State v. Haugen

284 March 30, 2017 No. 19

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Respondent on Review.

v.

SHAWN EDWIN HAUGEN,

Petitioner on Review,

(CC 10CR0636, CA A151535, SC S063754)

En Banc

On review from the Court of Appeals.*

Argued and submitted September 22, 2016.

Neil F. Byl, Deputy Public Defender, Salem, argued the

cause and filed the brief for the petitioner on review. Also on

the briefs was Ernest G. Lannet, Chief Defender, Office of

Public Defense Services.

Andrew M. Lavin, Assistant Attorney General, Salem,

argued the cause and filed the brief for the respondent on

review. Also on the brief were Ellen F. Rosenblum, Attorney

General, and Benjamin Gutman, Solicitor General.

BALDWIN, J.

The decision of the Court of Appeals is reversed, and the

case is remanded to the circuit court for further proceedings

consistent with this decision.

______________

* Appeal from Josephine County Circuit Court, Pat Wolke, Judge. 274 Or

App 127, 360 P3d 560 (2015).

Cite as 361 Or 284 (2017) 285

Case Summary: The victim was assaulted late in the evening in the park-

ing lot of a bar. Immediately after the attack, he could not describe to a police

officer exactly what had happened or who had assaulted him, but, a few days

later, the victim identified defendant as one of the perpetrators. Before his trial

on an assault charge, defendant moved to exclude the eyewitness identification,

and, applying the then-applicable test for the admissibility of eyewitness testi-

mony, the trial court ruled that the eyewitness identification was admissible.

Defendant was convicted of the charged offense. Defendant appealed his convic-

tion, and while the appeal was pending, the Oregon Supreme Court announced

its decision in State v. Lawson/James, 352 Or 724, 291 P3d 673 (2012), in which it

adopted a new test for the admissibility of eyewitness identification evidence. The

Court of Appeals applied the new test and affirmed defendant’s conviction. Held:

The identification procedures used in the case raised serious questions about the

reliability of the victim’s identifications of defendant under Lawson/James, and,

therefore, remand is necessary to give the trial court the opportunity to consider

the admissibility of the identifications under the correct standard.

The decision of the Court of Appeals is reversed, and the case is remanded to

the trial court for further proceedings consistent with this decision.

286 State v. Haugen

BALDWIN, J.

In this criminal case, defendant was convicted

of one count of third-degree assault, based mainly on the

victim’s eyewitness identification of him. Before his trial,

defendant moved to exclude the eyewitness identification.

Applying the test for admissibility of eyewitness testimony

set out in State v. Classen, 285 Or 221, 590 P2d 1198 (1979),

the trial court ruled that the victim’s eyewitness identifica-

tion was admissible. While the case was pending on appeal,

this court announced its decision in State v. Lawson/James,

352 Or 724, 291 P3d 673 (2012), in which the court substan-

tially revised the Classen test for determining the admis-

sibility of eyewitness testimony. In the Court of Appeals,

defendant argued that the identification procedures used in

this case raised serious questions about the reliability of the

identification under Lawson/James, and, therefore, that the

Court of Appeals should remand the case to the trial court

for a new hearing and trial, with the trial court utilizing

the Lawson/James test. The Court of Appeals disagreed,

concluding that, even under Lawson/James, the trial court

correctly denied defendant’s motion to suppress. State v.

Haugen, 274 Or App 127, 360 P3d 560 (2015). We allowed

review and, for the reasons explained below, we reverse the

decision of the Court of Appeals and remand the case to

the trial court for further proceedings consistent with this

decision.

BACKGROUND

The following facts are undisputed. In September

2010, the victim met two friends at a bar in Grants Pass,

Oregon. Already present were several people wearing cloth-

ing indicating that they were members of the Vagos motor-

cycle gang. The victim did not know any of the Vagos mem-

bers present at the bar, but one of the victim’s companions

knew and had a conversation with one of the gang members,

a man later identified as Rives. During the evening, Rives

approached the table where the victim was sitting and asked

the victim if he knew a man named Moore, a former member

of the Vagos who, several years earlier, had been a witness

for the prosecution against other Vagos members. The vic-

tim answered, “Well, yes I do. I understand, you know, he

Cite as 361 Or 284 (2017) 287

used to be a Vago.” Rives then became irate and began rant-

ing about Moore. The victim merely nodded in response. The

encounter lasted two to three minutes.

The victim was at the bar for about two hours.

During that time, he overheard a conversation in which

several gang members were teasing defendant, who also

appeared to be a member of the Vagos, about wearing a red

shirt and tie to sell cars on a car lot. When the victim was

leaving the bar around 12:30 a.m., defendant, who was then

standing in a hall near the exit door, looked directly at the

victim and said, “Have a good fucking night.” As the victim

stepped outside the door to the bar, he encountered Rives.

The victim thought that he had heard something behind

him, turned to look, and saw someone whom he could not

clearly see holding the door shut. Rives then said to the vic-

tim, “Are you here to kick us out?” The victim responded,

“No, I’m going home. I just want to walk to my car.” At that

moment, the victim saw that defendant was standing to his

right. Defendant touched the victim’s shoulder and said,

“Well, walk to your car.” As the victim began walking to his

car, someone punched him on the side of the head. He fell to

the ground and someone kicked him in the chest or shoul-

der. As the victim tried to get up, someone else struck him

in the head with what he later thought was a small metal

hammer. The assailants then left. The victim was nearly

knocked unconscious but was able to get up and walk to his

truck and drive home.

Once home, the victim called 9-1-1 and reported

that he had been assaulted by several members of the Vagos

motorcycle gang and that he had been punched and “blind-

sided.” A police officer, Nicklason, arrived later that night

to interview the victim. The victim appeared to be in pain

and to have been significantly injured.1 The victim told

Nicklason that four to six Vagos members approached him

as he was leaving the bar and asked him if he was trying to

run them off. The victim stated that he was later struck on

the right side by someone he did not see. He thought he had

been punched but was not sure. He did not mention being hit

1

As the victim later testified, he was “really dazed and * * * really out of it,”

and he “was in intense pain” when he was talking to Nicklason.

