284	                      March 30, 2017	                      No. 19

            IN THE SUPREME COURT OF THE
                  STATE OF OREGON

                  STATE OF OREGON,
                  Respondent on Review.
                             v.
                SHAWN EDWIN HAUGEN,
                   Petitioner on Review,
          (CC 10CR0636, CA A151535, SC S063754)

   En Banc
   On review from the Court of Appeals.*
   Argued and submitted September 22, 2016.
   Neil F. Byl, Deputy Public Defender, Salem, argued the
cause and filed the brief for the petitioner on review. Also on
the briefs was Ernest G. Lannet, Chief Defender, Office of
Public Defense Services.
   Andrew M. Lavin, Assistant Attorney General, Salem,
argued the cause and filed the brief for the respondent on
review. Also on the brief were Ellen F. Rosenblum, Attorney
General, and Benjamin Gutman, Solicitor General.
   BALDWIN, J.
   The decision of the Court of Appeals is reversed, and the
case is remanded to the circuit court for further proceedings
consistent with this decision.




______________
	 * Appeal from Josephine County Circuit Court, Pat Wolke, Judge. 274 Or
App 127, 360 P3d 560 (2015).
Cite as 361 Or 284 (2017)	285

     Case Summary: The victim was assaulted late in the evening in the park-
ing lot of a bar. Immediately after the attack, he could not describe to a police
officer exactly what had happened or who had assaulted him, but, a few days
later, the victim identified defendant as one of the perpetrators. Before his trial
on an assault charge, defendant moved to exclude the eyewitness identification,
and, applying the then-applicable test for the admissibility of eyewitness testi-
mony, the trial court ruled that the eyewitness identification was admissible.
Defendant was convicted of the charged offense. Defendant appealed his convic-
tion, and while the appeal was pending, the Oregon Supreme Court announced
its decision in State v. Lawson/James, 352 Or 724, 291 P3d 673 (2012), in which it
adopted a new test for the admissibility of eyewitness identification evidence. The
Court of Appeals applied the new test and affirmed defendant’s conviction. Held:
The identification procedures used in the case raised serious questions about the
reliability of the victim’s identifications of defendant under Lawson/James, and,
therefore, remand is necessary to give the trial court the opportunity to consider
the admissibility of the identifications under the correct standard.
    The decision of the Court of Appeals is reversed, and the case is remanded to
the trial court for further proceedings consistent with this decision.
286	                                         State v. Haugen

	       BALDWIN, J.
	        In this criminal case, defendant was convicted
of one count of third-degree assault, based mainly on the
victim’s eyewitness identification of him. Before his trial,
defendant moved to exclude the eyewitness identification.
Applying the test for admissibility of eyewitness testimony
set out in State v. Classen, 285 Or 221, 590 P2d 1198 (1979),
the trial court ruled that the victim’s eyewitness identifica-
tion was admissible. While the case was pending on appeal,
this court announced its decision in State v. Lawson/James,
352 Or 724, 291 P3d 673 (2012), in which the court substan-
tially revised the Classen test for determining the admis-
sibility of eyewitness testimony. In the Court of Appeals,
defendant argued that the identification procedures used in
this case raised serious questions about the reliability of the
identification under Lawson/James, and, therefore, that the
Court of Appeals should remand the case to the trial court
for a new hearing and trial, with the trial court utilizing
the Lawson/James test. The Court of Appeals disagreed,
concluding that, even under Lawson/James, the trial court
correctly denied defendant’s motion to suppress. State v.
Haugen, 274 Or App 127, 360 P3d 560 (2015). We allowed
review and, for the reasons explained below, we reverse the
decision of the Court of Appeals and remand the case to
the trial court for further proceedings consistent with this
decision.
                      BACKGROUND
	        The following facts are undisputed. In September
2010, the victim met two friends at a bar in Grants Pass,
Oregon. Already present were several people wearing cloth-
ing indicating that they were members of the Vagos motor-
cycle gang. The victim did not know any of the Vagos mem-
bers present at the bar, but one of the victim’s companions
knew and had a conversation with one of the gang members,
a man later identified as Rives. During the evening, Rives
approached the table where the victim was sitting and asked
the victim if he knew a man named Moore, a former member
of the Vagos who, several years earlier, had been a witness
for the prosecution against other Vagos members. The vic-
tim answered, “Well, yes I do. I understand, you know, he
Cite as 361 Or 284 (2017)	287

used to be a Vago.” Rives then became irate and began rant-
ing about Moore. The victim merely nodded in response. The
encounter lasted two to three minutes.
	        The victim was at the bar for about two hours.
During that time, he overheard a conversation in which
several gang members were teasing defendant, who also
appeared to be a member of the Vagos, about wearing a red
shirt and tie to sell cars on a car lot. When the victim was
leaving the bar around 12:30 a.m., defendant, who was then
standing in a hall near the exit door, looked directly at the
victim and said, “Have a good fucking night.” As the victim
stepped outside the door to the bar, he encountered Rives.
The victim thought that he had heard something behind
him, turned to look, and saw someone whom he could not
clearly see holding the door shut. Rives then said to the vic-
tim, “Are you here to kick us out?” The victim responded,
“No, I’m going home. I just want to walk to my car.” At that
moment, the victim saw that defendant was standing to his
right. Defendant touched the victim’s shoulder and said,
“Well, walk to your car.” As the victim began walking to his
car, someone punched him on the side of the head. He fell to
the ground and someone kicked him in the chest or shoul-
der. As the victim tried to get up, someone else struck him
in the head with what he later thought was a small metal
hammer. The assailants then left. The victim was nearly
knocked unconscious but was able to get up and walk to his
truck and drive home.
	        Once home, the victim called 9-1-1 and reported
that he had been assaulted by several members of the Vagos
motorcycle gang and that he had been punched and “blind-
sided.” A police officer, Nicklason, arrived later that night
to interview the victim. The victim appeared to be in pain
and to have been significantly injured.1 The victim told
Nicklason that four to six Vagos members approached him
as he was leaving the bar and asked him if he was trying to
run them off. The victim stated that he was later struck on
the right side by someone he did not see. He thought he had
been punched but was not sure. He did not mention being hit

