(a) Eyewitness Identification Generally. An identification by an eyewitness is generally admissible unless the identification is unnecessarily suggestive and conducive to irreparable mistaken identification.

(1) Suppression of Identification. Identification based on a pretrial photographic procedure is not subject to suppression unless the procedures employed in showing the photographic array were unnecessarily suggestive and conducive to mistaken identification. In making this ruling, the trial judge should consider

(A) whether the police properly informed the party making the identification that (1) the wrongdoer may or may not be in the depicted photographs, (2) it is just as important to clear a person from suspicion as to identify a person as the wrongdoer, (3) the depicted individuals may not appear exactly as they did on the date of the incident because features such as weight and head and facial hair may change, and (4) the investigation will continue regardless of whether an identification is made;

(B) whether the party making the identification was asked to state how certain he or she is of any identification;

(C) whether the array was composed of persons who possess reasonably similar features and characteristics; and

(D) whether the array contained at least five fillers for every photograph of the suspect.

(2) Suggestive Identification. If the trial judge finds that the procedures employed in the showing of the photographic array were so unnecessarily suggestive and conducive to mistaken identity as to deny the defendant due process of law, the Commonwealth may offer evidence of the identification only if it establishes by clear and convincing evidence that the proffered identification has a source independent of the suggestive photographic array.

(3) Admissibility of Photographs. Police photographs used in an out-of-court identification may be admitted if (A) the prosecution demonstrates some need for their introduction, (B) the photographs are offered in a form that does not imply a prior criminal record, and (C) the manner of their introduction does not call attention to their source.

(c) Showup Identification. Showup identifications are generally disfavored. However, for good cause shown, the trial judge may admit evidence of such an identification if the showup was not unnecessarily or impermissibly suggestive. This determination involves an inquiry of whether the Commonwealth has shown that police had good cause to use a one-on-one identification procedure and whether police avoided any special elements of unfairness.

(d) Subsequent and In-Court Identification. If an out-of-court identification has been excluded as unnecessarily suggestive, a subsequent in-court identification may be admissible if the trial judge finds that the in-court identification is based on an independent source unrelated to the unnecessarily suggestive identification.

(e) Testimony of Third-Party Observer. If the eyewitness testifies at trial and is subject to cross-examination, a third party who observed the eyewitness’s out-of-court identification may testify about that identification (1) where the eyewitness cannot identify a defendant at trial but acknowledges having made an out-of-court identification of the defendant, or (2) where the eyewitness denies or fails to remember having made an identification. The third party’s testimony about the out-‌of-‌court identification is admissible as substantive evidence.

(f) Expert Testimony. Expert testimony on the issue of eyewitness identification is admissible at the discretion of the trial judge.

NOTE

Introduction. The Supreme Judicial Court’s Study Group on Eyewitness Identification, appointed to offer guidance as to how the courts can most effectively deter unnecessarily suggestive identification procedures and minimize the risk of wrongful convictions, anticipates reporting to the Justices during 2013. The Study Group’s recommendations and any action taken by the Justices will be available on the court’s Web site at http://‌www‌.mass‌.gov/‌courts/sjc.

Subsection (a). This subsection is derived from Commonwealth v. Silva-‌Santiago, 453 Mass. 782, 906 N.E.2d 299 (2009). The suggestiveness of an identification is a preliminary question for the trial judge. See Section 104(a), Preliminary Questions: Determinations Made by the Court. The burden of proof lies with the defendant who moves to exclude the identification evidence. Commonwealth v. Martin, 447 Mass. 274, 279, 850 N.E.2d 555, 560 (2006). In order to exclude testimony about an eyewitness identification, the defendant must show by a preponderance of the evidence that the identification is so unnecessarily suggestive and conducive to irreparable misidentification that its admission would deprive the defendant of due process, Commonwealth v. Walker, 460 Mass. 590, 599, 953 N.E.2d 195, 205 (2011), or otherwise violate principles of basic fairness, Commonwealth v. Jones, 423 Mass. 99, 107–108, 666 N.E.2d 994, 999–1000 (1996). Massachusetts does not follow the Federal rule, which permits the admission of eyewitness identification that is the product of suggestiveness if the court finds that the identification is nevertheless reliable. Commonwealth v. Johnson, 420 Mass. 458, 464–465, 650 N.E.2d 1257, 1260–1262 (1995) (explicitly rejecting Federal rule set out in Manson v. Braithwaite, 432 U.S. 98 (1977), and reaffirming strict suppression rule set out in Commonwealth v. Botelho, 396 Mass. 860, 865–869, 343 N.E.2d 876, 879–‌882 (1976)).

