State v. Hickman

No. 47 July 10, 2014 715

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Petitioner on Review,

v.

JERRIN LAVAZIE HICKMAN,

aka Jerrim Lavezie Hickman,

Respondent on Review.

(CC 081235225; CA A144741; SC S061409)

En Banc

On review from the Court of Appeals.*

Argued and submitted March 13, 2014, at the University

of Oregon Law School, Eugene, Oregon.

Andrew M. Lavin, Assistant Attorney General, Salem,

argued the cause for petitioner on review. With him on the

briefs were Ellen F. Rosenblum, Attorney General, and

Anna M. Joyce, Solicitor General.

Ryan Scott, Scott and Huggins Law Offices, Portland,

argued the cause and filed the brief for respondent on review.

Matthew McHenry, Levine & McHenry LLC, Portland,

filed a brief on behalf of amicus curiae The Innocence

Network and Oregon Innocence Project.

BREWER, J.

The decision of the Court of Appeals is reversed. The

judgment of the circuit court is affirmed.

______________

*  Appeal from Multnomah County Circuit Court, Michael H. Marcus, Judge.

255 Or App 688, 298 P3d 619 (2013).

716 State v. Hickman

Defendant was convicted of murder and appealed, arguing that the trial court

erred by admitting the eyewitness identification testimony of two witnesses, D

and N, both of whom identified defendant for the first time at trial as the man

they had seen shoot the victim. The Court of Appeals reversed, concluding that,

under the Oregon Supreme Court’s decision in State v. Lawson/James, 352 Or

724, 765, 291 P3d 673 (2012), D and N’s in-court identifications of defendant as

the shooter were problematic; the court therefore remanded the case for a new

hearing on the admissibility of that evidence, based on the considerations pre-

scribed in Lawson/James. The state sought review, asserting that the challenged

evidence was admissible and that, even if the trial court had erred in admitting

it, the error was harmless in light of other evidence of defendant’s guilt. Held: The

trial court did not err by admitting N’s in-court identification of defendant and, in

light of N’s testimony, other eyewitness testimony, and physical evidence of defen-

dant’s guilt, any error in admitting D’s identification of defendant was harmless.

The decision of the Court of Appeals is reversed. The judgment of the circuit

court is affirmed.

Cite as 355 Or 715 (2014) 717

BREWER, J.

A jury found defendant guilty of murder. The Court

of Appeals reversed defendant’s conviction and remanded

the case based on its conclusion that the trial court had

erroneously admitted eyewitness testimony of two witnesses

who identified defendant as the perpetrator. On review, we

conclude that the trial court properly admitted the chal-

lenged identification testimony of one of the witnesses. We

also conclude that any error in admitting the identification

testimony of the other witness under OEC 403 was harm-

less. Accordingly, we reverse the Court of Appeals’ decision

and affirm the judgment of the trial court.

I.  FACTUAL AND PROCEDURAL BACKGROUND

We begin with an overview of pertinent evidence

the admission of which is not challenged on review. On

December 31, 2007, a number of men, including defendant

and another man, Porter, attended a party at a house in

Portland. When Porter arrived at the party, he observed a

fight in progress, during which a man ran into the house.

That man was Christopher Monette, who was later shot and

killed. Soon thereafter, “[w]ords were exchanged” between

Porter and Monette. The exchange was sufficiently heated

to cause two other people to intervene. Porter pulled out a

pocketknife, because Monette was “a big individual.” Shortly

thereafter, defendant arrived, and he also exchanged words

with Monette. The argument stopped and defendant walked

away.

Porter, a convicted felon who testified with the hope

of receiving lenient treatment on criminal charges that were

pending against him, testified that defendant then grabbed

a ski mask out of Porter’s back pocket. According to Porter,

defendant put on the ski mask, approached Monette, and

shot him four times with a handgun in front of several eye-

witnesses. Monette died at the scene. Porter testified that,

after shooting Monette, defendant walked into the street

and fired several shots in the air.

Defendant’s uncle, Miller, another convicted felon

who testified with the hope of receiving leniency on an unre-

lated criminal charge, also was an eyewitness to the shooting.

718 State v. Hickman

Miller, too, testified that defendant was the shooter. Miller

stated that, after shooting Monette, defendant took off the

ski mask and left the scene. Three other people, Anderson,

Grant, and Pskar, none of whom could specifically identify

defendant as the shooter, each provided eyewitness tes-

timony that the shooter was an African-American male,

approximately 5'7" tall, and with a stocky build. Defendant

is 5'6" tall and has a stocky build. Porter is 6'1" tall.

After the shooting, people fled from the party on foot

and in cars. The police arrived within minutes of the shoot-

ing. Officer Mast approached Porter and defendant, who

were walking away from the scene. Porter stopped to talk to

Mast, but defendant continued walking away. At that point,

a woman, G, ran up yelling and screaming; she claimed that

the shooter was getting away in a car. Hearing for the first

time that someone had been shot, Mast went with G to the

driveway and found Monette’s body. G identified the shooter

as “Cello.” The car that she identified the shooter getting

into was stopped. Moncello James, also known as Cello, was

not in the car, but his identification was found there.

After his encounter with Officer Mast, defendant

fled from the area. During his flight, both of his shoes came

off, and he lost his watch when he jumped over a fence. As

he approached a nearby golf course, he jumped over another

fence and fell on the other side, breaking his leg.1

At the crime scene, the police found the handgun

and the ski mask. They submitted the ski mask to the crime

lab for DNA testing. The lab found DNA from three people

on the ski mask. The lab further determined that defendant

was the primary source of the DNA.

Shortly before the shooting, two women, D (19 years

old) and N (18 years old), had arrived by car at the house

party. D and N are both white. The east side of Portland was

“out of [D’s] element.” D and N were in the back seat of the

car. D told a police investigator on the night of the shooting

that “she didn’t see the shooting and really couldn’t describe

much. Knew that there was an argument occurring, but

could not give specific descriptions of who was involved.”

1

Two golfers found defendant lying on the golf course the next morning.

Cite as 355 Or 715 (2014) 719

D also told the investigator that another man, who identified

himself as “Corey,” jumped into the car as it left the scene.

N told police on the night of the crime that she wit-

nessed the shooting and that the perpetrator was a “black

male, stocky, in his mid-twenties, and wearing a do-rag.”

D was interviewed by a defense investigator a few

weeks before defendant’s trial. In that conversation, D told

the investigator that she could describe the men in the alter-

cation only as “big black men.” According to the investigator,

D explained that “all black men look the same” to her. At

trial, D denied making that statement. D told the investi-

gator that the shooter had a “big Afro,” but could give no

further details about the shooter’s hair. A day later, in an

interview with the prosecutor, D stated that the shooter had

“twisties” with “close black hair.” In that interview, D told

the prosecutor that she was not certain that she could iden-

tify the shooter. In response, the prosecutor proposed that,

at trial, D should signal him with a “look in the eye” if she

recognized the shooter while on the witness stand. The pros-

ecutor told D, “If you do [recognize the perpetrator], then let

the Court know—let the trier of fact know. If you don’t, then

you don’t.”

Between the night of the crime and defendant’s

trial, 23 months passed. During that time, the state made

no attempt to have D or N identify the perpetrator, nor did

the state inform defense counsel that it intended to ask

D or N to make an in-court identification of the perpetrator

at trial.

D testified on the third day of defendant’s trial.

At that time, defendant was present in the courtroom and

seated next to his counsel. Defendant was the only African-

American in the well of the courtroom, although there

were six to 12 African-American men seated in the back of

the courtroom. D was aware that defendant was the per-

son charged with Monette’s murder. Shortly after the state

began its direct examination of D, an equipment malfunc-

tion occurred in the courtroom, and the court recessed. As

the jurors left the courtroom, everyone, including defendant,

stood up. The court staff cleared the public from the court-

room, but defendant remained in the courtroom with his

720 State v. Hickman

counsel. D left the stand and walked past defendant into the

hallway. One of the prosecutors accompanied D as she left

the courtroom and noticed that she was hyperventilating.

D said to the prosecutor: “Oh, my God, that’s him, that’s

him, that’s him.” Without saying anything to her, the pros-

ecutor sat D down next to D’s mother. During the recess,

D had no contact with any of the other witnesses.

After the court resolved the equipment malfunc-

tion, D resumed the witness stand. D testified that, before

the shooting, she saw three or more African-American men

fighting near the front door of the house. She stated that

there were 25 to 50 other people in the yard. Monette wore a

tank top, which he took off during the fight. The other peo-

ple whom D noticed “pretty much all looked, like, the same.

They were all wearing really baggy clothing and many of

them were very husky gentlemen.”

D testified that the overhead street lighting at the

scene was “fluorescent.” D further testified that, before the

shooting, she focused her attention on the shooter and the

victim because the two men were engaged in an argument.