	1
      As the victim later testified, he was “really dazed and * * * really out of it,”
and he “was in intense pain” when he was talking to Nicklason.
288	                                                      State v. Haugen

with a hammer.2 The victim told Nicklason that there were
no witnesses to the assault, and, although he recognized his
assailants as part of a group that had been in the bar, “he
couldn’t recognize them specifically individually.” That is,
the victim did not describe to Nicklason the race, height,
weight, or any identifying feature of the individuals who
assaulted him, other than that they were male and mem-
bers of the Vagos gang. The victim attributed his inability
to provide a description of his assailants to the facts that it
was dark and it was a brief encounter.
	        Nicklason forwarded the case to Detective Brown,
who was responsible for dealing with outlaw motorcycle
gangs in the area. Brown interviewed the victim at the
police station five days later. The victim once again relayed
the events of the evening when he was assaulted, this time
in more detail. The victim told Brown that the people at the
bar were definitely members of the Vagos gang—they were
“flying their colors,” that is, wearing green bandanas and
jackets with the Vagos insignia. The victim stated that the
person who had struck him from the side was a “great big
guy,” about 230 pounds, not fat, in his late 20s or early 30s,
and had been teased at the bar earlier for dressing up for his
job as a car salesman. The victim also told Brown that the
person who had hit him with the hammer was a “little fat
guy,” probably in his 40s, with a long ponytail. Brown asked
the victim if the first assailant was “pretty buff.” When the
victim answered in the affirmative, Brown said, “I think I
know who you’re talking about.” After talking to the victim
for a few more minutes, Brown said, “[W]hat we’ll do here
in a minute, [victim], I’ll show you some photographs—and
maybe that will help us—once we have some photos we can
go through—and we’ll identify—who the little fat guy is.”
	          Brown then gave the victim the following disclaimer:
    “You are about to be shown some photographs. Just
    because the officer is showing you these photos, you are
    in no way obligated to identify anybody, okay? The person

	2
      As the victim confirmed at trial, on the night of the assault, he did not
recall being hit with a hammer. When asked at trial whether, that night, he
remembered a ball-peen hammer being used, the victim testified, “No, I didn’t. I
was really out of it.”
Cite as 361 Or 284 (2017)	289

   who committed the crime may or may not be in this group
   of photographs.”
Brown explained to the victim that he would ordinarily show
him six photographs, “but because there’s so many people
involved in this I’m just going to show you a group of photo-
graphs.” Brown then presented the victim with a binder of
23 photos. The photos were not chosen based on the subjects’
similarities to the descriptions that the victim provided to
Brown of his assailants and the other people in their group;
rather, all were Department of Motor Vehicle driver license
photographs of known Vagos “Outlaw Motorcycle Gang”
members and associates. The photos did not include any
notes or names.
	        The victim identified one person he recognized as
a “good man,” and Brown agreed and provided that indi-
vidual’s name. Next, the victim identified a man he knew
as “Ronnie.” Brown confirmed that man’s name. The vic-
tim thought that Ronnie had been present, but he was not
sure whether Ronnie was involved in the assault. Then
the victim pointed to a picture of defendant, stating, “That
sure looks like the guy that hit me right there,” and “I’m
pretty sure it was him.” Brown said, “We’ll just call him
White Boy for now,” and set that picture aside. After iden-
tifying another person he thought was present at the bar,
the victim asked Brown how old the pictures were. Brown
responded that they were a couple of years old. Brown and
the victim continued through the remaining pictures, with
the victim pointing out people he thought might have been
present in the bar on the night of the assault as well as
people he knew, and with Brown providing feedback such
as providing the real names and gang names of some of the
people pictured and commenting on who was in prison, who
had distinctive physical traits or habits, whose hair had or
had not changed since the DMV photo was taken, and the
like.
	        At one point, Brown directed the victim’s attention
to a picture of Rives, saying, “This gentleman now has a lit-
tle bit more gray. I’m talking about ‘Six Ball,’ or Steve Rives.
He’s got more gray, but he’s got a ponytail that long on his
back.” The victim responded,
290	                                             State v. Haugen

   “That sure looks like the little fat man right there. He looks
   different in this. His hair appears darker. But that sure
   looks like him because he did—his hair was lighter and the
   ponytail was probably about that long. * * * I believe he’s
   one of the ones involved. I wanted to come back to him, but
   * * * that’s why I asked you when I looked at his picture how
   old these pictures are. “
Brown set that photo aside as well.
	        Brown and the victim examined the remaining pic-
tures, with Brown continuing his commentary and the vic-
tim pointing out individuals whom he thought might have
been present at the bar on the night of the assault. When
they had finished going through the photos, Brown returned
the victim’s attention to defendant’s picture. Brown asked
the victim how certain he was that defendant was the per-
son who first struck him. The victim replied that he was 75
to 80 percent certain. He also told Brown that defendant
was the person who, earlier in the night, had said to him,
“Have a good fucking night.”
	        Brown then offered to present the victim with a
series of photos of defendant and others that had been taken
during an unrelated surveillance action a week earlier, say-
ing that “maybe that will help a little bit.” Brown told the
victim that he wanted to show him the more recent photos
“because there are some significant differences in both the
gentlemen that you have said that have assaulted you.” In
the second set of photos, the pictured individuals were all
wearing gang apparel. The victim identified Rives as the
person who had hit him with the hammer, saying that he
was “99.9 percent sure” it was Rives. The victim also iden-
tified defendant in one of the photos and again said that he
was 80 percent certain that defendant was the person who
first struck him. After being shown yet another recent sur-
veillance photo of a group of individuals that included defen-
dant, the victim raised his certainty level to 90 percent.
	        Defendant was charged with one count of third-
degree assault. Before the trial, defendant moved to suppress
the victim’s identification of him during the interview with
Brown and to suppress any future in-court identification.
Defendant argued that the identification was inadmissible
Cite as 361 Or 284 (2017)	291

