¶1dissenting.
¶2This case presents a dilemma because of our decision in State v. McBain, 24 Or App 737, 547 P2d 188 (1976) (McBain I).
¶3In McBain I, the victim testified that, although defendant looked somewhat like the man who raped her, she could not make a positive in-court identification. She was then shown a photograph taken of defendant shortly after the crime and identified the photograph as that of her assailant. We reversed defendant’s subsequent conviction on the ground that the photograph was inadmissible.
¶4*1060The photograph was first shown to the victim during the police investigation as part of a nine-picture throwdown. It was the only photograph which portrayed a darkly bearded, heavily set man, as the victim had described her assailant. We held this photographic display impermissibly suggestive, citing Simmons v. United States, 390 US 377, 88 S Ct 967, 19 L Ed 2d 1247 (1968). The United States Supreme Court stated in Simmonsthat a pretrial photographic identification shall be excluded if the "procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” 390 US at 384. (Emphasis added). The court pointed out that the danger of suggestive photographic procedures leading to irreparable misidentification results from the fact that "the witness thereafter is apt to retain in his memory, the image of the photograph rather than the person actually seen, reducing the trustworthiness of the subsequent lineup or courtroom identification.” 390 US at 384.
¶5The facts in the present case are substantively indistinguishable from those in McBain I. Here, in lieu of identifying defendant from the tainted photograph, the victim made an identification of defendant made up to resemble the photograph. In McBain I we held as a matter of law that the suggestive procedure employed by the police tainted the identification from the picture to the degree that "a very substantial likelihood of irreparable misidentification” existed. The trial court here in effect disregarded McBain/and concluded that the picture was not so tainted that it could not be used as the basis for another identification. There is no evidence to support the trial court’s finding that the in-court identification was independent of the pre-trial photographic identification. The victim’s testimony that she was making her identification not from the photograph but from the way defendant looked in the courtroom after he was made up is irrelevant. His appearance in the courtroom was derived from the tainted picture. Following the *1061reasoning of. the majority, the prosecution could alternatively have asked the victim to identify a sketch, drawing, or even a photographic reproduction of the original picture. The majority in effect not only overrules McBain/but has effectively destroyed the exclusionary rules for impermissible identification of the United States Supreme Court.
¶6I am reluctant to dissent in this case because in my opinion our decision in McBain/was in error and the original conviction should have been sustained. That decision was premised on an unduly restrictive view of the exclusionary rule as it applies to suggestive identification procedures. In that case we disregarded "the totality of the circumstances” test announced by the United States Supreme Court in Manson v. Brathwaite, — US —, 97 S Ct —, 53 L Ed 2d 140 (1977); Neil v. Biggers, 409 US 188, 93 S Ct 375, 34 L Ed 2d 401 (1972); Simmons v. United States, supra; Stovall v. Denno, 388 US 293, 87 S Ct 1967, 18 L Ed 2d 1199 (1967). In particular, we ignored the evidence concerning the victim’s opportunity to view her assailant at the time of the crime, her degree of attention, the accuracy of her description prior to the photographic identification, the level of certainty she demonstrated at the time she identified the photograph and the length of time between the crime and the photographic identification. See, Neil v. Biggers, supra, 409 US at 200; McBain I, (dissenting opinion).
¶7However, I believe we may be bound by res judicata and in any event should be bound considering the policy behind that doctrine. It would be unwise for this court to willy-nilly overrule itself in the same case because one panel disagreed with another or because during the pendency of the case there had been a substantial change in the membership of this court.
¶8I respectfully dissent.