IN THE SUPREME COURT OF THE STATE OF OREGON

Transcription

1 IN THE SUPREME COURT OF THE STATE OF OREGON STATE OF OREGON, Plaintiff-Respondent, v. SAMUEL ADAM LAWSON, Defendant-Appellant. Douglas County Circuit Court Case No. 03CR1469FE Court of Appeal~~No. A Supreme Court No. BRIEF OF AMICUS CURIAE THE INNOCENCE NETWORK IN SUPPORT OF PETITION FOR REVIEW Petition to Review the Decision of the Court of Appeals On Appeal from the Judgment of the Circuit Court for Douglas County Honorable RONALD POOLE, Judge Affirmed by Written Opinion: December 15,2010 Before: Wollheim, P.J., Brewer, C.J. (authored majority opinion), and Sercombe, J. (dissenting) Barry C. Scheck Peter J. Neufeld David Loftis The Innocence Project 100 Fifth Avenue Third Floor New York, NY ~ (212) Matthew McHenry (OSB #043571) LEVINE & MCHENRY LLC 1001 SW Fifth Avenue, Suite 1414 Portland, OR matthew@levinemchenry.com Michael S. Schachter Emily D. Kite Willkie F arr & Gallagher LLP 787 Seventh Avenue New York, NY (212) mschachter@willkie.com

2 TABLE OF CONTENTS TABLE OF AUTHORITIES... ii STATEMENT OFAMICUS CURIAE... 1 PRAYER FOR REVIEW... 1 REASONS FOR REVIEW Defendant-Appellant's Conviction Resulted from Patently Flawed Eyewitness Evidence The Eyewitness Identification Standard in Oregon is Flawed This Court Should Use This Case to Reconsider the Test for Admissibility of Witness Identification in Light of New Jersey's Groundbreaking Study on That Subject.... ~... 9 A. The Study Was Necessary to Develop Methods of Combating the High Incidence of Misidentification B. The Report's Scientific Findings Offer Guidance for the Court's Analysis of Eyewitness Identification Reliability The Special Master's Report Supports a Reconsideration of the Classen Test A New Legal Framework Is Needed In Light of the Scientific Findings on the Reliability of Eyewitness Testimony A. The State Should Have the Initial Burden to Produce Evidence of Reliability at a Pretrial Hearing B. If the State Meets Its Burden, The Burden Would Shift to the Defendant to Prove A Substantial Likelihood of Mistaken I dentifi cati on....' C. Courts Should Establish and Follow Rules for Weighing Identification Evidence, Including Placing the Greatest Weight on Primary Evidence CONCLUSION... 23

3 11 TABLE OF AUTHORITIES CASES Manson v. Brathwaite, 432 U.S. 98 (1977)... 8, 10 State v. Classen, 285 Or. 221, 590 P.2d 1198 (1979)....passim State v. Henderson, A-8 Sept. Term 2008, 2009 N.J. Lexis 45 (N.J. Feb. 26, 2009)... 10, 11 State v. Lawson, 239 Or. App. 363,244 P.3d 860 (Or. Ct. App. 2010)... I ~.passim State v. Madison, 109 N.J. 223, 436 A.2d 254 (N.J. 1998) State v. O'Key, 321 Or. 285, 899 P.2d 663 (1995)... 20, 21

4 1 STATEMENT OF AMICUS CURIAE The Innocence Network (the "Network") is an association of organizations dedicated to providing pro bono legal and/or investigative services to prisoners for whom evidence discovered post-conviction can provide conclusive proof of innocence. The sixty-three current members of the Network represent hundreds of prisoners with innocence claims in all 50 states and the District of Columbia, as well as Australia, Canada, the United Kingdom, and New Zealand. l The Innocence Network and its members are also dedicated to improving the accuracy and reliability of the criminal justice system in future cases. Drawing on the lessons from cases in which the system convicted innocent persons, the Network advocates study and refonn designed to enhance the truth-seeking functions of the criminal justice system to ensure that future wrongful convictions are prevented. PRAYER FOR REVIEW Mor~ than 199 people have been convicted and sent to prison following eyewitness testimony which was later proven by DNA evidence to be dead wrong. Faced wit? overwhelming evidence of this recurring injustice, courts have been reevaluating the issues of admissibility and reliability of eyewitness identifications, a charge that the Oregon Supreme Court should now assume in the A list of member organizations is available in Appendix A.

5 2 face of defendant-appellant Samuel Lawson's conviction based on unreliable eyewitness identification. The facts in Mr. Lawson's appeal illustrate that justice demands a test for admissibility that takes scientific evidence regarding indicia of eyewitness reliability into account. Mr. Lawson was convicted largely on an eyewitness identification demonstrating numerous signs of unreliability: the witness's view at the time of the crime was obstructed and of short duration; she viewed the perpetrator under conditions likely to inspire stress; her initial statements regarding identification - which scientific evidence shows to be the most reliable - were inconsistent and uncertain; and she only identified Mr. Lawson as the perpetrator after suggestive procedures by investigators. These suggestive procedures included telling the witness that the man she described as having been at the crime scene earlier the day of the shooting was in custody, taking the witness to a pretrial hearing to view Mr. Lawson, and showing the witness a photograph of Mr. Lawson prior to trial. The admission of eyewitness testimony under current standards poses an unacceptable risk of wrongful convictions. Objective scientific study has proven what the Lawson case suggests -jurors and judges commonly overestimate the reliability of well-meaning witnesses who testify of their ability to identify defendants. In light of these scientific studies, the Supreme Court of the State of New Jersey directed a Special Master to conduct a review of scientific and

