Oregon State Bar Bulletin JANUARY 2014
Like many violent tragedies, the 1992 explosion of an El Al cargo plane in Amsterdam profoundly affected the surrounding community. About a year later, hundreds of residents spoke to researchers about their recollections of the incident. For many of these residents, their most vivid memories were of watching video footage of the explosion on television. Their detailed descriptions of what they had seen made it clear that the footage was permanently etched into their memories.
In fact, that video existed only in their memories. There was never any actual footage of the explosion. And yet these residents not only described having seen it, but spoke about specific details that they remembered seeing — for example, the point in time at which the plane caught fire, or the sharpness of its descent angle. This strange effect was not limited to a few scattered respondents. Remarkably, more than half of the interviewees reported seeing the nonexistent video. These subjects were presumably attempting to answer the researchers’ questions honestly, as they had little motivation to be deceptive. Why were their answers so starkly at odds with objectively provable reality?
Part of the answer to that question relates to features of human perception and memory recently addressed by the Oregon Supreme Court in a landmark case, State v. Lawson, 352 Or 724 (2012). Lawson dealt with fundamental questions relating to how eyewitness identification evidence should be screened for admissibility, presented to jurors and ultimately explained and understood.
Lawson’s potential impact on criminal cases involving eyewitness identifications was instantly recognized. Perhaps less obvious, however, was the effect the court’s opinion may have on a broader set of cases. As discussed below, because of the court’s analytical approach, Lawson’s impact could extend to a wide spectrum of civil and criminal cases.
The Lawson Opinion1
Lawson was an aggravated murder case. The evidence at issue was the testimony of an eyewitness, the victim’s wife (herself injured during the crime), who purported to identify the defendant as the person who had shot her and her husband. The defense had sought to exclude the identification evidence, arguing that, among other grounds, it was “tainted” by inappropriately suggestive police procedures.
The Oregon Supreme Court took the opportunity presented by Lawson to reframe its approach to eyewitness identification evidence. The court undertook a lengthy analysis of the existing research on witness perception and memory, with particular emphasis on work done since the court had last considered the issue.2
That research is complex and intriguing, and any attorney litigating eyewitness issues would be well advised to review the opinion in its entirety. [For more background information, see also “I’ll Remember you – or Someone I Think Was You,” OSB Bulletin, published October 2012, while the Lawson case was still pending, at www.osbar.org/publications/bulletin/12oct/memory.html] In brief, the court started with the fact that, notwithstanding widespread beliefs, human memory does not operate like a videotape that simply records and plays back a copy of the sights, sounds and other data initially perceived by the witness. In fact, what we consider our “memories” are in fact highly susceptible to a number of factors that can dramatically influence what we “remember.”
These factors operate at multiple levels. First, variables involved at the time of perception — not only obvious factors such as lighting and intoxication, but also others such as stress and fear — can affect the accuracy and completeness of the memories we form. Additionally, and of particular significance in the legal realm, factors coming into play after the initial perception can affect memory formation. For example, after observing a crime but before participating in a lineup, a witness may be shown a photograph of a suspect. If that happens, the suspect’s features can sneak into the witness’s memory, causing the witness to “remember” the suspect as the person observed at the scene.
Any express or implied reinforcement can also influence identification evidence. If the influence precedes the identification — for example, if during a lineup, a police officer is focusing on the suspect in a way perceptible to the witness — the witness may be subconsciously nudged toward the expected identification. If the reinforcement comes after the identification — “Great, you picked the suspect” — it can artificially bolster a witness’s belief regarding the certainty of the identification.
For these and other reasons, the court analogized eyewitness identification evidence to “trace” physical evidence that is subject to contamination by various influences. In other words, just as a body fluid sample can be corrupted by cross-contamination, an eyewitness’s memory can be corrupted by a variety of factors.3 The court also acknowledged that, although to some degree problems with perception and memory are matters of common knowledge, there are many ways in which an average layperson’s understanding of such issues differs from what modern research shows. For example, the level of certainty expressed by a witness is typically given significant weight not only by jurors, but also by judges; indeed, that has historically been a factor in the admissibility determination for eyewitness identification evidence. In fact, however, there appears to be little if any correlation between witnesses’ self-reports of confidence and the actual accuracy of their identifications.
