 included in the meta-analysis, demonstrated what Dr. Deffenbacher and his colleagues refer to as the forgetting function.40 The participants in the study were 47 bank tellers who
37

Kenneth A. Deffenbacher et al., Forgetting the Once-Seen Face: Estimating the Strength of an Eyewitnesss Memory Representation, 14 J. Experimental Psychol.: Applied 139, 142 (2008).
38 39

Id. at 147.

Melissa A. Pigott et al, A Field Study on the Relationship Between Quality of Eyewitnesses Descriptions and Identification Accuracy, 17 J. Police Sci. & Admin. 84 (1990).
40

Deffenbacher et al., supra note 39, at 139-40.

25 had a 1.5 minute-long interaction with a stranger attempting to cash a forged money order.41 (The tellers were not aware at the time that the event was staged.) In a lineup four hours after the incident, the accuracy of the bank tellers was just 79% of what it was right after the incident; a week later, they would be expected to have no more than a 50% chance of being accurate.42 In light of this and similar research, the meta-analysis concludes that the forgetting function for the once seen face is Ebbinghausian43 in nature. . . . Rate of memory loss for an unfamiliar face is greatest right after an encounter and then levels off over time.44 In other words, is not linear; rather, greater decay occurs early on and the rate of decay lessens over time.45

41 42 43

Id. at 147 (citing Pigott et al, supra note 41). Id.

Hermann Ebbinghaus was a 19th century German psychologist who pioneered the experimental study of memory. Experimenting on himself, he discovered the forgetting curve, an exponential curve that illustrates how fast information is forgotten. The sharpest decline is in the first twenty minutes, then in the first hour, and then the curve evens off after about one day.
44 45

Deffenbacher et al., supra note 39, at 148.

Brian L. Cutler, A Sample of Witness, Crime, and Perpetrator Characteristics Affecting Eyewitness Identification Accuracy, 4 Cardozo Pub. L., Poly & Ethics J. 327, 336 (2006).

26 b. Unconscious transference: A memory of one actor can be replaced with an image of a different person who is familiar to the witness. A positive identification indicates that a witness is familiar with a face, but not necessarily that the face is that of the perpetrator. The witness may have unconsciously transferred one persons identity to that of another person from a different setting, time, or context.46 Unconscious transference can occur when a witness confuses a person seen at or near the crime scene with the perpetrator. The familiar person is at greater risk of being identified as the perpetrator simply because of his or her presence at the scene.47 This bystander error most commonly occurs when the observed event is complex, but can also occur when the familiarity of arises from an entirely unrelated exposure. 48

Kenneth A. Deffenbacher et al., Mugshot Exposure Effects: Retroactive Interference, Mugshot Commitment, Source Confusion, and Unconscious Transference, 30 Law & Hum. Behav. 287, 289, 306 (2006) (citing J. Don Read, et al., The Unconscious Transference Effect: Are Innocent Bystanders Ever Misidentified?, 4 Applied Cognitive. Psychol. 3 (1990)).
47 48

46

Id. at 289, 306. See generally id.

27 3. The Retrieval Stage: a. Response Latency: Identification decisions made quickly are more likely to be accurate then identification decision made slowly. Studies have found that identifications are generally more accurate when eyewitnesses make their decision very soon after seeing images in identification procedures. 49 While the time frames used across studies have varied, the consistent finding is that faster identifications are more accurate.50 Scientists have not come to agreement on the exact boundaries of this phenomenon, and other factors, such as the fairness of a lineup, could affect results. Henderson, at *107-08. Moreover, the relationship is relative, not absolute, since the definitions of fast and slow are relative, and identifications made slowly are, in some instances, accurate.51

See generally, Gary L. Wells & Elizabeth A. Olsen, Eyewitness Testimony, 54 Annual Rev. Psychol. 277, 280-90 (2003); David F. Ross et al., When Accurate and Inaccurate Eyewitnesses Look the Same: A Limitation of the Pop-Out Effect and the 10- to 12-Second Rule, 21 Applied Cognitive Psychol. 677 (2007). See Ross et al., supra note 51; see also James D. Sauer et al., Multiple Confidence Estimates as Indices of Eyewitness Memory, 137 J. Experimental Psychol.: General 528 (2008); Neil Brewer & Gary L.Wells, The ConfidenceAccuracy Relationship in Eyewitness Identification: Effects of Lineup Instructions, Foil Similarity, and Target-Absent Base Rates, 12 Journal of Experimental Psychol.: Applied 11 (2006).
51 50

49

Ross et al., supra note 51.

28 B. SYSTEM VARIABLES AFFECTING THE RELIABILITY OF EYEWITNESS IDENTIFICATIONS

Scientists have developed a large body of research on the extent to which variables outside the estimator, i.e. those controlled by state and private actors, can affect witness storage and retrieval of memories, leading them to misremember faces and the circumstances in which they saw them. They have conducted experiments demonstrating that the following system variables, relevant here,52 increase the likelihood of a misidentification: 1. Blind Administration:

An identification may be unreliable if the lineup procedure is not administered in double-blind or blind fashion (i.e. the administrator does not know who the actual suspect is or where in the lineup they are positioned, if included). Thus, as Henderson found, the double-blind lineup administration is the single most important characteristic that should apply to eyewitness identification procedures. Henderson, at *69. Its purpose is to prevent an administrator from intentionally or unintentionally influencing a witnesss identification decision. Research has shown that lineup administrators familiar with the suspect may leak that information by consciously or unconsciously

A system variable omitted from the discussion below is the use of composite sketches drawn by artists. See Gary L. Wells & Lisa E. Hasel, Facial Composite Production by Eyewitnesses, 16 Current Directions Psychol. Sci. 6, 6-7 (2007); Margaret Bull Kovera et al., Identification of ComputerGenerated Facial Composites, 82 J. Applied Psychol. 235 (1997).

52

29 communicating to witnesses which lineup member is the suspect.