She stated that she “got a good view of both of the gentle-

men.” D explained that she was talking to N and not looking

in the direction of the shooting when it occurred. D testified

that, moments after the shooting, she saw one of the men

who had been fighting fire several gunshots into the air.

According to D, the shooter was then standing 12 feet away

from her and under street lighting. D described the shooter

as being black, in his 20s to early 30s, stocky, tall 5'7" to

6'), and having a “close” Afro hairstyle or braids. She also

described his facial features. The prosecutor asked D if she

saw that person in the courtroom, and D said that she did.

Before D identified anyone, however, defendant

objected, citing the Due Process Clause of the Fourteenth

Amendment to the United States Constitution and OEC 403.

Outside the jury’s presence, the trial court had a lengthy

discussion with counsel and, ultimately, overruled defen-

dant’s objection. The state resumed its direct examination,

and D identified defendant as the man whom she had seen

firing gunshots into the air. She explained to the jury that,

before entering the courtroom, she did not know whether

Cite as 355 Or 715 (2014) 721

she would recognize the shooter. She further explained

that, after the equipment malfunction occurred and when

she walked into the hallway, she became emotional and told

the prosecutor “that that was the shooter, that [was] him.”

D testified that she was 95 percent certain of the accuracy

of her identification.

D also testified that, after the shooting, people started

“running westbound, jumping into cars, cars were leaving.”

D stated that, as the car she was riding in started to drive

away, she saw a man run toward the car; according to D, the

man tried to get in the car. She thought he was the shooter,

but wasn’t sure. The car that D and N were riding in was

driven a few blocks from the house before the police stopped it.

N testified on the fourth day of trial. As with D, in

the period of time between the shooting and her testimony

at trial, N had not taken part in an out-of-court identifica-

tion procedure and had not identified anyone as the perpe-

trator. N testified that she heard one or two gunshots and

ducked down; she then looked up and saw the shooter, who

was standing 20 to 25 feet away. N testified that, after the

shooting, a man that she believed was the shooter came to

the car; she wasn’t sure whether he was trying to get into

the car or was fighting with one of the passengers. However,

that passenger repelled the man.2

N repeated her pretrial description that the shooter

was a “black male, stocky, in his mid-twenties, and wear-

ing a do-rag.” In addition, N testified that the shooter was

5'7" tall and that his hair was about three inches long and

“nappy.” N stated that the shooter was not wearing a head

covering when he came toward the car she was riding in and

that she got a good look at him from close range. Although

2

As noted above, when he arrived at the scene, Officer Mast came upon two

men, one tall and the other short and stocky. Mast engaged the tall man (who

turned out to be Porter) in conversation, but the stocky man kept walking in an

easterly direction and did not stop to speak to Mast. Defendant testified that he

was the man who kept walking. Based on that evidence, defendant asserts that

he could not have been the person who approached and unsuccessfully attempted

to get into the car in which D and N were riding. That argument assumes that it

is beyond dispute that defendant did not have time to attempt to get into the car

in the moments after the shooting and before he and Porter left the scene as Mast

was arriving. It suffices to say that the record does not definitively corroborate

that assumption.

722 State v. Hickman

N had not given particular information about the perpetra-

tor’s hair to police during her initial interview, she had given

it to the prosecutor during an interview about two weeks

before trial. N testified that she did not give a more spe-

cific description of the perpetrator on the night of the crime

because she was upset.

The prosecutor asked N if she saw the perpetrator in

the courtroom, and N said that she did. Defendant objected

on due process grounds and pursuant to OEC 403. The trial

court overruled the objection, and N identified defendant as

the perpetrator.

Defendant offered expert testimony that eyewit-

ness identification testimony of the sort given by D and N,

more than two years after a stressful event, was inherently

unreliable.

The jury convicted defendant of Monette’s murder. On

appeal, the Court of Appeals reversed. The court concluded

that, under this court’s decision in State v. Lawson/James,

352 Or 724, 765, 291 P3d 673 (2012), D’s and N’s in-court

identifications of defendant as the shooter were problematic;

the court therefore remanded the case for a new hearing on

the admissibility of that evidence, based on the considerations

prescribed in Lawson/James. State v. Hickman, 255 Or App

688, 298 P3d 619 (2013). On review, the state asserts that the

challenged evidence was admissible and that, even if the trial

court erred in admitting it, the error was harmless in light of

other evidence of defendant’s guilt.

II. ANALYSIS

A.  The Lawson/James Framework

We begin with a brief summary of the analytical cal-

culus prescribed in Lawson/James. Under that framework,

“when a criminal defendant files a pretrial motion to exclude

eyewitness identification evidence, the state—as the propo-

nent of the eyewitness identification—must establish all pre-

liminary facts necessary to establish admissibility” under

generally applicable provisions of the Oregon Evidence Code

(OEC). Lawson/James, 352 Or at 761. In particular, the

focus of the court’s opinion—consistently with its present-

ing circumstances—was on the admissibility of eyewitness

Cite as 355 Or 715 (2014) 723

testimony that was asserted to have been tainted by sugges-

tive pretrial police procedures. Thus, the court stated:

“Our purpose in summarizing the scientific research

is to determine whether, in light of that research, the test

established in [State v. Classen, 285 Or 221, 590 P2d 1198

(1979)], adequately ensures the reliability of particular

eyewitness identification evidence that has been subjected

to suggestive police procedures, and, ultimately, whether a

factfinder can properly assess and weigh the reliability of

eyewitness identification evidence.”

Id. at 741 (emphasis added).3

3

That focus pervades the opinion. See Lawson/James, 352 Or at 750 (“[W]e

conclude that the methodology set out in Classen is not adequate to the task of

ensuring the reliability of eyewitness identification evidence that has been sub-

jected to suggestive police procedures); id. at 751 (“With additional guidance

regarding the proper application of those general rules, we conclude that the

OEC-based procedures set out below will address the majority of concerns that

might arise at trial regarding the reliability of eyewitness identification evidence,

particularly in those cases involving suggestive pretrial police procedures.”); id.

at 755 (“When a witness’s perceptions are capable of supporting an inference of

identification, but are nevertheless met with competing evidence of an impermis-

sible basis for that inference—i.e., suggestive police procedures—an issue of fact

arises as to whether the witness’s subsequent identification was derived from a

permissible or impermissible basis. When there are facts demonstrating that a

witness could have relied on something other than his or her own perceptions to

identify the defendant, the state—as the proponent of the identification—must

establish by a preponderance of the evidence that the identification was based

on a permissible basis rather than an impermissible one, such as suggestive

police procedures.”); id. at 758 (“As a discrete evidentiary class, eyewitness iden-

tifications subjected to suggestive police procedures are particularly susceptible

to concerns of unfair prejudice. Consequently, in cases in which an eyewitness

has been exposed to suggestive police procedures, trial courts have a height-

ened role as an evidentiary gatekeeper because ‘traditional’ methods of testing

reliability—like cross-examination—can be ineffective at discrediting unreli-

able or inaccurate eyewitness identification evidence.”); id. at 759 (“As we have

already noted, witnesses’ self-appraisal of their certainty regarding identifica-

tions they have made, especially when elicited after they have received confirm-

ing feedback from suggestive police procedures, is a poor indicator of reliability.

At the same time, jurors can find such statements persuasive, even when contra-

dicted by more probative indicia of reliability. Accordingly, when such statements

are presented at trial, they ordinarily have little probative value, but significant

potential for unfair prejudice. Thus, a trial court could admit an eyewitness’s

identification, but find that the prejudicial effect of the accompanying statement

of certainty that was created by suggestive police procedures substantially out-

weighed its limited probative value.”); id. at 763 (“If the state’s administration

of one or more of the system variables (either alone or combined with estimator

variables) results in suggestive police procedures, that fact can, in turn, give

rise to an inference of unreliability that is sufficient to undermine the perceived

accuracy and truthfulness of an eyewitness identification—only then may a trial

court exclude the eyewitness identification under OEC 403.”).

724 State v. Hickman

Where such a challenge implicates OEC 602 or

OEC 701, the state must provide “proof under OEC 602 that

the proffered eyewitness has personal knowledge of the mat-

ters to which the witness will testify, and proof under OEC

701 that any identification is both rationally based on the

witness’s first-hand perceptions and helpful to the trier of

fact.” Lawson/James, 352 Or at 761-62. If the state satis-

fies its burden, the burden shifts to the defendant to prove

“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 consider-

ations of undue delay or needless presentation of cumulative

evidence.” Id. at 762.

