Conway: A New Era of Eyewitness Identification Law

8/19/2019 Conway: A New Era of Eyewitness Identification Law

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NOTE

A New Era of Eyewitness IdentificationLaw: Putting Eyewitness Testimony onTrial

SARA CONWAY+

ABSTRACT

Erroneous eyewitness identifications are the leading cause of wrongfulconvictions. This has gone far past mere conjecture, it is now a fact bornout by more than 250 cases of DNA exonerations. And this is just the tip ofthe iceberg. The Supreme Court’s due process test is outdated andineffective, and the Court has shown a decided reluctance to reevaluate itsmethodology. Volumes of literature on the fallibility of human memoryand perception have amassed over the last thirty years, proving thatmemory is a selective process which can be altered by outside influences.This new science requires a change in the way that courts treat eyewitnesstestimony, and Massachusetts has pioneered the reform effort. The timehas come for states to take stock of the new scientific consensus available tothem. States need to follow Massachusetts’ lead and reconsider outdatedeyewitness identification procedures and adopt procedures that reflect theteachings of modern science of memory and perception because, “when thestakes are so high, due process does not permit second best.”

Candidate for Juris Doctor, New England Law | Boston (2016). B.A., Political Science,Clark University (2012). I would like to thank my family, for their love and encouragement;

Joe Stanton, for suggesting this important topic; Professor Friedman, for his continuedsupport; and all of the Editors and Associates who have worked diligently to improve the

substance and quality of this paper.+ New England Law Review Scribes Award Winner, 20142015.



82 New England Law Review v. 50 | 81

INTRODUCTION

T he trial which might determine the accused’s fate may well not be thatin the courtroom but that at the pretrial confrontation, with the Statealigned against the accused, the witness the sole jury, and the accusedunprotected against the overreaching, intentional or unintentional, andwith little or no effective appeal from the judgment there rendered by thewitness—“that’s the man.”1

dentif[ying] . . . the accused [as a] wrongdoer is a necessaryelement of every crime.”2 When a crime is reported, police contactthe victims and witnesses and employ various procedures in

hopes of obtaining an identification.3 These procedures are largelyexperimental.4 During a lineup, law enforcement officials test theirhypothesis that a particular suspect is the perpetrator.5 As with anyexperiment, the validity of its results depends on the design andimplementation of the underlying procedures, which—those analyzing the

result of the experiment would hope—would be careful and unbiased.6 Unfortunately, testimony derived from these procedures is as convincingas it is flawed.7 Volumes of literature—including 2,000 published studieson the fallibility of human memory and perception—have amassed overthe last thirty years, proving that memory is a selective process which can be altered by outside influences.8 This new science requires a change in theway that courts treat eyewitness testimony, a reform effort pioneered bythe Massachusetts court system.9 In the past four years, the Massachusetts

1 United States v. Wade, 388 U.S. 218, 235–36 (1967).2 Ray Moses, Misidentification: The Caprices of Eyewitness Testimony in Criminal Cases , CENTER

FOR CRIM. JUST. ADVOC., http://criminaldefense.homestead.com/eyewitnessmis

identification.html#anchor_53 (last visited Jan. 6, 2016). Identifications can fall into one of fivecategories: showups, photographic arrays, line-ups, object identifications, and in-courtidentifications. 7 No. 2 Crim. Prac. Guide 3 (2006); Stanley Z. Fisher, Eyewitness Identification

Reform in Massachusetts , 91 MASS. L. REV. 52, 54 (2008) (showups are the most commonidentification procedure); Report of the Special Master at 29, State v. Henderson, 27 A.3d 872,902 (N.J. 2011) (No. A-8-09) (noting a single suspect is presented to a witness during ashowup).

3 Bennett L. Gershman, The Eyewitness Conundrum: How Courts, Police and Attorneys Can

Reduce Mistakes by Eyewitnesses , N.Y. ST. B.A. J. 24, 28 (2009).4 See SUPREME JUDICIAL COURT STUDY GROUP ON EYEWITNESS EVIDENCE , REPORT AND

RECOMMENDATIONS TO THE JUSTICES 73 (2013) [hereinafter SJC REPORT].5 Id.6 See id.