under Classen, because the lineup procedure Brown had
used was suggestive, it needlessly departed from prescribed
procedures for avoiding suggestiveness, and the circum-
stances surrounding the identification indicated that the
victim’s identification was not made independent of the sug-
gestive lineup. The trial court denied the motion. In a let-
ter opinion, the trial court ruled that the lineup procedure
that Brown had used was not unduly suggestive, because
Brown did not violate guidelines for photographic identifica-
tions and because the court could find no other legal reason
for concluding that the photo lineup was unduly suggestive.
The trial court also found that the victim’s identification
was reliable when considered under four of the factors that
this court had set out for determining eyewitness identifi-
cation reliability in Classen (the witness’s ability to observe
the defendant; the timing and completeness of the witness’s
description; the witness’s certainty in the identification; and
the lapse of time between the event and the identification)
and in light of the fact that various details that the victim
remembered about his assailant were later corroborated by
other witnesses at the bar. For those reasons, the trial court
concluded that “the accuracy of the identification in this
case is a matter for the trial jury; and not for this court.”
	        The case proceeded to trial in April 2012. During
the trial, the victim identified defendant in court as the per-
son who had punched and kicked him, as the person who
had said, as the victim was leaving the bar, “Have a good
fucking night,” and as the person who had been teased as
a car salesman at the bar. The victim testified that he was
100 percent certain that defendant was the person who
assaulted him. Ultimately, the jury convicted defendant of
the charged offense.
	        After defendant filed the notice of appeal in this
case, this court issued its opinion in Lawson/James, which
we discuss in more detail below. Defendant argued to the
Court of Appeals that Lawson/James dramatically changed
the legal landscape for determining whether an eyewitness
identification is admissible and that serious questions about
the reliability of the victim’s identification of defendant under
Lawson/James warranted reversal and remand for a new
292	                                           State v. Haugen

hearing in which the trial court could apply the Lawson/
James test. As noted, the Court of Appeals concluded that,
even under Lawson/James, the trial court correctly denied
defendant’s motion to suppress.
                          ANALYSIS
	         As discussed, the trial court applied the Classen
test at the suppression hearing to determine the reliabil-
ity, and thus the admissibility, of the eyewitness identifica-
tion. It is helpful at this point, then, to describe the Classen
methodology, which was intended to ensure that only suf-
ficiently reliable identifications are admitted into evidence.
Classen required a two-step inquiry: First, the court was
to determine whether the process leading to the identifica-
tion was suggestive or needlessly departed from procedures
prescribed to avoid suggestiveness. 285 Or at 232. If so,
then, second, the court was to determine whether the pros-
ecution had established that there was some source for the
identification other than the suggestive procedure or that
other evidence substantially negated the risk that the iden-
tification was stimulated by the suggestive procedures. Id.
Classen listed five nonexclusive factors for the trial court to
consider in determining whether an identification had been
made independent of the suggestive procedure: (1) the wit-
ness’s opportunity to clearly view the suspect; (2) the atten-
tion that the witness had paid to the suspect’s features;
(3) the timing and completeness of the witness’s description
of the suspect; (4) the witness’s certainty in his or her identi-
fication; and (5) the lapse of time between the original obser-
vation and the identification. Id. at 232-33. In this case, the
trial court found that the identification process that Brown
had used was not suggestive. That is, the court found that
Brown did not needlessly depart from police guidelines
for conducting identifications and that there was no other
legal basis for concluding that the process was suggestive.
Notwithstanding that initial conclusion, the trial court also
reviewed the Classen factors and concluded that the victim’s
identification of defendant was made independent of the
identification procedure used.
	       While the case was pending on appeal, this
court decided Lawson/James, which, as we have noted,
Cite as 361 Or 284 (2017)	293

significantly changed the framework for determining the
admissibility of eyewitness identification testimony that is
asserted to have been tainted by suggestive police practices.
The impetus for revisiting the analysis that the court had
used in Classen was new scientific research surrounding
eyewitness identifications. Lawson/James, 352 Or at 739-
40. In particular, the court discussed two categories of fac-
tors that, according to the scientific community, affect the
reliability of eyewitness identification: so-called “estimator
variables” and “system variables.” Estimator variables are
“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 740.3 System
variables relate “to the circumstances surrounding the iden-
tification procedure itself that are generally within the con-
trol of those administering the procedure.” Id.4 In light of the
scientific research and those variables, the court in Lawson/
James concluded that the process outlined in Classen did
“not accomplish its goal of ensuring that only sufficiently
reliable identifications are admitted into evidence.” Id. at
746. In fact, the court stated, the reliability factors that
the court listed in Classen were both incomplete and, at
times, inconsistent with modern scientific findings,5 and the
Classen inquiry itself was “somewhat at odds with its own
goals and with current Oregon evidence law.” Id. Moreover,

	3
       Estimator variables include, among other things, whether the witness was
under stress at the time of the incident; where the witness’s attention was focused
during the incident; the amount of time that the witness spent looking at the per-
petrator; the environmental viewing conditions; factors affecting the witness’s
visual, physical, and mental acuity; distinctive characteristics of the perpetrator;
and the time elapsed between the incident and the identification. Id. at 744-46.
	4
       System variables include, among other things, whether the identification
was conducted by a “blind” administrator (a person who does not know the iden-
tity of the suspect); whether the witness was instructed prior to the procedure
that the suspect may or may not be among those shown; whether the lineup was
made up of subjects based on their physical similarity to the witness’s descrip-
tion of the perpetrator; whether the individuals in the lineup or photo array are
shown sequentially or simultaneously; whether the witness was shown the sus-
pect multiple times throughout the course of the investigation; whether there
was evidence of suggestive questioning or other sources of post-event memory
contamination; and whether the administrator provided suggestive or confirm-
ing feedback. Id. at 741-44.
	5
       To take one example, research shows that a witness’s confidence or level of
certainty (one of the Classen factors) may not be a good indicator of identification
accuracy, but it nonetheless has a substantial potential to influence jurors. Id. at 745.
294	                                                       State v. Haugen