The court in Lawson/James identified two categories

of factors that affect the reliability and, thus, the probative

value, of eyewitness identifications: so-called “estimator vari-

ables” and “system variables.” The term estimator variables

refers to “characteristics of the witness, the alleged perpetra-

tor, and the environmental conditions of the event that can-

not be manipulated or adjusted by state actors.” Id. at 740.4

In Lawson, the court concluded that a number of estimator

variables undermined the reliability of the identification evi-

dence. In that case, the eyewitness, who had sustained a crit-

ical gunshot wound, was under “tremendous stress and in

poor physical and mental condition,” which the court noted

would “tend to impair a witness’s ability to encode informa-

tion into memory.” Id. at 763. Further, the environmental

conditions under which the eyewitness viewed the perpetra-

tor were poor: it was dark and the perpetrator had covered

the eyewitness’s face with a pillow to obscure her view. The

eyewitness viewed the perpetrator for only a few seconds,

and the perpetrator wore a hat that concealed his hair, a

key identifying feature. Finally, the eyewitness’s in-court

identification of the defendant occurred more than two years

after the incident. By contrast, the court was less concerned

4

Estimator variables include the witness’s level of stress; the witness’s atten-

tion; the duration of exposure; environmental viewing conditions; the witness’s

physical and mental characteristics; the witness’s description of the perpetrator;

the perpetrator’s characteristics; the speed of the identification; the witness’s

confidence or certainty (which is not a reliable indicator of accuracy); and memory

decay. Id. at 744-46.

Cite as 355 Or 715 (2014) 725

with the estimator variables in James, which involved a rob-

bery in which the eyewitnesses came face-to-face with the

perpetrators and observed them for an extended period of

time. Additionally, the eyewitnesses in James described the

appearances of the perpetrators in detail, noting their “race,

height, weight, and clothing.” Id. at 765.

System variables, by contrast, relate to “circum-

stances surrounding the identification procedure itself that

are generally within the control of those administering the

procedure.”5 Id. at 740. In Lawson, the court concluded that

a number of system variables were implicated. Specifically,

when the police first interviewed the eyewitness, she was

hospitalized and in a “fragile physical and mental condi-

tion.” Id. at 764. At that time, the police asked leading ques-

tions and “implicitly communicated their belief that [the]

defendant was the shooter.” Id. Moreover, before identifying

the defendant as the perpetrator, the eyewitness viewed

the defendant in two photographic lineups, in a newspaper

article photo, and at a hearing to which police had brought

her. Finally, the court considered significant the alterations

in the eyewitness’s statements over time. She initially told

police that she had not seen the perpetrator’s face, but she

later identified the defendant as the perpetrator “[a]fter a

series of leading questions” by the police. Id. at 765.

Conversely, in James, this court concluded that sys-

tem variables did not require exclusion of the eyewitness

identification evidence, despite the court’s determination

that the police had conducted a suggestive showup. Central

to that conclusion was the accuracy with which the eyewit-

nesses described the perpetrators’ “unique features” before

the suggestive showup. Id. at 767. Those unique features

included the perpetrators’ clothing and a particular bottle of

beer found in the defendant’s backpack.

5

System variables include factors such as whether the identification pro-

cedure was conducted by a person who was unaware of the suspect’s identity;

whether preidentification instructions were given to reduce the likelihood of

misidentification; the manner in which any photographic lineup was constructed

and presented to the witness; whether multiple viewings of the suspect led to

confusion; whether suggestive wording or leading questions by investigators con-

taminated the witness’s memory; and whether post-identification confirmatory

feedback falsely inflated the witness’s confidence in the accuracy of his or her

identification. Id. at 741-44.

726 State v. Hickman

Ultimately, “[t]he decision whether to admit,

exclude, or fashion an appropriate intermediate remedy

short of exclusion is committed to the sound exercise of the

trial court’s discretion.” Id. at 762. In Lawson/James, the

court noted that “it is doubtful that issues concerning one or

more of the estimator variables that we have identified will,

without more, be enough to support an inference of unreli-

ability * * *.” Id. However,

“[i]f the state’s administration of one or more of the sys-

tem variables (either alone or combined with estimator

variables) results in suggestive police procedures, that fact

can, in turn, give rise to an inference of unreliability that is

sufficient to undermine the perceived accuracy and truth-

fulness of an eyewitness identification—only then may a

trial court exclude the eyewitness identification under OEC

403.”

Id. at 763. In such cases, the trial court assumes a “height-

ened role as an evidentiary gatekeeper because ‘traditional’

methods of testing reliability—like cross-examination—can

be ineffective at discrediting unreliable or inaccurate eye-

witness identification evidence.” Id. at 758.

B.  Framing the Issues—The Parties’ Arguments

Unlike in Lawson/James, the challenged identifi-

cations in this case occurred at trial in the absence of any

preceding attempts by the state to have the witnesses iden-

tify Monette’s murderer. That is, no suggestive pretrial police

procedures were administered to either D or N. Instead, with

the possible exception of a single pretrial interaction between

D and the prosecutor that we discuss in greater detail below,

no suggestive state procedures of the sort with which the

court was concerned in Lawson/James were administered

in this case; the entire identification process occurred in the

courtroom setting. The question before us is whether and, if

so, how, those variations in identification procedures impli-

cate and affect the analysis under Lawson/James.

The state asserts that, where no suggestive out-of-

court identification process preceded an in-court identifica-

tion, several of the factors discussed in Lawson/James are

inapplicable to the analysis under OEC 403, and the result-

ing risk of unfair prejudice to the defendant is necessarily

Cite as 355 Or 715 (2014) 727

low. That is so, the state reasons, because the in-court iden-

tification is itself sworn testimony that occurs in the pres-

ence of the jury and the defense team. Thus, according to

the state, and in contrast to a pretrial identification that

follows suggestive police procedures, any unreliable aspects

of the in-court identification are exposed to the view and

evaluation of everyone present. It follows, the state urges,

that the trial court’s evidentiary gatekeeping function in

such circumstances is minimal, and the credibility of the

in-court identification is for the jury to assess.

Defendant responds that the logic of Lawson/James

is even more compelling when first-time identifications occur

in front of a jury. As defendant sees things, the safeguards

intended to prevent unreliable identifications are almost

entirely absent in such circumstances, thereby increasing

the likelihood that unreliable evidence will be admitted. In

addition, defendant asserts, any exception to Lawson/James

for first time in-court identifications would create a powerful

incentive—and the means—for prosecutors to circumvent

the protections designed to reduce wrongful convictions.

According to defendant, nothing about the administration of

an eyewitness identification procedure in the presence of a

jury justifies the application of less than a complete Lawson/

James analysis. Moreover, defendant argues, in this case

only a small portion of the identification process involving

D occurred in front of the jury. Defendant notes that the

plan whereby D—once on the witness stand—would signal

the prosecutor with a look if she could identify the shooter,

was unknown to jurors and defense counsel who, therefore,

could not watch for and evaluate the reliability of the iden-

tification if and when it occurred. Defendant also points out

that the instant when D claimed to recognize defendant as

the perpetrator appears to have occurred when the jury was

out of the courtroom and that D’s accompanying emotional

reaction occurred in the hallway when neither jurors nor

defense counsel were present.

C.  First Step of Lawson/James Analysis - A Foundational

Inquiry

Unlike cases relying on federal constitutional prin-

ciples, this court’s decision in Lawson/James is rooted in

728 State v. Hickman

evidentiary considerations that are governed by the Oregon

Evidence Code. See Lawson/James, 352 Or at 746-48.

The first step is foundational, and it provides the “mini-

mum baseline of reliability” for eyewitness identifications.

Id. at 758. That step implicates three interrelated eviden-

tiary concepts: relevance under OEC 401, personal knowl-

edge under OEC 602, and lay opinion under OEC 701. Id.

at 752.

To be relevant, the identification must have some

“tendency to make the existence of any fact that is of conse-

quence to the determination of the action more probable or

less probable than it would be without the evidence.” OEC

401. In addition, to satisfy the first step of the analysis,

the witness must have the personal knowledge necessary

to make an identification, OEC 602, and the identification

must be rationally based on that knowledge and be helpful

to the jury. OEC 701.

We take this opportunity to clarify how OEC 602

applies, because the court in Lawson/James did not fully

elucidate its foundational nature. Oregon has adopted a

liberal standard for determining who may be a witness.

Equitable Life Assurance v. McKay, 306 Or 493, 760 P2d 871

(1988). OEC 601 provides:

“Except as provided in [OEC 601] to [OEC 606], any

person who, having organs of sense can perceive, and per-

ceiving can make known the perception to others, may be a

witness.”

The only exceptions to OEC 601 are found in OEC 602

(requiring proof that a witness has personal knowledge of

the matter to which he or she testifies), OEC 603 (requiring

an oath or affirmation), OEC 604 (providing for the use of

interpreters), and OEC 605 and 606 (prohibiting the pre-

siding judge or any member of the jury from testifying).