288 State v. Haugen

with a hammer.2 The victim told Nicklason that there were

no witnesses to the assault, and, although he recognized his

assailants as part of a group that had been in the bar, “he

couldn’t recognize them specifically individually.” That is,

the victim did not describe to Nicklason the race, height,

weight, or any identifying feature of the individuals who

assaulted him, other than that they were male and mem-

bers of the Vagos gang. The victim attributed his inability

to provide a description of his assailants to the facts that it

was dark and it was a brief encounter.

Nicklason forwarded the case to Detective Brown,

who was responsible for dealing with outlaw motorcycle

gangs in the area. Brown interviewed the victim at the

police station five days later. The victim once again relayed

the events of the evening when he was assaulted, this time

in more detail. The victim told Brown that the people at the

bar were definitely members of the Vagos gang—they were

“flying their colors,” that is, wearing green bandanas and

jackets with the Vagos insignia. The victim stated that the

person who had struck him from the side was a “great big

guy,” about 230 pounds, not fat, in his late 20s or early 30s,

and had been teased at the bar earlier for dressing up for his

job as a car salesman. The victim also told Brown that the

person who had hit him with the hammer was a “little fat

guy,” probably in his 40s, with a long ponytail. Brown asked

the victim if the first assailant was “pretty buff.” When the

victim answered in the affirmative, Brown said, “I think I

know who you’re talking about.” After talking to the victim

for a few more minutes, Brown said, “[W]hat we’ll do here

in a minute, [victim], I’ll show you some photographs—and

maybe that will help us—once we have some photos we can

go through—and we’ll identify—who the little fat guy is.”

Brown then gave the victim the following disclaimer:

“You are about to be shown some photographs. Just

because the officer is showing you these photos, you are

in no way obligated to identify anybody, okay? The person

2

As the victim confirmed at trial, on the night of the assault, he did not

recall being hit with a hammer. When asked at trial whether, that night, he

remembered a ball-peen hammer being used, the victim testified, “No, I didn’t. I

was really out of it.”

Cite as 361 Or 284 (2017) 289

who committed the crime may or may not be in this group

of photographs.”

Brown explained to the victim that he would ordinarily show

him six photographs, “but because there’s so many people

involved in this I’m just going to show you a group of photo-

graphs.” Brown then presented the victim with a binder of

23 photos. The photos were not chosen based on the subjects’

similarities to the descriptions that the victim provided to

Brown of his assailants and the other people in their group;

rather, all were Department of Motor Vehicle driver license

photographs of known Vagos “Outlaw Motorcycle Gang”

members and associates. The photos did not include any

notes or names.

The victim identified one person he recognized as

a “good man,” and Brown agreed and provided that indi-

vidual’s name. Next, the victim identified a man he knew

as “Ronnie.” Brown confirmed that man’s name. The vic-

tim thought that Ronnie had been present, but he was not

sure whether Ronnie was involved in the assault. Then

the victim pointed to a picture of defendant, stating, “That

sure looks like the guy that hit me right there,” and “I’m

pretty sure it was him.” Brown said, “We’ll just call him

White Boy for now,” and set that picture aside. After iden-

tifying another person he thought was present at the bar,

the victim asked Brown how old the pictures were. Brown

responded that they were a couple of years old. Brown and

the victim continued through the remaining pictures, with

the victim pointing out people he thought might have been

present in the bar on the night of the assault as well as

people he knew, and with Brown providing feedback such

as providing the real names and gang names of some of the

people pictured and commenting on who was in prison, who

had distinctive physical traits or habits, whose hair had or

had not changed since the DMV photo was taken, and the

like.

At one point, Brown directed the victim’s attention

to a picture of Rives, saying, “This gentleman now has a lit-

tle bit more gray. I’m talking about ‘Six Ball,’ or Steve Rives.

He’s got more gray, but he’s got a ponytail that long on his

back.” The victim responded,

290 State v. Haugen

“That sure looks like the little fat man right there. He looks

different in this. His hair appears darker. But that sure

looks like him because he did—his hair was lighter and the

ponytail was probably about that long. * * * I believe he’s

one of the ones involved. I wanted to come back to him, but

* * * that’s why I asked you when I looked at his picture how

old these pictures are. “

Brown set that photo aside as well.

Brown and the victim examined the remaining pic-

tures, with Brown continuing his commentary and the vic-

tim pointing out individuals whom he thought might have

been present at the bar on the night of the assault. When

they had finished going through the photos, Brown returned

the victim’s attention to defendant’s picture. Brown asked

the victim how certain he was that defendant was the per-

son who first struck him. The victim replied that he was 75

to 80 percent certain. He also told Brown that defendant

was the person who, earlier in the night, had said to him,

“Have a good fucking night.”

Brown then offered to present the victim with a

series of photos of defendant and others that had been taken

during an unrelated surveillance action a week earlier, say-

ing that “maybe that will help a little bit.” Brown told the

victim that he wanted to show him the more recent photos

“because there are some significant differences in both the

gentlemen that you have said that have assaulted you.” In

the second set of photos, the pictured individuals were all

wearing gang apparel. The victim identified Rives as the

person who had hit him with the hammer, saying that he

was “99.9 percent sure” it was Rives. The victim also iden-

tified defendant in one of the photos and again said that he

was 80 percent certain that defendant was the person who

first struck him. After being shown yet another recent sur-

veillance photo of a group of individuals that included defen-

dant, the victim raised his certainty level to 90 percent.

Defendant was charged with one count of third-

degree assault. Before the trial, defendant moved to suppress

the victim’s identification of him during the interview with

Brown and to suppress any future in-court identification.

Defendant argued that the identification was inadmissible

Cite as 361 Or 284 (2017) 291

under Classen, because the lineup procedure Brown had

used was suggestive, it needlessly departed from prescribed

procedures for avoiding suggestiveness, and the circum-

stances surrounding the identification indicated that the

victim’s identification was not made independent of the sug-

gestive lineup. The trial court denied the motion. In a let-

ter opinion, the trial court ruled that the lineup procedure

that Brown had used was not unduly suggestive, because

Brown did not violate guidelines for photographic identifica-

tions and because the court could find no other legal reason

for concluding that the photo lineup was unduly suggestive.