53

Psychologists refer to this phenomenon as the expectancy effect: the tendency for experimenters to obtain results they expect . . . because they have helped to shape that response. 54 In a seminal meta-analysis of 345 studies across eight broad categories of behavioral research, researchers found that [t]he overall probability that there is no such thing as interpersonal expectancy effects is near zero.55 Even seemingly innocuous words and subtle cues -pauses, gestures, hesitations, or smiles -- can influence a witness behavior.56 As Henderson found, the consequences are clear: a non-blind lineup procedure can affect the reliability of a lineup because even the best intentioned, non-blind administrator can act in a way that inadvertently sways an eyewitness trying to identify a suspect. Henderson, at *70.

See Sarah M. Greathouse & Margaret Bull Kovera, Instruction Bias and Lineup Presentation Moderate the Effects of Administrator Knowledge on Eyewitness Identification, 33 Law & Hum. Behav. 70, 71 (2009). Robert Rosenthal & Donald B. Rubin, Interpersonal Expectancy Effects: The First 345 Studies, 3 Behav. & Brain Sci. 377, 377 (1978).
55 56 54

53

Id.

Ryann M. Haw & Ronald P. Fisher, Effects of Administrator-Witness Contact on Eyewitness Identification Accuracy, 89 J. Applied Psychol. 1106, 1107 (2004); see also Steven E. Clark et al., Lineup Administrator Influences on Eyewitness Identification Decisions, 15 J. Experimental Psychol.: Applied 63, 66-73 (2009).

30 2. Pre-identification Instructions: There is a broad consensus for the practice of preceding all identification procedures with instructions to the witness that the suspect may or may not be in the lineup or array and that the witness should not feel compelled to make an identification. Scientists agree that without an appropriate warning, witnesses may misidentify innocent suspects who look more like the perpetrator than other lineup members.57 In 1981, a study by Dr. Malpass found that the failure to warn witnesses that the perpetrator may or may not be present resulted in 78% of witnesses making an identification even in a target-absent lineup whereas by giving the warning reduced the number of mistaken identifications to 33%.58 Since then two separate meta-analyses have found that there is a significant decrease in mistaken identification when witnesses are warned that the perpetrator may not be present in the lineup.59 Thus, as Henderson found, The failure to give

57

There is a significant decrease in mistaken identification when witnesses are warned that the perpetrator may not be present in the lineup. See, e.g., Nancy Mehrkens Steblay, Social Influence in Eyewitness Recall: A MetaAnalytic Review of Lineup Instruction Effects, 21 Law & Human Behav. 283 (1997); Steven E. Clark, A Re-examination of the Effects of Biased Lineup Instructions in Eyewitness Identification, 29 Law & Human Behav. 395 (2005).

See Roy S. Malpass & Patricia G. Devine, Eyewitness Identification: Lineup Instructions and the Absence of the Offender, 66 J. Applied Psychol. 482, 485 (1981).
59

58

See supra note 59.

31 proper pre-lineup instructions can increase the risk of misidentification. Henderson, at *73. 3. Lineup Construction:

The way that a lineup or photo array is constructed can also affect the reliability of an identification. Witnesses might select the person from a lineup who most resembles the person whom they remember the perpetrator to look like, relative to other members of the lineup.60 Properly constructed lineups test a witnesss memory and decrease the chance that a witness is simply guessing. A number of features affect the construction of a fair lineup. First, mistaken identifications are more likely to occur when the suspect stands out from other members of a live or photo lineup.61 Henderson, at *73. The reason is that an array of look-alikes forces witnesses to examine their memory, which is not the case if the suspect stands out. Id. In addition, a biased lineup may inflate a witness confidence in the identification because the selection process seemed easy.62 Second, the greater the number of choices, the more likely the procedure

Gary L. Wells, What Do We Know About Eyewitness Identification?, 48 Am. Psychologist 553 (1993).
61

60

See Roy S. Malpass et al., Lineup Construction and Lineup Fairness, in 2 The Handbook of Eyewitness Psychology: Memory for People 155, 155-56 (R.C.L. Lindsay et al. eds., 2007). See Ross et al., supra note 51, at 687; Gary L. Wells & Amy L. Bradfield, Measuring the Goodness of Lineups: Parameter Estimation, Question Effects, and Limits to the Mock Witness Paradigm, 13 Applied Cognitive Psychol. S27, S30 (1999).

62

32 will serve as a reliable test of the witnesss ability to distinguish the culprit from an innocent person.63 To avoid identification errors, lineups should also not feature more than one suspect64 and should show the witness choices sequentially, rather than simultaneously.65 4. Suggestive Feedback:

Information received by witnesses both before and after an identification can affect their memory.66 Experiments conducted in the 1970s demonstrated

Compare Steven E. Clark & Jennifer L. Tunnicliff, Selecting Lineup Foils in Eyewitness Identification Experiments: Experimental Control and Real-World Simulation, 25 Law & Hum. Behav. 199, 212 (2001), and Gary L. Wells et al., The Selection of Distracters for Eyewitness Lineups, 78 J. Applied Psychol. 835, 842 (1993), with Stephen Darling et al., Selection of Lineup Foils in Operational Contexts, 22 Applied Cognitive Psychol. 159, 165-67 (2008). R.C.L. Lindsay et al., Default Values in Eyewitness Descriptions, 18 Law & Hum. Behav. 527, 528 (1994) (Innocent suspects may be at risk when the witness provides a limited or vague description of the criminal and the lineup foils, although selected to match the description, are noticeably different from the suspect in appearance.).
65 64

63

See Nancy Steblay et al., Eyewitness Accuracy Rates in Sequential and Simultaneous Lineup Presentations: A Meta-Analytic Comparison, 25 Law & Hum. Behav. 459 (2001) (A 2001 meta-analysis comparing data from more than 4,000 lineup experiments). But see Roy S. Malpass et al., Public Policy and Sequential Lineups, 14 Legal & Criminological Psychol. 1, 5-6 (2009); Dawn McQuiston-Surrett et al., Sequential vs. Simultaneous Lineups: A Review of Methods, Data, and Theory, 12 Psychol. Pub. Poly & L. 137, 163 (2006) ([W]e believe that current explanations for why sequential presentation should reduce both mistaken identifications and correct identifications are underdeveloped.).