Otherwise, “[f]erreting out and discounting biased testi-

mony is treated as a question of believability for the jury,

not admissibility for the court.” Equitable Life Assurance,

306 Or at 498.

OEC 602 provides the basis for the first step of the

Lawson/James “personal knowledge” criterion:

Cite as 355 Or 715 (2014) 729

“[A] witness may not testify to a matter unless evidence is

introduced sufficient to support a finding that the witness

has personal knowledge of the matter. Evidence to prove

personal knowledge may, but need not, consist of the testi-

mony of the witness.”

(Emphasis added.) “[W]hether the witness has personal

knowledge is a matter of conditional relevancy” under OEC

104(2). Laird C. Kirkpatrick, Oregon Evidence § 601.03[3]

(6th ed 2013). OEC 104(2) provides:

“When the relevancy of evidence depends upon the ful-

fillment of a condition of fact, the court shall admit it upon,

or subject to, the introduction of evidence sufficient to sup-

port a finding of the fulfillment of the condition.”

Under that rule, the proponent of evidence need only pres-

ent evidence from which a juror could find the fact. In that

regard, the Legislative Commentary to OEC 104(2) warns:

“If preliminary questions of conditional relevancy were

determined solely by the judge, *  * the functioning of

*

the jury as a trier of fact would be greatly restricted and

in some cases virtually destroyed. These are appropriate

questions for juries.”

As this court noted in Lawson/James, OEC 602

expressly allows for proof of personal knowledge to consist

of the witness’s own testimony. Lawson/James, 352 Or at

753. This court also noted that, pursuant to ORS 44.370, a

“witness is presumed to speak the truth.” Id. at 752 n 8. In

addition, the Legislative Commentary to OEC 602 provides:

“A party that offers testimony has the burden of estab-

lishing that the witness had an opportunity to observe the

fact. According to the rule the testimony of the witness

may be sufficient to lay this foundation. Absolute personal

knowledge is not a requisite; however, it is necessary that

the witness sincerely believe that the witness has such

knowledge.”

Legislative Commentary to OEC 602, reprinted in

Kirkpatrick, Oregon Evidence § 602.02.

Given those principles, an identification satisfies

OEC 602 if the eyewitness testifies to facts that, if believed,

would permit a reasonable juror to find that the eyewitness

730 State v. Hickman

observed the facts necessary to make the identification.

Whether the eyewitness actually did observe those facts is

a credibility determination for the jury. So-called “system

variables” do not apply to the trial court’s OEC 602 determi-

nation, because they affect the witness’s recollection of her

observations, not the observations themselves. See Lawson/

James, 352 Or at 741-44 (describing system variables).

OEC 701 provides the basis for the final two crite-

ria. That rule limits a witness’s testimony regarding infer-

ences and lay opinions to those that are “[r]ationally based

on the perception of the witness” and “[h]elpful to a clear

understanding of testimony of the witness or the determi-

nation of a fact in issue.” In describing the first of those two

criteria, this court stated in Lawson/James:

“When a defendant has filed a pretrial motion to exclude

eyewitness identification and raises an issue implicating

OEC 701, the first part of an OEC 701 inquiry requires that

the trial court initially consider what the witness actually

perceived (essentially, the OEC 602 inquiry described

above), and then determine whether the witness’s identifi-

cation of the defendant was ‘rationally based’ on those per-

ceptions. To satisfy its burden, the proponent of the iden-

tification evidence (generally the state) must demonstrate

by a preponderance of the evidence that the witness per-

ceived sufficient facts to support an inference of identifica-

tion and that the identification was, in fact, based on those

perceptions.”

352 Or at 754-55.6 The last criterion—that the identifica-

tion is helpful—merely requires that the identification “com-

municates more to the jury than the sum of the witness’s

describable perceptions.” Id. at 756.

6

The “rationally based” requirement means that the opinion or inference

advanced by the witness is one which a reasonable person could form on the basis

of the observed facts. See Kirkpatrick, Oregon Evidence § 701.03 (“the ‘rationally

based’ requirement means that the opinion must be one that a person could rea-

sonably deduce from the perceived facts”). The state does not argue that that

requirement precludes trial courts from determining under a preponderance of

the evidence standard whether challenged identification testimony is based on

a witness’s own perceptions, rather than on another source, where the identi-

fication reasonably could be inferred from the facts that the witness perceived.

Accordingly we do not consider whether this court’s description in Lawson/James

of a trial court’s screening function under OEC 701 was correct.

Cite as 355 Or 715 (2014) 731

D.  Application of OEC 602 and OEC 701

There can be little doubt that D’s and N’s identifi-

cations of defendant were logically relevant under OEC 401.

But, as noted, whether a witness has the requisite personal

knowledge to testify under OEC 602 is a matter of condi-

tional relevance under OEC 104(2). Therefore, the state was

required to adduce evidence from which a rational juror

could find that D and N were able to make observations suf-

ficient to support their identifications of defendant. If the

state adduced such evidence, whether D and N actually had

sufficient personal knowledge was a credibility issue that

ultimately was for the jury to resolve.

The in-court identifications in this case satisfied

that foundational standard for admissibility. D testified

that she was able to view the perpetrator immediately after

the shooting and that she observed his facial features at

that time. Immediately before the shooting, she focused her

attention on the perpetrator and the victim because the two

men were engaged in an argument. She testified that she

“got a good view of both of the gentlemen.” Moments after

the shooting, D testified, she saw the perpetrator standing

in the street firing shots into the air. At that time, he was

illuminated by overhead fluorescent lighting. D was about

12 feet away from the perpetrator when she saw him. At

trial, D testified that, at the time of the shooting, she noticed

that the perpetrator was African-American, in his 20s to

early 30s, had a “stocky” build, his hair was in braids, and

had particular facial features. D was relatively young, and

there was no evidence that she had any sensory deficits or

that her senses were otherwise impaired on the night of the

shooting.

N, in turn, testified that she was able to observe the

perpetrator at the time of the shooting. Immediately before-

hand, her attention was focused on the perpetrator because

he was arguing with the victim in the front yard of the house.

When the shooting occurred, the perpetrator was 20 to 25

feet away from N. She indicated that, after the shooting, he

came up to her car window and tried to get in the car and

that she got a good look at him at that time. N observed that

the perpetrator was African-American, “stocky,” about 5'7"

732 State v. Hickman

tall, and wearing jeans and a t-shirt. N also was relatively

young, had no reported sensory deficits, and there was no

evidence that her senses were impaired when she made her

observations. Based on that evidentiary record, a reasonable

juror could find that both D and N had sufficient personal

knowledge to make the in-court identifications.7

The challenged identifications also satisfied the

OEC 701 inquiry:

“Human facial features will ordinarily be sufficiently

distinctive to serve as a rational basis for an inference of

identification. Thus, a witness who got a clear look at the

perpetrator’s face could rationally base a subsequent iden-

tification on a comparison of facial features, even if the

witness was unable to verbally communicate every specific

similarity between the two faces.”

Lawson/James, 352 Or at 755. Here, both witnesses testi-

fied at trial that they had a clear view of defendant’s face

immediately after the murder. D testified that she observed

defendant’s facial features while he was standing 12 feet

away from her and under street lighting. N testified that

she got a good look at defendant at close range when he

ran up to her car window immediately after the shooting.

In admitting the evidence, the trial court specifically found

that the witnesses were situated “in such a way as to have

a direct view, fairly close, of the person she purport[ed] to

identify.” In short, the evidence showed, and the trial court

found, that the witnesses perceived sufficient facts to sup-

port inferences of identification.

Moreover, there were no suggestive pretrial police

procedures that created a competing inference that the

in-court identifications were derived from an impermissi-

ble source. Although the prosecutor told D to give him an

eye signal if she recognized the perpetrator while testifying

at trial, the trial court determined that D’s in-court iden-

tification of defendant was “routine” and that there was

7

Defendant did not make any objection to the admission of D’s or N’s tes-

timony under either OEC 602 or OEC 701. Accordingly, the trial court was not

called upon to make a ruling on those grounds. However, because this case was

tried before our decision in Lawson/James was issued, we nevertheless discuss

the application of those rules to this case, as this court did under similar proce-

dural circumstances in Lawson/James, 352 Or at 763-68.

Cite as 355 Or 715 (2014) 733

no suggestiveness in the process beyond that inherent in a

courtroom setting. Under those circumstances, the identifi-

cations—buttressed by the trial court’s findings—satisfied

the first part of the analysis under OEC 701.

The identifications also satisfied the second part of

the OEC 701 analysis. Although the court in Lawson/James

anticipated that the helpfulness requirement “will be easily

satisfied in nearly all cases,” it gave the following example of

an exception:

“Consider, for example, the witness who observes a masked

perpetrator with prominently scarred or tattooed hands.

Although those features could be distinctive enough to pro-

vide a rational basis for an inference of identification, a jury

may be equally capable of making the same inference by

comparing the witness’s description of those markings to

objective evidence of the actual markings on the defendant.