The trial court also found that the victim’s identification

was reliable when considered under four of the factors that

this court had set out for determining eyewitness identifi-

cation reliability in Classen (the witness’s ability to observe

the defendant; the timing and completeness of the witness’s

description; the witness’s certainty in the identification; and

the lapse of time between the event and the identification)

and in light of the fact that various details that the victim

remembered about his assailant were later corroborated by

other witnesses at the bar. For those reasons, the trial court

concluded that “the accuracy of the identification in this

case is a matter for the trial jury; and not for this court.”

The case proceeded to trial in April 2012. During

the trial, the victim identified defendant in court as the per-

son who had punched and kicked him, as the person who

had said, as the victim was leaving the bar, “Have a good

fucking night,” and as the person who had been teased as

a car salesman at the bar. The victim testified that he was

100 percent certain that defendant was the person who

assaulted him. Ultimately, the jury convicted defendant of

the charged offense.

After defendant filed the notice of appeal in this

case, this court issued its opinion in Lawson/James, which

we discuss in more detail below. Defendant argued to the

Court of Appeals that Lawson/James dramatically changed

the legal landscape for determining whether an eyewitness

identification is admissible and that serious questions about

the reliability of the victim’s identification of defendant under

Lawson/James warranted reversal and remand for a new

292 State v. Haugen

hearing in which the trial court could apply the Lawson/

James test. As noted, the Court of Appeals concluded that,

even under Lawson/James, the trial court correctly denied

defendant’s motion to suppress.

ANALYSIS

As discussed, the trial court applied the Classen

test at the suppression hearing to determine the reliabil-

ity, and thus the admissibility, of the eyewitness identifica-

tion. It is helpful at this point, then, to describe the Classen

methodology, which was intended to ensure that only suf-

ficiently reliable identifications are admitted into evidence.

Classen required a two-step inquiry: First, the court was

to determine whether the process leading to the identifica-

tion was suggestive or needlessly departed from procedures

prescribed to avoid suggestiveness. 285 Or at 232. If so,

then, second, the court was to determine whether the pros-

ecution had established that there was some source for the

identification other than the suggestive procedure or that

other evidence substantially negated the risk that the iden-

tification was stimulated by the suggestive procedures. Id.

Classen listed five nonexclusive factors for the trial court to

consider in determining whether an identification had been

made independent of the suggestive procedure: (1) the wit-

ness’s opportunity to clearly view the suspect; (2) the atten-

tion that the witness had paid to the suspect’s features;

(3) the timing and completeness of the witness’s description

of the suspect; (4) the witness’s certainty in his or her identi-

fication; and (5) the lapse of time between the original obser-

vation and the identification. Id. at 232-33. In this case, the

trial court found that the identification process that Brown

had used was not suggestive. That is, the court found that

Brown did not needlessly depart from police guidelines

for conducting identifications and that there was no other

legal basis for concluding that the process was suggestive.

Notwithstanding that initial conclusion, the trial court also

reviewed the Classen factors and concluded that the victim’s

identification of defendant was made independent of the

identification procedure used.

While the case was pending on appeal, this

court decided Lawson/James, which, as we have noted,

Cite as 361 Or 284 (2017) 293

significantly changed the framework for determining the

admissibility of eyewitness identification testimony that is

asserted to have been tainted by suggestive police practices.

The impetus for revisiting the analysis that the court had

used in Classen was new scientific research surrounding

eyewitness identifications. Lawson/James, 352 Or at 739-

40. In particular, the court discussed two categories of fac-

tors that, according to the scientific community, affect the

reliability of eyewitness identification: so-called “estimator

variables” and “system variables.” Estimator variables are

“characteristics of the witness, the alleged perpetrator, and

the environmental conditions of the event that cannot be

manipulated or adjusted by state actors.” Id. at 740.3 System

variables relate “to the circumstances surrounding the iden-

tification procedure itself that are generally within the con-

trol of those administering the procedure.” Id.4 In light of the

scientific research and those variables, the court in Lawson/

James concluded that the process outlined in Classen did

“not accomplish its goal of ensuring that only sufficiently

reliable identifications are admitted into evidence.” Id. at

746. In fact, the court stated, the reliability factors that

the court listed in Classen were both incomplete and, at

times, inconsistent with modern scientific findings,5 and the

Classen inquiry itself was “somewhat at odds with its own

goals and with current Oregon evidence law.” Id. Moreover,

3

Estimator variables include, among other things, whether the witness was

under stress at the time of the incident; where the witness’s attention was focused

during the incident; the amount of time that the witness spent looking at the per-

petrator; the environmental viewing conditions; factors affecting the witness’s

visual, physical, and mental acuity; distinctive characteristics of the perpetrator;

and the time elapsed between the incident and the identification. Id. at 744-46.

4

System variables include, among other things, whether the identification

was conducted by a “blind” administrator (a person who does not know the iden-

tity of the suspect); whether the witness was instructed prior to the procedure

that the suspect may or may not be among those shown; whether the lineup was

made up of subjects based on their physical similarity to the witness’s descrip-

tion of the perpetrator; whether the individuals in the lineup or photo array are

shown sequentially or simultaneously; whether the witness was shown the sus-

pect multiple times throughout the course of the investigation; whether there

was evidence of suggestive questioning or other sources of post-event memory

contamination; and whether the administrator provided suggestive or confirm-

ing feedback. Id. at 741-44.

5

To take one example, research shows that a witness’s confidence or level of

certainty (one of the Classen factors) may not be a good indicator of identification

accuracy, but it nonetheless has a substantial potential to influence jurors. Id. at 745.

294 State v. Haugen

the Classen test prohibited courts from considering whether

an identification was reliable until evidence of some sugges-

tiveness was introduced. Id. at 746. And the Classen factors

relied heavily on the witness’s self-reports to establish the

existence or nonexistence of suggestibility factors, when

current scientific research indicates that self-reported evi-

dence of reliability can be inflated or exaggerated by the

suggestive procedure itself. Id. at 748.