See generally Wells & Bradfield, supra note 71; Wright & Skagerberg, supra note 69; Amy L. Bradfield et al., The Damaging Effect of Confirming Feedback on the Relation Between Eyewitness Certainty and Identification Accuracy, 87 J. Applied Psychol. 112 (2002); Amy Bradfield Douglass &

66

33 that memories can be altered by pre-identification remarks. On this point, Henderson refers to a study in which students were shown a video that included no image of a barn. Henderson, at *65-66 (citing Elizabeth F. Loftus, Leading Questions and the Eyewitness Report, 7 Cognitive Psychol. 560, 566 (1975)). Afterward, some were asked how fast the car was going when it passed a barn, and others were asked a question that included no mention of the imaginary Dawn McQuiston-Surrett, Post-Identification Feedback: Exploring the Effects of Sequential Photospreads and Eyewitnesses' Awareness of the Identification Task, 20 Applied Cognitive Psychol. 991 (2006); Douglass & Steblay, supra note 70; Susan Dixon & Amina Memon, The Effect of Post-Identification Feedback on the Recall of Crime and Perpetrator Details, 19 Applied Cognitive Psychol. 935 (2005); Gertrud Sofie Hafstad et al., Post-identification Feedback, Confidence and Recollections of Witnessing Conditions in Child Witnesses, 18 Applied Cognitive Psychol. 901 (2004); Jeffrey S. Neuschatz et al., The Mitigating Effects of Suspicion on Post-Identification Feedback and on Retrospective Eyewitness Memory, 31 Law & Hum. Behav. 231 (2007); Neuschatz et al., supra note 75; Carolyn Semmler & Neil Brewer, Postidentification Feedback Effects on Face Recognition Confidence: Evidence for Metacognitive Influences, 20 Applied Cognitive Psychol. 895 (2006); Carolyn Semmler et al., Effects of Postidentification Feedback on Eyewitness Identification and Nonidentification Confidence, 89 J. Applied Psychol. 334 (2004); Elin M. Skagerberg, Co-Witness Feedback in Line-ups, 21 Applied Cognitive Psychol. 489 (2007); Steven M. Smith et al., Postdictors of Eyewitness Errors: Can False Identifications Be Diagnosed? 85 J. Applied Psychol. 542 (2000); Gary L. Wells & Amy L. Bradfield, Distortions in Eyewitnesses' Recollections: Can the Postidentification-Feedback Effect Be Moderated? 10 Psychol. Sci. 138 (1999); Wells et al., supra note 35; Loftus, supra note 58; Elizabeth F. Loftus & John C. Palmer, Reconstruction of Automobile Destruction: An Example of the Interaction Between Language and Memory, 13 J. Verbal Learning & Verbal Behav. 585 (1974); Elizabeth F. Loftus & Guido Zanni, Eyewitness Testimony: The Influence of the Wording of a Question, 5 Bull. Psychonomic Socy 86 (1975); Elizabeth F. Loftus et al., Semantic Integration of Verbal Information into a Visual Memory, 4 J. Experimental Psychol.: Hum. Learning & Behav. 19 (1978); Elizabeth F. Loftus, Eyewitness Testimony (2d ed. 1996).

34 barn. One week later, approximately 17% of the subjects who were asked the barn question recalled seeing it, while under 3% in the other group had a false memory of a barn.67 A witnesss confidence in his or her observations may increase with information received during the investigation, a phenomenon referred to as confidence malleability.68 As Henderson found, confirmatory or postidentification feedback, which occurs when police signal to eyewitnesses that they correctly identified the suspect, can reduce doubt, engender a false sense of confidence in a witness, and falsely enhance a witnesss recollection of the quality of his or her view of an event. Henderson, at *76-77. The substantial research about confirmatory feedback includes a meta-analysis of 20 studies encompassing 2,400 identifications that found that witnesses who received feedback expressed significantly more . . . confidence in their decision compared with participants who received no feedback.69 This 2006 metaanalysis, by Drs. Amy Bradfield Douglass and Nancy Kehrmens Steblay, demonstrated that the effect of confirming feedback was consistent, reliable,

67 68

Loftus, Leading Questions and the Eyewitness Report, at 566.

Daniel B. Wright & Elin M. Skagerberg, Postidentification Feedback Affects Real Eyewitnesses, 18 Psychol. Sci. 172, 175 (2007) (inaccuracy rate of 26.6%).
69

See Amy Bradfield Douglass & Nancy Steblay, Memory Distortion in Eyewitnesses: A Meta-Analysis of the Post-Identification Feedback Effect, 20 Applied Cognitive Psychol. 859 (2006).

35 and robust, with large effect sizes obtained for most dependent measures (including retrospective certainty, opportunity to view, and attention paid).70 Scientific research also shows that those who receive a simple postidentification confirmation regarding the accuracy of their identification significantly inflate their reports to suggest better witnessing conditions at the time of the crime, stronger memory at the time of the lineup, and sharper memory abilities in general.71 In a 2007 field study, Dr. Daniel Wright and Elin Skagerberg asked eyewitnesses to real crimes about their view, attention, and how good of a basis they had to make an identification, either before or after the witnesses learned whether they picked the suspect or a filler.72 When witnesses were told they had picked the suspect, it increased their ratings of how closely they were paying attention, and how good their view was. Conversely, when witnesses were told they had picked a filler, they were more likely to report that they did not have a good view. Even though the experimenter did not ask the witnesses about their own certainty in their identifications (which Drs. Douglass and Steblays meta-analysis has shown is more dramatically affected by confirming feedback than self-reports on

70 71

Id.

