Decision Commonwealth v. Thomas

Date: 11/17/2017
Organization: Massachusetts Supreme Judicial Court

Table of Contents

Commonwealth v. Thomas

Commonwealth v. Marcus Thomas
Supreme Judicial Court, February 13, 2017
(Evidentiary Issues/Eyewitness Identification/Identification of Inanimate Object)

Three issues were raised regarding identification:

1. Failure to follow Silva-Santiago protocol: The Court emphasized the protocol outlined in Silva-Santiago “was not intended as a prediction of future police conduct; it was meant as a warning that the failure to follow such a protocol may have consequence where the prosecution intends to offer an identification at trial that is procured without the benefit of such a protocol.”

While an identification procedure that does not follow the protocol is unnecessarily suggestive, this alone, does not require its suppression. It is to be evaluated based on the totality of the circumstances whether the identification procedure was so unnecessarily suggestive as to deprive the defendant of due process. 

Note: In this case, the eyewitness’s familiarity with the defendant was a factor that the judge could consider when evaluating the totality of the evidence. 

2. Simultaneous v. Sequential: Given the current scientific research, the choice of whether to use a simultaneous or a sequential identification procedure is best left to law enforcement and goes to the weight of the evidence not its admissibility.

3.  Identification of inanimate object: The police should take reasonable steps to avoid unnecessary suggestiveness, in what generally will be a show up procedure, when they show an object alone or a single photograph of the object to an eyewitness. 

“We invite police departments to consider, in devising such a protocol, whether it should include the following elements: (1) the witness should be asked to provide a verbal description of the object before the object or a photograph of the object is shown to the witness; (2) the officer should tell the witness that the object that will be shown to the witness may or may not be the object the witness described; (3) where any identification is made, the officer should ask the witness to state, in his or her own words, how certain her or she is of the identification; and (4) the officer should obtain clarification from the witness as to whether the object is the actual object he or she saw, or whether it simply looks like the object he or she saw. The identification procedure should be memorialized, preferably by a contemporaneous videotape or audio recording but alternatively by an interview report timely prepared. “