A landmark decision of the Oregon Supreme Court provides bases for new challenges to the admissibility of some children’s statements and testimony. The case is State v. Lawson, 352 Or. 724 (Nov. 29, 2012).
The case sets new procedures for Oregon courts to use to decide whether to admit eyewitness identifications in evidence. It does not consider the admissibility of children’s accounts of abuse at all. But much of its reasoning is applicable to many children’s statements that they have experienced abuse.
The Lawson court starts by observing that much has been learned through research on the reliability of eyewitness identification since the court laid down rules for the admission of such evidence in 1979. There has likewise been much research and much new knowledge about the reliability of children’s statements in the past few decades.
The court observes that an eyewitness to a crime can incorrectly identify a suspect as the perpetrator because of a “source monitoring error.” This can happen when the witness recognizes the suspect because she has seen him in a prior identification procedure (say, a photo line-up) but thinks she is recognizing him from the crime. Children, with their primitive memory skills, are particularly prone to source monitoring errors; for example, a child may have in mind an image of being molested by a person not because she has been, but because she has been asked whether she was.
The court notes that only a witness’s original, uncontaminated memory has any value as evidence:
“Because of the alterations to memory that suggestiveness can cause, it is incumbent on courts and law enforcement personnel to treat eyewitness memory just as carefully as they would other forms of trace evidence, like DNA, bloodstains, or fingerprints, the evidentiary value of which can be impaired or destroyed by contamination. Like those forms of evidence, once contaminated, a witness’s original memory is very difficult to retrieve; it is, however, only the original memory that has any forensic or evidentiary value.”
The court also observes that the usual ways to detect inaccurate testimony in court don’t work well when a witness’s memory has been contaminated—and this makes it more important for judges to keep contaminated memories out of evidence:
“[I]n cases in which an eyewitness has been exposed to suggestive 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.”
Children’s false memories of abuse are likewise difficult to detect through the usual trial procedures.
The Oregon Supreme Court decided the admissibility of eyewitness identifications could henceforth be challenged on two bases that could apply also to children’s testimony: lack of personal knowledge, and unfair prejudice.
It is a fundamental rule that witnesses testify only on the basis of their own knowledge. (Hence the rule against hearsay evidence.) An eyewitness may think she is identifying the defendant as the perpetrator from her personal knowledge, but a trial judge may conclude, under the Lawson decision, that she is instead doing so from a contaminated memory.
A trial judge may also conclude, under Lawson, that the probative value of an eyewitness identification is outweighed by the risk of “unfair prejudice.” The Lawson court did not elaborate on how admitting an eyewitness identification could unfairly prejudice a defendant. It referred generally to situations “in which the preferences of the [jurors] are affected by reasons essentially unrelated to the persuasive power of the evidence.” In a child abuse case, the natural sympathy of jurors for children is a preference unrelated to the persuasive power of a child’s testimony.
The Lawson court also emphasized the value of expert testimony on the fallibility of eyewitness identification. Henceforth, it predicted, Oregon criminal defense lawyers will use expert witnesses to discredit eyewitness identification more often than they will persuade courts to exclude eyewitness testimony.
“[T]he use of experts may prove vital to ensuring that the law keeps pace with advances in scientific knowledge, thus enabling judges and jurors to evaluate eyewitness identification testimony according to relevant and meaningful criteria.”
Among the misconceptions such experts can dispel is that memory works like video recording. This misconception is as dangerous when considering children’s memories of their experiences as when considering eyewitness identifications.
The Lawson court also took care to note eyewitness identifications can be inadmissible even when police identification procedures have been faultless. If evidence is unreliable, it should not be used at trial, even if its unreliability is not due to any official misconduct. When children’s memories are contaminated, it often happens because of questioning by family members and others close to the children who suspect they have been molested. Thus this point in Lawson will be important to lawyers who seek to use the decision to exclude a child’s statements from evidence.