State v. Classen

Citation590 P.2d 1198,285 Or. 221
PartiesSTATE of Oregon, Respondent, v. Richard Harlen CLASSEN, Petitioner. TC 94958; CA 7262; SC 25703.
Decision Date13 February 1979
CourtSupreme Court of Oregon

Gary L. Hooper, Deputy Public Defender, Salem, argued the cause for petitioner. With him on the brief was Gary D. Babcock, Public Defender, and Brian E. Williams, Law Clerk.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent. On the brief were James A. Redden, Atty. Gen., W. Michael Gillette, Sol. Gen., and John W. Burgess, Asst. Atty. Gen.

LINDE, Justice.

Defendant was convicted of a burglary and theft at the home of Mrs. Barth. At trial, Mrs. Barth was unable to identify defendant, but a police officer testified that she had selected defendant's picture from a set of seven photographs shown to her seven months after the burglary. On appeal, defendant contended that the trial court should have suppressed this evidence because the circumstances of the pretrial photographic identification were so suggestive as to destroy its reliability. The Court of Appeals rejected defendant's argument for suppression under Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), and affirmed the conviction, Schwab, C. J., dissenting. 31 Or.App. 683, 571 P.2d 527 (1977). We allowed review.

I

Before turning to the evidence, we review the applicable law. As far as the constraints of "due process" imposed by the federal 14th amendment are concerned, the state of the law may be summarized as follows.

In a trilogy of cases decided in 1967, the United States Supreme Court recognized that the process by which a witness is given an opportunity to identify a suspect represents a "critical stage" in a criminal prosecution. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). 1 While Wade and Gilbert involved the protection of the presence of defense counsel at this "critical stage," Stovall stated that evidence of a pretrial identification must be excluded if, under "the totality of the circumstances surrounding it," the identification procedure was "so unnecessarily suggestive and conducive to irreparable mistaken identification" that it fell short of due process of law. 388 U.S. at 302, 87 S.Ct. at 1972. Consistent with the premise that the "process" which must be "due" includes the "critical" pretrial procedures of investigation and prosecution, this formulation focused on the question whether the circumstances of the identification needlessly created a risk of misidentification, not whether a misidentification had occurred.

The following year, the Supreme Court applied the Stovall formulation to a case of pretrial identification by photograph. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). However, after having found the particular procedure justified under the circumstances of the case, the Court added that there was "little chance that the procedure utilized led to misidentification of Simmons," and that subsequent testimony left "little room for doubt that the identification of Simmons was correct." 390 U.S. at 385-386, 88 S.Ct. at 971. These phrases in Simmons could be read to add a "harmless error" qualification to the assessment of the original identification procedure; even though that procedure fell short of due process it would not require reversal if the ability of the witnesses to identify defendant on other occasions was plainly independent of the suggestiveness of the challenged procedure. But apart from such independent confirmation, the legitimacy of the initial identification process by Stovall standards would still be judged as of the time when this "critical stage" in the prosecution was conducted.

Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), further shifted the focus from the propriety of the initial procedure to the reliability of the identification. The part of the Stovall formulation that called for considering the "totality of the circumstances" in testing the identification Procedure was transferred to testing whether the Identification was reliable despite the needless use of a suggestive procedure. 409 U.S. at 199, 93 S.Ct. 375. Biggers had arisen before the decision in Stovall, which the Supreme Court had declined to apply retroactively. But in Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), the Court applied also to post-Stovall prosecutions the shift from the premise that the "critical stage" of investigatory identification must comply with due process to the position that due process is satisfied if a court can find that the proffered identification "possesses certain features of reliability." The stated reason, adopting an explanation offered by Judge Leventhal of the U. S. Court of Appeals, was that the exclusion of an improperly obtained identification is required only to protect the defendant's "evidentiary interest," that is to say, his right not to be convicted on unreliable evidence partly created by the prosecution itself, rather than to enforce observance of a legal right standing on its own feet, such as the right against an illegal arrest, search, or seizure. 2 The "features of reliability" for federal purposes, in turn, were to be sought in scrutinizing each case "on its own facts," Simmons v. United States, 390 U.S. at 384, 88 S.Ct. 967, for the relative importance of five "factors" bearing on the probable reliability of the identification. Neil v. Biggers, 409 U.S. at 199, 93 S.Ct. 375; Manson v. Brathwaite ; 432 U.S. at 114, 97 S.Ct. 2243. We consider those factors below.