The court in Lawson/James therefore set out a new

framework for determining the reliability of eyewitness

identification testimony, based on generally applicable pro-

visions of the Oregon Evidence Code, including the founda-

tional principles that, under OEC 402, all relevant evidence

is admissible; that, under OEC 401, evidence is relevant if

it has any tendency to make the existence of a fact of conse-

quence to the determination of the action more or less prob-

able than it would be without the evidence; and that, under

OEC 403, relevant evidence may be excluded if its probative

value is substantially outweighed by the danger of unfair

prejudice. Lawson/James, 352 Or at 752, 756. The court

announced a two-step process for determining the admissi-

bility of eyewitness identification testimony. First,

“[w]hen a witness’s perceptions are capable of supporting

an inference of identification, but are nevertheless met

with competing evidence of an impermissible basis for that

inference—i.e., suggestive police procedures—an issue of

fact arises as to whether the witness’s subsequent identi-

fication was derived from a permissible or impermissible

basis.”

Id. at 755. At that point, the state, as the proponent of the

evidence, has the burden to present sufficient evidence from

which a juror could find that the witness’s identification was

derived from a permissible basis. State v. Hickman, 355 Or

715, 729, 330 P3d 551 (2014).6 That is, to meet its prelim-

inary burden to demonstrate that eyewitness testimony

6

In Lawson/James, the court described the state’s burden at this point as

establishing by a “preponderance of the evidence” that the identification was

based on a permissible basis. 352 Or at 755. In Hickman, the court clarified that,

under OEC 602, a preponderance of the evidence need only present evidence from

which a reasonable juror could find that the eyewitness observed facts necessary

to make an identification. 355 Or at 728-30.

Cite as 361 Or 284 (2017) 295

is relevant under OEC 402, the state must provide “proof

under OEC 602 that the proffered eyewitness has personal

knowledge of the matters 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.

As the court stated,

“Although the initial admissibility requirements for eye-

witness identification evidence establish a minimum base-

line of reliability, the persuasive power of the evidence that

meets that standard may nevertheless vary greatly, and

many identifications possessing relatively low probative

value may still pass that initial test.”

Id. at 758.

If the state introduces evidence sufficient to sup-

port a finding that the eyewitness testimony is not barred

by OEC 402, then the second step comes into play. At that

point, the defendant assumes the burden of proving that

OEC 403 nevertheless requires its exclusion. Id. at 757. The

court stated,

“Thus, even after finding that the evidence meets the min-

imum requirements of OEC 602 and 701, trial courts must

still conduct a thorough examination of all the pertinent

factors in order to determine the probative value of the evi-

dence under OEC 403.”

Id. at 758.

Probative value is determined under OEC 403 by

considering the relative reliability of the eyewitness testi-

mony, given the system variables and the estimator vari-

ables. The court stated, “The more factors—the presence

of system variables alone or in combination with estimator

variables—that weigh against reliability of the identifica-

tion, the less persuasive the identification evidence will be

to prove the fact of identification, and correspondingly, the

less probative value that identification will have.” Id. at 757.

Further, the court stated,

“As a discrete evidentiary class, eyewitness identifications

subjected to suggestive police procedures are particularly

susceptible to concerns of unfair prejudice. Consequently,

296 State v. Haugen

in cases in which an eyewitness has been exposed to sug-

gestive police procedures, trial courts have a heightened

role as an evidentiary gatekeeper because ‘traditional’

methods of testing reliability—like cross-examination—

can be ineffective at discrediting unreliable or inaccurate

eyewitness identification evidence.”

Id. at 758.

Moreover, the court stated, expert testimony is par-

ticularly useful to this inquiry for two reasons. First, “tra-

ditional methods of informing factfinders of the pitfalls of

eyewitness identification—cross-examination, closing argu-

ment, and generalized jury instructions—frequently are not

adequate to inform factfinders of the factors affecting the

reliability of such identifications.” Id. at 759. And second,

system and estimator variables may be unknown to fact-

finders or contrary to common assumptions. Id. at 761.

Ultimately, though, as the court stated, the decision

whether to admit or exclude eyewitness identification evi-

dence is committed to the discretion of the trial court, and,

as the court observed, “it is doubtful that issues concerning

one or more of the estimator variables that we have identi-

fied will, without more, be enough to support an inference of

unreliability sufficient to justify the exclusion of the eyewit-

ness identification.” Id. at 762; see also Hickman, 355 Or at

726 (same).

The court then applied its new framework to the

facts in Lawson and James. In Lawson, the court concluded

that the record raised serious concerns about the reliability

of the identification evidence proffered below. In that case,

the victim and her husband had driven in their trailer to a

campsite where the victim’s husband earlier had pitched a

tent. When they arrived, the defendant’s truck was parked

in their parking space and the defendant had moved into

their tent. The husband told the defendant that it was their

tent. The defendant apologized, moved his belongings out

of the tent and into his truck, and moved to a vacant camp-

site nearby. The defendant was in the victim’s view for about

40 minutes. Later that same evening, the victim was stand-

ing by the window of the trailer when she was shot in the

chest with a large caliber hunting rifle. Her husband called

Cite as 361 Or 284 (2017) 297

9-1-1, but he too was shot while speaking with the operator,

and he died shortly thereafter. The dispatcher called back

and the victim told the dispatcher that she and her husband

had been shot and that she did not know who had shot them.

When first responders arrived, they found the vic-

tim lying in the trailer, seriously injured but conscious. She

was transported to a hospital. An ambulance attendant

testified that the victim was rambling and hysterical, and

other medical personnel reported that the victim referred

to the shooter as “they,” mentioned several different people

as the shooter, and stated that she had not seen the perpe-

trator and did not know who it was. The victim was near

death when she arrived at the hospital and was immediately

taken into surgery.

When a police detective interviewed the victim the

next day, she was heavily medicated and sedated, and she

could not speak because of a breathing tube in her throat.