6 3 other evidence regarding eyewitness identification. The Special Master's Report (the "Report") demonstrated that New Jersey's standard for the admissibility of eyewitness identifications unacceptably threatened the incarceration of innocent? people.- Oregon's test for admission of eyewitness identifications also inadequately protects the rights of defendants like Mr. Lawson in two critical ways. First, it mandates that the defense initially demonstrate suggestiveness, though the defense has little knowledge of the interplay between investigators and witness or of the potential issues of contamination that may arise over the months (or years) of investigation and pre-trial process. Moreover, suggestion from nonlaw enforcement sources may have an equally devastating effect on witness identification, but be beyond the court's ambit altogether. Second, once the defense shows suggestiveness, Oregon standards permit the prosecution to sustain its burden of establishing reliability on various established factors, such as the eyewitness's confidence in her identification. Courts then balance these reliability factors against the suggestiveness to determine admissibility. The confound 2 The Special Master's Report is attached as Appendix B. Attached as Appendix C is the Innocence Project's amicus curiae brief in State v. Henderson, A-8 Sept. Term 2008 (N.J. Feb. 26, 2009). The Special Master proposed reforms to New Jersey's test for admissibility of eyewitness identifications based on the Innocent Project's proposed framework. See Report at 84; Brief of Amicus Curiae the Innocence Project at

7 4 created by such balancing is that post-identification feedback tends to artificially inflate witness accounts of certainty, opportunity to view, and degree of attention paid. Like amicus College and University Professors, we too propose that this Court "revise the template" concerning the admission of identification testimony. Brief of Amicus Curia College and University Professors, et. al. at 1. For these reasons, Amicus Curiae Innocence Network urges the Court to grant defendant-appellant's Petition for Review, and to use this case as an opportunity to consider a test for admissibility of eyewitness identification which (1) places a burden on the prosecution akin to the burden placed on the proponent of scientific testimony, to offer proof at a pretrial hearing that a reasonable jury could, on the evidence presented, conclude that the identification evidence is reliable; and (2) incorporates into this process consideration of factors scientifically proven to be the best indicators of reliable eyewitness testimony. REASONS FOR REVIEW 1. Defendant-Appellant's Conviction Resulted from Patently Flawed Eyewitness Evidence. Samuel Lawson was convicted of charges flowing from the nighttime shootings of Noris and at an Oregon campground in August survived the shooting. The key issue at trial was the reliability of her identification ofmr. Lawson as the shooter.

8 5 Ms. testified that immediately after she and her husband were shot, a man approached the trailer in which she lay injured, and demanded the keys to their truck. The man placed a cushion over her face. State v. Lawson, 239 Or. App. 363,366, 244 P.3d 860,862 (Or. Ct. App. 2010). Accordingly, Ms. view of the perpetrator was obstructed. Although Ms. described characteristics like the perpetrator's hat and shirt, she could not identify any of his specific features, such as his skin color, hair color, eye color, scars or tattoos. 239 Or. App. at 397 (Sercombe, l, dissenting). Ms. initial statements regarding identification, made to emergency responders and police, were wholly inconsistent. In the weeks immediately following the incident, Ms. claimed she had not seen who shot her; she identified the shooter as a man she had seen in the campground earlier that day - where Mr. Lawson acknowledged being - and even identified the helicopter pilot who transported her to the hospital as the shooter. Id. at 384. Additionally, in interviews two days and a month after the shooting, Ms. failed to identify Mr. Lawson from non-suggestive photographic arrays, or "throwdowns," and she declined to try to identify the perpetrator in a lineup. Id. Despite her initial failure to identify the perpetrator, Ms. did identify Mr. Lawson as the shooter, two years and three months after the shooting, and only after various suggestive events. While Ms. was still hospitalized, a

9 6 detective told her that the man she described as having been in the campground earlier the day of the shooting was in custody. Id. at 370. Several months after the shooting, an employee at Ms. rehabilitation center showed her a news article which contained Mr. Lawson's picture and identified him as. the person in custody for the shooting. Id. Years later, roughly a month before trial, a detective showed Ms. a single photograph of Mr. Lawson. Id. at Around the same time, the same detective brought Ms. to court to observe Mr. Lawson during a pretrial hearing. Id. Only then did Ms. make an in-court identification of Mr. Lawson as the perpetrator. Ms. purportedly expressed great certainty at this final identification. Id. at The Eyewitness Identification Standard in Oregon is Flawed. Defendant-appellant Lawson was convicted based on eyewitness identification testimony that was tainted with suggestiveness and riddled with indicia of unreliability. Its admission underscores two significant flaws in the Oregon standard for admissibility of eyewitness testimony: (1) it only permits a defendant to challenge the admission of identification testimony if he sustains his burden of showing that that the process leading to the offered identification was suggestive; and (2) once the burden shifts, the prosecution may satisfy the court that the proffered identification was reliable through reliance on factors proven