The Court of Appeals noted that as a result of this ad hoc approach to the admissibility of identification evidence "every case is now of constitutional significance" and expressed some doubt whether an instruction to consider each case "on its own facts" states much of a constitutional standard. Real as these concerns are, they put the cart before the horse. The Supreme Court of the United States pronounces rules governing the admissibility of evidence in the federal courts as a matter of federal decisional law in the absence of statute, or in applying a statute or rule. See, E. g., Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1913) (excluding evidence seized in violation of fourth amendment); Nardone v. United States, 302 U.S. 379, 58 S.Ct. 275, 82 L.Ed. 314 (1937), 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1939) (excluding the fruits of wiretaps under the Federal Communications Act); Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957) (excluding admissions made while in custody in violation of Rule 5 of FRCP). Thus in Simmons itself, the Court necessarily considered the identification procedure under its "supervisory authority" before reaching a constitutional issue. 390 U.S. at 386, 88 S.Ct. 967. In this respect, it occupies the same position as this court. See, E. g., State v. Fairley, 282 Or. 689, 580 P.2d 179 (1978); State v. Flores, 280 Or. 273, 570 P.2d 965 (1977); State v. Valdez, 277 Or. 621, 561 P.2d 1006 (1977); State v. Laundy, 103 Or. 443, 204 P. 958, 206 P. 290 (1922). But the Supreme Court does not purport to make the law of evidence for the states. The Court's decisions under the 14th amendment only pronounce constitutional tests which a state's rules of evidence, and their application in a particular case, may not fail; but these decisions assume that there is an applicable state rule in advance of the issue of its constitutionality. The rules governing the admissibility of evidence in state courts are the responsibility of the states before a Supreme Court decision and remain so afterwards, within the constitutional limits laid down in the decision. See Cooper v. California, 386 U.S. 58, 62, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967); Johnson v. New Jersey, 384 U.S. 719, 733, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966).

Evidence law has long provided for excluding certain evidence as a class when its questionable reliability vitiates the value of its possible truthfulness in the particular case, apart from any question of constitutional law. One familiar example is the exclusion of coerced confessions; others are the exclusion of evidence obtained by polygraph tests, hypnosis, or "truth drugs." See State v. Wintzingerode, 9 Or. 153 (1881) (confessions obtained by promises or by threats); State v. Green, 271 Or. 153, 164-171, 531 P.2d 245 (1975) (polygraph evidence); People v. Harper, 111 Ill.App.2d 204, 250 N.E.2d 5 (1969) (sodium amobarbital); Jones v. State, 542 P.2d 1316 (Okl.Cr.App.1975) (hypnosis). These rules of evidence are not dependent on federal law. It is necessary, therefore, to consider application of their principle to the use of the challenged identification evidence.

The rule must take into account, on the one hand, the importance of eyewitness testimony in identifying (or exculpating) a suspected offender and, on the other hand, the widely recognized risk that such identification may often be unreliable at best and at worst may be the psychological product of the identification procedure itself. The extensive research and commentary by psychologists and jurists on the dangers of misidentification and ways to minimize them stretches back at least half a century. Courts as well as commentators have been concerned that the risk of mistake is greater when a witness identifies a suspect from a photograph than in person. Some years before the federal cases, Justice Traynor of the California Supreme Court noted that "identification from a still photograph is substantially less reliable than identification of an individual seen in person." People v. Gould, 54 Cal.2d 621, 7 Cal.Rptr. 273 278, 354 P.2d 865, 870 (1960), citing 3...

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