Id. at 864-65; see also Gary L. Wells & Amy L. Bradfield, Good, You Identified the Suspect: Feedback to Eyewitnesses Distorts their Reports of the Witnessing Experience, 83 Journal of Applied Psychology 360 (1998).
72

See Wright & Skagerberg, supra note 69.

36 attention paid and opportunity to view) there were still reliable and relatively large effects of post-identification feedback on what witnesses said about the attention they paid to the crime and their opportunity to view.73 The effects of confirmatory feedback may be the same even when feedback occurs as much as 48 hours after an identification.74 And, as Henderson recognized, those effects can be lasting:75 [W]e find that feedback affects the reliability of an identification in that it can distort memory, create a false sense of confidence, and alter a witness report of how he or she viewed an event. Henderson, at *80. Conversely, witnesses who are given disconfirming feedback tend to lower their own estimates of certainty and opportunity to view.76

73

The research shows the small correlation between confidence and accuracy. See, e.g. Gary L. Wells & Donna Murray, Eyewitness Confidence, in Eyewitness Testimony: Psychological Perspectives 155 (Gary L. Wells & Elizabeth F. Loftus eds., 1984); Robert K. Bothwell, Kenneth A. Deffenbacher & John C. Brigham, Correlation of Eyewitness Accuracy and Confidence: Optimality Hypothesis Revisted, 72 Journal of Applied Psychol. 691 (1987); Siegfried L. Sporer, et al., Choosing Confidence, and Accuracy: A MetaAnalysis of the Confidence-Accuracy Relation in Eyewitness Identification Studies, 118 Psychological Bulletin 315 (1995). Wells et al., supra note 35, at 49-50.

74 75

See Jeffrey S. Neuschatz et al., The Effects of Post-Identification Feedback and Age on Retrospective Eyewitness Memory, 19 Applied Cognitive Psychol. 435, 449 (2005).
76

See Wells & Bradfield, supra note 71.

37 Confirming feedback can come from sources other than police, including prosecutors, other eyewitnesses, friends, family, the media, as well as from routine occurrences in the course of a criminal case, such as learning of the arrest and prosecution of the suspect, seeing the suspect sitting at defense counsels table, and meeting with prosecutors in preparation for testimony.77 As Dr. Loftus demonstrated, witness memories are plagued by suggestibility from external sources, and witnesses have a tendency to incorporate misleading information from external sources other people, written materials or pictures, even the media into personal recollections.78 5. Multiple Viewings:

Viewing a suspect more than once during an investigation can affect the reliability of the later identification, as Henderson found, noting [t]he problem . . . is that successive views of the same person can make it difficult to know whether the later identification stems from a memory of the original event or a memory of the earlier identification procedure. Henderson, at *80-81. Multiple identification procedures involving more than one viewing of the same suspect create a risk of mugshot exposure or mugshot commitment. Id. at

77

See John S. Shaw, III & Kimberley A. McClure, Repeated Postevent Questioning Can Lead to Elevated Levels of Eyewitness Confidence, 20 Law & Hum. Behav. 629 (1996). (finding that repeated postevent questioning can cause eyewitnesses' subsequent confidence estimates to be artificially inflated). Daniel L. Schacter, The Seven Sins of Memory: How the Mind Forgets and Remembers 5, 113 (2001).

78

38 *81. Mugshot exposure is when a witness initially views a set of photos and makes no identification, but then selects someonewho had been depicted in the earlier photosat a later identification procedure. Id. A meta-analysis of multiple studies revealed that witnesses mistakenly identified an innocent person viewed in a lineup 15% of the time, but that percentage increased to 37% if the witness had seen the innocent person in a prior mugshot.79 Mugshot commitment occurs when a witness identifies a photo that is then included in a later lineup procedure. Id. at *82. Studies have shown that once witnesses identify an innocent person from a mugshot, a significant number then reaffirm[] their false identification in a later lineupeven if the actual target is present. 80 This is an example of the phenomenon of unconscious transference discussed in Section A.2.b above. Thus, both mugshot exposure and mugshot commitment can affect the reliability of the witness ultimate identification and create a greater risk of misidentification. 6. Showups:

A showup procedure occurs when a single suspect is presented to a witness to make an identification, either in person or in a photograph. Henderson, at *87. By their nature, showups are suggestive and cannot be

79 80

Deffenbacher et al., supra note 47, at 299.

See Gunter Koehnken et al., Forensic Applications of Line-Up Research, in Psychological Issues in Eyewitness Identification 205, 219 (Siegfried L. Sporer et al. eds., 1996).

39 performed blind or double-blind. Id. at 88. When they are used at the scene of a crime, soon after its commission, they can be useful, although they carry their own risks of misidentifications. Id. Studies support the usefulness of showups in that very short timeframe. For example, a Canadian field experiment that analyzed results from more than 500 identifications revealed that photo showups performed within minutes of an encounter were as accurate as lineups.81 Two hours after the encounter, though, 58% of witnesses failed to reject an innocent suspect in a photo showup, as compared to 14% in targetabsent photo lineups.82 Researchers have also found that false identifications are more numerous for showups [compared to lineups] when an innocent suspect resembles the perpetrator.83 In addition, research reveals that showups increase the risk that witnesses will base identifications more on similar distinctive clothing than on similar facial features.84 Experts believe the main

A. Daniel Yarmey et al., Accuracy of Eyewitness Identifications in Showups and Lineups, 20 Law & Hum. Behav. 459, 464 (1996).
82 83

81

Id.

See Nancy Steblay et al., Eyewitness Accuracy Rates in Police Showup and Lineup Presentations: A Meta-Analytic Comparison, 27 Law & Hum. Behav. 523, 523 (2003) (conducting meta-analysis).