In considering whether identification testimony should be suppressed, the judge must examine the totality of the circumstances attending the confrontation to determine whether it was unnecessarily suggestive. Commonwealth v. Silva-Santiago, 453 Mass. at 795, 906 N.E.2d at 310. Factors to be considered in determining whether an identification is made independent of suggestiveness include (1) the extent of a witness’s opportunity to observe the defendant at the time of the crime; (2) past errors of description in identifying another person, or failing to identify the defendant; (3) the receipt of other suggestions; and (4) the lapse of time between the crime and the identification. Commonwealth v. Williams, 58 Mass. App. Ct. 139, 144 n.4, 788 N.E.2d 580, 585 n.4 (2003). It is important to allow inquiry on cross-examination to examine fully the totality of circumstances surrounding the identification. Commonwealth v. Dickerson, 372 Mass. 783, 789, 386 N.E.2d 1052, 1057 (1977). A recording of the identification procedure is not required as a condition of admissibility. Commonwealth v. Silva-Santiago, 453 Mass. at 799, 906 N.E.2d at 313.

Where an identification is challenged as unreliable due to distance, lighting, brevity of the observation, or emotional state of the eyewitness, the question is one of the weight of the evidence and not its admissibility. Commonwealth v. Walker, 460 Mass. 590, 606–607, 953 N.E.2d 195, 210 (2011).

Lineups. The considerations present with photographic arrays also apply to identifications resulting from lineups. Commonwealth v. Walker, 460 Mass. at 601–602, 953 N.E.2d at 206–207. Unlike mugshots, lineups do not indicate prior involvement in the criminal justice system, only that the person is in the lineup because of accusations of criminal conduct. Commonwealth v. Kachoul, 69 Mass. App. Ct. 352, 357, 868 N.E.2d 153, 157 (2007).

Suspect Known to Witness. If the witness knows “an individual well,” traditional identification procedures such as photographic arrays, showups, and lineups are not required. Commonwealth v. Adams, 458 Mass. 766, 770–‌771, 941 N.E.2d 1127, 1131 (2011).

Subsection (b)(1). This subsection is derived from Commonwealth v. Warren, 403 Mass. 137, 139, 526 N.E.2d 250, 251 (1988). The question is whether the identification might be the product of improper suggestion made by the police. Id. In examining the so-called “systems variables” that may increase the instances of wrongful identification, the Supreme Judicial Court drew substantially on the comprehensive review and analysis of the current state of scientific research on eyewitness identification made in the State of New Jersey. Commonwealth v. Walker, 460 Mass. 590, 601, 603–604, 953 N.E.2d 195, 206, 207–208 (2011), citing Report of Special Master, State v. Henderson, No. A-8-‌08 (N.J. Sup. Ct. June 18, 2010), available at http://www‌.judiciary‌.state‌.nj‌.us/‌pressrel/HENDERSON%20FINAL%20BRIEF%20.PDF%20(00621142)‌.PDF. Citing a dispute in the empirical research, the court declined to express a preference for a sequential display over a simultaneous display. Id. at 602, 953 N.E.2d at 206–207.

Subsection (b)(1)(A). This subsection is derived from Commonwealth v. Walker, 460 Mass. 590, 600, 953 N.E.2d 195, 205–206 (2011), making mandatory the protocol adopted in Commonwealth v. Silva-Santiago, 453 Mass. 782, 797–798, 906 N.E.2d 299, 312 (2009). While the Supreme Judicial Court has not yet required a double-blind procedure where the identification procedure is conducted by a law enforcement officer who does not know the identity of the suspect, it has recognized that such a process is the better practice to eliminate the risk of conscious or unconscious suggestion. Id. at 797, 906 N.E.2d at 311–312.

Subsection (b)(1)(B). This subsection is derived from Commonwealth v. Silva-‌Santiago, 453 Mass. 782, 797–798, 906 N.E.2d 299, 312 (2009).

Subsection (b)(1)(C). This subsection is derived from Commonwealth v. Silva-Santiago, 453 Mass. 782, 795, 906 N.E.2d 299, 310–311 (2009).