10 7 through the Special Master's findings to be poor indicators of accuracy. See State v. Classen, 285 Or. 221,232-33,590 P.2d 1198,1203 (1979). Under Classen, if a defendant moves to suppress identification evidence on the ground that it was produced through a suggestive procedure, the court must make a two-part inquiry. 285 Or. at 232. First, "the court must determine whether the process leading to the offered identification was suggestive or needlessly departed from procedures prescribed to avoid such suggestiveness." Id. This test addresses only suggestive police procedures, and unless suggestiveness is established, numerous other factors that impact an identification's accuracy do not fall within the courts' gate-keeping function. These factors are left to the consideration of jurors. Given the fallibility of eyewitnesses, as evidenced by their contribution to dozens of known wrongful convictions, the fact that reliability is not the first consideration for admissibility is unacceptable. If, and only if, suggestiveness is found, the court moves to the second prong of the inquiry. Under that prong, the prosecution can persuade the court that the identification had a source independent of the suggestive procedure, or that other aspects of the identification "substantially exclude the risk that it resulted from the suggestive procedure." Classen, 285 Or. at 232. But, the "independent source" that can be relied upon may be merely the witness's personal observations

11 8 and certainty, see, Lawson, 239 Or. App. at (relying in large part on Ms. obstructed observation of the perpetrator and her certainty in her identification), which ignores the impact that suggestive procedure may have on an eyewitness's testimony about his or her purported "independent source." Further, relying on an "independent source" is a particularly insufficient basis for admissibility if the factors considered in that analysis are limited or misinformed. Classen sets forth various factors that a court may use to determine reliability in spite of an unfairly suggestive procedure. This non-exclusive list of factors includes: (1) the witness's opportunity to view and attention given to the perpetrator's identifying features; (2) the timing and completeness of the witness's description of the perpetrator after the event; (3) "the certainty expressed by the witness" in her description; and (4) "the lapse of time between the original observation and the subsequent identification." Classen, 285 Or. at 233 (citing Manson v. Brathwaite, 432 U.S. 98 (1977)). The Classen test assumes that, where some of these factors are satisfied, the court can take comfort that any suggestiveness in the identification process did not taint the result sufficiently to keep it from the jury. The fundamental flaw with this part of the Classen analysis, science has shown, is that it assumes that supposed indicia of reliability can outweigh suggestiveness, when in fact those factors are often mere reflections of the suggestive procedures.

12 9 The fallibility of this assumption is central to the error of admitting the eyewitness identification in Lawson. Here, the trial court found that Ms. had been subject to unduly suggestive identification procedures. Lawson, 239 Or. App. at 374. Nonetheless, the trial court found that the evidence should be admitted under the Classen factors showing an "independent source" for the identification, i. e., her personal observations. Id. at This illustrates two flaws in the Classen test. First, the conviction relied on an eyewitness who was the victim of a suggestive procedure. Ms. may very well have been certain of her identification, but her certainty was not expressed when it mattered most - directly after the incident. Rather, it was expressed two years later after a series of catastrophically suggestive procedures. Her certainty then was undoubtedly inextricably intertwined with that suggestiveness. Second, in light of the abundant scientific evidence discussed below, the court's reliance on certain factors - and undervaluing of others - was misplaced. 3. This Court Should Use This Case to Reconsider the Test for Admissibility of Witness Identification in Light of New Jersey's Groundbreaking Study on That SUbject. At the direction of the New Jersey Supreme Court, a Special Master recently conducted an examination of scientific studies regarding the reliability of eyewitness identification. The Supreme Court directed the Special Master to examine "whether the assumptions and other factors reflected in the two-part

13 10 A1ansoniMadison test [similar to Oregon's Classen test], as well as the five factors outlined in those cases to determine reliability, remain valid and appropriate in light of scientific and other evidence." State v. Henderson, A-8 Sept. Term 2008, 2009 N.J. Lexis 45, at *3 (N.J. Feb. 26, 2009) (citing Manson v. Brathwaite, 432 U.S. 98 (1977); State v. Madison, 109 N.J. 223, 436 A.2d 254 (N.J. 1998)). The Special Master's examination focused on a comprehensive consideration of the scientific evidence that has accumulated over the years on the topic of eyewitness identification. That was no small feat; since 1977, when the, Supreme Court decided Manson, the scientific evidence on that topic has been "voluminous." Report at 72. Indeed, the robust hearings lasted over ten days and examined more than 200 published scientific studies, articles and books. Additionally, over seven expert witnesses offered by defendant-appellant, the State, and amici testified at the hearings. The Special Master concluded that the scientific evidence was "comprehensive and consistent," and unambiguously revealed the flaws in the current test regarding the admissibility of witness identification. Report at 72. As one of the experts at the hearing, Professor John Monahan, explained: Eyewitness identification is the gold standard in terms of the applicability of social science research to the law. I think that of all the substantive uses of social science in law, none has been more subjected to scientific scrutiny,

