- Associated Press - Sunday, March 9, 2014

PORTLAND, Ore. (AP) - The first challenge to Oregon’s landmark test for eyewitness testimony will begin in earnest next week, when prosecutors will try to convince the state’s high court that a murder conviction was wrongly overturned.

The Oregon Supreme Court set the nation’s most stringent test for eyewitness testimony in a 2012 decision. Justices unanimously said they couldn’t ignore thousands of studies and years of evidence demonstrating how notoriously unreliable eyewitness testimony can be.

Now, prosecutors must first show the testimony is more likely than not to be reliable, and the court created a test to gauge witnesses’ reliability.

Among the questions that prosecutors should ask are whether witnesses were the same race as the suspect, given that witnesses are significantly better at identifying members of their own race, and how long had passed between the incident and officers getting their testimony.

“It is a common misconception that a person’s memory operates like a videotape, recording an exact copy of everything the person sees,” wrote Justice Paul De Muniz in 2012. “A person’s capacity for processing information is finite.”

Five months after the decision, the Oregon Court of Appeals took the new test into consideration and reversed the murder conviction of Jerrin Hickman, saying there were serious questions about the reliability of eyewitness testimony.

Just before midnight on New Year’s Eve in 2007, Hickman and several dozen other black men gathered in front of a Portland home. A fight broke out and someone fired a gun once, then three more times. Christopher Monette was found dead with four gunshot wounds to the chest.

Sitting in a car nearby were two white teenage girls, identified only as “N” and “D.” They told prosecutors that upon arrival, they immediately knew they were out of their element, and when the gunshots rang out, they tried to flee.

Before they could, two men jumped into their car. A third man also tried to climb inside, but he was shoved out.

The third man, “D” would later say, was the shooter. At the scene, though, she told police she couldn’t identify anything about the shooter. Her friend, “N,” could only tell a police officer that the shooter was a stocky black man in his mid-to-late 20s, wearing a do-rag.

Four people pointed the finger at Hickman: The two girls, another man who was for a time a suspect in the slaying and a fourth man, who was under the influence of alcohol and cocaine and claimed to recognize Hickman through a ski mask.

The former suspect in the slaying and the fourth man each testified with the hope that their testimony would lessen impending federal sentences in unrelated matters. Police arrested Hickman and charged him with murder.

Nearly two years passed. Police didn’t conduct a lineup or otherwise show “D” or “N” photos of Hickman.

Hickman’s defense attorney said that when he and a private investigator questioned “D” during a meeting, she described her recollection of the shooter’s hair and then said “all black men look the same.” In court, she denied making that statement.

According to the appeals court ruling, “D” stepped into the hallway, during a recess, saw Hickman and started to hyperventilate.

“Oh, my God that’s him, that’s him, that’s him,” she told a prosecutor, according to the appeals court ruling. Asked later in court how certain she was, she replied, “like a 95.” She testified before the jury that Hickman was the shooter.

“N” similarly pointed to Hickman.

For a witness identification to pass under the law, it must be free of “suggestive procedures” - examples include coached witnesses, single-photo “lineups” and bringing a witness to a scene where the suspect is already handcuffed.

Hickman’s defense attorney argued to the appeals court that the in-court identification was “egregiously suggestive” - seated at the defense table, Hickman was the only suspect in the room. Such an arrangement was akin to him being in handcuffs at the scene of a crime, the defense argued.

In addition, the state hadn’t performed any lineups or other identification procedures - each girl’s first chance to point to Hickman was in court.

The appeals court agreed, and Hickman’s conviction was overturned. State prosecutors then appealed the matter to the state Supreme Court.

Hickman remains in prison, awaiting the court’s decision - the justices can either uphold his original conviction, or affirm the appeals court decision and call for a new trial.

In briefs filed before Thursday’s arguments, prosecutors said in-court identifications are much different than police lineups.

“The jury can see for itself the potentially suggestive aspects of the courtroom environment, observe how the state elicits the identification, and watch the witness identify the defendant,” wrote Senior Assistant Attorney General Andrew Lavin.

Hickman’s defense team disagrees.

“The state is not challenging the Court of Appeals‘ conclusion regarding the unreliability of the identifications by ‘D’ and ‘N,’” wrote Hickman’s attorney, Ryan Scott, adding that prosecutors believe jurors can figure out incorrect identifications themselves.

“Thus,” Scott wrote, “the state is essentially proposing this court remove the safeguards essential to ensuring reliable identifications because it speculates that doing so would be harmless.”


Reach reporter Nigel Duara on Twitter at https://www.twitter.com/nigelduara

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