byScott P. Lopez and Lauren J. Weitzen
Heads Up
Over the past year, the Supreme Judicial Court (“SJC”) has fundamentally changed the law on the admissibility of eyewitness identifications in criminal cases. Specifically, the SJC restricted the use of in-court identifications by eyewitnesses and adopted new jury instructions for assessing eyewitness testimony. This article summarizes these changes to Massachusetts law.
The Supreme Judicial Court has acknowledged that “research regarding eyewitness identification procedures is complex and evolving” and “eyewitness identification is the greatest source of wrongful convictions but also an invaluable law enforcement tool in obtaining accurate convictions.” Commonwealth v. Walker, 460 Mass. 590, 604 n.16 (2011). Following the Walker decision, the SJC convened a Study Group on Eyewitness Identifications (“Study Group”). The Study Group was tasked with determining how the Commonwealth could best deter unnecessarily suggestive identification procedures in criminal cases. In addition, the Study Group assessed whether existing model jury instructions provided adequate guidance to juries in evaluating eyewitness testimony. Three subcommittees of the Study Group focused on police protocols, pretrial evidentiary hearings on identification procedures, and improving jury instructions to better assist juries. See Executive Summary, Supreme Judicial Court Study Group on Eyewitness Evidence, Report and Recommendations to the Justices (July 25, 2013) (“Study Group Report”). The Study Group presented its Report in July 2013. By late 2014, the SJC began citing to the Study Group Report when issuing a trilogy of decisions that implemented many of the Study Group’s recommendations.
Prior Legal Landscape
Massachusetts law permits the admission of an out-of-court eyewitness identification unless a defendant proves, by a preponderance of the evidence, that the identification procedures employed by the police were unnecessarily suggestive. Commonwealth v. Johnson, 420 Mass. 458, 463-64 (1995); Commonwealth v. Thornley, 406 Mass. 96, 98 (1989). The relevant inquiry is not whether the witness was mistaken. Rather, the question is whether the identification was the product of impermissibly suggestive police procedures. If the identification is admissible, a jury is free to weigh the reliability of the identification evidence. See Walker, 460 Mass. at 599; Johnson, 420 Mass. at 463-64.[1]
While the SJC previously adopted a per se rule of exclusion for unnecessarily suggestive out-of-court identifications, the Court had never adopted such a rule for in-court identifications. Until recently, in-court identifications were excluded only if tainted by an out-of-court confrontation arranged by the Commonwealth that was ‘ “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.’ ” Commonwealth v. Carr, 464 Mass. 855, 877 (2013) (quoting Simmons v. United States, 390 U.S. 377, 384 (1968)); see also Commonwealth v. Choeurn, 446 Mass. 510, 520 (2006).
In-Court Eyewitness Identifications – New Crayton and Collins Rules
In Commonwealth v. Crayton, 470 Mass. 228 (2014), the Court addressed whether an in-court identification is admissible when there has been no prior out-of-court identification. Historically, a defendant’s only protection against admission was to seek alternative, less-suggestive, out-of-court identification procedures in advance of trial, or to challenge the reliability of the in-court identification through a cross-examination focusing on the witness’s demeanor and statements during the in-court identification. Using the Study Group Report as support, Crayton held that an in-court identification is admissible only when there is “good reason” for its admission. Id. at 241. Crayton reasoned that in-court identifications may be more suggestive than one-on-one show-up[2] identifications conducted out of court. Id. at 237. Also, Crayton noted that a defendant’s presence in a courtroom acts “as confirmation that the prosecutor…believes the defendant is the [perpetrator].” Id. Therefore, the eyewitness is likely to conform to the behavior of others and identify the defendant. Id. (quoting Evan J. Mandery, Due Process Considerations of In-Court Identifications, 60 Alb. L. Rev. 389, 417-18 (1996)).
Crayton further reasoned that even though the jury can observe the witness during the in-court identification, jurors will not be “better able to evaluate the accuracy of the in-court identification” because statements attributed to “a witness’s level of confidence in an identification are not a reliable predictor of the accuracy of the identification.” Id. at 239. Moreover, it is very difficult to convince a jury through cross-examination that such statements are attributable to surrounding suggestive circ*mstances. Id. at 240.
Following Crayton, in-court identifications are admissible only where there is “good reason” for their admission. “Good reason” exists where the witness’s identification is not based solely on his memory of witnessing the incident; for example, if a witness was familiar with the defendant before the crime or if the witness was both an eyewitness and an arresting officer. Id. at 242. In practice, Crayton places the initial burden on prosecutors to move in limine for the admission of an in-court identification. Only then must the defendant demonstrate there is no “good reason” to permit such an in-court identification. Id. at 243. This new rule aims to avoid the “unfair evidentiary weight of a needlessly suggestive show-up identification that might be given more weight by a jury than it deserves.” Id. at 244.