See Jennifer E. Dysart et al., Show-ups: The Critical Issue of Clothing Bias, 20 Applied Cognitive Psychol. 1009, 1019 (2006); see also Yarmey et al., supra note 81, at 461, 470 (showing greater likelihood of misidentification when culprit and innocent suspect looked alike and wore same clothing); Richard Gonzalez et al., Response Biases in Lineups and Showups, 64 J. Personality & Soc. Psychol. 525 (1993); Steblay et al., supra note 83.

84

40 problem with showups is that, unlike properly designed and conducted lineups, they fail to provide a safeguard against witnesses with poor memories or those inclined to guess. Henderson, at *90. Instead, every mistaken identification in a showup will point to the suspect. Id. II. THE EXISTING LEGAL FRAMEWORK A. THE CLASSEN FRAMEWORK

Oregons existing legal framework for evaluating the reliability of eyewitness identification evidence is set forth in State v. Classen, decided in 1979, adopting the legal framework in Manson v. Braithwaite, 432 U.S. 98 (1977). The reliability factors identified in Classen are: 1. The opportunity that the witness had at the time to get a clear view of the persons involved in the crime; 2. The attention he or she gave to their identifying features; 3. The timing and completeness of the description given by the witness after the event; 4. The certainty expressed by the witness in that description and in making the subsequent identification; and 5. The lapse of time between the original observation and the subsequent identification. The Classen Court advised that these factors should not to be taken as a mechanical checklist and that other facts may also be important, such as the age and sensory acuity of the witness, or a special occupational concern with people's appearance or physical features, or the frequency of the witnesss

41 contacts with individuals sharing the general characteristics of the person identified. Classen, 285 Or. at 233 (internal citations omitted). As explained supra, scientific research shows that factors bearing on the accuracy of identifications are far more complex, interrelated85 and numerous than indicated in Classen, which was decided while this area of scientific research was in its infancy. The New Jersey Supreme Court recognized in Henderson that its similar Manson-based framework for evaluating eyewitness identifications was simply incompatible with the vast body of scientific research about human memory that has emerged since Manson was decided in 1977. Henderson, at *14. As Henderson explains: That body of work casts doubt on some commonly held views relating to memory. It also calls into question the vitality of the current legal framework for analyzing the reliability of eyewitness identifications. Id. B. THE CONFOUND

One of the main premises of Mansons progeny, including Classen, is that undue suggestiveness is a stand-alone factor that finders of fact can evaluate in weighing an eyewitnesss credibility and the accuracy of an Research has shown that the various factors that affect eyewitness accuracy often interact to compound the risk of mistaken identification. See Kathy Pezdek, Content, Form, and Ethical Issues Concerning Psychological Expert Testimony on Eyewitness Identification, in Expert Testimony on the Psychology of Eyewitness Identification 29, 37 (Cutler ed., 2009); see also David F. Ross et al., Unconscious Transference and Mistaken Identity: When a Witness Misidentifies a Familiar but Innocent Person, 79 J. Applied Psychol. 918 (1994).
85

42 identification. Scientific research in the intervening years has shown, however, that undue suggestiveness not only affects the reliability of an identification generally, but can also change eyewitnesses memory about the circumstances in which they saw a person and their confidence in their identification of that person. Participants in studies who receive confirmation of an identification self-report increased confidence about the standard reliability factors their opportunity to observe, the degree of attention paid, their certainty, and the completeness of their description. The resulting confound, in which witnesses appear highly confident in all aspects of their identifications, makes them appear more reliable, even though the suggestiveness they were subject to actually makes them less reliable witnesses. The large body of research in this area demonstrates a serious problem with the balancing approach required by Classen. Moreover, the Appeals Courts view that a witness subject to undue influence can herself serve as a separate independent source does not take into account the impact of suggestiveness. Studies show that lay people, including jurors, mistakenly believe that memory works like a videotape. Many people believe that our eyes are like the lens of a camera they have to be open in the same way that the lens cap has to be taken off, aimed in the right direction, and there has to be sufficient lighting

43 for them to capture images before them, that the optic nerve connecting the eyes to the brain is like the cable from the camera to the recorder, that what is recorded in the brain is like the recording on a tape or disc, and that recalling a memory is similar to playing back a tape or disc. Psychologists, however, reject the idea that memory can be played back like a videotape as a fallacy.87 Instead, psychologists view memory as a constructive, dynamic, and selective process by which people reconstruct memories. Henderson, at *63. People do not recall an event as an accurate whole, but instead fill in gaps in their memories, combining pieces of information that they preserve with plausible fill-ins to conjure up a whole memory. By relying on the memory-as-videotape analogy, the existing legal framework accepts that a witness may not be able to remember something that happened a long time ago (i.e., the videotape had decayed, or the tape was misplaced), or that a witness might not have seen an event clearly (i.e., by not focusing in the right direction, or because it was too dark), but leaves no room for the possibility that a witness could remember something (or someone) they did not in fact see. In other words, the framework anticipates that witnesses
86

See Robert Buckhout, Eyewitness Testimony, 15 Jurimetrics J. 171 (1975), (reprinted from 231 Sci. Am. 23 (1974)).
87

86

See id.