Subsection (b)(1)(D). This subsection is derived from Commonwealth v. Walker, 460 Mass. 590, 602–603, 953 N.E.2d 195, 207 (2011). Unless there are exigent circumstances, the police should not show a photographic array that contains fewer than five fillers for every suspect photograph. Id. at 603–‌604, 953 N.E.2d at 207–208.

Subsection (b)(2). This subsection is derived from Commonwealth v. Warren, 403 Mass. 137, 139, 526 N.E.2d 250, 251 (1988).

Subsection (b)(3). This subsection is derived from Commonwealth v. Cruz, 445 Mass. 589, 592, 839 N.E.2d 324, 327–328 (2005).

Subsection (c). This subsection is derived from Commonwealth v. Martin, 447 Mass. 274, 279, 850 N.E.2d 555, 560 (2006). See also Commonwealth v. Amaral, 81 Mass. App. Ct. 143, 148–149, 960 N.E.2d 902, 906–908 (2012). Good cause may be based on (1) the nature of the crime and concerns for public safety, (2) the need for efficient investigation in the aftermath of a crime, and (3) the usefulness of prompt confirmation of the accuracy of information. Commonwealth v. Martinez, 67 Mass. App. Ct. 788, 792, 857 N.E.2d 1096, 1100 (2006). The availability of an alternative identification procedure does not necessarily make an identification unduly suggestive. Id. at 793, 857 N.E.2d at 1100–1101. A delay in time between the crime and the showup is one factor in determining whether the identification is inherently or unnecessarily suggestive, but such a delay does not make it per se inadmissible. Commonwealth v. Levasseur, 32 Mass. App. Ct. 629, 636, 592 N.E.2d 1350, 1355 (1990). The defendant may argue to the jury that as an alternative to a one-on-one showup, it would have been fairer to ask the witness to pick the defendant out of a group of similar individuals. Commonwealth v. Gonzalez, 28 Mass. App. Ct. 906, 908, 545 N.E.2d 1189, 1191 (1989).

Subsection (d). This subsection is derived from Commonwealth v. Johnson, 420 Mass. 458, 463, 650 N.E.2d 1257, 1260 (1995). The prosecution may introduce only an identification that is not the product of the suggestive identification. Such an identification must have an independent source, as demonstrated by clear and convincing evidence. Id. An in-court identification will be suppressed where either the physical presence of the witness in court or the witness’s basis of knowledge for the identification was procured in violation of the Fourth Amendment. Commonwealth v. Greenwood, 78 Mass. App. Ct. 611, 621, 941 N.E.2d 667, 678 (2011). An in-court identification will be suppressed even in the absence of constitutional concerns or police action if admitting the identification would violate common-law principles of fairness. Commonwealth v. Jones, 423 Mass. 99, 108–109, 666 N.E.2d 994, 999–1000 (1996).

Subsection (e). This subsection is derived from Commonwealth v. Cong Duc Le, 444 Mass. 431, 441–442, 828 N.E.2d 501, 509–510 (2005). Identification testimony must be accompanied by an accusation relevant to the issue before the court or some form of exclusionary statement.

“[A]n eyewitness’s out-of-court statement identifying a defendant as the person shooting at the eyewitness’s friend is part of the context of the identification, but a statement regarding the number of shots fired, the color of the firearm, and the defendant’s behavior after the shooting goes beyond the context of the identification of the shooter” (citation omitted).

Commonwealth v. Walker, 460 Mass. 590, 608, 953 N.E.2d 195, 211 (2011). The third-party testimony of the declarant is admissible for probative purposes even if that third party was not a percipient observer of the entire identification process, including observing the declarant in the act of identifying the particular person. Commonwealth v. Raedy, 68 Mass. App. Ct. 440, 448–449 (2007). The testimony of the third-party witness who observed the out-of-court identification is governed by Section 801(d)(1)(C), Definitions: Statements Which Are Not Hearsay: Prior Statement by Witness.

Subsection (f). This subsection is derived from Commonwealth v. Bly, 448 Mass. 473, 495, 862 N.E.2d 341, 360 (2007). The judge must conclude the subject of the expert opinion is one on which the jurors need assistance, and that they will not be confused or misled by the testimony. The tests and circumstances on which the opinion rests must provide a basis for determining it is reliable. The testimony must be sufficiently tied to the facts of the case so that it will aid the jury. Commonwealth v. Santoli, 424 Mass. 837, 844, 680 N.E.2d 1116, 1120 (1997).