The court implemented this understanding of witness perception and memory in a number of concrete ways. First, it revised its test for the admissibility of eyewitness identification evidence. Where such evidence is challenged, the proponent now has the burden of demonstrating its reliability — including a demonstration that the evidence is in fact a product of the witness’s own perceptions, and not of suggestive police tactics or other tainting influences. That determination includes consideration of the various factors that have been demonstrated to affect witness perception and memory. The court included an extensive list of those factors in an appendix to its opinion, while also recognizing that the empirically driven nature of its analysis meant that it would presumably evolve along with the scientific research.
The court also set forth certain intermediate measures that may be available to allow eyewitness evidence to perform its proper function without being unduly misleading or carrying disproportionate weight. For example, the court noted that testimony regarding a witness’s own level of certainty regarding his or her identification — testimony that, according to empirical data, is highly suspect and yet significantly persuasive to jurors — may be subject to exclusion under OEC 403.
Although the admissibility analysis is probably the aspect of Lawson that has drawn the most attention, there are other aspects that may prove similarly consequential. Before Lawson, for example, the admissibility of expert testimony on witness perception and memory had been somewhat controversial, as opponents of such evidence argued that these were common-sense matters readily understood by laypersons. The Oregon Supreme Court, however, expressly encouraged the use of such expert guidance. The court also endorsed the use of specific jury instructions designed to guide jurors in their evaluation of eyewitness identification evidence.
Not Just a Criminal Case
Evidentiary questions in criminal cases are subject to constitutional issues separate from the generally applicable rules of evidence. Accordingly, when a case arises in the criminal context, its applicability to civil cases will depend on the source of authority underlying the holding. For example, if a witness in a criminal case attempts to testify about something said by someone else, such testimony may implicate both the hearsay rule in the Oregon Evidence Code (OEC) and the confrontation clauses in the state and federal constitutions. A constitutionally based ruling will only apply to criminal cases, while a decision based on the hearsay rule will apply in civil cases as well.
Many courts considering the types of questions at issue in Lawson have focused on constitutional issues. Frequently, for example, courts treat the issue under the due process clause in the U.S. Constitution (or analogous clauses in state constitutions). In Lawson, however, the Oregon Supreme Court grounded its eyewitness evidence framework in the OEC. Among other implications, this means that Lawson will apply to civil cases. This may not appear terribly significant at first, as classic “that’s the guy” eyewitness scenarios are comparatively rare in civil litigation. Nonetheless, as discussed below, Lawson’s reasoning may well extend beyond the prototypical identification settings to a broader class of situations that will in fact appear in many civil cases.
Not Just About “Identifications”
Lawson was a classic identification case — the critical testimony related to whether a particular suspect was the person who had engaged in certain conduct. Accordingly, much of Lawson’s language and analysis relates to that specific type of evidence.
Eyewitness identification issues, however, are a subset of a broader category of issues relating to witness perception and memory. In an identification case, a witness — at least theoretically — compares a suspect’s features with those of someone in the witness’s memory. Of course, witnesses give memory-based testimony on various issues other than a person’s identification. They may testify about, for example, sequences of events, actions taken by certain persons or the relative positions of people or objects. And although such testimony may not fit within the frequently discussed category of identification evidence, it is subject to the same factors that affect identification testimony.
This effect may have manifested itself in a recent case of mine. One afternoon in early 2012, three men (whom we’ll call Mr. A, Mr. B, and Mr. C) stood outside a Portland apartment. Suddenly, six gunshots were fired through the window into the apartment, with the apparent target being a fourth man (Mr. D). The three men fled immediately to a nearby apartment where Mr. A and Mr. B lived (Mr. C was Mr. B’s friend). Within minutes, both apartments were surrounded by police. The three men eventually came out of the apartment, and the apartment was searched. Only one gun was recovered — a semiautomatic pistol, found hidden in Mr. A’s bedroom. The three were arrested and charged with attempted murder, among other charges.
Back at the first apartment, Mr. D was interviewed by the officers who arrived at the scene. His account was clear and emphatic: Mr. A and Mr. C had both been shooting at him, with Mr. B standing behind him encouraging the shooters. This became the prosecution theory when the three men were indicted shortly thereafter.
I was appointed to represent Mr. A, and the case admittedly looked fairly clear-cut on the surface. Almost immediately, however, it became apparent that there were problems with Mr. D’s account. First, the state’s own forensic technicians determined that the six shots fired into the apartment were all fired from a single gun — the pistol that the police had found in the second apartment. This immediately called into question Mr. D’s vivid account of two men firing at him.