7 See id. at 1.8 See id. at 15–17.9 See Brief for the Innocence Project, Inc. as Amicus Curiae at 3, Commonwealth v.

“I



2015 New Era o f Eyewitness Identi f i cat ion Law 83

Supreme Judicial Court (“SJC”) “adopted important safeguards [fordefendants and the judicial system] against convictions based on unreliableeyewitness evidence.”10 Massachusetts is just one of several states that have

taken such strides; some preceded and others will surely follow.11

Nationalreforms are still developing, but one thing is already clear: Massachusettsgot it right, and the legal system is better for it.12

This Note argues that Massachusetts’ approach to eyewitnessidentifications appropriately marries science and law, creating a set ofstandards governing eyewitness evidence that better protects defendantsfrom the dangers associated with mistaken identifications. Part I is anoverview of the problems associated with eyewitness identification and theSupreme Court’s willingness to accept unreliable, unnecessarily suggestiveevidence. Part I also discusses recent changes in eyewitness identificationlaw through the lens of recent Massachusetts’ jurisprudence. Part IIhighlights what is at stake if the identification rules remain unchanged.

Part III considers the reasons why Massachusetts got it right. Finally, PartIV argues that other courts should follow Massachusetts’ approach toensure future eyewitness identification will be less suggestive, morereliable, and have a deleterious effect on the risk of future wrongfulconvictions.

I. Background

A. The Big Picture

Eyewitness identification is an invaluable law enforcement tool.13 Atleast 80,000 prosecutions each year depend in large measure on eyewitnesstestimony.14 Such testimony can serve as a key piece of evidence inobtaining accurate convictions.15 Unfortunately, eyewitness identification is

Bastaldo, (No. SJC-11763), 2011 WL 12654561 (Mass. 2011) (describing Massachusetts as the“vanguard of addressing the dangers of eyewitness misidentification” and collecting cases);see also Eric Pilch, Massachusetts at Forefront of Reforming Treatment of Eyewitness Identification

Evidence in Court , INNOCENCE PROJECT (Aug. 29, 2014, 11:10 AM), http://http://www.innocenceproject.org/news-events-exonerations/massachusetts-at-forefront-of-reforming-treatment-of-eyewitness-identification-evidence-in-court.

10 See Fisher, supra note 2, at 60.11 See infra note 172.12 See infra Part III.13 Commonwealth v. Walker, 953 N.E.2d 195, 208 n.16 (Mass. 2011).14 Steven B. Duke, Eyewitness Testimony Doesn’t Make it True , HARTFORD COURANT (June 11,

2006), http://articles.courant.com/2006-06-11/news/0606120550_1_eyewitness-identification-dna-evidence-dna-analysis.

15 Walker , 953 N.E.2d at 208 n.16.




also the greatest source of wrongful convictions.16 An oft-cited study of thefirst 250 DNA exonerations reveals that 76 percent involved mistakeneyewitness identifications.17 In some cases, more than one eyewitness

misidentified the innocent individuals as the perpetrator.18

Almost all ofthe eyewitnesses at the exonerees’ trials testified that they were certain theyidentified the correct person.19 The trial records from these DNAexoneration cases exposed two interrelated problems: suggestiveidentification procedures and unreliable identifications.20

The idea that eyewitness identifications present a host of issues forcriminal procedure is hardly revolutionary.21 Courts and commentatorsalike have noted, documented, and studied the problems associated witheyewitness identifications for over 100 years.22 In 1967, the United StatesSupreme Court observed that “[i]dentification evidence is peculiarlyriddled with innumerable dangers . . . . The vagaries of eyewitnessidentification are well-known; the annals of criminal law are rife with

instances of mistaken identification.”23

However, while the Court hasrecognized the existence of this problem, it has “dealt” with this reality inthe handiest way possible—all but ignoring it.24

Instead of confronting the unreliability of eyewitness identificationhead on, the Court initially deferred to the criminal defense bar bysuggesting that cross-examination would be an adequate vehicle for

16 Id.; see also Commonwealth v. Johnson, 650 N.E.2d 1257, 1261 (Mass. 1995) (“There is no

question that the danger of mistaken identification . . . poses a real threat to the truth-findingprocess. . . . Indeed, mistaken identification is believed widely to be the primary cause oferroneous convictions.”).

17 BRANDON L. GARRETT , CONVICTING THE INNOCENT: WHERE CRIMINAL PROSECUTIONS GO

WRONG 48 (2011) [hereinafter GARRETT]. 18 THE JUSTICE PROJECT , EYEWITNESS IDENTIFICATION: A POLICY REVIEW 2, available at

https://public.psych.iastate.edu/glwells/The_Justice%20Project_Eyewitness_Identification_%20A_Policy_Review.pdf (last visited Jan. 6, 2016) [hereinafter A POLICY REVIEW].