The defendant had come to the attention of police officers

when he had volunteered to them that he had encountered

the victim and her husband at the campsite in the morn-

ing on the day that they were shot, and the detective later

showed the victim a photo lineup that included a picture of

the defendant. The victim was unable to identify the defen-

dant in that photo lineup. After the detective posed some

leading questions, the victim agreed that she had seen the

person who had shot her earlier in the day at the campsite,

several hours before she was shot. Two weeks later, when

interviewed again, the victim remembered that the perpe-

trator had covered her face with a pillow after entering the

trailer so as to obscure her view of him, and she said that

she could not identify the man because of the pillow and

because it was dark. Two weeks after that, the victim told

the detective that, notwithstanding the pillow over her face,

she had briefly seen the perpetrator in the trailer, but she

would not be able to pick the perpetrator’s picture out of a

photo lineup. Between then and the trial two years later,

however, on multiple separate occasions, the victim was

exposed to the defendant’s likeness in contexts where the

defendant was clearly the suspect who had been arrested

for the crime. Ultimately, at the defendant’s trial, the victim

298 State v. Haugen

identified the defendant as the man who had shot her and

her husband.

The trial court denied the defendant’s motion to

strike the identification, and the defendant was later con-

victed of aggravated murder, attempted aggravated murder,

and other crimes. The Court of Appeals affirmed the defen-

dant’s convictions, finding that, under Classen, the identifi-

cation procedures prior to the trial were suggestive, but con-

cluding, after weighing the Classen factors, that the victim’s

identification of the defendant had been made independent

of the suggestive procedures and, therefore, that the trial

court had not erred in declining to strike the identification.

State v. Lawson, 239 Or App 363, 244 P3d 860 (2010).

On review, this court considered its new framework

for determining the admissibility of eyewitness testimony

and observed that several estimator variables and system

variables were at play. First, factors falling into the cate-

gory of estimator variables, which negatively affected the

reliability of the identification, included the facts that the

eyewitness—the victim—was under tremendous stress from

the shooting of her husband and in poor physical and mental

condition from being shot herself when she first observed

the perpetrator entering the trailer; the environmental con-

ditions were poor, as it was dark and the victim was on the

floor when she observed the perpetrator; the perpetrator had

covered her head with a pillow; the victim stated repeatedly

that she never got a good look at the perpetrator; and the

in-court identification was over two years after the incident.

Lawson/James, 352 Or at 763-64.

Second, factors falling into the category of system

variables included the fact that the detective first inter-

viewed the victim when she was heavily medicated and

sedated, which, the court stated, together with her impaired

view of the defendant, would have made her especially vul-

nerable to memory contamination from suggestive question-

ing. Id. at 764. Additionally, the police then questioned her

using leading questions that implicitly communicated their

belief that the defendant was the shooter and implanted in

her mind that the person she had seen earlier in the day at

the campsite was the perpetrator. Id. According to the court,

Cite as 361 Or 284 (2017) 299

those factors could have affected every subsequent attempt

that the victim made to recall the perpetrator, and, from

that point forward, also would have made it extremely diffi-

cult for the victim to mentally separate her brief glimpse of

the man in the trailer from the person she had seen at the

campsite for 40 minutes in broad daylight earlier in the day.

Id. Finally, the victim was unable to identify the defendant

until after she had seen his likeness numerous times in sug-

gestive circumstances, but, notwithstanding that fact, the

victim identified the defendant at the trial and testified that

she had absolutely no doubt as to her identification, stating,

“I’ll never forget his face as long as I live. * * * I always knew

it was him.” This court stated that the alteration in the

victim’s statements over time were indicative of a memory

altered by suggestion and confirming feedback. Id. at 765.

After discussing the foregoing estimator variables

and system variables, the court concluded:

“In light of current scientific knowledge regarding the

effects of suggestion and confirming feedback, the preced-

ing circumstances raise serious questions concerning the

reliability of the identification evidence admitted at defen-

dant’s trial. In Lawson, because the Court of Appeals and

trial court relied on the procedures set out in Classen—

procedures that we have revised in this opinion—we reverse

and remand the case to the trial court for a new trial. Due

to the novelty and complexity of the procedures we have

articulated today, the parties must be permitted on retrial

to (1) supplement the record with any additional evidence

that may bear on the reliability of the eyewitness identifi-

cations at issue here, and (2) present arguments regarding

the appropriate application of the new procedures set out

in this opinion.”

Id. Notably, the court did not conduct its own inquiry into

the preliminary question whether the identification was

barred under OEC 402 because the witness’s perceptions

were incapable of supporting an inference of identification

or any balancing of probative value against prejudicial effect

under OEC 403.

Turning next to James, the court reached a differ-

ent conclusion; the court held that application of the revised

framework “could not have resulted in the exclusion of the

300 State v. Haugen

eyewitness identification evidence.” Id. James involved a

midday theft from a grocery store. A store clerk had seen

two Native American men—one small and one large—

stuffing 40-ounce bottles of Steel Reserve 211 beer into a

backpack. He alerted the assistant store manager and

pointed out to him the two perpetrators as they were leaving

the store. The employees were unable to stop the men, and

they drove away in a gray van.

The employees called the police and, when the

officer arrived, they gave him a detailed description of the

perpetrators, including their race, approximate height and

weight, hair styles, and clothing. In that interview, both

employees were adamant that they would be able to iden-

tify the perpetrators if they saw them again. A few hours

later, the officer saw two men who matched the description

of the perpetrators of the grocery store theft “exactly”—the

defendant (the larger man) and another man—and ques-

tioned them. The suspects denied any involvement in the

theft but consented to a search of a backpack in their posses-

sion, which contained an unopened 40-ounce bottle of Steel

Reserve 211 beer. The officer asked the men if they would be

willing to go to the grocery store with him to “clear the mat-

ter up.” The men consented. The officer handcuffed the men

and drove them to the grocery store, where he presented

them to the employees for identification. The employees posi-

tively identified both suspects as the men who had stolen the

beer.

The defendant was charged with multiple offenses.

Before trial, he moved to suppress both the out-of-court

identification and any in-court identification by the employ-

ees. He contended that the identification procedure in the

parking lot was unduly suggestive, and, therefore, the iden-

tification was inadmissible under Classen. Although the

trial court agreed that the identification procedure was sug-

gestive, it denied the motion to suppress on the ground that

the identification was made independent of the suggestive

procedures.