14 11 none has used more valid research methods, none is more directly generalizable, and nowhere is there a larger body of research than in the area of eyewitness identification. Id. Noting that "the scientific findings, in short, are reliable, definitive and unquestionably fit for use in the courtroom," id. at 73, the Special Master proposed an alternative test to Manson. Id. at A. The Study Was Necessary to Develop Methods of Combating the High Incidence of Misidentification. Studies examining the frequency of misidentification consistently show that, at a minimum, one-third of eyewitness identifications tum out to be incorrect. Report at (citing archival studies with a misidentification rate of 33-35%, field studies with a misidentification rate of 50%, and a meta-analysis of 30 studies showing misidentification ranging 190/0 to 51 %).3 Additionally, the Special Master Report noted data showing that a majority of wrongful convictions cleared by post-conviction DNA testing involved 3 The Special Master Report identified three main methodologies employed in eyewitness identification studies: (1) Archival Studies: Examination of police and court records of past investigations and prosecutions. (2) Field Experiments and Studies: Direct observation of "real life" events as they take place. (3) Laboratory Studies: Academic researchers design and control these experiments with variables that can be manipulated and controlled. The vast majority of eyewitness identification studies are of this variety. Report at 12. An important subset of studies, "meta-analyses," are considered the most reliable. These evaluate "the methodologies and findings of multiple published reports of experiments in a given area of inquiry." Id.

15 12 erroneous eyewitness identifications. Report at As of the writing of this. brief, 266 wrongfully convicted persons had been exculpated by DNA evidence and an erroneous eyewitness identification "was a factor in 75 percent of postconviction DNA exoneration cases in the U.S., making it the leading cause of these wrongful convictions." See Innocence Project, Facts on Post-Conviction DNA. 4 E xoneratlons. B. The Report's Scientific Findings Offer Guidance for the Court's Analysis of Eyewitness Identification Reliability. In assessing the reliability of eyewitness identification, researchers make a distinction between system variables and estimator variables. Estimator variables are those variables that "inhere in the witness, the perpetrator-and the witnessed event and are beyond control of the justice system." Report at Those variables include eyewitness stress level, duration of the event witnessed, distance and lighting, age, memory of the witness, alcohol, and whether the perpetrator has a distinctive identity. Jd. at The Special Master determined that estimator variables play an important role in evaluating the reliability of an identification, but are often undervalued by jurors. Jd. at Available at on _PostConviction _DNA_ Exonerations.php (last visited March 3,2011).

16 13 System variables are variables which "affect eyewitness identification accuracy over which the justice system has control (e.g., lineup procedures)." Report at The lineup - essentially a memory experiment conducted by police -is the most widely used identification procedure. Id. at 19. The Special Master found that "[t]he means by which a lineup administrator's expectations can be unwittingly communicated are many and diverse: words, gestures, hesitations, smiles and the like can be and are picked up by witnesses as suggesting what the administrator wants or expects to hear." Id. at 20. Many of these factors can be negated, however, by conducting a double-blind lineup where the police officer is not aware of a specific target when asking for the witness's identification. Id. at Further, the Report recommended obtaining a witness's description ofa perpetrator prior to an identification procedure, as a post-lineup description commonly will evolve to fit the description of the person identified. Id. at 27. The instructions given to the witness at the time of the lineup are also an important factor in obtaining a reliable eyewitness identification. The witness should be instructed that the police are conducting a blind lineup, that "the perpetrator mayor may not be present in the lineup and that the witness should not feel compelled to make an identification." Report at 2l. Appropriate instructions mitigate two main dangers. First, without the instructions, a witness assumes that the suspect is in the lineup and that her job is

17 14 to pick that person out. Second, the witness engages in the "relative judgment process," which is the tendency to pick out the suspect who looks most like the perpetrator, even if it is not actually the correct person. Report at 22. Courts should consider the impact of lineup procedures and instructions when scrutinizing reliability of identifications offered for admission. Additionally, an eyewitness who misidentifies a suspect once will frequently misidentify this same person again at a later procedure, because "the witness will remain committed to that identification." Report at Similarly, "when a witness initially reviews a collection of photographs without making an identification; the reliability of a positive identification made at a second procedure is undermined," as a person that appears in both lineups becomes familiar to the witness. Report at 28. The timing of any identification procedure is also important to the potential accuracy of the identification. For example, the studies illustrate that showup procedures, where a witness only sees one suspect, are ideally performed within two hours of the incident. Id. at 29. Showups can be particularly suggestive because only one person is shown to the witness, and the chance for misidentification greatly increases with the passage of time. A 2003 meta-analysis examined 3,013 witnesses using lineups and showups and found that showups had twice as many misidentifications as lineups. Report at 30. In the instant case,

18 15 SherI was unable to identify the perpetrator in the months following the crime. Lawson, 239 Or. App. at 369. More than two years after the crime, however, Ms. identified Mr. Lawson as the shooter after she saw him at a pre-trial hearing and subsequently was shown a photograph of the defendant. Id. at 370. Both the trial court and the court of appeals found that these procedures were suggestive. Id. at 374. The report also summarizes an "extensive body of studies" on feedback to witnesses. The studies demonstrate "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." Report at In Mr. Lawson's case, Ms. was told that the person she had "described" (though without giving any specific physical features) was in custody and then, later,,was taken to see Mr. Lawson, the person in custody, in the highly suggestive setting of a pretrial hearing. Pursuant to the findings of the Special Master's Report, such preidentification feedback likely contributed to Ms. confidence in her identification. "Certainty" expressed by the witness in making an identification, a Classen/Manson factor, is in fact a poor indicator of accuracy. Meta-Analysis examined at the Special Master's hearing found "that witnesses' pre-identification

