Supreme Judicial Court (October 29, 2009)

Although it is better practice to follow identification protocols set forth in Commonwealth v. Silva-Santiago, 453 Mass. 782 (2009), the SJC has declined to hold that any photo array which deviates from these protocols is unduly suggestive. In this case, when considering the totality of the circumstances, the photo array was not unduly suggestive where the witness was told that a photo of the suspect was included in the array, and where the administering officer was the same officer investigating the crime and knew the suspect's identity.


The defendant was convicted of armed kidnapping, assault and battery by means of a dangerous weapon, unlawful possession of a firearm, and other charges. On appeal, the defendant claimed that the judge erred in denying his motion to suppress an identification that resulted from the administration of a photo array that he argued was unduly suggestive not only because the victim knew the array included the suspect, but because the officer administering the photo array was the investigating officer. The SJC disagreed.

For a motion to suppress a photographic identification to succeed, "the defendant must show by a preponderance of the evidence that, in light of the totality of the circumstances, the procedures employed were so unnecessarily suggestive and conducive to irreparable misidentification as to deny the defendant due process of law." While the SJC articulated a "best-practice" protocol in Commonwealth v. Silva-Santiago, 453 Mass. 782 (2009), which included advising a witness that the suspect may, or may not, be in the photo array, and to use a double-blind procedure where the officer administering the photo array does not know the identity of the suspect, the SJC also declined to hold "that the absence of any protocol or comparable warnings to the eyewitnesses requires that the identifications be found inadmissible." The photo array was not unduly suggestive in this case.