Math for Lawyers: 602 + 701 + 403 = Admissibility of Eyewitness Identification (Also, 1706).

Thirty-three years ago, in State v. Classen, 285 Or 221, 590 P2d 1198 (1979), the Oregon Supreme Court set forth a test by which to determine whether an eyewitness identification is sufficiently reliable to be admitted at trial.  Under Classen, if the underlying identification process was found to have been suggestive (or to have departed needlessly from protocols designed to avoid suggestion), then the court was to determine whether either (a) the witness had based the identification on a source independent of the suggestive elements, or (b) other aspects of the identification (such as clarity of view and degree of certainty) substantially excluded the risk that the identification had been influenced by the suggestive elements.

The Classen test is no more.  Meet the Lawson/James test:

When a criminal defendant challenges eyewitness identification evidence, the state, as the proponent of that evidence, has the burden of establishing all preliminary facts necessary to show admissibility.  (Note the shift from Classen, which left it to the opponent of the identification evidence to show a suggestive process.)  Those preliminary facts may include the eyewitness’s personal knowledge of the facts to which the witness will testify (OEC 602), the rational basis of the witness’s identification opinion in the witness’s first-hand perceptions (OEC 701), and the helpfulness of that identification opinion to the trier of fact (again OEC 701).  Having leapt that hurdle, the state can sit back because the baton passes to the defendant, who can try to show under OEC 403 that although the eyewitness evidence is otherwise admissible, the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by considerations of undue delay or needless presentation of cumulative evidence.  If the defendant succeeds in that regard, all eyes turn to the court, which can either exclude the evidence or “fashion an appropriate intermediate remedy short of exclusion” – e.g., admit an identification but exclude the witness’s self-appraisal of certainty.

The court has lots to say about the “system variables” (circumstances surrounding the identification procedure) and “estimator variables” (characteristics of the witness, the defendant, and the environs) that can affect the reliability of an identification, so with the help of an expert — yes, experts allowed — factor them into the 602 + 701 + 403 math.

State v. Lawson/James.