Moreover, when we listened to the tapes of Mr. D’s 911 call made immediately after the shooting, a more complex story began to emerge. Mr. D made this call after the men had fled the scene. As he acknowledged on cross-examination at the trial, all of the genuine “raw data” contributing to his memory of the incident — the sights and sounds that would form the basis of any accurate mental reconstruction — was in his mind before he made the call.
And yet, from the time he picked up the phone to make the 911 call to the time he finished his trial testimony, his account changed in several key respects, including the critical issues of who had a gun and who was firing. We eventually counted a total of seven different answers, over time, to that combined question. Some of the changes were particularly noteworthy. First, although his later accounts all had Mr. A as a shooter, his initial statements to the 911 operator did not. Additionally, one of his early statements to the operator was: “I don’t know which one fired.” Finally, at trial, for the first time he expressed uncertainty — perhaps influenced by the forensic evidence, of which by that time he was aware — over whether there really had been two shooters. His trial testimony was that Mr. A had definitely shot at him, but that he could no longer be sure that Mr. C had been shooting as well.
What happened? Was Mr. D deliberately lying? That seemed unlikely, based on all of the evidence uncovered by the parties. Could this have been one of those situations in which an imperfect human perception/memory system manifests itself in an inaccurate and shifting recollection of events?
This wasn’t a classic “eyewitness identification” situation. Mr. D was acquainted with both Mr. A and Mr. B and recognized them as soon as he saw them standing outside of his apartment. Additionally, all three men were tracked by multiple witnesses as they fled from Mr. D’s apartment back to the apartment shared by Mr. A and Mr. B, so there was no dispute that the three men outside the first apartment were in fact Mr. A, Mr. B and Mr. C. But could Mr. D have been wrong about which one(s) had been shooting at him? 4
As it turns out, that’s entirely possible. As explained by Dr. Daniel Reisberg, a Reed College professor and a leading expert on memory issues, our memories of complex events are subject to distorting influences analogous to those that plague eyewitness identifications. For example, witnesses to a fast-paced series of events involving multiple persons can make “conjunction errors,” with their memories “shuffling” data so that, for example, a weapon held by one observed person may be remembered as having been held by another. As is the case with identifications, factors such as stress, fear and a compressed observation period can contribute to such distortions.
Did something like that happen with Mr. D’s memory? We may never know.5 What cannot be disputed, however, is that the key witness in that case gave seven different answers when asked who was armed and who was shooting at him — all while presumably trying to tell the truth, and all based on the same initial perceptions. Again, this is just one of countless examples of such incidents. The memory effects addressed in Lawson and other cases are real.
Human perception and memory are at the core of much of the testimony that ends up determining litigants’ fates in a wide variety of cases. As we are learning more and more, though, those features of the human experience are far from perfect, and can be influenced by a number of factors. In Lawson, the Oregon Supreme Court set forth a comprehensive framework designed to screen memory-based evidence for reliability and to allow for meaningful advocacy on related topics. Now, as always, it is up to Oregon lawyers to ensure that the fact finders in their cases get the full benefit of that framework so that the results of their cases are based on informed analyses of the evidence.
1. Lawson was decided together with a companion case, State v. James. For convenience, the case is identified throughout this article simply as Lawson.
2. The framework in place prior to Lawson had been set out in a State v. Classen, 285 Or 221 (1979).
3. See 352 Or at 748: “Because of the alterations to memory that suggestiveness can cause, 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. Like those forms of evidence, once contaminated, a witness’s original memory is very difficult to retrieve; it is, however, only the original memory that has any forensic or evidentiary value.”
4. Of course, the identity of the shooter was not the only issue at the trial. Regardless of which of the three men shot at Mr. D, others present at the scene could have been guilty under theories of accomplice liability if they knew what was going to happen and deliberately assisted the shooter. Each of the three defendants contended, directly or through counsel, that whoever did the shooting did so without the others’ knowledge or approval.
5. Mr. A asked for a jury trial, which ended in a mistrial when the jury deadlocked on all counts. A retrial was scheduled, but the case ultimately settled through a plea resolution. Dr. Reisberg had been retained as a potential expert witness by the defense but was not called at trial for tactical reasons.
ABOUT THE AUTHOR
Kevin Sali is a criminal defense attorney in Portland. Editor’s note: After this article had been submitted and accepted for publication, Mr. Sali was added to the defense team for Samuel Lawson’s retrial.
© 2014 Kevin Sali