Decision Commonwealth v. Dew

Date: 11/06/2017
Organization: Massachusetts Supreme Judicial Court

Table of Contents

Commonwealth v. Dew

Commonwealth v. Dew
Supreme Judicial Court, November 6, 2017
(Evidentiary Issues/Eyewitness Identification)

The Supreme Judicial Court held that a robbery victim who, prior to trial, unequivocally identified the defendant at a showup, may make an in-court identification despite the absence of “good reason” (such as the victim’s prior familiarity with the defendant), even though showups are considered “inherently suggestive.” 

The SJC held, in Commonwealth v. Collins, 470 Mass. 255 (2014), that, when a witness makes a “less than unequivocal” identification during a pretrial procedure, the witness may make an in-court identification only when there is “good reason.” Similarly, in Commonwealth v. Clayton, 470 Mass. 228 (2014), the SJC held that, when a witness does not make any pretrial identification, the witness may make an in-court identification only when there is “good reason.” In today’s decision, the SJC declined to impose a “good reason” requirement on in-court identifications following unequivocal identifications at suggestive-but-admissible pretrial procedures such as showups.

SJC also offered what it called an “alternative theory for the trial judge to consider” in these circumstances. A trial judge has discretion to exclude any in-court identification if the judge finds that its probative value is substantially outweighed by the danger of unfair prejudice in light of the degree of suggestiveness in the out-of-court identification. This is not so much a change in the law as a clarification, as the Court has now stated explicitly that the process of weighing probative value and the danger of unfair prejudice, which applies to ​all evidence, see Mass. G. Evid. 403, also applies to in-court identifications.