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 prescribed 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 defendant’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 challenged 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 harmless. 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 eyewitnesses. 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 unrelated 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 testimony 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 shooting. 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 witnessed 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 altercation 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 investigator 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 identify 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 prosecutor 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 AfricanAmerican 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 person charged with Monette’s murder. Shortly after the state 

began its direct examination of D, an equipment malfunction 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 courtroom, 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 prosecutor 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 malfunction, 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 people 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 gentlemen.” 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 defendant’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 identification procedure and had not identified anyone as the perpetrator. 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 wearing 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 perpetrator’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 specific 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 eyewitness 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 calculus prescribed in Lawson/James. Under that framework, 

“when a criminal defendant files a pretrial motion to exclude 

eyewitness identification evidence, the state—as the proponent of the eyewitness identification—must establish all preliminary 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 presenting circumstances—was on the admissibility of eyewitness 
Cite as 355 Or 715 (2014) 723

testimony that was asserted to have been tainted by suggestive 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 subjected 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 impermissible 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 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 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.”); id. at 759 (“As we have 

already noted, witnesses’ self-appraisal of their certainty regarding identifications they have made, especially when elicited after they have received confirming feedback from suggestive police procedures, is a poor indicator of reliability. 

At the same time, jurors can find such statements persuasive, even when contradicted 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 outweighed 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 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. If the state satisfies 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 considerations 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 variables” and “system variables.” The term estimator variables 

refers to “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 740.4

In Lawson, the court concluded that a number of estimator 

variables undermined the reliability of the identification evidence. In that case, the eyewitness, who had sustained a critical 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 information into memory.” Id. at 763. Further, the environmental 

conditions under which the eyewitness viewed the perpetrator 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 attention; 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 robbery 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 “circumstances 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 condition.” Id. at 764. At that time, the police asked leading questions 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 system 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 eyewitnesses 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 procedure 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 contaminated 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 unreliability ***.” Id. However,

“[i]f 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.”

Id. at 763. In such cases, the trial court assumes 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.

B. Framing the Issues—The Parties’ Arguments

Unlike in Lawson/James, the challenged identifications in this case occurred at trial in the absence of any 

preceding attempts by the state to have the witnesses identify 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 implicate and affect the analysis under Lawson/James.

The state asserts that, where no suggestive out-ofcourt identification process preceded an in-court identification, several of the factors discussed in Lawson/James are 

inapplicable to the analysis under OEC 403, and the resulting 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 identification is itself sworn testimony that occurs in the presence 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 identification 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 principles, 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 “minimum baseline of reliability” for eyewitness identifications. 

Id. at 758. That step implicates three interrelated evidentiary concepts: relevance under OEC 401, personal knowledge 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 consequence 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 perceiving 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 presiding judge or any member of the jury from testifying). 

Otherwise, “[f]erreting out and discounting biased testimony 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 testimony 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 fulfillment of a condition of fact, the court shall admit it upon, 

or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.”

Under that rule, the proponent of evidence need only present 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 establishing 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 determination, 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 criteria. That rule limits a witness’s testimony regarding inferences 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 determination 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 identification of the defendant was ‘rationally based’ on those perceptions. To satisfy its burden, the proponent of the identification evidence (generally the state) must demonstrate 

by a preponderance of the evidence that the witness perceived sufficient facts to support an inference of identification and that the identification was, in fact, based on those 

perceptions.”

352 Or at 754-55.6 The last criterion—that the identification is helpful—merely requires that the identification “communicates 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 reasonably 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 identification 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 identifications 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 conditional 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 sufficient 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 beforehand, 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 identification 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 testified 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 support 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 impermissible 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 identification of defendant was “routine” and that there was 

7 Defendant did not make any objection to the admission of D’s or N’s testimony 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 procedural 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 identifications—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 provide 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 helpful 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 probative 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 presentation 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 important 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 gatekeeper 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 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.”

Id. at 763 (emphasis added). That is, under OEC 403, exclusion requires that the state-administered identification procedures 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 courtroom 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 identifications not preceded by suggestive pretrial identification

procedures—this case presents an issue of first impression under the Oregon Evidence Code, other courts have 

addressed the problem. The concerns with in-court eyewitness identification, where suggestive pretrial identification 

procedures were administered by the state, are essentially 

those that this court described in Lawson/James. For example, 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 identification confirms an earlier identification, there is a risk that 

the later identification will be expressed with greater certainty 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 “testimony 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 identification is subject to immediate challenge through crossexamination. “Where a witness first identifies the defendant 

at trial, defense counsel may test the perceptions, memory 

and bias of the witness, contemporaneously exposing weaknesses and adding perspective in order to lessen the hazards 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 understanding 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 testimony. 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 eyewitness 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 enforcement, the bench, and the bar be informed of the existence 

of current scientific research and literature regarding the 

reliability of eyewitness identification because, as an evidentiary matter, the reliability of eyewitness identification 

is central to a criminal justice system dedicated to the dual 
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 acceptance 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 illustration of such a suggestive procedure, the court explained:

“A ‘showup’ is a procedure in which police officers present 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 reliable 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 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.”

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 eyewitness 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 “system 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 cautionary factors merit emphasis. First, as discussed, Lawson/

James was a case about “a discrete evidentiary class,” eyewitness identifications subjected to suggestive out-of-court 

police procedures, which this court deemed to be “particularly 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 procedures 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 validity 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 scientific 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 percipient 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 eyewitness 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 feedback. 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 necessarily involves”).

We further observe that there is empirical evidence suggesting that judges 

are no better than juries in evaluating potentially prejudicial or distracting evidence. 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 teachers, 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 persuasively support that belief and show that, despite appropriate admonitions, it is unduly difficult for juries to overcome 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 evidence 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 particular, 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 criminal 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 prejudicial 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 nonprejudicial 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 balance 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 guaranteeing 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 witnesses 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 suggestive 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 pretrial 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 subsequent 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 questions 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 particular 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 suggestiveness [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 prejudicial. 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 inherent 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 calculus, both in terms of its lower probative value and potentially 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 defendant 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 emotional reaction was observed by the jury and that the process 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 identification 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 equipment 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 suggestiveness merely because “there is only one obvious defendant 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 identification, 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 examination,” 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 questions 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 subject 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 defendant 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 misidentification, 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 signal 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 identification occurs ‘entirely’ in front of the jury and defense counsel, 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 recollection 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 identification of defendant and her ensuing emotional response 

occurred, and, therefore, it was unable to evaluate the significance 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 reason 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 crossexamine D about her “signal” arrangement with the prosecutor, 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 matter 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 general 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 foregoing array of circumstances renders D’s in-court identification 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 adducing 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 identification 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 correspondingly 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 perpetrator as having a similar physical appearance to defendant (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 verdict. 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 violation of confrontation requirements was harmless error 

where such statements were cumulative of properly admitted nontestimonial statements sufficient to establish defendant’s guilt). Accordingly, any error in admitting D’s identification 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 suggestiveness 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 crossexamination 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 generally 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 counsel, 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 reasonable 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 process rights.

The decision of the Court of Appeals is reversed. 

The judgment of the circuit court is affirmed.