the Classen test prohibited courts from considering whether
an identification was reliable until evidence of some sugges-
tiveness was introduced. Id. at 746. And the Classen factors
relied heavily on the witness’s self-reports to establish the
existence or nonexistence of suggestibility factors, when
current scientific research indicates that self-reported evi-
dence of reliability can be inflated or exaggerated by the
suggestive procedure itself. Id. at 748.
	         The court in Lawson/James therefore set out a new
framework for determining the reliability of eyewitness
identification testimony, based on generally applicable pro-
visions of the Oregon Evidence Code, including the founda-
tional principles that, under OEC 402, all relevant evidence
is admissible; that, under OEC 401, evidence is relevant if
it has any tendency to make the existence of a fact of conse-
quence to the determination of the action more or less prob-
able than it would be without the evidence; and that, under
OEC 403, relevant evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair
prejudice. Lawson/James, 352 Or at 752, 756. The court
announced a two-step process for determining the admissi-
bility of eyewitness identification testimony. First,
    “[w]hen 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 identi-
    fication was derived from a permissible or impermissible
    basis.”
Id. at 755. At that point, the state, as the proponent of the
evidence, has the burden to present sufficient evidence from
which a juror could find that the witness’s identification was
derived from a permissible basis. State v. Hickman, 355 Or
715, 729, 330 P3d 551 (2014).6 That is, to meet its prelim-
inary burden to demonstrate that eyewitness testimony

	6
     In Lawson/James, the court described the state’s burden at this point as
establishing by a “preponderance of the evidence” that the identification was
based on a permissible basis. 352 Or at 755. In Hickman, the court clarified that,
under OEC 602, a preponderance of the evidence need only present evidence from
which a reasonable juror could find that the eyewitness observed facts necessary
to make an identification. 355 Or at 728-30.
Cite as 361 Or 284 (2017)	295

is relevant under OEC 402, 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.
As the court stated,
   “Although the initial admissibility requirements for eye-
   witness identification evidence establish a minimum base-
   line of reliability, the persuasive power of the evidence that
   meets that standard may nevertheless vary greatly, and
   many identifications possessing relatively low probative
   value may still pass that initial test.”
Id. at 758.
	        If the state introduces evidence sufficient to sup-
port a finding that the eyewitness testimony is not barred
by OEC 402, then the second step comes into play. At that
point, the defendant assumes the burden of proving that
OEC 403 nevertheless requires its exclusion. Id. at 757. The
court stated,
   “Thus, even after finding that the evidence meets the min-
   imum requirements of OEC 602 and 701, trial courts must
   still conduct a thorough examination of all the pertinent
   factors in order to determine the probative value of the evi-
   dence under OEC 403.”
Id. at 758.
	        Probative value is determined under OEC 403 by
considering the relative reliability of the eyewitness testi-
mony, given the system variables and the estimator vari-
ables. The court stated, “The more factors—the presence
of system variables alone or in combination with estimator
variables—that weigh against reliability of the identifica-
tion, the less persuasive the identification evidence will be
to prove the fact of identification, and correspondingly, the
less probative value that identification will have.” Id. at 757.
Further, the court stated,
   “As a discrete evidentiary class, eyewitness identifications
   subjected to suggestive police procedures are particularly
   susceptible to concerns of unfair prejudice. Consequently,
296	                                           State v. Haugen

   in cases in which an eyewitness has been exposed to sug-
   gestive 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.
	         Moreover, the court stated, expert testimony is par-
ticularly useful to this inquiry for two reasons. First, “tra-
ditional methods of informing factfinders of the pitfalls of
eyewitness identification—cross-examination, closing argu-
ment, and generalized jury instructions—frequently are not
adequate to inform factfinders of the factors affecting the
reliability of such identifications.” Id. at 759. And second,
system and estimator variables may be unknown to fact-
finders or contrary to common assumptions. Id. at 761.
	         Ultimately, though, as the court stated, the decision
whether to admit or exclude eyewitness identification evi-
dence is committed to the discretion of the trial court, and,
as the court observed, “it is doubtful that issues concerning
one or more of the estimator variables that we have identi-
fied will, without more, be enough to support an inference of
unreliability sufficient to justify the exclusion of the eyewit-
ness identification.” Id. at 762; see also Hickman, 355 Or at
726 (same).
	        The court then applied its new framework to the
facts in Lawson and James. In Lawson, the court concluded
that the record raised serious concerns about the reliability
of the identification evidence proffered below. In that case,
the victim and her husband had driven in their trailer to a
campsite where the victim’s husband earlier had pitched a
tent. When they arrived, the defendant’s truck was parked
in their parking space and the defendant had moved into
their tent. The husband told the defendant that it was their
tent. The defendant apologized, moved his belongings out
of the tent and into his truck, and moved to a vacant camp-
site nearby. The defendant was in the victim’s view for about
40 minutes. Later that same evening, the victim was stand-
ing by the window of the trailer when she was shot in the
chest with a large caliber hunting rifle. Her husband called
Cite as 361 Or 284 (2017)	297

9-1-1, but he too was shot while speaking with the operator,
and he died shortly thereafter. The dispatcher called back
and the victim told the dispatcher that she and her husband
had been shot and that she did not know who had shot them.
	        When first responders arrived, they found the vic-
tim lying in the trailer, seriously injured but conscious. She
was transported to a hospital. An ambulance attendant
testified that the victim was rambling and hysterical, and
other medical personnel reported that the victim referred
to the shooter as “they,” mentioned several different people
as the shooter, and stated that she had not seen the perpe-
trator and did not know who it was. The victim was near
death when she arrived at the hospital and was immediately
taken into surgery.
	        When a police detective interviewed the victim the
next day, she was heavily medicated and sedated, and she
could not speak because of a breathing tube in her throat.
The defendant had come to the attention of police officers
when he had volunteered to them that he had encountered
the victim and her husband at the campsite in the morn-
ing on the day that they were shot, and the detective later
showed the victim a photo lineup that included a picture of
the defendant. The victim was unable to identify the defen-
dant in that photo lineup. After the detective posed some
leading questions, the victim agreed that she had seen the
person who had shot her earlier in the day at the campsite,
several hours before she was shot. Two weeks later, when
interviewed again, the victim remembered that the perpe-
trator had covered her face with a pillow after entering the
trailer so as to obscure her view of him, and she said that
she could not identify the man because of the pillow and
because it was dark. Two weeks after that, the victim told
the detective that, notwithstanding the pillow over her face,
she had briefly seen the perpetrator in the trailer, but she
would not be able to pick the perpetrator’s picture out of a
photo lineup. Between then and the trial two years later,
however, on multiple separate occasions, the victim was
exposed to the defendant’s likeness in contexts where the
defendant was clearly the suspect who had been arrested
for the crime. Ultimately, at the defendant’s trial, the victim
298	                                         State v. Haugen