On review, this court considered, as it had in

Lawson, whether application of the revised test for admissi-

bility of eyewitness identification testimony could result in a

Cite as 361 Or 284 (2017) 301

different outcome; in James the court concluded that it could

not. The court observed that, within minutes of the crime,

the employees had given a police officer a detailed and accu-

rate description of the suspects, including information about

their race, size, weight, clothing, and the backpack that they

were using. Lawson/James, 352 Or at 765-66. The officer

apprehended two men a few hours later who matched the

employees’ descriptions of the perpetrators “exactly,” and

the employees later confirmed that the men whom the officer

had apprehended were the men they had seen in the store.

Id. at 766.

The court then analyzed the admissibility of that

identification under the framework that it had just adopted.

First, the court concluded that the OEC 602 requirement

of personal knowledge was met. The court stated that,

although some facts falling into the category of estimator

variables could have negatively affected the witnesses’ per-

ceptions (stress from the assault, for example), on the whole,

the estimator variables suggested reliability: both employ-

ees were face-to-face with the perpetrators and had a clear

opportunity to observe them for a lengthy period of time,

they saw the perpetrators in good environmental conditions

(inside a lighted store and outside, in broad daylight), and

the perpetrators had distinctive features. Id. From that, the

court concluded that “no reasonable decisionmaker could

find that the witnesses did not have the personal knowledge

necessary to identify the perpetrators.” Id.

Because the identification occurred during a “show

up” procedure that the trial court had found to be unduly

suggestive, however, the state, as the proponent of the iden-

tifications, was required under OEC 701 to introduce suffi-

cient evidence to support a finding that the witnesses’ obser-

vations were based on their original observations, untainted

by the suggestive procedures. Id. at 767. This court noted

that the trial court had been satisfied that the suggestive

show-up confrontation did not contribute to the witnesses

identification of the defendant, because the employees had

had a very good look at the perpetrators during the crime

and had described them with particularity, including pro-

viding details about their features, the clothing that they

were wearing, and the unusual-sized bottles of an unusual

302 State v. Haugen

brand of beer that they had stolen. Id. As this court stated,

the witnesses’ accuracy in describing those details demon-

strated their reliability, and, therefore, the court held, the

trial court did not err in reaching its factual conclusion that

the witnesses’ identifications of the defendant were based on

their original observations. Id.

The court then turned to the final analytical steps

under the new framework: determining whether the wit-

nesses’ identifications were helpful to the trier of fact and

whether OEC 403 required their exclusion. Id. On those

points, the court acknowledged that an argument could

be made that the witnesses’ identifications did not provide

the jury with information that was more helpful than their

descriptions of the perpetrators, and that, therefore, the

persuasive value of the identifications was limited and out-

weighed by the unfair prejudice introduced by the identifi-

cations. Id. But, the court held, the concern of unfair prej-

udice was negligible. Id. According to the court, because

the employees’ descriptions of the perpetrators so closely

matched the two men apprehended by the police, their later

identification of the defendant could have prejudiced him lit-

tle, if at all. Id. at 767-68.

To summarize, in Lawson, consideration of both

estimator variables and system variables raised serious

questions about the reliability of the witness’s identifica-

tion of the defendant. Because, for that reason, the result

could have been different under an application of the revised

framework, the court reversed the defendant’s conviction

and remanded the case to the trial court for a new suppres-

sion hearing and trial. In James, the court noted that facts

falling into the category of system variables rendered the

identification procedure suggestive, but because the wit-

nesses had had the opportunity to view the perpetrators for

a lengthy period of time during the commission of the crime

and had been able to give the police officer a detailed and

accurate description of the perpetrators immediately after

the crimes, the court was able to determine that any error in

applying the Classen framework was harmless. That is, even

under the new framework, no reasonable decision maker

could have found that the witnesses did not have personal

knowledge necessary to identify the perpetrators, the state

Cite as 361 Or 284 (2017) 303

would have been able to introduce sufficient evidence to sup-

port a finding that the witness identifications were based on

their original observations, and admission of the identifica-

tion evidence did not unduly prejudice the defendant.

APPLICATION OF LAWSON/JAMES

As we have stated, the trial court, in relying on

Classen, applied what we now view as an incorrect legal

standard. On review, we consider whether there was “lit-

tle likelihood” that application of that incorrect legal stan-

dard affected the verdict. Hickman, 355 Or at 749 (applying

standard); 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?”). Only if we are able

to conclude that application of the Lawson/James test could

not have resulted in the exclusion of the eyewitness identifi-

cation evidence will we affirm the ruling of the trial court.

See Lawson/James, 352 Or at 765.

The Court of Appeals did so conclude and held that

the trial court correctly denied defendant’s motion to dis-

miss. Haugen, 274 Or App at 150. In so holding, the Court of

Appeals first considered whether the record demonstrated

that the state introduced sufficient evidence to permit a

finding that the eyewitness testimony would not be barred

under OEC 402. To that end, the court found, first, that the

victim’s identification satisfied the low threshold of rele-

vance under OEC 401. 274 Or App at 146. Second, the Court

of Appeals concluded, based on the facts that the victim was

able to describe defendant in detail at the police station sev-

eral days after the attack and that the victim remembered

both defendant and Rives talking to him immediately before

the assault, that there was “more than enough [evidence]

to demonstrate, for purposes of OEC 602, that the victim’s

identification was based on personal knowledge.” 274 Or

App at 146. Third, the Court of Appeals rejected defendant’s

challenges to the identification procedures that Brown had

used and concluded that the question whether there was

sufficient evidence to permit a finding that the victim’s iden-

tification was based on his first-hand perceptions so as to

satisfy OEC 701 could reasonably be resolved only in the

304 State v. Haugen

state’s favor. Id. at 147. In light of those conclusions, the

court held, “the victim’s identifications of defendant meet

the threshold requirements for admissibility under Lawson/

James.” Haugen, 274 Or App at 150. The Court of Appeals

then stated that, therefore,

“defendant can prevail only by showing that the evidence is

inadmissible under OEC 403 because its probative value is

outweighed by the danger of unfair prejudice.”

Id. And, the court stated, because defendant had made no

OEC 403 argument on appeal, OEC 403 provided no basis

for excluding the evidence. In light of that holding, the Court

of Appeals did not consider whether any of the estimator

variables or system variables presented in the case raised

serious questions about the reliability, and thus the proba-

tive value, of the victim’s identifications.