19 16 confidence in their ability to make an identification has no correlation to the accuracy of the identifications they then make and that confidence expressed immediately after making an identi.fication has only a low correlation to the accuracy of the identification." Report at 34. Further, a witness's self-reported confidence -as when Ms. testified to her confidence in her identification - is not a reliable indicia of accuracy. Id. at 35. The timing of an identification, on the other hand, is a more reliable indicator - the quicker the identification, the greater the chance of accuracy. Numerous studies on memory have illustrated the importance of making an identification as soon as possible. Report at 10. An eyewitness retains only some details of the witnessed event; can have the memory altered by the standard decay of time and by information obtained after the event was witnessed; and can have the retrieval of the memory distorted by a wide variety of factors. Id. Because of the corrupting effect of post-event information, "primary" identification evidence - the witness's initial description of the perpetrator, opportunity to view the event, degree of attention, the event's duration, and the witness's initial identification or non-identification and contemporaneous confidence in that initial identificationis more reliable than subsequent identifications or self-reports of confidence in those identifications. Here, Ms. was unable to make a positive identification of the perpetrator in the weeks immediately following the event, yet expressed

20 17 certainty in the identification years later. In light of scientific evidence regarding the accuracy of a witness's immediate descriptions and identifications, this factor should have weighed heavily in favor of inadmissibility of the identification. 4. The Special Master's Report Supports a Reconsideration of the Classen Test. The groundbreaking findings of New Jersey's Report of the Special Master underscore the many inadequacies of the Classen and Manson tests. First, the Classen test is flawed in that it only permits court to consider the reliability of eyewitness identification in the face of suggestive procedures or procedures that circumvent efforts to avoid suggestiveness. Classen, 285 Or. at 231. In the absence of expert testimony, judges and juries are left to their own instincts to determine what is suggestive and what the impact of any suggestiveness might be. Report at The numerous other factors discussed by the Special Master, including the important "estimator variables," are not considered and, if the suggestiveness is not proven, the reliability of the eyewitness's identification is left in the hands of the jurors. But overwhelming research reveals that jurors have great trouble distinguishing between accurate and inaccurate witnesses. Report at Even more problematic, research shows that jurors have certain fundamental misconceptions about eyewitness memory. Report at 49. Studies have found "that jurors underestimate the importance of

21 18 proven indicators of accuracy (e.g., lineup instructions, memory retention interval, lighting conditions, cross-race identification, weapon presence), tend to rely heavily on factors that the research finds are not good indicators of accuracy (e.g., witness confidence), and tend to overestimate witness accuracy rates." Id. at 49. In the second step of the Classen analysis, the court must decide whether the witness had an independent source for her identification apart from the suggestive procedures. Classen, 285 Or. at 232. While some of the factors listed in Classen should be relevant to a court's decision regarding admissibility, the Special Master's Report demonstrates that the continued reliance on a witness's confidence is misguided. First, relying on a witness's confidence in the face of suggestive identification procedures is particularly concerning, because scientific evidence shows that positive feedback and other influences confirming the identification artificially inflates a witness's confidence, Report at 36, which one cannot expect to suddenly deflate because the process was deemed "suggestive." As brought to light by the Report, "studies uniformly show, and the experts unanimously agree, that confidence is not closely correlated to accuracy" and "is easily enhanced by suggestive procedures and post-identification feedback." Report at Further, as discussed above, numerous other factors should playa role in determining the accuracy of eyewitness identification.

22 19 In the instant case, the trial court noted that the eyewitness, in identifying Mr. Lawson as the shooter in court, articulated "that she did not have any doubts, that she would never forget his face, and that she always knew the shooter was the defendant." Lawson, 239 Or. App. at 398 (Sercombe, J., dissenting). The trial court's emphasis on the victim's certainty is troubling in light of Ms. prior inability to make an identification and the suggestiveness of the police procedures. A suggestiveness procedure cannot be undone. Further, the feedback Ms. received prior to her identification -' that the man she had "described" was in custody and the viewing of Mr. Lawson in the highly suggestive pre-trial hearing setting - ( surely impacted her certainty in making the identification. Further, the passage of time between the crime and the identification should have been given more weight in the admissibility determination. s Finally, other estimator variables were not even considered in the court's decision. For example, the Special Master concluded that stress and fear interfere with a As cited by the Special Master Report, a 2008 meta-analysis "shows that memory quality declines by 20% after two hours, by 30% within the first day, and by 50% one month after the observation." Report at 45. Ms. made her in-court identification of defendant-appellant Lawson over two years after the, shooting.