44 may forget something they actually saw, but does not take into account that witnesses may think they remember something they did not observe. C. SYSTEM AND ESTIMATOR VARIABLES EMBEDDED IN THE CLASSEN FACTORS

The Classen reliability factors encompass some of the system and estimator variables that scientific research has shown to affect the reliability of eyewitness identifications. 1. Opportunity to View:

This first Classen factor, correctly focuses on a key aspect of a witnesss ability to store or encode information. This is an important factor in determining whether a witness was able to encode information accurately. As explained above in section A.1.c., a shorter duration of exposure results in lower rates of accuracy, poor lighting diminishes clarity of vision, and clarity of vision decreases with distance. However, this Classen reliability factor is an oversimplification, since it does not take into account the crucial distinction between documented opportunity to view and remembered opportunity to view. In this case, the witnesss documented opportunity to see the man who entered the trailer was extremely limited. The trailer was dark, the witness was lying on the floor, she had a cushion over her face (placed there to prevent her seeing the intruder), and the episode lasted only a few minutes at most. The witness repeatedly said that night that she had not seen her assailant, and that her life had been spared

45 for that reason. But as time passed, she remembered that she was able to the profile of a mans face. 2. Degree of Attention:

The second Classen factor focuses on the degree of attention paid to the perpetrators identifying characteristics. As with the preceding factor, the degree of attention is another self-reported factor that tends to be inflated by eyewitnesses, particularly where they have been subjected to suggestive identification procedures. In this case, the eyewitness was unable to describe a single identifying facial feature of the assailant, suggesting that her degree of attention to his face was minimal. This is consistent with research showing that crime victims may be alert, but may be focusing only upon the event they are witnessing, and not on the face of person committing the crime.88 However, by the time of her trial testimony, she was adamant that she had focused intently on his face. She testified that she saw him coming into the light, and I saw his face. She then described an intense emotional reaction to seeing the mans face: I was in shock.

Kerri L. Pickel, Remembering and Identifying Menacing Perpetrators: Exposure to Violence and the Weapon Focus Effect, in 2 The Handbook of Eyewitness Psychology: Memory for People 339, 339-60 (R.C.L. Lindsay et al. eds., 2007).

88

46 Also in this case, the Appeals Court considered fear or stress as a subset of this factor, and opined that stress might be classified either as distracting elements or might mak[e] for a high degree of attention and impressing the defendant's picture on the victim's memory. State v. Lawson, 239 Or. App. 363, 379, 244 P.3d 860, 869 (Ct. App. 2010) (quoting Classen, 285 Or. at 237 n.11). The latter proposition has been expressly rejected by scientific research, which disproves the commonly held view that extreme stress etches a face in memory. In this way, the decision of the Appeals Court demonstrates how the Classen framework conflicts with the scientific research and can lead courts to make inaccurate conclusions about the accuracy or reliability of an identification. 3. Timing and Completeness of the Description:

As discussed supra, this Classen reliability factor is supported by the scientific research, which teaches that witnesses typically can recall faces when they participate in identification procedures close in time to an incident more accurately than when the identification procedure occurs long after the incident.89 The Appeals Court characterized the witnesss contemporaneous description of the intruder as somewhat sketchy, brushed off numerous inconsistencies and vagueness, and discounted the long period of time between the incident and the in-court identification. Lawson, 239 Or. App. at 383. Here

89

Meissner et al., supra note 25.

47 the Court disregarded a key Classen factor that is supported by scientific research. 4. Confidence:

Fact finders typically accord great weight to a witnesss professed confidence in her identification. 90 However, a witnesss confidence is not necessarily a good predictor of accuracy partly as a result of the malleability of witnesses confidence in their identifications, as discussed supra section B.4. See Manson, 432 U.S. at 130 (Marshall, J. dissenting) ([t]he witness degree of certainty in making the identification is worthless as an indicator that he is correct.). In this case, the witness had so little confidence in her ability to recognize the man that she declined to participate in a live lineup procedure two months after the incident. By the time of her in-court identification (when the

There is consistent evidence to indicate that the confidence that an eyewitness expresses in his or her identification during testimony is the most powerful single determinant of whether or not observers of that testimony will believe that the eyewitness made an accurate identification. See, e.g., Brian L. Cutler et al., Juror Sensitivity to Eyewitness Identification Evidence, 14 Law & Human Behav. 185 (1990); Michael R. Leippe et al., Cueing Confidence in Eyewitness Identifications: Influence of Biased Lineup Instructions and PreIdentification Memory Feedback Under Varying Lineup Condition, 33 Law & Hum. Behav. 194 (2009); R.C.L. Lindsay et al., Can People Detect Eyewitness Identification Accuracy Within and Across Situations?, 66 J. Applied Psychol 79 (1981); Gary L. Wells et al., Accuracy, Confidence, and Juror Perceptions in Eyewitness Identifications, 64 J. Applied Psychol. 440 (1979); Eyewitness Testimony: Psychological Perspectives (Gary L. Wells & Elizabeth F. Loftus eds., 1984).

90

48 circumstances were more in the nature of a showup two years after the incident), she said she had absolutely no doubt in her mind and that she would never forget his face as long as he lived. The relevance of this newfound confidence is highly questionable as an indicator of reliability. 5. Passage of Time:

Empirical research establishes that as time passes between an event and an associated identification, the identification becomes increasingly unreliable, as discussed in section I.A.1.c., supra. Even a gap of only a few hours between exposure and identification can affect the reliability of an identification. In this case, over two years elapsed between the shootings and the incourt identification of the defendant. While the Appeals Court acknowledged that, there is no doubt that a two-year lapse is a significant amount of time, it did not give much weight to that significance, finding only that the length of time that had elapsed since the incident does not weigh in favor of a conclusion that the identification had an independent and reliable source. Lawson, 239 Or. App. at 384. In other words, the Court viewed the passage of time as merely a neutral factor, and not one that called into question the reliability of the identification.

49 D. THE CLASSEN FRAMEWORK AS APPLIED IGNORES MANY OF THE SYSTEM AND ESTIMATOR VARIABLES SCIENTIFICALLY PROVEN TO AFFECT RELIABILITY

As the discussion supra at Section I (B) demonstrates, there are numerous individual variables that, taken both separately and together, are not considered by courts under Classen. This case demonstrates many of those excluded factors and how such exclusions can result in a conviction based on an unreliable eyewitness identification. 1. Clothing Bias:

After two non-identifications of a photograph of the defendant when presented in a six-image photo array, the witness in this case finally identified the defendant when he was presented in a single photograph array in which he was wearing a black shirt and a baseball hat with white letteringthe same clothing the witness recalled the night of the shootings. The showing of such a photograph to a witness increases the risk of an inaccurate identification.91

Strong evidence of clothing bias has been found in showups. The type of clothing worn by the perpetrator may interact with other factors, such similarity of the innocent suspect and target. When their target wore distinctive clothing, the rate of false identifications increased significantly for both high and low similarity innocent suspects when they wore identical or similar distinct clothing. When high similarity innocent suspects wore identical or similar distinct clothing false identification rates roughly doubled (from 23% to 50%). For innocent suspects rated low in similarity to the perpetrator the effects were even more pronounced--there were no false identifications were when different clothing was worn, but 37% of witnesses misidentified him when identical distinct clothing was worn and 14% when similar distinct clothing was worn. See Dysart et al., supra note 84, at 1009-23.

