Oregon Supreme Court Issues Landmark Decision Mandating Major Changes in the Way Courts Handle Identification Procedures


Decision Goes Even Further than the Recent New Jersey Supreme Court Decision Recognizing the Scientific Research on the Fallibility of Eyewitness Identification Evidence


Contact: Paul Cates, 212-364-5346,



(Portland, OR; November 29, 2012) — Today a unanimous Oregon Supreme Court issued a landmark decision requiring major changes in the way courts are required to evaluate identification evidence. The changes, designed to reduce the likelihood of wrongful convictions by taking into account more than 30 years of scientific research on eyewitness identification and memory, reject the balancing test that had been in place for 30 years and shifts the burden to the state to establish that the evidence is admissible. The decision comes after a 2011 landmark decision by the New Jersey Supreme Court mandating similar reforms.


“The Oregon Supreme Court has issued a ground-breaking decision improving the way courts deal with eyewitness identification evidence that should serve as a model for other courts around the nation,” said Barry Scheck, Co-Director of the Innocence Project, which is affiliated with Cardozo School of Law. “The court went even further than an important 2011 New Jersey Supreme Court decision by rejecting the 30 year balancing test that had been in place for reviewing identification evidence and creating a new framework for dealing with identification evidence.”


Relying on the robust body of scientific research concerning memory and perception, the court recognized that the reliability and accuracy of an identification can be affected by circumstances within the control of the criminal justice system as well as the characteristics of the witness, the alleged perpetrator, and the environmental conditions of the event that cannot be controlled by the criminal justice system. The new legal framework requires Oregon courts to consider all of the factors that may affect an identification’s reliability and instructs courts, where appropriate, to employ remedies, such as limiting the witness’s testimony and permitting expert testimony to explain the scientific research on memory and identification. The Court is particularly concerned with the effects of suggestion (and in particular police suggestion) on memory and likened identification evidence to other forms of physical trace evidence, finding that “it is incumbent on courts and law enforcement personnel to treat eyewitness memory just as carefully as they would other forms of trace evidence, like DNA, bloodstains, or fingerprints, the evidentiary value of which can be impaired or destroyed by Contamination.”


The Oregon Supreme Court decision goes further than the recent New Jersey Supreme Court in

State v. Henderson

in protecting against wrongful convictions based on misidentification in several important respects. The new Oregon test shifts the burden to the state to establish that the evidence is admissible. If the state satisfies its initial burden, the court charges that judges may still need to impose remedies, including suppressing the evidence in some circumstances, to prevent injustice if the defendant establishes that he or she would be unfairly prejudiced by the evidence.




decision provides a useful roadmap for those in the Oregon state legislature and law enforcement communities already working together to improve police practices in this area,” said Karen Newirth, Eyewitness Identification Litigation Fellow at the Innocence Project. “Today’s decision affirms the efforts of these stakeholders to develop protocols for police identification procedures that enhance the reliability and accuracy of eyewitness evidence throughout the state.”


A recent public records request that the Innocence Project sent to all Oregon law enforcement agencies showed that well under one fifth possessed written policies in the area of eyewitness identification. While these findings are not inconsistent with the findings of similar public records requests in other states, it does signal the need to address police practice in this area.


It’s not surprising that the court took issue with the suggestive identification procedures employed by law enforcement in

Oregon v. Lawson

. The defendant Samuel Adam Lawson was convicted of murdering a man and shooting his wife while they were camping at an Oregon campground. The wife, who was badly injured from the shooting, had only a very brief opportunity to view the person who shot her husband at night. She told people treating her that her life was spared because she had not seen the shooter’s face and she was unable to provide any details about his specific features, such as his skin color, hair color, scars or tattoos. On two occasions following the shooting, she was shown a photo array that included the defendant and did not identify him. Two years after the incident, the victim identified the defendant through a suggestive procedure. After having been informed that the man responsible for the shooting had been apprehended and that his name was Samuel Lawson, a detective took the victim to the court room to observe the defendant while a pretrial hearing was being conducted. Later that day, the victim saw a picture of the defendant in the officer’s notebook and identified the defendant as the perpetrator. This information was not disclosed to the defense, as is constitutionally required. At trial she also identified the defendant in the courtroom.


In reaching its decision, the court cited the brief filed by the Innocence Network, a group of affiliated organizations, including the Innocence Project, which works to free people who have been wrongly convicted. Keith Findley, President of the Innocence Network and Co-Director of the Wisconsin Innocence Project, added, “Having witnessed many times the injustice that occurs when someone is wrongly convicted because of misidentification, it is rewarding to see that the Oregon Supreme Court has acknowledging the three decades of scientific research showing the fallibility of police identification procedures and has mandated significant safeguards to prevent wrongful convictions.”


Eyewitness misidentification is the single greatest cause of wrongful convictions nationwide, playing a role in more than 75% of the 273 convictions overturned through DNA testing. Additional information about eyewitness misidentification is available




A copy of the Innocence Network brief is available


. A copy of the friend of the court brief filed by a group of scientists who have conducted research on identification is available




A copy of today decision is available




Lawyers at Willkie Farr & Gallagher assisted the Innocence Network in preparing its friend-of-the-court brief. Lawyers at Milbank, Tweed, Hadley & McCloy assisted the scientists in their brief.


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