identified the defendant as the man who had shot her and
her husband.
	        The trial court denied the defendant’s motion to
strike the identification, and the defendant was later con-
victed of aggravated murder, attempted aggravated murder,
and other crimes. The Court of Appeals affirmed the defen-
dant’s convictions, finding that, under Classen, the identifi-
cation procedures prior to the trial were suggestive, but con-
cluding, after weighing the Classen factors, that the victim’s
identification of the defendant had been made independent
of the suggestive procedures and, therefore, that the trial
court had not erred in declining to strike the identification.
State v. Lawson, 239 Or App 363, 244 P3d 860 (2010).
	         On review, this court considered its new framework
for determining the admissibility of eyewitness testimony
and observed that several estimator variables and system
variables were at play. First, factors falling into the cate-
gory of estimator variables, which negatively affected the
reliability of the identification, included the facts that the
eyewitness—the victim—was under tremendous stress from
the shooting of her husband and in poor physical and mental
condition from being shot herself when she first observed
the perpetrator entering the trailer; the environmental con-
ditions were poor, as it was dark and the victim was on the
floor when she observed the perpetrator; the perpetrator had
covered her head with a pillow; the victim stated repeatedly
that she never got a good look at the perpetrator; and the
in-court identification was over two years after the incident.
Lawson/James, 352 Or at 763-64.
	        Second, factors falling into the category of system
variables included the fact that the detective first inter-
viewed the victim when she was heavily medicated and
sedated, which, the court stated, together with her impaired
view of the defendant, would have made her especially vul-
nerable to memory contamination from suggestive question-
ing. Id. at 764. Additionally, the police then questioned her
using leading questions that implicitly communicated their
belief that the defendant was the shooter and implanted in
her mind that the person she had seen earlier in the day at
the campsite was the perpetrator. Id. According to the court,
Cite as 361 Or 284 (2017)	299

those factors could have affected every subsequent attempt
that the victim made to recall the perpetrator, and, from
that point forward, also would have made it extremely diffi-
cult for the victim to mentally separate her brief glimpse of
the man in the trailer from the person she had seen at the
campsite for 40 minutes in broad daylight earlier in the day.
Id. Finally, the victim was unable to identify the defendant
until after she had seen his likeness numerous times in sug-
gestive circumstances, but, notwithstanding that fact, the
victim identified the defendant at the trial and testified that
she had absolutely no doubt as to her identification, stating,
“I’ll never forget his face as long as I live. * * * I always knew
it was him.” This court stated that the alteration in the
victim’s statements over time were indicative of a memory
altered by suggestion and confirming feedback. Id. at 765.
	       After discussing the foregoing estimator variables
and system variables, the court concluded:
   	 “In light of current scientific knowledge regarding the
   effects of suggestion and confirming feedback, the preced-
   ing circumstances raise serious questions concerning the
   reliability of the identification evidence admitted at defen-
   dant’s trial. In Lawson, because the Court of Appeals and
   trial court relied on the procedures set out in Classen—
   procedures that we have revised in this opinion—we reverse
   and remand the case to the trial court for a new trial. Due
   to the novelty and complexity of the procedures we have
   articulated today, the parties must be permitted on retrial
   to (1) supplement the record with any additional evidence
   that may bear on the reliability of the eyewitness identifi-
   cations at issue here, and (2) present arguments regarding
   the appropriate application of the new procedures set out
   in this opinion.”
Id. Notably, the court did not conduct its own inquiry into
the preliminary question whether the identification was
barred under OEC 402 because the witness’s perceptions
were incapable of supporting an inference of identification
or any balancing of probative value against prejudicial effect
under OEC 403.
	       Turning next to James, the court reached a differ-
ent conclusion; the court held that application of the revised
framework “could not have resulted in the exclusion of the
300	                                         State v. Haugen

eyewitness identification evidence.” Id. James involved a
midday theft from a grocery store. A store clerk had seen
two Native American men—one small and one large—
stuffing 40-ounce bottles of Steel Reserve 211 beer into a
backpack. He alerted the assistant store manager and
pointed out to him the two perpetrators as they were leaving
the store. The employees were unable to stop the men, and
they drove away in a gray van.
	        The employees called the police and, when the
officer arrived, they gave him a detailed description of the
perpetrators, including their race, approximate height and
weight, hair styles, and clothing. In that interview, both
employees were adamant that they would be able to iden-
tify the perpetrators if they saw them again. A few hours
later, the officer saw two men who matched the description
of the perpetrators of the grocery store theft “exactly”—the
defendant (the larger man) and another man—and ques-
tioned them. The suspects denied any involvement in the
theft but consented to a search of a backpack in their posses-
sion, which contained an unopened 40-ounce bottle of Steel
Reserve 211 beer. The officer asked the men if they would be
willing to go to the grocery store with him to “clear the mat-
ter up.” The men consented. The officer handcuffed the men
and drove them to the grocery store, where he presented
them to the employees for identification. The employees posi-
tively identified both suspects as the men who had stolen the
beer.
	         The defendant was charged with multiple offenses.
Before trial, he moved to suppress both the out-of-court
identification and any in-court identification by the employ-
ees. He contended that the identification procedure in the
parking lot was unduly suggestive, and, therefore, the iden-
tification was inadmissible under Classen. Although the
trial court agreed that the identification procedure was sug-
gestive, it denied the motion to suppress on the ground that
the identification was made independent of the suggestive
procedures.
	         On review, this court considered, as it had in
Lawson, whether application of the revised test for admissi-
bility of eyewitness identification testimony could result in a
Cite as 361 Or 284 (2017)	301

