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Massachusetts law about eyewitness identification

A compilation of laws, regulations, cases, and web sources on eyewitness identification law.
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Table of Contents

Guidelines

Massachusetts Guide to Evidence, s.1112: Eyewitness Identification, 2016.

Jury instructions

Model Jury Instructions on Eyewitness Identification, November 16, 2015.

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 Mas. 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. 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) 
“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.” 

Is Eyewitness Testimony Inherently Unreliable? by Aileen P. Clare, American Bar Association, May 28, 2012 
“The challenge for criminal-justice systems is twofold: at the front end, minimizing circumstances that corrupt eyewitness accounts, and, at the trial stage, giving the jury the information it needs to critically assess the evidence.”

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.” 

SJC Announces New Standing Committee on Eyewitness Identification, Supreme Judicial Court, 2015

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. 

Massachusetts Practice v.32, § 144, Direct Evidence, West Group.

Massachusetts Practice, v.42, § 4:20, Witness Statements Concerning Identification of Defendant; § 6:33, Identification Procedure; § 8:61, Motion for Eyewitness Jury Instruction, West Group.

Trends in Eyewitness Identification, MCLE, 2015.

Contact

Phone

Within Massachusetts only

Within Massachusetts only

Online

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Reference librarians via email masslawlib@gmail.com

Address

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2 Center Plaza
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Boston, MA 02108
Last updated: April 18, 2018

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