23 20 witness's ability to encode reliable details, Report at 43, a factor likely to be relevant given Ms. circumstances. F or the foregoing reasons, the tests in Classen and Manson are inadequate in making reliability the "linchpin" of this Court's examination of eyewitness testimony. 5. A New Legal Framework Is Needed In Light of the Scientific Findings on the Reliability of Eyewitness Testimony. The Special Master Report noted that two elements of a just process for admission of eyewitness identification are of "critical importance:" mandatory pretrial hearings to evaluate eyewitness identifications and the judicial adoption and implementation of the scientific findings regarding the reliability of identification. Report at A. The State Should Have the Initial Burden to Produce Evidence of Reliability at a Pretrial Hearing. First, courts should handle eyewitness identifications as they handle all scientific evidence, by placing at least the initial burden on the prosecution to establish, at a pretrial hearing, that the identification evidence is reliable. See State v. o 'Key, 321 Or. 285, ,899 P.2d 663, (1995) (holding that the proponent of scientific evidence has the burden of establishing its validity, which requires determination of the relevance and reliability of the evidence); see also Report at (explaining that researchers commonly recommend that

24 21 eyewitness identifications be treated like trace evidence, i. e., evidence, such as a blood smear, the integrity of which needs to be assessed from the point of its collection to its presentation at trial). Given the extensive findings showing the contaminating effect of post-event information on witnesses' memory, it is critical that courts make an inquiry into the possibility of memory contamination and into the procedures employed by law enforcement officials in the identification process. Under the Classen test, the court is required to examine the factors prescribed in Manson only once the defense has made an initial showing of a suggestive identification process or investigators departing from procedures intended to avoid suggestiveness. Classen, 285 Or. at 231. Instead, given the considerable scientific evidence showing that eyewitness identification evidence is not inherently reliable, the burden should be placed on the prosecution wishing to establish that a reasonable jury could make the requisite factual determination that the identification evidence is reliable based on the evidence before it. To sustain this burden, the prosecution should produce evidence with respect to two necessary elements: the reliability of the perception and memory of the eyewitness and the specific identification procedures used to obtain the identification.

25 22 B. If the State Meets Its Burden, The Burden Would Shift to the Defendant to Prove A Substantial Likelihood of Mistaken Identification. Once the prosecution has sustained its burden, the burden would shift to the defendant to prove, by a preponderance of the evidence, that the identification should be suppressed as unreliable. Specifically, the defendant must show that there exists a substantial likelihood of a mistaken identification, either through cross-examination of the prosecution's witnesses, by introducing his own evidence, or both. If the defendant meets this burden, both the out-of-court and prospective in-court identification evidence would be suppressed. C. Courts Should Establish and Follow Rules for Weighing Identification Evidence, Including Placing the Greatest Weight on Primary Evidence~ The Report explains that "primary" evidence is more reliable than subsequent identifications or self-reports of confidence in those identifications, because it is less likely to suffer from memory decay or suggestive influences. Nonetheless, juries and appellate judges tend to rely on a witness's identification at the time of a hearing or trial. Report at 48. When assessing identification reliability at the admissibility stage and when composing jury instruction, Courts should instead place much greater weight on the evidence of the witness's initial description and identifications, before her memory has the opportunity to decay

26 with the passage time, as well as certain important estimator variables, that the Report showed to be good indicia of reliability. CONCLUSION Amicus urges the Court to take review and to adopt a standard for the admissibility of eyewitness identification testimony that takes into account the extensive scientific study of this powerful, but potentially misleading, evidence. If the Court accepts review, Amicus will present a more extensive brief on the merits of these issues. Respectfully submitted, s/ Matthew G. McHenry Matthew McHenry (OSB #043571) LEVINE & MCHENRY LLC 1001 SW Fifth Avenue, Suite 1414 Portland, OR matthew@levinemchenry.com

27 24 APPENDIX A The Innocent Network's member organizations include: Alaska Innocence Project Association in Defence of the Wrongly Convicted (Canada) California Innocence Project Center on Wrongful Convictions Connecticut Innocence Project Downstate Illinois Innocence Proj ect Duke Center for Criminal Justice and Professional Responsibility The Exoneration Initiative Georgia Innocence Project Hawaii Innocence Project Idaho Innocence Project Innocence Network UK Innocence Project Innocence Proj ect Arkansas Innocence Project at UV A School of Law Innocence Project New Orleans Innocence Proj ect New Zealand Innocence Project Northwest Clinic Innocence Project of Florida Innocence Project.ofIowa Innocence Proj ect of Minnesota Innocence Project of South Dakota Justice Project, Inc. Kentucky Innocence Project Maryland Innocence Project Medill Innocence Project Michigan Innocence Clinic Mid-Atlantic Innocence Project Midwestern Innocence Project Mississippi Innocence Project

28 Montana Innocence Project Nebraska Innocence Project New England Innocence Project Northern Arizona Justice Project Northern California Innocence Project Office of the Public Defender (State of Delaware) Office of the Ohio Public Defender Wrongful Conviction Project Ohio Innocence Project Osgoode Hall Innocence Project (Canada) Pace Post-Conviction Project Palmetto Innocence Project Pennsylvania Innocence Project Reinvestigation Project (Office of the Appellate Defender) Rocky Mountain Innocence Center Sellenger Centre Criminal Justice Review Project (Australia) Texas Innocence Network Thomas M. Cooley Law School Innocence Project Thurgood Marshall School of Law Innocence Project University of British Columbia Law Innocence Project (Canada) Wake Forest University Law School Innocence and Justice Clinic Wesleyan Innocence Project Wisconsin Innocence Project Wrongful Conviction Clinic