19 GARRETT , supra note 17. 20 Id. 21 HUGO MÜNSTERBERG , ON THE WITNESS STAND: ESSAYS ON PSYCHOLOGY AND CRIME 10–11

(1908) [hereinafter MÜNSTERBERG].22 PAUL C. GIANNELLI ET AL., SCIENTIFIC EVIDENCE § 9.02 , at 1 (Matthew Bender 5th ed.

2014); Deborah Davis & Elizabeth F. Loftus, The Dangers of Eyewitnesses for the Innocent:

Learning from the Past and Projecting into the Age of Social Media , 46 NEW ENG. L. REV. 769, 774(2012).

23 United States v. Wade, 388 U.S. 218, 228 (1967).24 See, e.g. , Perry v. New Hampshire, 132 S. Ct. 716 (2012) (declining to update the due

process test governing the admissibility of eyewitness identification testimony).




challenging eyewitness testimony.25 Cross-examination has been reveredamong scholars as “the greatest legal engine ever invented for theascertainment of the truth.”26 Regrettably, though, when applied in the

context of eyewitness testimony, it proves to be a dismayingly tenuoussolution to what has become a colossal problem.27 Cross-examination is, ofcourse, an essential component of a fair trial; however, it cannot provide acomplete picture of accuracy and reliability.28 Far more is needed toconfront an accusation as famously unreliable as eyewitnessidentification.29 Courts have only recently begun to develop moreappropriate solutions to the problem.30

Despite widespread acceptance of the unreliability of eyewitnesstestimony, it took decades of documented scientific and psychologicalstudy before the legal system was finally ready to hear what eyewitnessresearchers had to say.31 Thankfully, courts and police departments haveaccepted and slowly embraced the empirical data on the fallibility of

witness memory and its effect on the reliability of eyewitness evidence.32

Since at least 2011, the Massachusetts SJC has taken considerable stepstoward reducing the risk of wrongful convictions by committingsubstantial resources to studying the science behind witnessidentification.33 After thirty years of empirical research and the efforts ofother courts, the SJC began to reevaluate its acceptance of eyewitness

25 See Wade , 388 U.S. at 227–28.26 JAMES C. DOYLE , TRUE WITNESS: COPS , COURTS , SCIENCE , AND THE BATTLE AGAINST

MISIDENTIFICATION 37 (Palgrave MacMillan ed., 2005) (quoting the great John Henry Wigmoreto explain lawyers’ “mystic faith in the power of cross-examination”).

27 See Brandon L. Garrett, Eyewitnesses and Exclusion , 65 VAND. L. REV. 451, 454 (2012)

(explaining that standard tools like cross-examination cannot show how unsoundidentification procedures alter the very memory of an eyewitness); Christian Sheehan, Making

the Jurors the "Experts": The Case for Eyewitness Identification Jury Instructions , 52 B.C. L. REV.651, 665 (2011) (describing cross-examination as an effective tool for exposing a dishonest or biased witness, but “ill equipped to confront an honest but mistaken witness who, because

she is giving testimony she believes to be true, will not display the demeanor of someone whois lying”). In fact, one expert reported that no expert in the field is able to separate accurate

from inaccurate witnesses based on their testimony alone because “[t]here’s just no good

markers for the error.” Report of the Special Master, supra note 2, at 50.28 Wade , 388 U.S. at 235.29 See id. 30 See discussion infra Part III.31 Saul Kassin, Book Review, 25 AM. PSYCHOL. L. SOC’Y NEWS 4, 5 (Winter 2005) (reviewing

DOYLE , supra note 26).

32 See Sandra Guerra Thompson, Eyewitness Identifications and State Courts As Guardians Against Wrongful Conviction , 7 OHIO ST. J. CRIM. L. 603, 604 (2010).

33 SJC REPORT , supra note 4, at 1.




testimony and construct more rigid rules governing the collection,admission, and deliverance of eyewitness testimony.34 Many policedepartments, prosecutors, defense attorneys, and legal scholars have since

taken steps to evaluate the science behind memory and eyewitnessidentification for the criminal justice system.35 Of course, members of thesegroups approach the subject with varying and often conflicting interests,given the nature of their jobs.36 Despite the tension, “there is resoundingagreement that eyewitness practices and procedures should reflect thefindings of science, and that all involved in the criminal justice system,including jurors, should be educated about the often counterintuitive waysin which memory works.”37 Generally, the consensus boils down to: “(1)adopt police procedures for interviewing witnesses and conductingidentification procedures that minimize suggestion and promote accuracyand completeness; (2) exclude unreliable identifications from trialevidence.”38 This new scientific consensus requires a change in the way the

court system and police personnel deal with collecting and usingeyewitness evidence.39 Several state supreme courts have begun demanding less suggestive,

more reliable eyewitness evidence.40 Other courts, including the UnitedStates Supreme Court, remain reluctant to adapt to the changingenvironment of eyewitness identification law, eschewing scientificdevelopments for conventional—albeit flawed—wisdom regarding humanmemory.41 What follows is a review—though by no meanscomprehensive—of the changing landscape of eyewitness identificationlaw, and a pitch for the remaining courts to reexamine their practices