91

50 2. Showup After she made an-court identification of the defendant as the man who shot her, the eyewitness revealed upon cross-examination that the investigative officer had shown her a photograph of the defendant wearing a baseball hat months after she failed to identify him two separate photo arrays.92 The investigating officer later explained that he had brought her to a pre-trial hearing two months before the trial in order to help prepare her for trial, and shown her the photograph of the defendant. These procedures are the equivalent of a showup, which is an identification procedure in which just a single suspect is presented to the witness for identification. As the Henderson court found, showups can be a useful and necessary technique when used in appropriate circumstances, but they are inherently suggestive. Henderson, at *87-88. They fail to provide a safeguard against witnesses with poor memories or those inclined to guess. They pose the same risk of misidentification as a lineup if performed immediately after a crime, but thereafter become far less useful. 3. Multiple Viewings (Mugshot Exposure, Mugshot Commitment, and Unconscious Transference):

The witness in this case, who saw five photographs of the defendant before her in-court identification (twice in successive photo arrays, once in the This fact was not known at the time of the pre-trial Wade hearing, as the investigating officer did not disclose that it to the defense. He later conceded that he had showed her the photo.
92

51 newspaper, once in the single photograph, and once in the evidence binder), could conceivably have been relying on her memory of the photographs and her commitment to the choice she had made and not her memory of the intruder over two years earlier. As the Henderson court found, [v]iewing a suspect more than once during an investigation can affect the reliability of the later identification. Henderson, at *80. The problem with multiple viewings of photographs of a defendant is that successive views of the same person can make it difficult to know whether the later identification stems from a memory of the original event or a memory of the earlier identification procedure. Id. at *80-81. The witness in this case encountered a stranger twice on the day of the shootings, first in the morning when she and her husband came upon a man who was occupying their tent, and then late at night, when a man came to the trailer after she was shot. The witness had ample opportunity to observe the stranger the first time, as there was daylight, the encounter lasted 45 minutes, and the event was unusual. She had little if any opportunity to observe the second stranger, for the reasons explained above. However, she stated on the night of the shootings that the man in the trailer was the same man she had seen that morning. (She also became panicked when she saw an emergency responder, confusing him with her assailant). She may well have been mistaken as a result of the well-documented phenomenon of unconscious transference.

52 4. Suggestive Questioning Two days after the shooting, a police officer visited the witness in the hospitals intensive care unit while she was in critical condition, under the influence of morphine and unable to speak because of a mouth tube. The police officer asked the witness leading questions about the defendant, purportedly because of the possibility that she would not survive surgery that she was about to undergo. (Prior to his hospital visit he had interviewed the defendant, who admitted that he had been present at the campsite earlier in the day of the shooting.) The risk inherent in suggestive questioning is well known. 93 As explained in Section I.B.4, supra, an extensive body of studies demonstrates that the memories of witnesses for events and faces, and witnesses confidence in their memories, are highly malleable and can readily be altered by information received by witnesses both before and after an identification procedure. In other words, the highly suggestive questioning of the drugged, wounded and grieving witness could conceivably have led her to remember that she saw the Defendants face when she was lying in the dark, with a cushion covering her eyes.

Gary L. Wells et al., From the Lab to the Police Station: A Successful Application of Eyewitness Research, 55 Am. Psychologist 581, 582 (2000).

93

53 E. OTHER EVALUATOR/SYSTEM VARIABLES NOT RELEVANT HERE BUT OMITTED BY CLASSEN

The witness in this case is the same race as the Defendant and did not see a weapon when a man entered her trailer the night of the shooting. As a result, two of the most significant areas of scientific research involving eyewitness identification are not issue in this case. Likewise she was not intoxicated (though testified that she drank some beer that night) and is not elderly or very young. As to system variables, she was shown two photo lineups including the defendant but was not able to identify in them the man she saw after the shooting. As a result, the robust scientific research relating to the composition of lineups and how they are shown to victims is not specifically relevant in this case. However, we have brought this research to the Courts attention since it is relevant to any revisiting of the Classen approach. III. TRADITIONAL TOOLS OF THE ADVERSARY SYSTEM CANNOT BE RELIED UPON TO OVERCOME THE PREJUDICIAL EFFECT OF INCORRECT EYEWITNESS IDENTIFICATIONS The Appeals Court found that the trial court acted properly in not striking the witnesss in-court identification under the standard set by the U.S. Supreme Court in Manson, 432 US at 116; Lawson, 239 Or. App. at 386 (Thus, short of a very substantial likelihood of irreparable misidentification, identification evidence is for the jury to weigh.) The Appeals Court reasoned, a jury is usually in no worse position than a judge acting in a gatekeeper's capacity to

54 determine the effect, if any, of improperly suggestive police techniques on the accuracy of eyewitness identification testimony, opting for the traditional tools of the adversary system, such as cross-examination, jury instructions, or expert testimony. Id. Scientific research and recent experience cast doubt on that reasoning.94 The admission of unreliable identifications is highly problematic because juries widely over believe the reliability of eyewitness identifications. In a seminal 1983 study, researchers presented individuals with crime scenarios derived from previous empirical studies and asked the individuals to predict the accuracy rate of eyewitness identifications observed in the studies.95 On average, nearly 84 percent of respondents overestimated the accuracy rates of