29 APPENDIXB

30 SUPREME COURT OF NEW JERSEY A-8-08 September Term 2008 STATE OF NEW JERSEY, Plaintiff- Appellant v. LARRY R. HENDERSON, Defendant-Respondent Paula T. Dow, Attorney General, attorney for appellant (John McNamara, Jr., Special Deputy Attorney General, and Deborah Bartolomey, Deputy Attorney General, of counsel) Yvonne Smith Segars, Public Defender, attorney for respondent (Joseph E. Krakora, Assistant Public Defender, and Joshua D. Sanders, Assistant Deputy Public Defender, of counsel) Barry C. Scheck, Ezekiel R. Edwards and Jessica M. McNamara, attorneys for amicus curiae Innocence Project Alison Perrone, attorney for amicus curiae Association of Criminal Defense Lawyers of New Jersey Stephen A. Saltzberg, George C. Thomas III and D. Michael Risinger filed an amicus curiae brief pro se REPORT OF THE SPECIAL MASTER

31 Table of Contents Format of the Hearing and the Record 2 The Manson/Madison Test and Related New Jersey Caselaw 5 Foundations and Methodologies of the Scientific Studies 8 The Incidence of Misidentification 15 The Scientific Findings 19 System Variables 19 Estimator Variables 42 Lay knowledge and intuitions 48 Responses of Interested Communities 50 Expert Witnesses 50 Law enforcement and reform agencies 51 Legislation 59 Courts 61 Findings and Conclusions 72 The scientific evidence 72 Inadequacies and flaws of Manson/Madison 76 Remedies 79 Guide to the Record 87 Format of the Hearing and the Record In its remand orders of February 26 and May 4, 2009, the Supreme Court declared that the trial court record in this matter is inadequate to "test the current validity of our state 2

32 law standards on the admissibility of eyewitness identification" and directed that a plenary hearing be held to consider and decide whether the assumptions and other factors reflected in the two-part Manson/Madison test, as well as the five factors outlined in those cases to determine reliability, remain valid and appropriate in light of recent scientific and other evidence. As the Court ordered, the State, the defendant and amici Innocence Project and Association of Criminal Defense Lawyers of New Jersey (ACDL) participated in the remand proceedings. Given the nature of the inquiry, the proceedings were conducted more as a seminar than an adversarial litigation. At an inilial conference, it was agreed that all participants would submit and exchange whatever published scientific materials they chose and would also disclose the names and areas of proposed testimony of all expert witnesses. More than 200 published scientific studies, articles and books were ultimately made part of the record. At the evidentiary hearings, which extended over ten days, seven expert witnesses testified: Gary L. Wells, Distinguished Professor of Liberal Arts and Sciences, Department of Psychology, Iowa State University, called by the Innocence P r oj e ct. I P 2. James M. Doyle, Director, Center for Modern Forensic Practice, John Jay College of Criminal Justice, CUNY, called by the Innocence Project. IPSO. 3

33 John Monahan, John S. Shannon Distinguished Professor of Law, University of Virginia School of Law, called by the Innocence Project. IP86. Steven Penrod, Distinguished Professor of Psychology, John Jay College of Criminal Justice, CUNY, called by def~ndant. 02. Jules Epstein, Associate Professor of Law, Widener University School of Law, called by defendant Roy Malpass, Professor of Psychology, University of Texas, El Paso, called by the State. S28. James M. Gannon, former Deputy Chief of Investigations, Office of the Morris County Prosecutor, called by the State. S34. At the conclusion of the hearings, the parties prepared extensive proposed findings of fact and conclusions of law, which were thoroughly argued on the rec~rd. The tentative findings and conclusions of the Special Master were later distributed to counsel and discussed in final on-the-record conferences. The findings and conclusions set forth below are those of the Special Master alone. Because of the nature and size of the record thus developed, it is presented, with the approval of the Supreme Court Clerk, on a single DVD. A guide to the record and the manner in which it can be accessed is attached at the end of this Report. 4

34 The Manson/Madison Test and Related New Jersey Caselaw In State v. Madison, 109 N.J. 223 (1988), this Court addressed the question of "whether the out-of-court photographic identification procedures used by the police were 'so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.'" Id. at 225. Reciting that "[w]e have consistently followed the [United States] Supreme Court's analysis on whether out-of-court and incourt identifications are admissible," the Court adopted the "two-prong" admi sibility test set forth in Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L.Ed. 2d. 140 (1977). Id. at 233. Justice Garibaldi described that test as follows: [A] court must first decide whether the procedure in question was in fact impermissibly suggestive. If the court does find the procedure impermissibly suggestive, it must then decide whether the objectionable procedure res~lted in a "very substantial likelihood of irreparable misidentification." [Citations omitted.] In carrying out the second part of the analysis, the court will focus on the reliability of the identification. If the court finds that the identification is reliable despite the impermissibly suggestive nature of the procedure, the identification may be admitted into evidence. "Reliability is the linchpin in determining the admissibility of identification testimony." [Citations omitted.] * * * * * * * * * The United States Supreme Court has established that the reliability determination is 5