different outcome; in James the court concluded that it could
not. The court observed that, within minutes of the crime,
the employees had given a police officer a detailed and accu-
rate description of the suspects, including information about
their race, size, weight, clothing, and the backpack that they
were using. Lawson/James, 352 Or at 765-66. The officer
apprehended two men a few hours later who matched the
employees’ descriptions of the perpetrators “exactly,” and
the employees later confirmed that the men whom the officer
had apprehended were the men they had seen in the store.
Id. at 766.
	        The court then analyzed the admissibility of that
identification under the framework that it had just adopted.
First, the court concluded that the OEC 602 requirement
of personal knowledge was met. The court stated that,
although some facts falling into the category of estimator
variables could have negatively affected the witnesses’ per-
ceptions (stress from the assault, for example), on the whole,
the estimator variables suggested reliability: both employ-
ees were face-to-face with the perpetrators and had a clear
opportunity to observe them for a lengthy period of time,
they saw the perpetrators in good environmental conditions
(inside a lighted store and outside, in broad daylight), and
the perpetrators had distinctive features. Id. From that, the
court concluded that “no reasonable decisionmaker could
find that the witnesses did not have the personal knowledge
necessary to identify the perpetrators.” Id.
	         Because the identification occurred during a “show
up” procedure that the trial court had found to be unduly
suggestive, however, the state, as the proponent of the iden-
tifications, was required under OEC 701 to introduce suffi-
cient evidence to support a finding that the witnesses’ obser-
vations were based on their original observations, untainted
by the suggestive procedures. Id. at 767. This court noted
that the trial court had been satisfied that the suggestive
show-up confrontation did not contribute to the witnesses
identification of the defendant, because the employees had
had a very good look at the perpetrators during the crime
and had described them with particularity, including pro-
viding details about their features, the clothing that they
were wearing, and the unusual-sized bottles of an unusual
302	                                         State v. Haugen

brand of beer that they had stolen. Id. As this court stated,
the witnesses’ accuracy in describing those details demon-
strated their reliability, and, therefore, the court held, the
trial court did not err in reaching its factual conclusion that
the witnesses’ identifications of the defendant were based on
their original observations. Id.
	          The court then turned to the final analytical steps
under the new framework: determining whether the wit-
nesses’ identifications were helpful to the trier of fact and
whether OEC 403 required their exclusion. Id. On those
points, the court acknowledged that an argument could
be made that the witnesses’ identifications did not provide
the jury with information that was more helpful than their
descriptions of the perpetrators, and that, therefore, the
persuasive value of the identifications was limited and out-
weighed by the unfair prejudice introduced by the identifi-
cations. Id. But, the court held, the concern of unfair prej-
udice was negligible. Id. According to the court, because
the employees’ descriptions of the perpetrators so closely
matched the two men apprehended by the police, their later
identification of the defendant could have prejudiced him lit-
tle, if at all. Id. at 767-68.
	        To summarize, in Lawson, consideration of both
estimator variables and system variables raised serious
questions about the reliability of the witness’s identifica-
tion of the defendant. Because, for that reason, the result
could have been different under an application of the revised
framework, the court reversed the defendant’s conviction
and remanded the case to the trial court for a new suppres-
sion hearing and trial. In James, the court noted that facts
falling into the category of system variables rendered the
identification procedure suggestive, but because the wit-
nesses had had the opportunity to view the perpetrators for
a lengthy period of time during the commission of the crime
and had been able to give the police officer a detailed and
accurate description of the perpetrators immediately after
the crimes, the court was able to determine that any error in
applying the Classen framework was harmless. That is, even
under the new framework, no reasonable decision maker
could have found that the witnesses did not have personal
knowledge necessary to identify the perpetrators, the state
Cite as 361 Or 284 (2017)	303

would have been able to introduce sufficient evidence to sup-
port a finding that the witness identifications were based on
their original observations, and admission of the identifica-
tion evidence did not unduly prejudice the defendant.
           APPLICATION OF LAWSON/JAMES
	         As we have stated, the trial court, in relying on
Classen, applied what we now view as an incorrect legal
standard. On review, we consider whether there was “lit-
tle likelihood” that application of that incorrect legal stan-
dard affected the verdict. Hickman, 355 Or at 749 (applying
standard); 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?”). Only if we are able
to conclude that application of the Lawson/James test could
not have resulted in the exclusion of the eyewitness identifi-
cation evidence will we affirm the ruling of the trial court.
See Lawson/James, 352 Or at 765.
	         The Court of Appeals did so conclude and held that
the trial court correctly denied defendant’s motion to dis-
miss. Haugen, 274 Or App at 150. In so holding, the Court of
Appeals first considered whether the record demonstrated
that the state introduced sufficient evidence to permit a
finding that the eyewitness testimony would not be barred
under OEC 402. To that end, the court found, first, that the
victim’s identification satisfied the low threshold of rele-
vance under OEC 401. 274 Or App at 146. Second, the Court
of Appeals concluded, based on the facts that the victim was
able to describe defendant in detail at the police station sev-
eral days after the attack and that the victim remembered
both defendant and Rives talking to him immediately before
the assault, that there was “more than enough [evidence]
to demonstrate, for purposes of OEC 602, that the victim’s
identification was based on personal knowledge.” 274 Or
App at 146. Third, the Court of Appeals rejected defendant’s
challenges to the identification procedures that Brown had
used and concluded that the question whether there was
sufficient evidence to permit a finding that the victim’s iden-
tification was based on his first-hand perceptions so as to
satisfy OEC 701 could reasonably be resolved only in the
304	                                                        State v. Haugen