In such cases, the witness’s opinion that defendant is the

perpetrator provides the jury with little, if any, additional

useful information.”

352 Or at 755-56. No similar deficiency existed with respect

to the challenged identifications in this case. They were help-

ful to the trier of fact because they conveyed more “than the

sum of the witness’s describable perceptions.” See Lawson/

James, 352 Or at 756.

Because the state presented an adequate foundation

under OEC 401, OEC 602, and OEC 701, for both courtroom

identifications, they satisfied the first prong of the Lawson/

James test.

E.  OEC 403 and First Time In-Court Identifications

OEC 403 provides:

“Although relevant, evidence may be excluded if its pro-

bative value is substantially outweighed by the danger of

unfair prejudice, confusion of the issues, or misleading the

jury, or by considerations of undue delay or needless pre-

sentation of cumulative evidence.”

If the state establishes a foundation for the admission of

eyewitness identification evidence under OEC 602 and OEC

701, “the burden shifts to [the] defendant” to demonstrate

that the danger of unfair prejudice substantially outweighs

734 State v. Hickman

the identification’s probative value. Lawson/James, 352 Or

at 762.

So-called system variables are particularly import-

ant under OEC 403 when “an eyewitness has been exposed

to suggestive police procedures.” Id. at 758. For eyewitness

identifications involving that “discrete evidentiary class,”

the trial court has a heightened role as an evidentiary gate-

keeper because the danger of unfair prejudice increases. Id.

However, as this court cautioned,

“[i]f the state’s administration of one or more of the sys-

tem variables (either alone or combined with estimator

variables) results in suggestive police procedures, that fact

can, in turn, give rise to an inference of unreliability that is

sufficient to undermine the perceived accuracy and truth-

fulness of an eyewitness identification—only then may a

trial court exclude the eyewitness identification under OEC

403.”

Id. at 763 (emphasis added). That is, under OEC 403, exclu-

sion requires that the state-administered identification pro-

cedures have been suggestive in one or more ways. Although

this court used the term “suggestive police procedures” in

describing the type of actions that produce an unreliable

identification, the state acknowledges, and properly so, that

suggestive procedures also can be administered by other

state actors. The key issue in this case is whether the court-

room setting itself was so inherently suggestive as to make

the challenged first time in-court identifications unfairly

prejudicial within the meaning of OEC 403.

Although—insofar as it involves in-court identi-

fications not preceded by suggestive pretrial identification

procedures—this case presents an issue of first impres-

sion under the Oregon Evidence Code, other courts have

addressed the problem. The concerns with in-court eyewit-

ness identification, where suggestive pretrial identification

procedures were administered by the state, are essentially

those that this court described in Lawson/James. For exam-

ple, the witness may identify the person in court, not based

on his or her recollection of observations at the time of the

crime charged, but as a result of the suggestive pretrial

identification. Because the factfinder was not present to

Cite as 355 Or 715 (2014) 735

observe the pretrial identification, the factfinder is unable

to observe the witness making that initial identification.

Thus, variables such as indications of witness certainty or

hesitation during the identification process, including facial

expression, voice inflection, and body language, and any

other observations pertinent to assessing the reliability of

a person’s statements, are unavailable to the factfinder for

evaluative purposes. Moreover, where an in-court identifi-

cation confirms an earlier identification, there is a risk that

the later identification will be expressed with greater cer-

tainty than the earlier identification. See Lawson, 352 Or at

741-44.

On the other hand, when a first-time eyewitness

identification occurs in court and no suggestive pretrial

identification procedures were administered by the state,

courts generally have concluded that the factfinder is better

able to evaluate the reliability of the identification because

he or she can observe the witness’s demeanor and hear the

witness’s statements during the identification process. See

Byrd v. State, 25 A3d 761, 766 (Del 2011); United States v.

Domina, 784 F2d 1361, 1368 (9th Cir 1986) (stating that,

when a witness identifies a defendant at trial, that “testi-

mony has generally been held admissible unless tainted

by the prior suggestive identification process”). In addition

to affording the factfinder an opportunity to observe and

evaluate the identification itself, a first-time in-court iden-

tification is subject to immediate challenge through cross-

examination. “Where a witness first identifies the defendant

at trial, defense counsel may test the perceptions, memory

and bias of the witness, contemporaneously exposing weak-

nesses and adding perspective in order to lessen the haz-

ards of undue weight or mistake.” People v. Rodriguez, 134

Ill App 3d 582, 480 NE 2d 1147, 1151 (1985), cert den, 475

US 1089 (1986). In Domina, the Ninth Circuit noted that,

although there “can be little doubt that the initial in-court

identification is suggestive, * * * procedures could be used to

lessen the suggestiveness.” 784 F2d at 1368-69. The court

explained that,

“[w]hile identification testimony is significant evidence,

such testimony is still only evidence, and, unlike the

736 State v. Hickman

presence of counsel, is not a factor that goes to the very

heart—the ‘integrity’ of the adversary process.

“Counsel can both cross-examine the identification

witnesses and argue in summation as to factors causing

doubts as to the accuracy of the identification—including

reference to both any suggestibility in the identification

procedure and any countervailing testimony such as alibi.”

Id. (Internal quotations and citations omitted).

The foregoing decisions reflect the mainstream

of jurisprudence addressing the admissibility of first-time

in-court eyewitness identification evidence. The principles

on which those decisions rest are embedded in the profound

respect that our system of justice holds for the role of juries

in the adjudicative process. It is true that, as additional

studies have examined the fallibility and tendency to decay

of human memory of events, a widespread public under-

standing of those issues has not kept pace. See Lawson/

James, 352 Or at 760 n 10, 769-79 (discussing in detail such

research). Because of that gap in common understanding,

over time, courts increasingly have permitted the use of

safeguards such as expert testimony to help reduce the risk

of jury “overvaluation” of eyewitness identification testi-

mony. See, e.g., State v. Guilbert, 306 Conn 218, 49 A3d 705

(2012). In Lawson/James, this court took judicial notice of

“the data contained in those various sources as legislative

facts that we may consult for assistance in determining the

effectiveness of our existing test for the admission of eye-

witness identification evidence.” Lawson/James, 352 Or at

739-40. In doing so, however, the court took care to state:

“In identifying and describing the variables identified in

the research, however, we do not seek to enshrine those

variables in Oregon substantive law. We recognize that

the scientific research is ‘probabilistic’—meaning that it

cannot demonstrate that any specific witness is right or

wrong, reliable or unreliable, in his or her identification.

Rather, we believe that it is imperative that law enforce-

ment, 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 evi-

dentiary matter, the reliability of eyewitness identification

is central to a criminal justice system dedicated to the dual

Cite as 355 Or 715 (2014) 737

principles of accountability and fairness. We also recognize

that, although there now exists a large body of scientific

research regarding eyewitness identification, the research

is ongoing. Therefore, our acknowledgment of the existence

of that research in these cases is not intended to preclude

any party in a specific case from validating scientific accep-

tance of further research or from challenging particular

aspects of the research described in this opinion.”

Id. at 741.

Based on the research of which it took judicial notice,

this court in Lawson/James ultimately concluded that, where

suggestive pretrial police procedures are asserted to have

tainted eyewitness memory, the existing test for determining

the admissibility of the witness’s identification testimony was

inadequate for purposes of applying OEC 403. As an illustra-

tion of such a suggestive procedure, the court explained:

“A ‘showup’ is a procedure in which police officers pres-

ent an eyewitness with a single suspect for identification,

often (but not necessarily) conducted in the field shortly

after a crime has taken place. Police showups are generally

regarded as inherently suggestive—and therefore less reli-

able than properly administered lineup identifications—

because the witness is always aware of whom police officers

have targeted as a suspect.”

Id. at 742-43. Based in part on that concern, the court said:

“As a discrete evidentiary class, eyewitness identifications

subjected to suggestive police procedures are particularly

susceptible to concerns of unfair prejudice. Consequently, in

cases in which an eyewitness has been exposed to sugges-

tive police procedures, trial courts have a heightened role

as an evidentiary gatekeeper because ‘traditional’ methods

of testing reliability—like cross-examination—can be inef-

fective at discrediting unreliable or inaccurate eyewitness

identification evidence.”

Id. at 758 (emphases added).

Based on the passages quoted above and other

statements in Lawson/James, the Court of Appeals in this

case appears to have concluded that the research sources

on which this court relied in that case—including the

research pertaining to so-called “estimator variables” and

738 State v. Hickman

“system variables”—had been incorporated into a general

interpretive overlay for the application of OEC 403 to eye-

witness identification testimony. Hickman, 255 Or App at

696-97. Consistently with that understanding, in applying

the Lawson/James analysis, the Court of Appeals in effect

treated the courtroom trial setting in this case as a “sys-

tem variable” much like a police-administered showup that

unfairly amplified the suggestiveness of D’s and N’s in-court

identifications of defendant as the perpetrator of the crime.

