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Bad Eyewitness Identification

criminal defense attorneysThe Supreme Court in the State of Oregon has taken a very progressive approach to eyewitness identifications of suspects in criminal actions. In a unanimous decision, the Oregon Supreme Court changed how eyewitness identification is utilized in criminal prosecutions in Oregon. The court’s ruling shifts the burden of proof. Prosecutors in Oregon now have to show that identification is sufficiently reliable to be considered admissible into evidence at the time of trial. Experts believe that the leading cause of wrongful convictions in the United States is the misidentification of suspects by witnesses.

The Approach In New York

In New York, trial courts assume eyewitness identification of suspects is admissible. For a defendant to keep an eyewitness identification out of the evidence, he or she must show the identification by the eyewitness is unreliable. Courts in New York rely on eyewitness identifications in most criminal trials.

Memory and Perception Unreliable

The basis of the ruling by the court in Oregon is scientific research showing that memory and perception may not be completely reliable. The court stated “because of the alterations to memory that suggestiveness can cause, it is incumbent on courts and law enforcement personnel to treat eyewitness memory just as carefully as they would other forms of trace evidence, like DNA, bloodstains or fingerprints, the evidentiary value of which can be impaired or destroyed by contamination.” The court also found that even in the event the prosecution can show a well-founded basis for the eyewitness identification, the Judge in the court can still keep the identification out of the evidence if the defendant, through his attorney can establish that this identification was a result of “suggestive police procedures.”


The courts in Oregon are moving in the right direction. The state legislature in New York and the courts should consider a similar progressive approach.

About the author

assistance in criminal casesElliot S. Schlissel, Esq. has been representing individuals in the metropolitan New York area charged with felonies and misdemeanors for more than 35 years. If you are a suspect involved in a criminal case or a defendant in a criminal case call the Law Offices of Schlissel DeCorpo for a free consultation.

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