35 to be made from the totality of the circumstances in the particular case. This involves considering the facts of each case and weighing the corruptive influence of the suggestive identification against the "opportunity of the witness to view the criminal at the time of the crime, the witness's degree of attention, the accuracy of his prior descr~ption of the criminal, the level of certainty demonstrated at the time of the confrontation and the time between the crime and the confrontation." [Citations omitted.j [109 N.J. at , J In applying that rule, the defendant bears the burden of proving by a preponderance of the evidence that a pretrial identification procedure was so suggestive as to result in a substantial likelihood of misidentification; in the absence of such a showing, no evidentiary hearing as to reliability is required. State v. Hurd, 86 N.J. 525, 548 (1981), abrogated on other grounds by State v. Moore, 188 N.J. 182 (2006); State v. Ortiz, 203 N.J. Super. 518, 522 (App. Div. 1985). If the defendant makes a sufficient showing of undue suggestiveness, the State has the burden of proving by clear and convincing evidence that the identification has a source independent of the police-conducted identification procedures. Madison, 109 N.J. at 245. That remains the core New Jersey test of admissibility of an eyewitness identification. See, e.g., State v. Adams, 194 N.J. 186 (2008); State v. Herrera, 187 N.J. 493 (2006). However, 6

36 this Court and the Appellate Division have ruled on several related matters concerning the procedural handling and substantive assessment of eyewitness testimony: State v. Delgado, 188 N.J. 48 (2006), ordered that, as a condition to the admissibility of out-of-court identifications, the police preserve a record, to the extent feasible, of all dialogue between witnesses and police during any identification procedure. State v. Herrera, supra, 187 N.J. at 509, recommended that, in appropriate cases, the trial court consider, in addition to the five Manson reliability factors, "the nature of the event being observed and the likelihood that the witness would perceive, remember and relate it correctly." State v. Robinson, 165 N.J. 32 (2000), reaffirmed the obligation of the trial court under State v. Green, 86 N.J. 281 (1981), to explain the Manson/Madison identification factors to the jury in the context of the facts of the case. State v. Cromedy, 158 N.J. 112 (1999), reviewing the scientific and legal findings that eyewitnesses suffer "cross-racial impairment" when identifying members of another race, ordered that, in certain circumstances, a jury be specially instructed as to the unreliability of cross-racial identifications. State v. Romero, 191 N.J. 59 (2007), declined to require a special jury instruction with respect to "cross~ethnic" identifications, but ordered the drafting of a model jury charge cautioning that a witness's level of confidence, standing alone, may not be an indication of reliability of the identification. State v. Michaels, 136 N.J. 299 (1994), finding that the State's conduct in interrogating alleged victims of child sexual abuse undermined 7

37 the reliability of the children's recollections of the alleged crimes, ordered that an evidentiary hearing be held to determine whether their testimony was sufficiently reliable to warrant admission at trial, and instructed that expert testimony be allowed regarding the capacity of the interrogations to skew the children's memories. State v. Earle, 60 N.J. 550 (1972), directed that law enforcement agencies retain the photo array employed in every photo identification procedure; State v. Janowski, 375 N.J. Super. 1 (App. Div. 2005), held that Earle does not require recording or preserving all photographs In mug-shot books used to develop a suspect. State v. Chen, 402 N.J. Super. 62 (App. Div. 2008), certif. granted 197 N.J. 477 (2009) (argued September 29, 2009), held that although Manson provides no constitutional basis for exclusion of identification evidence influenced by suggestive procedures in which the government played no part, the Manson/Madison test should nevertheless be applied to determine the admissibility of identifications impacted by the conduct of private actors. State v. Gunter, 231 N.J. Super. 34 (App. Div. 1989), held that inquiry into the reliability of an eyewitness identification can encompass all factors that affect perception and memory, not just suggestive police procedures, and that expert testimony is appropriate as to all such matters. Foundations and Methodologies of the Scientific Studies While it has long been recognized, both in New Jersey and elsewhere, that eyewitness identifications are inherently suspect and criminal convictions are all too frequently based on misidentifications (see, e.g., Romero, 191 N.J. at 72-75; Delgado, l88 N.J. at 61; Herrera, 187 N.J. at 501), intensive 8

38 research into the causes and extent of misidentification did not commence until the 1970s, just before the United States Supreme Court decided Manson. 16T 59; 04. The volume of that research has been remarkable: over two thousand studies on eyewitness memory have been published in a variety of professional journals over the past 30 years. 14T 40-41; 16T 60; 22T 44~45; IP6 at Indeed, Monahan testified that of nail the substantive uses social science in law.. nowhere is there a larger body of research than in the area of eyewitness identification." 29T Even more remarkable is the high degree of consensus that the researchers report in their findings. The study of eyewitness identification relies in the first instance on precepts drawn from the broader studies of human memory. Those studies, pioneered by Dr. Elizabeth Loftus, demonstrate that eyewitness performance depends on many variables. 18T 10-11; IP52 at 93. See generally IPl14; IPl15; IPl17;IP135; IP141. The central precept is that memory does not function like a videotape, accurately and thoroughly capturing and reproducing a person, scene or event. 1ST 5-6; 26T 14-18; IP143 at 171. Memory is, rather, a constructive, dynamic and selective process. 1ST 7; 26T Memory is comprised of three successive mental processes: encoding, which occurs when the witness perceives the event; storage, which is the period between the event and the witness's 9