SEATTLE — It had been a night so full of horror that Sherl Hilde might understandably have had trouble recalling the most crucial detail: Who was the man who shot her and her husband late one night at a remote campground in southern Oregon?
Was it the man they had turned out of their campsite earlier in the day? Or someone else?
Eventually, Hilde identified the campsite squatter, Samuel Lawson, as the man who’d shot her through the window of her camp trailer later that night and then killed her husband as he called 911. But she didn't do so with certainty until after she twice failed to pick Lawson out of a photo lineup, insisted she hadn’t seen “their” faces, and said she hadn’t seen the perpetrator when he entered the trailer because it was too dark.
In fact, Hilde didn’t positively point to Lawson in a photo lineup until after she’d been taken by a detective to his pretrial hearing — two years after the 2003 shootings. “I’ll never forget his face as long as I live,” she said then.
Lawson was convicted of murder and sentenced to life in prison.
This week, in an opinion that attempts to raise the bar on how eyewitness identifications are handled in court, the Oregon Supreme Court ordered a new trial for Lawson and set comprehensive new guidelines on the admissibility of such identifications — standards that recognize new scientific research on the fallibility of human memory in pointing to the perpetrators of crimes.
Under the new standards, applicable only in Oregon, the prosecution now bears the burden of establishing first that eyewitness testimony meets admissibility standards under standard rules of evidence, and that the identification is rationally based on the witness’ own perceptions.
“We think we’re sort of ahead of the game now,” said Matthew McHenry, a Portland lawyer who filed a friend-of-the-court brief on behalf of the Innocence Network. “My understanding is we are one of the first states to have this kind of science recognized by our highest court, and I think what [the Innocence Network] hopes to do with it is use Oregon as an example of what should be when they file these kinds of cases in other states.”
The potential unreliability of using crime victims to identify criminals has been masticated by the courts for years, but Oregon appears to be one of the first states to spell out a comprehensive new standard, via a state Supreme Court ruling, which incorporates the latest scientific research and forces prosecutors to meet basic evidentiary standards before introducing eyewitness testimony in court.
“We believe that it is imperative that law enforcement, the bench, and the bar be informed of the existence of current scientific research and literature regarding the reliability of eyewitness identification because, as an evidentiary matter, the reliability of eyewitness identification is central to a criminal justice system dedicated to the dual principles of accountability and fairness,” Justice Paul De Muniz wrote in a unanimous opinion handed down Thursday.
The court went on to detail some of the most important research findings over the last three decades. Lineups, the research showed, should be conducted by someone who doesn’t know the identity of the suspect; others in the lineup should also resemble the original physical description given by the eyewitness; witnesses should be shown photos of potential suspects one by one, not all at once; multiple viewings of a suspect can adversely affect the reliability of an identification; witness memory can be contaminated by leading or suggestive questions.
“It is a common misconception that a person’s memory operates like a videotape, recording an exact copy of everything the person sees,” the court said. “A person’s capacity for processing information is finite, and the more attention paid to one aspect of an event decreases the amount of attention available for other aspects.”
Moreover, the court said, factors such as race (people tend to have an easier time identifying members of their own race), weather and how much time has elapsed since an incident can all affect the accuracy of witness identifications and make witnesses more vulnerable to suggestions from the police or other witnesses.
“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," the court wrote. “Like those forms of evidence, once contaminated, a witness' original memory is very difficult to retrieve; it is, however, only the original memory that has any forensic or evidentiary value.”
In the Lawson case, the court noted that Hilde had sustained a critical gunshot wound to the chest, didn’t know if her husband was alive or dead, and was fearful of being shot again when the intruder briefly entered the trailer in the dark. All these factors affected her ability to encode information about him into her memory, the court said.
The court also noted that Hilde was heavily medicated and intubated in the hospital when initially questioned by police, and was “especially susceptible to memory contamination” when detectives asked her if the shooter was the man who had squatted at their campsite earlier in the day.
The new standards force prosecutors to establish first that a witness is reliably equipped to identify a suspect.
“But that’s just sort of a threshold test. Then the burden shifts back to the defense, if they want to exclude the evidence as unfairly prejudicial. It kind of allocates the burden to both parties,” said Andrew Lavin, who helped argue the case for the Oregon Department of Justice.
Lavin said other states already incorporate some of the standards set out in the new ruling, in some cases by instructing juries about how to weigh eyewitness testimony, or by allowing experts to testify about the pitfalls of memory.
"But as far as a Supreme Court opinion from a state that addresses those issues, I think we are the first, or one of the first," he said.