state’s favor. Id. at 147. In light of those conclusions, the
court held, “the victim’s identifications of defendant meet
the threshold requirements for admissibility under Lawson/
James.” Haugen, 274 Or App at 150. The Court of Appeals
then stated that, therefore,
    “defendant can prevail only by showing that the evidence is
    inadmissible under OEC 403 because its probative value is
    outweighed by the danger of unfair prejudice.”
Id. And, the court stated, because defendant had made no
OEC 403 argument on appeal, OEC 403 provided no basis
for excluding the evidence. In light of that holding, the Court
of Appeals did not consider whether any of the estimator
variables or system variables presented in the case raised
serious questions about the reliability, and thus the proba-
tive value, of the victim’s identifications.
	        While we agree with the Court of Appeals that the
state met its burden under the Lawson/James test to estab-
lish a “minimum baseline of reliability,”7 Lawson/James, 352
Or at 758, we disagree with the Court of Appeals’ conclusion
that OEC 403 provided no basis for excluding the identifi-
cations. Although, in his argument to the Court of Appeals,
defendant did not cite OEC 403 as the specific basis for
remanding the case to the trial court for a new suppression
hearing, we cannot agree that defendant failed to preserve
an OEC 403 argument on appeal. In the Court of Appeals,
defendant asserted that, in Lawson/James, this court had
replaced the Classen test for determining the admissibility
of eyewitness identification evidence with a new test that
requires consideration of system and estimator variables
under OEC 602, 701, and 403. He pointed to many system
variables and estimator variables that he contended were
present in the case, and he argued that those “system and
estimator variables reveal that there are questions about
the reliability of the identifications sufficient to warrant
remand for a new hearing and trial, wherein the trial court
can apply the new Lawson/James test.” In other words,
	7
        That is, we agree that the victim’s identifications were logically relevant
under OEC 401, and that the state adduced sufficient evidence to support a find-
ing that the victim had personal knowledge under OEC 602 and that the identi-
fication was based on the perception of the victim under OEC 701.
Cite as 361 Or 284 (2017)	305

defendant argued that the probative value of the evidence
should be determined by considering the relative reliabil-
ity of the eyewitness testimony, given the system variables
and the estimator variables, as explained in Lawson/James.
He argued that the result of the suppression hearing, and,
therefore, the verdict, could have been different if the court
had done so, because the identifications were prejudicial
and facts falling into the categories of system and estimator
variables cast doubt on their reliability and, therefore, their
probative value. That, at its core, is an OEC 403 argument.
	         We turn, then, to consider whether the presence
of facts falling into the categories of estimator and system
variables raises serious questions about the reliability, and,
thus, the probative value, of the eyewitness identifications.
If so, then we must consider whether there is little likelihood
that the error affected the verdict.
	        Viewing the facts from defendant’s perspective, a
trial court applying Lawson/James could find that a num-
ber of estimator variables were at play that negatively
affected the victim’s perceptions. To reiterate, at 12:30 a.m.,
the victim was punched in the side of the head and then
kicked in the chest or shoulder by one individual, and, as
he tried to get up, a second person struck him in the head.
The victim was nearly knocked unconscious and the assail-
ants then fled. A trial court could find the following facts
that would support the existence of estimator variables that
would raise questions about the reliability of the eyewit-
ness identification. First, the environmental conditions were
poor, insofar as it was late at night and dark in the park-
ing lot, and the victim’s encounter with the assailants was
very brief. Additionally, the victim told a police officer a few
hours after the assault that he had been “blindsided.” That
night, he also stated to the officer that he could not recog-
nize his attackers “specifically, individually,” and he could
not describe them. On the night of the attack, the victim
was not sure about having been punched, and he did not
remember being hit in the head or a hammer being used to
assault him. Those facts could permit a court to find that
the victim was under stress because of the surprise nature
of the attack and because he was badly injured.
306	                                           State v. Haugen

	        The trial court in this case expressly discounted
those estimator variables in its letter opinion, but, as this
court explained in Lawson/James, there are recent scientific
studies that show that poor environmental viewing condi-
tions, shorter durations of exposure, witness inattention,
and high levels of stress all can impair a witness’s ability to
encode memory and undermine the reliability of eyewitness
identification. Lawson/James, 352 Or at 744-46.
	        Similarly, the following facts, viewed in a light favor-
able to defendant, could support a trial court finding that
several system variables were present and raise concerns.
Five days after the assault, the victim told Detective Brown
that he was attacked by two Vagos members whom he had
seen earlier in the bar. He told Brown that he was punched
and kicked by a “great big guy,” about 230 pounds, not fat, in
his late 20s or early 30s, and that he was hit with a hammer
by a “little fat guy,” probably in his 40s, with a long pony-
tail. Brown informed the victim that he would show him
some photos, and he recited a statement to the effect that
the perpetrators may or may not be among them. As this
court explained in Lawson/James, a photo lineup should
consist of pictures of individuals matching the descriptions
of the assailants and include among them pictures of sub-
jects known to the officer to be innocent. However, instead
of showing the victim pictures that of people resembling
the “great big guy” or the “little fat guy,” Brown showed
the victim 23 photographs of known Vagos motorcycle gang
members whom Brown suspected either witnessed or partic-
ipated in the assault.
	        A trial court also could find that Brown provided
continuous suggestive and confirming feedback during the
photo lineup. For example, Detective Brown asked if the big-
ger man was “pretty buff”; when the victim agreed, Brown
told the victim that he thought he knew who he was talking
about. Although Brown later testified that he actually had
had someone other than defendant in mind, a trial court
could find that Brown’s comment was nonetheless sugges-
tive. From the victim’s perspective, Brown had implied that
defendant’s image would be among the photos shown to him
and had encouraged the victim identify someone from that
Cite as 361 Or 284 (2017)	307

collection. Similarly, Brown implied that the “fat little guy”
would be among the photos when he told the victim, “I’ll
show you some photographs—and maybe that will help us—
once we have some photos we can go through—and we’ll
identify—who the little fat guy is.” Brown also confirmed the
identities and gang names of individuals whom the victim
identified and provided additional information about other
suspects in the photos, including how their appearances had
changed since the photos were taken, sometimes before the
victim himself had commented on the photo. As the court
stated in Lawson/James, “[w]itness memory can become
contaminated by external information or assumptions
embedded in questions or otherwise communicated to the
witness.” 352 Or at 743. Further, the court stated, “confirm-
ing feedback tends to falsely inflate witnesses’ confidence in
the accuracy of their identifications, as well as their recol-
lections concerning the quality of their opportunity to view
a perpetrator and an event.” Id. at 744.
	        Finally, Brown subjected the victim to multiple
viewings of images of defendant and Rives. After the vic-
tim completed his review of the initial 23 photos and had
identified defendant and Rives, Brown told the victim that
he was going to show him some “more recent photographs
because there are some significant differences in both the
gentlemen that you have said that have assaulted you.”
Based on that conversation, a trial court could find that,
in other words, Brown told the victim that he was going to
show him some recent photographs of the individuals whom
the victim had already identified. Brown then showed the
victim a series of surveillance photographs that included
images of defendant, Rives, and others whom the victim had
identified as having been present during the assault, and
asked the victim if he could identify anyone in those photo-
graphs. The victim identified defendant, Rives, and others.
As the court stated in Lawson/James, “[v]iewing a suspect
multiple times throughout an investigation can adversely
affect the reliability of any identification that follows that
viewing.” 352 Or at 743. That is, even if a witness does not
select the proper suspect in an initial identification proce-
dure, the procedure increases the witness’s familiarity with
that suspect’s face. When the witness later sees the same
308	                                                          State v. Haugen