While we agree with the Court of Appeals that the

state met its burden under the Lawson/James test to estab-

lish a “minimum baseline of reliability,”7 Lawson/James, 352

Or at 758, we disagree with the Court of Appeals’ conclusion

that OEC 403 provided no basis for excluding the identifi-

cations. Although, in his argument to the Court of Appeals,

defendant did not cite OEC 403 as the specific basis for

remanding the case to the trial court for a new suppression

hearing, we cannot agree that defendant failed to preserve

an OEC 403 argument on appeal. In the Court of Appeals,

defendant asserted that, in Lawson/James, this court had

replaced the Classen test for determining the admissibility

of eyewitness identification evidence with a new test that

requires consideration of system and estimator variables

under OEC 602, 701, and 403. He pointed to many system

variables and estimator variables that he contended were

present in the case, and he argued that those “system and

estimator variables reveal that there are questions about

the reliability of the identifications sufficient to warrant

remand for a new hearing and trial, wherein the trial court

can apply the new Lawson/James test.” In other words,

7

That is, we agree that the victim’s identifications were logically relevant

under OEC 401, and that the state adduced sufficient evidence to support a find-

ing that the victim had personal knowledge under OEC 602 and that the identi-

fication was based on the perception of the victim under OEC 701.

Cite as 361 Or 284 (2017) 305

defendant argued that the probative value of the evidence

should be determined by considering the relative reliabil-

ity of the eyewitness testimony, given the system variables

and the estimator variables, as explained in Lawson/James.

He argued that the result of the suppression hearing, and,

therefore, the verdict, could have been different if the court

had done so, because the identifications were prejudicial

and facts falling into the categories of system and estimator

variables cast doubt on their reliability and, therefore, their

probative value. That, at its core, is an OEC 403 argument.

We turn, then, to consider whether the presence

of facts falling into the categories of estimator and system

variables raises serious questions about the reliability, and,

thus, the probative value, of the eyewitness identifications.

If so, then we must consider whether there is little likelihood

that the error affected the verdict.

Viewing the facts from defendant’s perspective, a

trial court applying Lawson/James could find that a num-

ber of estimator variables were at play that negatively

affected the victim’s perceptions. To reiterate, at 12:30 a.m.,

the victim was punched in the side of the head and then

kicked in the chest or shoulder by one individual, and, as

he tried to get up, a second person struck him in the head.

The victim was nearly knocked unconscious and the assail-

ants then fled. A trial court could find the following facts

that would support the existence of estimator variables that

would raise questions about the reliability of the eyewit-

ness identification. First, the environmental conditions were

poor, insofar as it was late at night and dark in the park-

ing lot, and the victim’s encounter with the assailants was

very brief. Additionally, the victim told a police officer a few

hours after the assault that he had been “blindsided.” That

night, he also stated to the officer that he could not recog-

nize his attackers “specifically, individually,” and he could

not describe them. On the night of the attack, the victim

was not sure about having been punched, and he did not

remember being hit in the head or a hammer being used to

assault him. Those facts could permit a court to find that

the victim was under stress because of the surprise nature

of the attack and because he was badly injured.

306 State v. Haugen

The trial court in this case expressly discounted

those estimator variables in its letter opinion, but, as this

court explained in Lawson/James, there are recent scientific

studies that show that poor environmental viewing condi-

tions, shorter durations of exposure, witness inattention,

and high levels of stress all can impair a witness’s ability to

encode memory and undermine the reliability of eyewitness

identification. Lawson/James, 352 Or at 744-46.

Similarly, the following facts, viewed in a light favor-

able to defendant, could support a trial court finding that

several system variables were present and raise concerns.

Five days after the assault, the victim told Detective Brown

that he was attacked by two Vagos members whom he had

seen earlier in the bar. He told Brown that he was punched

and kicked by a “great big guy,” about 230 pounds, not fat, in

his late 20s or early 30s, and that he was hit with a hammer

by a “little fat guy,” probably in his 40s, with a long pony-

tail. Brown informed the victim that he would show him

some photos, and he recited a statement to the effect that

the perpetrators may or may not be among them. As this

court explained in Lawson/James, a photo lineup should

consist of pictures of individuals matching the descriptions

of the assailants and include among them pictures of sub-

jects known to the officer to be innocent. However, instead

of showing the victim pictures that of people resembling

the “great big guy” or the “little fat guy,” Brown showed

the victim 23 photographs of known Vagos motorcycle gang

members whom Brown suspected either witnessed or partic-

ipated in the assault.

A trial court also could find that Brown provided

continuous suggestive and confirming feedback during the

photo lineup. For example, Detective Brown asked if the big-

ger man was “pretty buff”; when the victim agreed, Brown

told the victim that he thought he knew who he was talking

about. Although Brown later testified that he actually had

had someone other than defendant in mind, a trial court

could find that Brown’s comment was nonetheless sugges-

tive. From the victim’s perspective, Brown had implied that

defendant’s image would be among the photos shown to him

and had encouraged the victim identify someone from that

Cite as 361 Or 284 (2017) 307

collection. Similarly, Brown implied that the “fat little guy”

would be among the photos when he told the victim, “I’ll

show you some photographs—and maybe that will help us—

once we have some photos we can go through—and we’ll

identify—who the little fat guy is.” Brown also confirmed the

identities and gang names of individuals whom the victim

identified and provided additional information about other

suspects in the photos, including how their appearances had

changed since the photos were taken, sometimes before the

victim himself had commented on the photo. As the court

stated in Lawson/James, “[w]itness memory can become

contaminated by external information or assumptions

embedded in questions or otherwise communicated to the

witness.” 352 Or at 743. Further, the court stated, “confirm-

ing feedback tends to falsely inflate witnesses’ confidence in

the accuracy of their identifications, as well as their recol-

lections concerning the quality of their opportunity to view

a perpetrator and an event.” Id. at 744.