In Commonwealth v. Collins, 470 Mass. 255 (2014), the Court addressed whether an in-court identification is admissible when a prior out-of-court identification resulted in “something less than an unequivocal positive identification of the defendant.” Id. at 262. Citing the Study Group Report, Collins noted that an eyewitness who is unable to make a positive identification before trial, or lacks confidence in his identification, is likely to regard the defendant’s prosecution as “confirmatory feedback” that the defendant is the “right” person. As a result, the witness may develop an “artificially inflated level of confidence” in any subsequent in-court identification. Id. at 262-63. This “enhancement of memory” makes assessing the accuracy of the in-court identification more difficult for juries. Id. at 263-64. Cross-examination will not always reveal prior, inaccurate in-court identifications because most jurors are unaware both of the weak correlation between confidence and accuracy and of a witness’s susceptibility to manipulation by suggestive procedures or confirming feedback. Id.
Following Collins, the prosecution must move in limine to admit an in-court identification where an eyewitness to a crime has not made an unequivocal positive identification of the defendant before trial but the prosecutor nonetheless intends to ask the eyewitness to make an in-court identification of the defendant. Once the prosecution makes this motion, the defendant then bears the burden of demonstrating that there is no “good reason” for the admission of the in-court identification. “Good reason” in this context “usually would require a showing that the in-court identification is more reliable than the witness’s earlier failure to make a positive identification and that it poses little risk of misidentification despite its suggestiveness.” Id. at 265 (emphasis added).
New Jury Instructions
The Study Group was also charged with determining whether existing model jury instructions provide adequate guidance to juries in evaluating witness testimony. The prior Massachusetts model jury instruction on eyewitness identifications, adopted in 1979, delineated factors for the jury to consider when evaluating an eyewitness identification; however, it did “not instruct the jury as to how those factors may affect the accuracy of the identification.” Commonwealth v. Gomes, 470 Mass. 352, 363 (2015) (emphasis added). Gomes held that there are five principles pertaining to eyewitness identifications that are “so generally accepted” that they must be included in a model jury instruction. Id. at 376. Those principles are: 1) human memory does not function like a video recording, but is a complex process that consists of the stages of acquisition, retention, and retrieval; 2) an eyewitness’s expressed level of certainty, by itself, may not indicate the accuracy of his or her identification; 3) high stress can reduce an eyewitness’s ability to make an accurate identification; 4) a witness’s recollection of the memory and the identification can be influenced by unrelated information that is received both before or after making that identification; and 5) a prior viewing of a suspect at an identification procedure may reduce the reliability of a subsequent identification procedure with the same suspect. Id. at 369-76. Gomes adopted a provisional jury instruction, and the SJC issued a new model jury instruction in November 2015.[3] This new instruction incorporates many of the principles discussed in the Study Group Report and in Gomes and is designed to educate jurors, in plain language, on the science of memory so that jurors are better equipped to assess the credibility and reliability of eyewitness testimony. This new instruction will increase jurors’ understanding of the complexities surrounding eyewitness identifications. Id. at 376-77. However, as Gomes noted, the new jury instruction is not intended to preclude additional expert testimony at trial; rather, such expert testimony remains crucial to elaborate on the principles addressed within the jury instruction and to further explain how other relevant variables in each individual case may affect the accuracy of an identification. Id. at 378. With an eye to the future, Gomes acknowledged the potential need to revise eyewitness jury instructions “as science evolves.” Id. at 368.
Conclusion
Just as the science associated with eyewitness identifications will continue to evolve, so will the case law. The Crayton, Collins, and Gomes holdings are positive steps toward reforming case law to conform to science. In addition to issuing these three decisions, the SJC announced a new Standing Committee on Eyewitness Identification in 2015. This Committee is tasked with offering ongoing guidance to the courts regarding eyewitness identification procedures. The Massachusetts criminal justice system is now poised to more fairly address the issues raised when an individual is accused of committing a crime based on eyewitness testimony.
[1]Massachusetts law also permits the exclusion of eyewitness identification under common-law principles of fairness when an eyewitness is exposed to such highly suggestive circ*mstances independent of police involvement that the eyewitness’s identification is deemed unreliable. Commonwealth v. Jones, 423 Mass. 99, 110 (1996).
[2] A show-up is an identification procedure wherein a witness to a crime is shown only one person. Usually, the person is someone the police believe is a suspect. The witness is usually shown the person at the scene of the crime or the witness is brought to where the suspect is detained.
[3] Criminal Model Jury Instructions for use in the District Courts, Instructions 1.340 & 9.160 (November 2015).
Scott P. Lopez is a partner at Lawson & Weitzen, LLP and trial lawyer with more than 25 years of federal and state court experience representing clients in criminal and civil matters. He is a former co-chair and member of the Boston Bar Association’s Criminal Law Steering Committee.
Lauren J. Weitzen is an associate at Lawson & Weitzen, LLP who previously was a Supervising Attorney with the Committee for Public Counsel Services Public Defender Division. She represents clients in criminal and civil matters and is a member of the Boston Bar Association.