suspect or his or her image again, the suspect tends to stand
out or appear familiar to the witness. Id. In this case, the
victim became more and more certain that defendant was
the person who assaulted him as he was shown additional
pictures of him. But the trial court could find that, in light of
the scientific research that the court discussed in Lawson/
James, the victim’s identification actually became less reli-
able through multiple viewings. 8
	        In addition, in Lawson/James, the court identified
the related problem of “source confusion,” in which a witness
may be confused or unable to discern the source of his or
her recognition of the suspect. 352 Or at 743. In Lawson,
the issue arose because the police suspected that the man
whom the victim had seen earlier in the day at the camp-
site was the perpetrator, and, once that idea was implanted
in the victim’s mind, the court stated, “it would have been
extremely difficult for [the victim] to mentally separate the
task of identifying the perpetrator from her brief glimpse of
his profile in the dark from the task of identifying the man
she saw earlier in her campsite for about 40 minutes in broad
daylight.” Id. at 764. For similar reasons, a trial court could
find that that system variable also may be at play in this
case. As we have stated, immediately after he was attacked,
the victim was unable to identify his attackers and, in
fact, stated that he had been blind-sided. A few days later,
however, the victim identified defendant and Rives as his
attackers, and he was able to describe defendant and Rives
in detail and pick out their photos from those that Brown
showed him. In the circumstance, however, the fact that the
victim was able to identify defendant and Rives in the pho-
tos shown to him by Detective Brown does not necessarily

	8
       We note that the trial court found the victim’s identification reliable in part
because the victim became more and more certain that defendant was one of his
assailants as he was shown additional pictures of him. The court in Lawson/
James, however, explained that,
    “[u]nder most circumstances, witness confidence or certainty is not a good
    indicator of identification accuracy. Retrospective self-reports of certainty
    are highly susceptible to suggestive procedures and confirming feedback, a
    factor that further limits the utility of the certainty variable. Witness cer-
    tainty, although a poor indicator of identification accuracy in most cases,
    nevertheless has substantial potential to influence jurors.”
352 Or at 745.
Cite as 361 Or 284 (2017)	309

increase the reliability of his identification of defendant and
Rives as his attackers. That is so, because, like the victim
in Lawson, it would have been difficult for the victim in this
case to mentally separate the task of identifying the perpe-
trators of the attack, who had blindsided him during a brief
encounter in a dark parking lot, from the task of identifying
the people whom he had had ample opportunity to observe
over the course of the two hours he had spent in the bar with
his friends, and who had spoken to him as he was leaving
the bar.
	        Relatedly, the trial court (and the Court of Appeals)
found it compelling that various witnesses “corroborated”
the victim’s testimony that his assailant was a member
of the Vagos gang, that the assailant was wearing Vagos
attire, that the assailant was tall and solidly built, and that
the assailant was a car salesman. But it is undisputed that
there were no witnesses to the attack. Thus the “corrobora-
tion” that the trial court found important to the reliability
of the identification was not corroboration of the fact that
defendant was the victim’s assailant; rather, the witnesses
on whom the trial court relied merely corroborated the vic-
tim’s memory that defendant had been at the bar.
	        In evaluating the admissibility of the eyewitness
identification evidence in this case, the trial court relied on
Classen, which this court later held was an incorrect legal
standard. Defendant, therefore, did not have an opportunity
to present evidence or expert testimony at the suppression
hearing explaining any of the estimator variables and the
system variables that we have just described. And because
it applied Classen at the suppression hearing, the trial court
did not have an opportunity to consider them.
	         As the court stated in Lawson/James, even when
the state has met its burden to establish a minimum base-
line of reliability, “trial courts still must conduct a thorough
examination of all the pertinent factors in order to deter-
mine the probative value of the evidence under OEC 403.”
352 Or at 758. Where an eyewitness has been exposed to
suggestive police procedures, the trial court has a “height-
ened role as an evidentiary gatekeeper because ‘traditional’
methods of testing reliability—like cross-examination—can
310	                                           State v. Haugen

be ineffective at discrediting unreliable or inaccurate eye-
witness identification evidence.” Id. In this case, however,
the court did not have an opportunity to properly exercise
its gatekeeping role. As we have stated, facts falling into
the categories of estimator variables and system variables
in this case raised serious questions about the reliability
of the identification evidence admitted at defendant’s trial.
It follows that, as in Lawson, the trial court, not having
assessed those estimator and system variables, could not
have made an informed decision about the admissibility of
the eyewitness identification evidence under OEC 403. We
conclude, then, that application of the Lawson/James frame-
work could have resulted in the exclusion of the eyewitness
identification evidence and, therefore, that the error was not
harmless.
                        Conclusion
	        We conclude that the identification procedures used
in this case raise serious questions about the reliability of the
victim’s identifications of defendant under Lawson/James.
Remand, therefore, is necessary to give the trial court the
opportunity to consider the admissibility of the identifica-
tions under the correct standard. On remand, at the eviden-
tiary hearing, the parties must be permitted to supplement
the record with any additional evidence that may bear on
the reliability of the eyewitness identification at issue and
present arguments regarding the appropriate application of
the procedures set out in Lawson/James. Id. at 765.
	       The decision of the Court of Appeals is reversed,
and the case is remanded to the circuit court for further
proceedings consistent with this decision.