See Hickman, 255 Or App at 698 (“Most significantly, the

procedure was similar to, but significantly more suggestive

than, a ‘showup,’ which is ‘inherently suggestive’ because

the witness is always aware of whom police officers have

targeted as a suspect.”).

The Court of Appeals’ treatment of this case was

understandable in light of this court’s reliance in Lawson/

James on the research of which it took judicial notice in

determining that the Classen test was inadequate. However,

in reviewing the Court of Appeals’ conclusion, two caution-

ary factors merit emphasis. First, as discussed, Lawson/

James was a case about “a discrete evidentiary class,” eye-

witness identifications subjected to suggestive out-of-court

police procedures, which this court deemed to be “particu-

larly susceptible to concerns of unfair prejudice.” Lawson/

James, 352 Or at 758. This court in Lawson/James did not

intimate—let alone hold—that admission of a first time

in-court eyewitness identification of a defendant that is

untainted by suggestive pretrial state-administered pro-

cedures is “unfairly prejudicial” under OEC 403 merely

because it occurs in a courtroom setting where the identity

of the accused is apparent to the witness.

Second, in taking judicial notice as “legislative facts”

of the research that it considered, this court in Lawson/James

relied on its earlier decision in State v. O’Key, 321 Or 285, 309

n 35, 899 P2d 663 (1995), for the proposition that “[t]he valid-

ity of proffered scientific evidence * * * is a question of law” to

be determined by judicial notice of legislative facts submitted

to the court). Lawson/James, 352 Or at 740 (quoting O’Key).

In O’Key, however, unlike in Lawson/James and this case,

the issue before the court was the admissibility of the scien-

tific evidence itself, not whether and to what extent scientific

Cite as 355 Or 715 (2014) 739

research would be used to determine the admissibility of per-

cipient lay testimony. In that respect, this court went further

in Lawson/James in taking judicial notice of scientific data

as so-called “legislative facts” than it previously had done in

O’Key. In particular, although the court cautioned that its

“acknowledgment of the existence of that research in these

cases is not intended to preclude any party in a specific case

from validating scientific acceptance of further research or

from challenging particular aspects of the research described

in this opinion,” id. at 741, it nevertheless proceeded to use

that research to disavow the Classen test and to remand the

case for the purpose of determining the admissibility of eye-

witness testimony, at least where suggestive pretrial police

procedures may have tainted witness memory.8

In the absence of appropriate limitations, that

action could have far-reaching and, perhaps, unforeseen

implications. After all, decision-making biases affect all

people alike, including juries, advocates, social scientists,

and, we daresay, judges acting as evidentiary gatekeepers.9

8

In a lengthy appendix, the court in Lawson/James set out much of the

social science research that it considered. Among other observations germane to

the point just made, the court stated:

“Jurors *  * tend to be unaware of the generally weak relationship between

*

confidence and accuracy, and are also unaware of how susceptible witness

certainty is to manipulation by suggestive procedures or confirming feed-

back. See, e.g., Tanja R. Benton et al., Eyewitness Memory is Still Not Common

Sense: Comparing Jurors, Judges and Law Enforcement to Eyewitness Experts,

20 Applied Cognitive Psychol 115, 120 (2006) (finding that only 38 percent of

jurors surveyed correctly understood the relationship between accuracy and

confidence and only 50 percent of jurors recognized that witnesses’ confidence

can be manipulated). As a result, jurors consistently tend to overvalue the

effect of the certainty variable in determining the accuracy of eyewitness

identifications.”

Id. at 778.

9

See Daniel Patrick Moynihan, Social Science & the Courts, 54 Pub Int 12,

19–20 (Winter 1979) (observing that “social science is rarely dispassionate, and

social scientists are frequently caught up in the politics which their work neces-

sarily involves”).

We further observe that there is empirical evidence suggesting that judges

are no better than juries in evaluating potentially prejudicial or distracting evi-

dence. See Chris Guthrie et al, Inside the Judicial Mind, 86 Cornell L Rev 777,

808-10 (2001); Joseph Sanders, The Merits of the Paternalistic Justification for

Restrictions on the Admissibility of Expert Evidence, 33 Seton Hall L Rev 881, 925

(2003); see also Donald A. Dripps, Relevant but Prejudicial Exculpatory Evidence:

Rationality Versus Jury Trial and the Right to Put on a Defense, 69 S Cal L Rev

1389, 1400-02 (1996).

740 State v. Hickman

Assume, for example, that some justice system observers

believe that factfinders tend to overvalue the testimony of

law enforcement officials, spiritual leaders, school teach-

ers, and other categories of witnesses who, by demeanor or

resume, may be perceived to possess an exceptional gravitas

or aura of credibility. If social science studies were to per-

suasively support that belief and show that, despite appro-

priate admonitions, it is unduly difficult for juries to over-

come such biases even where those witnesses give erroneous

testimony, what do we do with that information? Will the

trial judge then have a heightened screening role to perform

under OEC 403 with respect to the admissibility of that evi-

dence as well?

To avoid excessive encroachment on the factfinding

role of juries in the adjudicative process, legislatures and

courts have set important limits on the admission of expert

opinion evidence. Thus, an expert may be permitted to give

opinion testimony based on scientific data, theories, and

rules, but the law—both historically and modernly—has

resisted expert attempts to tell a trier of fact who, in partic-

ular, is telling the truth or giving accurate testimony, and

who is not. See, e.g., State v. Lupoli, 348 Or 346, 357, 234 P3d

117 (2010) (“This court has long held that one witness may

not give an opinion on whether he or she believes another

witness is telling the truth.”); ORS 44.370 (“Where the trial

is by the jury, they are the exclusive judges of the credibility

of the witness.”); ORS 136.320 (“questions of fact” in crimi-

nal cases are generally for the jury to decide). When courts

decide whether a percipient witness may testify before a jury

based on the views of expert witnesses about the reliability

of such testimony and the capacity of jurors to accurately

assess its reliability, they embark on a course that requires

an acute awareness of the fundamental assumptions on

which our system of justice is delicately balanced.10

10

That balance has important constitutional underpinnings. Thus, there are

occasions when the admission of challenged evidence would be so unfairly prej-

udicial as to implicate a criminal defendant’s due process rights. See, e.g., Payne

v. Tennessee, 501 US 808, 825, 111 S Ct 2597, 115 L Ed 2d 720 (1991) (“[T]he Due

Process Clause of the Fourteenth Amendment provides a mechanism for relief”

when evidence is introduced “that is so unduly prejudicial that it renders the

trial fundamentally unfair.”). However, as one commentator recently has noted

in examining the historical roots of FRE 403 (the federal counterpart of and

Cite as 355 Or 715 (2014) 741

On the other hand, the risk of misidentification

stemming from an in-court identification is elevated by the

inherently suggestive circumstances of a procedure that, like

the one that occurred here, can be analogized to a suspect

show-up.11 And, of course, once an in-court identification

occurs, it may be too late to construct and administer a non-

prejudicial identification procedure. The dilemma is how to

mitigate the risk of error in factfinding and still honor our

fundamental belief that the trusted rule of law depends on

broad citizen participation in the adjudicative process. To at

least a degree, OEC 403 exists as a means to strike the bal-

ance between those competing values. We therefore turn to

the application of OEC 403 to the circumstances of this case.

We begin with the pretrial statements and trial

testimony of N. Unlike D, N described the shooter in some

detail, including his age, race, build, and apparel, in her

initial police interview. Although N’s trial testimony was

not wholly consistent with D’s testimony and that of other

witnesses, and N’s testimony was more detailed than her

primary source for OEC 403) in relation to the constitutional provisions guaran-

teeing the right to jury trial:

“One might argue that a rule premised on trusting judges more than juries

to weigh evidence makes for a better justice system, but such a rule is at

odds with the decision enshrined by the Framers—juries, not judges, decide

facts in jury trials. The Framers made this decision recognizing that juries

have both perceived and actual deficiencies in their decisionmaking. See, e.g.,

Blakely v. Washington, 542 US 296, 308, 313 [124 S Ct 2531, 159 L Ed 2d 403]

(2004); Jones v. United States, 526 US 227, 244 [119 S Ct 1215, 143 L Ed 2d

311] (1999)”

Kenneth S. Klein, Why Federal Rule of Evidence 403 is Unconstitutional and Why

That Matters, 47 U Rich L Rev 1077, 1081 (2012-13) (emphasis in original).