Some of the studies in this area have been subjected to limited criticism concerning their structural soundness. See, e.g., United States v. Libby, 461 F. Supp. 2d 3, 16-18 (D.D.C. 2006) (in a non-eyewitness identification case, excluding expert testimony concerning the fallibility of memory generally). It remains, however, uncontested that jurors generally lack full and correct understanding of the many factors that affect eyewitness identifications. Id. at 12 (Under the former category [eyewitness identification], there can be little doubt that the average juror is not regularly, if at all, presented with issues of eyewitness identification of an alleged perpetrator of a criminal offense. Thus, it is highly probable that the average juror would be less familiar with concepts that may impact a witnesss identification such as weapons focus, mug-shotinduced bias, or lineup format.") (citing Richard A. Wise & Martin A. Safer, A Survey of Judges Knowledge and Beliefs About Eyewitness Testimony, Court Review 6, 12 (2003)). See John C. Brigham & Robert K. Bothwell, The Ability of Prospective Jurors To Estimate the Accuracy of Eyewitness Identifications, 7 Law & Hum. Behav. 19, 22-24 (1983).
95

94

55 identifications.
96

Moreover, the magnitude of the overestimation was

significant. For example, the studys respondents estimated an average accuracy rate of 71 percent for a highly unreliable scenario in which only 12.5 percent of eyewitnesses had in fact made a correct identification. 97 Other studies confirm that jurors routinely over believe eyewitness testimony. To illustrate, the conviction rate by mock juries increased from 49 percent to 68 percent when a single, vague eyewitness account was added to the circumstantial evidence described in a case summary.98 Even when unreliable eyewitness identification is admitted, therefore, juries are quite likely to believe him or her.99 Cross-examination cannot be relied upon to address this problem. As the Supreme Court has observed, even though cross-examination is a precious safeguard to a fair trial, it cannot be viewed as an absolute assurance of accuracy and reliability. United States v. Wade, 388 U.S. 218, 235 (1967).
96 97 98

See id. at 28 See id. at 24.

See, e.g., Jennifer N. Sigler & James V. Couch, Eyewitness Testimony and the Jury Verdict, 4 N. Am. J. Psychol. 143, 146 (2002). Judges are perhaps as much in need of guidance as jurors, if the decisions below are a representative sample. The majoritys view, consistent with Classen, that the witnesss stress might have impressed the defendants picture on the victims memory reflects a commonand scientifically unsupportablemisconception. See Richard A. Wise & Martin A. Safer, What US Judges Know and Believe About Eyewitness Testimony, 18 Applied Cognitive Psychol. 427 (2004).
99

56 That is particularly true in this context: What most affects jurors assessment of a particular eyewitness identification is the level of confidence expressed by the witness.100 Traditional cross-examination is therefore largely useless with a mistaken (albeit honest) eyewitness who is very confident and consistent. See, e.g., State v. Clopten, 223 P.3d 1103, 1110 (Utah 2009) (Cross-examination will often expose a lie or half-truth, but may be far less effective when witnesses, although mistaken, believe that what they say is true.).101 Jury instructions on the potential fallacies of eyewitness identifications are similarly inadequate to address the problem of unreliable identifications. Researchers have tested the impact of eyewitness-related instructions on jurors decision-making.102 They have found that a common eyewitness-related instruction proved completely ineffective at sensitizing jurors to eyewitness evidence.103 It turns out that Jurors who heard [commonly given] instruction

100

See Cutler et al., supra note 90, at 185; Lindsay et al., supra note 90, at

83. Jurors evident belief that eyewitness confidence correlates with accurate identifications was once shared by many in the judiciary. Indeed, in Biggers this Court stated, albeit without citing any scientific authorities, that confidence is an indication of accuracy. See Neil v. Biggers, 409 U.S. 188, 199-200 (1972). Subsequent research, however, has called this notion into very serious question. See Brian L. Cutler & Steven D. Penrod, Mistaken Identification: The Eyewitness, Psychology, and the Law 255-68 (1995)(summarizing studies).
103 102 101

See Brian L. Cutler et al., Nonadversarial Methods for Improving Juror Sensitivity to Eyewitness Evidence, 20 J. Appl. Soc. Psychol. 1197, 1198-1200, 1202-06 (1990).

57 were no more sensitive to factors known to be problematic to eyewitness identification than were jurors who had no instruction.104

104

See Edith Greene, Judges Instruction on Eyewitness Testimony, 18 J. Appl. Soc. Psychol. 252, 260 (1988).

58 CONCLUSION For the foregoing reasons, the Amici urge this Court to strike the in-court identification of the Defendant, order an evidentiary hearing on the reliability of any identification in these circumstances, and consider adopting a pre-trial procedure regarding the reliability of eyewitness identifications that takes into account the persuasive scientific research undermining the 30-year old Classen template. Respectfully submitted this 2nd day of September, 2011, /s/ Marc Sussman_______________________ MARC SUSSMAN, OSB #77368 Attorney for Amici Curiae College and University Professors

PROOF OF SERVICE I certify that on September 2, 2011, I directed the original BRIEF OF AMICI CURIAE to be electronically filed with the Supreme Court, by using the courts electronic filing system. I further certify that on September 2, 2011, I served the BRIEF OF AMICI CURIAE upon Janet Klapstein, Esq. (OSB #782753), attorney for respondent on review, electronically, pursuant to respondent on reviews previously stated consent to receipt of service of briefs and other filings in electronic format without accompanying paper copies. I further certify that on September 2, 2011, I served the BRIEF OF AMICI CURIAE upon Daniel J. Casey, Esq. (OSB #952277), attorney for petitioner on review, electronically, pursuant to petitioner on reviews previously stated consent to receipt of service of briefs and other filings in electronic format without accompanying paper copies.

/s/ Marc Sussman MARC SUSSMAN, OSB #77368 Attorney for Amici Curiae College and University Professors