Massachusetts law about eyewitness identification

A compilation of guidelines, cases, and web sources on eyewitness identification law.

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Table of Contents

Court rules and guidelines

Massachusetts guide to evidence, § 1112: eyewitness identification, 2021.

Mass. rules of criminal procedure 14(a)(1)(A)(viii): pretrial discovery
"The prosecution shall disclose to the defense...a summary of identification procedures, and all statements made in the presence of or by an identifying witness that are relevant to the issue of identity or to the fairness or accuracy of the identification procedures."

Jury instructions

Selected case law

Commonwealth v. Bastaldo, 472 Mass. 16 (2015)
Witnesses have more difficulty identifying persons of other races. “In criminal trials that commence after the issuance of this opinion, a cross-racial instruction should always be included when giving the model eyewitness identification instruction, unless the parties agree that there was no cross-racial identification.” 

Commonwealth v Collins, 470 Mass. 255 (2014) 
“[W]here an eyewitness who was present during the commission of a crime has made something less than an unequivocal positive identification of the defendant ... before trial, an in-court showup identification by the witness will be admissible ... only where there is 'good reason' for its admission, with the burden placed on the Commonwealth to move in limine to admit such an identification and, subsequently, on the defendant to show that the identification would be unnecessarily suggestive and that there is not 'good reason' for it."

Commonwealth v. Crayton, 470 Mass. 228 (2014) 
1 of 2 cases that preceded the Gomes case addressing new procedures for in-court identification. Bars “first-time in-court showups where there is no ‘good reason’ for such a showup....[W]e place the burden on the prosecutor to move in limine to admit the in-court identification of the defendant by a witness where there has been no out-of-court identification.  Once the motion is filed, the defendant would continue to bear the burden of showing that the in-court identification would be unnecessarily suggestive and that there is not ‘good reason’ for it.”  

Commonwealth v. Dew, 478 Mass. 304 (2017)
"We take this opportunity to clarify the standard governing in-court identifications preceded by an admissible out-of-court identification.  In-court identifications will not be permitted (absent good cause) where a witness participated in an out-of-court identification procedure that "produced something less than an unequivocal positive identification."   A witness makes an "unequivocal positive identification" when he or she successfully identifies the defendant as the perpetrator, such that the statement of identification is clear and free from doubt...Finally, we set forth an alternative theory for a trial judge to consider in deciding whether to permit an eyewitness to identify a defendant in the court room." 

Commonwealth v. German, 483 Mass. 553 (2019)
Requiring the police to instruct a witness prior to a “showup” identification.  

Commonwealth v. Gomes, 470 Mass. 352 (2015) 
SJC ruled that eyewitness testimony is faulty and juries must be instructed on 5 “generally accepted” scientific principles regarding eyewitness identification. Includes a provisional jury instruction regarding eyewitness identification. 

Commonwealth v. Johnson, 473 Mass. 594 (2016)
A judge may suppress an identification where the out-of-court identification arises from "highly or especially suggestive circumstances," even though it occurred through no fault of the police.

Web sources

Identifying the culprit: assessing eyewitness identification, National Academy of Sciences, National Research Council Committee Report (2014) (Free pdf download on right hand side of page).
“In this report, the committee offers recommendations on how law enforcement and the courts may increase the accuracy and utility of eyewitness identifications. In addition, the committee identifies areas for future research and for collaboration between the scientific and law enforcement communities.” 

Massachusetts Supreme Judicial Court Study Group on Eyewitness Evidence report, 2013.
Goal of the report was to “offer guidance as to how our courts can most effectively deter unnecessarily suggestive identification procedures and minimize the risk of a wrongful conviction.” 

Understanding the new eyewitness I.D. jury instruction, by Peter Elikann, MBA Journal, March 2015.
Explains the jury instruction coming out of the Gomes decision.

Print sources

Convicting the innocent: where criminal prosecutions go wrong, by Brandon Garrett, Harvard University Press, 2011. 
Cited in the SJC Study Group Report, above. 

Criminal defense motions, 5th ed. (Mass. practice v. 42) West, 2019. 
5:23 Witness statement concerning identification; § 5:25. Information relating to identification of defendant; 8:45 – 8:49, Exclude evidence, identification.

Criminal law, 3rd ed. (Mass. practice v. 32) West, 2001 with supplement.
Section 144, Direct evidence.

Criminal practice and procedure, 4th ed. (Mass. practice v. 30) Thomson Reuters, 2014 with supplement.
Chapter 8, Eyewitness identification evidence, Sections 8:1 – 8:72.

Eyewitness identification, MCLE, 2018.

Massachusetts criminal law:  a District Court prosecutor’s guide, Massachusetts Prosecutor’s Guide 2018. 
pp. 467-506 Identification.

Massachusetts Superior Court criminal practice jury instructions, 3rd ed., MCLE, looseleaf.
Section 6.2 Identification.

Suppression matters under Massachusetts law, annual, LexisNexis.
Chapter 19, Motions to suppress identifications.

Trends in eyewitness identification, MCLE, 2016.


Last updated: October 14, 2022

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