11

As discussed, “a ‘show-up’ is a procedure in which police officers present an

eyewitness with a single suspect for identification[.]” Lawson, 352 Or at 742; see

also United States v. Kaylor, 491 F2d 1127, 1132 (2d Cir 1973), vacated on other

grounds sub nom, United States v. Hopkins, 418 US 909, 94 S Ct 3201, 41 L Ed 2d

1155 (1974) (finding an in-court identification equivalent to a show-up but noting

that the procedure was inadvertent and there was not “the slightest suggestion

that the prosecution was in any way attempting to bring the confrontation about

in the fashion that it occurred”); accord Nicholas A. Kahn-Fogel, Manson and its

Progeny: An Empirical Analysis of American Eyewitness Law, 3 Ala Cr & Cl L

Rev 175, 201 (2012) (noting that experts recognize that “[i]n-court identifications

almost invariably amount to show-ups, for it is generally clear to the witness

where the defense table is located and who the defendant is, and to allow wit-

nesses to make such identifications after having failed to identify the defendant

from a lineup or after police failed to conduct any lineup at all is undeniably both

suggestive and unnecessary”).

742 State v. Hickman

initial statement, those factors do not demonstrate that

N’s testimony was unreliable as a matter of law. Witnesses

can, and often do, have different memories of fast-moving

events and, depending on the questions asked, may give

more or less detailed information over the course of multiple

interviews.

In addition, there was no evidence of any sugges-

tive preidentification procedure that could have tainted N’s

in-court identification of defendant, nor did any portion of

that identification occur outside the presence of the jury. In

Lawson/James, this court indicated that suggestive pre-

trial police identification procedures, including “suggestive

questioning, cowitness contamination, and other sources

of post-event memory contamination,” can raise particular

concerns with respect to the source and reliability of subse-

quent recounted eyewitness memory:

“The way in which eyewitnesses are questioned or converse

about an event can alter their memory of the event. The use

of suggestive wording and leading questions tend to result

in answers that more closely fit the expectation embedded

in the question. Witness memory can become contaminated

by external information or assumptions embedded in ques-

tions or otherwise communicated to the witness.”

352 Or at 743. Those factors generally are either absent

where, as here, a first-time identification of a perpetrator

occurs in a courtroom setting, or, if they arise, are subject to

court supervision and jury assessment.

It also bears emphasis that N’s pretrial description

of the perpetrator, which defendant does not contend was

unavailable to him through discovery, was sufficiently par-

ticular to put defendant on notice that N might be asked

to make an in-court identification. Courts considering the

admissibility of first-time in-court identifications generally

have placed the burden of seeking a prophylactic remedy on

the defendant. See, e.g., United States v. Brown, 699 F2d 585,

594 (2d Cir 1983) (“[W]hen a defendant is sufficiently aware

in advance that identification testimony will be presented at

trial and fears irreparable suggestivity, as was the case here,

his remedy is to move for a line-up order to assure that the

identification witness will first view the suspect with others

Cite as 355 Or 715 (2014) 743

of like description rather than in the courtroom sitting alone

at the defense table”); Domina, 784 F2d at 1369 (concluding

that “procedures could be used in court to lessen the sug-

gestiveness [of first time in-court identifications], such as an

in-court line-up, or having the defendant sit somewhere in

the courtroom other than the defense table”). That allocation

is consistent with the burden that this court has imposed

on an opponent of eyewitness identification testimony under

OEC 403 to show that its admission would be unfairly prej-

udicial. Lawson/James, 352 Or at 762. Defendant sought

none of those precautionary procedures here.12

In short, insofar as N’s identification testimony was

concerned, no suggestiveness was in play beyond that inher-

ent in a normal courtroom setting, and defendant did not

show that other factors tipped the balance under OEC 403

in favor of exclusion. Under those circumstances, application

of the Lawson/James analysis would not have resulted in

the exclusion of N’s testimony. Id. at 765-68.

D’s identification testimony presents a different cal-

culus, both in terms of its lower probative value and poten-

tially greater prejudicial effect. Minutes after the shooting,

D told police that she “didn’t see the shooting and couldn’t

describe much.” When she met with a defense investigator

about two weeks before trial, D told the investigator that she

could describe the men in the altercation only as “big black

men.” She further told the investigator that the shooter had

a “big Afro,” but gave no further details about his hair. The

next day, in an unrecorded interview with the prosecutor,

D stated that the shooter had “twisties” with “close black

hair.” D also told the prosecutor that she was not certain

that she could identify the perpetrator.

12

The court in Lawson/James noted that defendants generally will challenge

eyewitness identifications by “an appropriate pretrial motion.” Lawson/James,

352 Or at 747. Nothing in this opinion should be understood to indicate that, in

the absence of adequate pretrial notice that the state intends to elicit a first time

in-court identification from an eyewitness at trial, such a challenge or request for

alternative identification procedures must be made before trial. Nor do we mean

to suggest that a trial court is necessarily required to order—upon the request of

any party—either a pretrial or in-court alternative identification procedure as a

condition of admitting eyewitness testimony. The proper resolution of such issues

will invariably depend on the presenting circumstances.

744 State v. Hickman

When she first took the stand at trial, D was aware

that the man sitting between his two lawyers at counsel

table was charged with Monette’s murder. And, as noted,

although there were a half dozen or more African-American

men in the gallery of the courtroom, defendant was the only

African-American in the well of the courtroom. When defen-

dant objected to the prosecutor’s question whether D could

identify the perpetrator in the courtroom, the court excused

the jury and considered the objection. During the course

of the ensuing colloquy between the court and counsel,

the prosecutor represented to the court that, when he met

with D before trial, and she told him that she did not know

whether she could identify the perpetrator, the prosecutor

had proposed that, at trial, D should signal him with a “look

in the eye” if she recognized the shooter when she took the

stand. The prosecutor represented that he told D, “[i]f you

do [recognize the perpetrator], then let the Court know—let

the trier of fact know. If you don’t, then you don’t.”

The prosecutor told the court that, in the brief period

of questioning that took place before the court recessed due

to a recording equipment malfunction, D had not signaled

to the prosecutor that she recognized the perpetrator in the

courtroom. The prosecutor further stated that, after the jury

was excused, D walked past defendant and that she began

hyperventilating when, at that moment, she recognized him

as the perpetrator.

Defense counsel responded that none of D’s emo-

tional reaction was observed by the jury and that the pro-

cess leading to D’s identification of defendant was unfairly

suggestive because “the courtroom [was] cleared during the

break, so that there is one lone black man seated between

several white people before she walks by him yet again, and

that’s when she has this reaction.” Counsel then argued that

the court should exclude D’s testimony because the identi-

fication occurred outside the presence of the jury under

unfairly suggestive circumstances.

After further discussion, the trial court ultimately

overruled defendant’s objection. The court stated that,

because the malfunction of the court’s recording equip-

ment was an unforeseen event, it did not believe that the

Cite as 355 Or 715 (2014) 745

prosecutor had “set this up to make it suggestive.” The court

also stated that it was not going to rule that an in-court

identification is inadmissible on the ground of unfair sug-

gestiveness merely because “there is only one obvious defen-

dant in the courtroom and other suspects are not lined up in

the courtroom.” The court concluded that, although there is

an inherent aspect of suggestiveness to any in-court identifi-

cation, the process leading to D’s identification of defendant

was not unfairly prejudicial so as to require the exclusion of

her testimony. In its ruling, the court noted that the defense

had an opportunity to engage in “powerful cross examina-

tion,” and the court further invited defendant to call an

expert witness on the reliability of eyewitness identification,

which defendant did.

In cross-examining D after she identified defendant

as the perpetrator, defense counsel did not ask any ques-

tions about events that had occurred during the recess. In

redirect examination, however, D testified without objection

that she had identified defendant as the perpetrator when

she walked by him during the recess, that the prosecutor

had then walked with D to the lobby where she sat with her

mother, and that nobody else had since talked to her about

that episode. Defense counsel did not inquire about the sub-

ject on re-cross-examination.

On review, defendant argues:

“Here however, the preidentification instruction of D

occurred in the prosecutor’s office prior to the start of trial

(and by definition outside the presence of the jury). The

prosecutor had arranged for D to signal him silently during

her testimony if she believed she could identify the defen-

dant as the shooter. The purpose of the signal was so that

he would know to ask her during her testimony if she could

identify him.

“Self-evidently, this type of admonition is the opposite

of the ‘unbiased instructions’ discussed in Lawson/James.

Rather than highlighting the fact that the suspect might

not be included in the line-up, a procedure which this

court noted can greatly reduce the likelihood of a misiden-

tification, the preidentification instruction here implicitly

emphasized that the shooter will be in the courtroom, that

the prosecutor believes the defendant is the shooter, and

746 State v. Hickman

the only issue is whether the witness can identify him as

such. Again, the preidentification instructions are a part

of the identification procedure, as the state acknowledges,

and neither of the instructions to both witnesses occurred

in front of the jury or defense counsel.”

