Statement of the Supreme Judicial Court
The Supreme Judicial Court approves and recommends the use of the Model Eyewitness Identification Instruction (Instruction), which replaces the provisional instruction in the appendix of Commonwealth v. Gomes, 470 Mass. 352, 379-388 (2015). It is recommended that the judge use the language of the Instruction, unless the judge determines that different language would more accurately or clearly provide comparable guidance to the jury or better promote the fairness of the trial.
In the Instruction, the capitalized bracketed language, e.g., [ADD IF THERE WAS EVIDENCE THAT . . .], is intended to alert the judge that the language following the brackets need only be given under the circumstances described. The non-capitalized bracketed language, e.g., [set of photographs] [lineup of individuals], is intended to alert the judge that one or more of the bracketed options may be applicable.
In some cases, the judge may appropriately decide to further omit or alter portions of the Instruction to promote the fairness of the trial. For example, as noted in Gomes, supra at 368, we recognize "the possibility that a party may offer expert testimony at trial that properly may persuade a trial judge to depart from the model instruction." However, a judge should give careful consideration before making any omission or alteration that affects the substantive guidance of the Instruction because, in most cases, the Instruction will provide appropriate guidance.
The Instruction is not intended to be a comprehensive statement of the law of eyewitness identification. We recognize that the Instruction is unlikely to be the final word and will need to evolve with new developments in the science of eyewitness identification, and with the experience of judges giving the Instruction. See Gomes, supra. We thank the Standing Committee on Eyewitness Identification for its outstanding work in providing recommendations concerning the revision of the provisional jury instruction, and those who provided comments regarding its revision. We ask the Standing Committee to continue to review the applicable science, monitor the efficacy of the Instruction in providing guidance to jurors, and recommend further revisions as needed or warranted.
Boston, MA 02108
|Date published:||November 16, 2015|