Finally, Brown subjected the victim to multiple

viewings of images of defendant and Rives. After the vic-

tim completed his review of the initial 23 photos and had

identified defendant and Rives, Brown told the victim that

he was going to show him some “more recent photographs

because there are some significant differences in both the

gentlemen that you have said that have assaulted you.”

Based on that conversation, a trial court could find that,

in other words, Brown told the victim that he was going to

show him some recent photographs of the individuals whom

the victim had already identified. Brown then showed the

victim a series of surveillance photographs that included

images of defendant, Rives, and others whom the victim had

identified as having been present during the assault, and

asked the victim if he could identify anyone in those photo-

graphs. The victim identified defendant, Rives, and others.

As the court stated in Lawson/James, “[v]iewing a suspect

multiple times throughout an investigation can adversely

affect the reliability of any identification that follows that

viewing.” 352 Or at 743. That is, even if a witness does not

select the proper suspect in an initial identification proce-

dure, the procedure increases the witness’s familiarity with

that suspect’s face. When the witness later sees the same

308 State v. Haugen

suspect or his or her image again, the suspect tends to stand

out or appear familiar to the witness. Id. In this case, the

victim became more and more certain that defendant was

the person who assaulted him as he was shown additional

pictures of him. But the trial court could find that, in light of

the scientific research that the court discussed in Lawson/

James, the victim’s identification actually became less reli-

able through multiple viewings. 8

In addition, in Lawson/James, the court identified

the related problem of “source confusion,” in which a witness

may be confused or unable to discern the source of his or

her recognition of the suspect. 352 Or at 743. In Lawson,

the issue arose because the police suspected that the man

whom the victim had seen earlier in the day at the camp-

site was the perpetrator, and, once that idea was implanted

in the victim’s mind, the court stated, “it would have been

extremely difficult for [the victim] to mentally separate the

task of identifying the perpetrator from her brief glimpse of

his profile in the dark from the task of identifying the man

she saw earlier in her campsite for about 40 minutes in broad

daylight.” Id. at 764. For similar reasons, a trial court could

find that that system variable also may be at play in this

case. As we have stated, immediately after he was attacked,

the victim was unable to identify his attackers and, in

fact, stated that he had been blind-sided. A few days later,

however, the victim identified defendant and Rives as his

attackers, and he was able to describe defendant and Rives

in detail and pick out their photos from those that Brown

showed him. In the circumstance, however, the fact that the

victim was able to identify defendant and Rives in the pho-

tos shown to him by Detective Brown does not necessarily

8

We note that the trial court found the victim’s identification reliable in part

because the victim became more and more certain that defendant was one of his

assailants as he was shown additional pictures of him. The court in Lawson/

James, however, explained that,

“[u]nder most circumstances, witness confidence or certainty is not a good

indicator of identification accuracy. Retrospective self-reports of certainty

are highly susceptible to suggestive procedures and confirming feedback, a

factor that further limits the utility of the certainty variable. Witness cer-

tainty, although a poor indicator of identification accuracy in most cases,

nevertheless has substantial potential to influence jurors.”

352 Or at 745.

Cite as 361 Or 284 (2017) 309

increase the reliability of his identification of defendant and

Rives as his attackers. That is so, because, like the victim

in Lawson, it would have been difficult for the victim in this

case to mentally separate the task of identifying the perpe-

trators of the attack, who had blindsided him during a brief

encounter in a dark parking lot, from the task of identifying

the people whom he had had ample opportunity to observe

over the course of the two hours he had spent in the bar with

his friends, and who had spoken to him as he was leaving

the bar.

Relatedly, the trial court (and the Court of Appeals)

found it compelling that various witnesses “corroborated”

the victim’s testimony that his assailant was a member

of the Vagos gang, that the assailant was wearing Vagos

attire, that the assailant was tall and solidly built, and that

the assailant was a car salesman. But it is undisputed that

there were no witnesses to the attack. Thus the “corrobora-

tion” that the trial court found important to the reliability

of the identification was not corroboration of the fact that

defendant was the victim’s assailant; rather, the witnesses

on whom the trial court relied merely corroborated the vic-

tim’s memory that defendant had been at the bar.

In evaluating the admissibility of the eyewitness

identification evidence in this case, the trial court relied on

Classen, which this court later held was an incorrect legal

standard. Defendant, therefore, did not have an opportunity

to present evidence or expert testimony at the suppression

hearing explaining any of the estimator variables and the

system variables that we have just described. And because

it applied Classen at the suppression hearing, the trial court

did not have an opportunity to consider them.

As the court stated in Lawson/James, even when

the state has met its burden to establish a minimum base-

line of reliability, “trial courts still must conduct a thorough

examination of all the pertinent factors in order to deter-

mine the probative value of the evidence under OEC 403.”

352 Or at 758. Where an eyewitness has been exposed to

suggestive police procedures, the trial court has a “height-

ened role as an evidentiary gatekeeper because ‘traditional’

methods of testing reliability—like cross-examination—can

310 State v. Haugen

be ineffective at discrediting unreliable or inaccurate eye-

witness identification evidence.” Id. In this case, however,

the court did not have an opportunity to properly exercise

its gatekeeping role. As we have stated, facts falling into

the categories of estimator variables and system variables

in this case raised serious questions about the reliability

of the identification evidence admitted at defendant’s trial.

It follows that, as in Lawson, the trial court, not having

assessed those estimator and system variables, could not

have made an informed decision about the admissibility of

the eyewitness identification evidence under OEC 403. We

conclude, then, that application of the Lawson/James frame-

work could have resulted in the exclusion of the eyewitness

identification evidence and, therefore, that the error was not

harmless.

Conclusion

We conclude that the identification procedures used

in this case raise serious questions about the reliability of the

victim’s identifications of defendant under Lawson/James.

Remand, therefore, is necessary to give the trial court the

opportunity to consider the admissibility of the identifica-

tions under the correct standard. On remand, at the eviden-

tiary hearing, the parties must be permitted to supplement

the record with any additional evidence that may bear on

the reliability of the eyewitness identification at issue and

present arguments regarding the appropriate application of

the procedures set out in Lawson/James. Id. at 765.

The decision of the Court of Appeals is reversed,

and the case is remanded to the circuit court for further

proceedings consistent with this decision.