According to defendant,

“[T]he ‘secret signal’ serves to highlight the fact that

the ‘in front of the jury’ distinction is meaningless as a

practical matter. When D was on the witness stand, prior

to the failure of the recording system, she did not give the

silent signal to the prosecutor. The failure to give that sig-

nal would suggest that, up until the point the recording

system broke down, she could not identify the defendant as

the shooter. But none of this would have been evident to the

jury, which was unaware of the prosecutor’s arrangement

with the witness, despite the fact that it was occurring ‘in

front of them.’ Given that the jury was not told about ‘the

look’ the witness was instructed to give, it is impossible to

believe the jury would have recognized the absence of the

look for what it was, much less been able to evaluate the

weight that should be given to it.”

Finally, defendant urges,

“It is decidedly not true—despite the state’s claim to

the contrary—that the jury had the opportunity to view

D’s demeanor when she made the identification. When the

state asks this court to limit the application of the Lawson/

James analysis to cases in which the eyewitness identifica-

tion occurs ‘entirely’ in front of the jury and defense coun-

sel, regardless of the merits of that argument, it has no

bearing to the identification of the defendant made by D.”

The force of those arguments is not insubstantial.

Here, no suggestive police procedures preceded D’s in-court

identification of defendant. However, when, before trial, the

prosecutor told D to give him a look if she recognized the

perpetrator in the courtroom, two pertinent suggestions

were made: First, that there was a distinct possibility that

the perpetrator would be present in the courtroom; second,

that the person that the state had charged with the crime

was the African-American man seated at counsel table.

Under the circumstances, the suggestion of defendant’s

identity as the perpetrator was substantial. See United

Cite as 355 Or 715 (2014) 747

States v. Rogers, 126 F3d 655, 659 (5th Cir 1997) (“Even

the best intentioned among us cannot be sure that our rec-

ollection is not influenced by the fact that we are looking

at a person we know the Government has charged with a

crime.”). The jury was not present when D’s initial identi-

fication of defendant and her ensuing emotional response

occurred, and, therefore, it was unable to evaluate the sig-

nificance of those events.

After D returned to the stand following the recess,

she was able for the first time to give a detailed description

of the perpetrator. D described the perpetrator as being in

his 20s to early 30s, stocky, tall 5'7" to 6'), as having a close

Afro or braids, and as having certain facial characteristics.

That description closely matched defendant’s appearance at

trial, except that the general height description (“tall”) was

inaccurate. That sudden “improvement” in D’s recollection

of detail—in light of the other described circumstances—

permitted an inference that her in-court identification of

defendant may have been influenced by the suggestiveness

of the courtroom setting.

In addition, where, as here, defendant had no rea-

son to expect that D would be asked to make an in-court

identification (after all, D had never told anyone before trial

that she could identify the shooter nor had she given any

pretrial description that would indicate that she could),

defense counsel had little reason to make a precautionary

request for pretrial or in-trial steps to test D’s recollection

with a fairly constructed and administered identification

procedure.

On the other side of the scale, defendant had an

opportunity—but did not avail himself of it—to cross-

examine D about her “signal” arrangement with the pros-

ecutor, her failure to give a signal before the recess, and

her identification of D under more suggestive circumstances

when she walked past him in the courtroom during the

recess. However, the evidence permitted an inference that

the signal arrangement—unlike many suggestive pretrial

police procedures—did not result in a positive identification.

Instead, D did not profess to identify D until she walked

past him at counsel table. That sequence of events raised

748 State v. Hickman

a cross-cutting inference that the ultimate identification

was not feigned or the product of suggestion but, rather,

was authentic. The risk of such an adverse inference may,

in part, explain why defense counsel did not bring the mat-

ter to the jury’s attention. Furthermore, the identification

that D made outside the jury’s presence was not the result

of a state-designed or engineered process. As the trial court

explained, it occurred, albeit unexpectedly, during the

course of the regular trial process.13 Finally, the inherent

suggestiveness of a trial setting may be prejudicial in a gen-

eral sense, but, as the trial court properly observed, that

does not necessarily make a first time in-court identification

unfairly prejudicial in the sense required for exclusion under

OEC 403.

In sum—although they cut both ways—the fore-

going array of circumstances renders D’s in-court identifi-

cation of defendant more troubling under OEC 403 than N’s

identification. Those circumstances also demonstrate that

practitioners are well advised, before embarking on such

a venture, to contemplate the risks associated with adduc-

ing first time in-court eyewitness identifications, so as to

mitigate the prospect of unnecessary and unfair prejudice.

However, we need not decide whether the trial court erred

in admitting D’s eyewitness testimony because we conclude

that the error, if any, was harmless in light of N’s identifica-

tion testimony.

As discussed, N’s version of events was more

detailed than D’s from the outset and was more consistent

over time and more accurate; in addition, N did not purport

to spontaneously recognize defendant outside the presence

of the jury. Her identification of defendant occurred entirely

in the jury’s presence. Finally, there was no evidence of a

pretrial signal arrangement between N and the prosecutor;

thus, unlike with D, there were no suggestive pretrial or

in-trial procedures at play with regard to N’s identification

that the jury was unable to observe and assess for itself.

13

If the prosecutor had deliberately concocted the episode as part of a

state-administered identification procedure, the unfair prejudice of admitting D’s

identification ensuing in-court identification of defendant would have correspond-

ingly increased.

Cite as 355 Or 715 (2014) 749

Moreover, two other eyewitnesses (although subject

to impeachment for bias) positively identified defendant as

the perpetrator, three more eyewitnesses described the per-

petrator as having a similar physical appearance to defen-

dant (although they were unable to make a more positive

identification because the shooter wore a ski mask), and

defendant’s DNA was prominently found on the ski mask

that the perpetrator wore during the shooting. In those

circumstances, there is little likelihood that D’s relatively

weaker identification testimony affected the jury’s ver-

dict. See State v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003)

(“Oregon’s constitutional test for affirmance despite error

consists of a single inquiry: Is there little likelihood that

the particular error affected the verdict?”); see also State v.

Camarena, 344 Or 28, 41-42, 176 P3d 380 (2008) (improper

admission of complainant’s testimonial statements in vio-

lation of confrontation requirements was harmless error

where such statements were cumulative of properly admit-

ted nontestimonial statements sufficient to establish defen-

dant’s guilt). Accordingly, any error in admitting D’s identi-

fication testimony under OEC 403 was harmless.

III.  DUE PROCESS

On review, defendant primarily relies on this court’s

evidentiary code analysis in Lawson/James. Defendant does

not focus in detail on the due process arguments that he

advanced before the trial court and the Court of Appeals.

However, to complete our analysis, we briefly consider them

here.

The United States Supreme Court has not extended

constitutional protections to in-court identifications that are

untainted by a prior identification resulting from unduly

suggestive procedures. Domina, 784 F2d at 1369 (noting

that “[t]here is no constitutional entitlement to an in-court

line-up or other particular methods of lessening the sug-

gestiveness of in-court identification, such as seating the

defendant elsewhere in the room.”); see also Byrd, 25 A3d

at 767 (“Based upon the different considerations involved

in pretrial and in-court identifications, we join the majority

of courts in concluding that [due process concerns do] not

apply to in-court identifications [and] *  * that the remedy

*

750 State v. Hickman

for any alleged suggestiveness of an in-court identification is

cross-examination and argument.”); State v. King, 156 NH

371, 934 A2d 556 (2007) (same); State v. Lewis, 363 SC 37,

609 SE2d 515, 518 (2005) (“[Due process concerns do] not

apply to a first-time in-court identification because the judge

is present and can adequately address relevant problems;

the jury is physically present to witness the identification,

rather than merely hearing testimony about it; and cross-

examination offers defendants an adequate safeguard or

remedy against suggestive [identifications].”).

Further, the Supreme Court has recently made

clear that due process rights of defendants identified in

the courtroom under suggestive circumstances are gener-

ally met through the ordinary protections in trial. Perry

v. New Hampshire, ___ US ___, ___, 132 S Ct 716, 728-29,

181 L Ed 2d 694 (2013). Those protections include the right

to confront witnesses; the right to representation of coun-

sel, who may expose flaws in identification testimony on

cross-examination and closing argument; the right to jury

instructions advising use of care in appraising identification

testimony; and the requirement of proof beyond a reason-

able doubt. Id.; see also United States v. Thompson, 524 F3d

1126, 1136 (10th Cir 2008) (holding in-court identification

procedure not unconstitutionally suggestive where robber

was an African-American male and defendant was the only

African-American male in the courtroom); United States v.

Davis, 103 F3d 660, 670 (8th Cir 1996) (same).

In light of those authorities, we cannot hold that

the in-court identification procedure complained of was so

impermissibly suggestive as to violate defendant’s due pro-

cess rights.

The decision of the Court of Appeals is reversed.

The judgment of the circuit court is affirmed.