34 See discussion infra Part III.35 SJC REPORT , supra note 4, at 1.36 See DOYLE , supra note 26, at 173 (discussing the tension between eyewitness researchers

and prosecutors).37 SJC REPORT , supra note 4, at 2.38 Davis & Loftus, supra note 22, at 775.39 SJC REPORT , supra note 4, at 1.40 See State v. Guilbert, 49 A.3d 705, 730 (Conn. 2012); Commonwealth v. Collins, 21 N.E.3d

528, 537 (Mass. 2014); Commonwealth v. Crayton, 21 N.E.3d 157, 169 (Mass. 2014);Commonwealth v. Walker, 953 N.E.2d 195, 208–09 (Mass. 2011); State v. Henderson, 27 A.3d872, 878 (N.J. 2011); State v. Lawson, 291 P.3d 673, 696–97 (Or. 2012).

41 SJC REPORT , supra note 4, at 8. See, e.g. , Perry v. New Hampshire, 132 S. Ct. 716, 732(2012); United States v. Jones, 689 F.3d 12, 18 (1st Cir. 2012); MÜNSTERBERG , supra note 21, at10–11 (observing dismayingly that applied psychology can point out the many patentlyobvious flaws of human memory, but “[t]he lawyer and the judge and the juryman are sure

that they do not need the experimental psychologist. . . . They go on thinking that their legalinstinct and their common sense supplies them with all that is needed and somewhat more.”).




concerning eyewitness evidence.42

B. Federal Precedent: Modest Constitutional Protections for CriminalDefendants

1. Right to Counsel

The Supreme Court first addressed the hazards associated witheyewitness identification in a trilogy of cases decided in 1967.43 In UnitedStates v. Wade and Gilbert v. California , the Court held that a defendant has aright to counsel at a post-indictment lineup under the Sixth Amendment.44 The Court further ruled that a per se rule of exclusion for courtroomidentifications would not be justified, because counsel’s presence at theinitial lineup would enable him to attack both the in-court and out-of-courtidentification.45 According to the Court, factors relevant to attackingeyewitness identifications would include: (1) the eyewitness’s opportunityto view the commission of the crime, (2) any discrepancy between the pre-lineup description and the defendant’s actual description, (3) whetheranother person was identified prior to the lineup, (4) whether thedefendant was identified by picture prior to the lineup, (5) whether theeyewitness failed to identify the defendant on a prior occasion, and (6) theamount of time between the alleged act and the lineup identification.46

2. Due Process—From Suggestiveness to Reliability

In Stovall v. Denno , the Court focused on the eyewitness identificationprocedure itself and ruled that an “unnecessarily suggestive” identificationwould violate a defendant’s due process rights.47 Analyzing thesuggestiveness of a procedure would depend on the “totality of thecircumstances” surrounding the identification.48 Ten years later, the Courtshifted its focus away from suggestiveness, concluding instead that“reliability is the linchpin in determining the admissibility of identificationtestimony.”49 The Court delineated a two-part test: (1) “whether the policeused an impermissibly suggestive identification procedure,” and if so, (2)

42 See infra parts I.B–IV.A.2.iii.43 See United States v. Wade, 388 U.S. 218, 228 (1967); Gilbert v. California, 388 U.S. 263, 269

(1967); Stovall v. Denno, 388 U.S. 293, 294 (1967).44 Wade , 388 U.S. at 236–37; Gilbert , 388 U.S. at 272.45 Wade , 388 U.S. at 240–41.46 Id. at 241.

47 388 U.S. 293, 301–02 (1967).48 Id. 49 Manson v. Brathwaite, 432 U.S. 98, 114 (1977) (emphasis added).




whether under the totality of the circumstances, the suggestive procedure“gave rise to a substantial likelihood of irreparable misidentification.”50 TheCourt listed five factors to be weighed in assessing the reliability of an

identification procedure: “(i) the witness’ opportunity to view the criminalat the time of the crime, (ii) the witness’ degree of attention, (iii) theaccuracy of his prior description of the criminal, (iv) the level of certaintydemonstrated at the confrontation, and (v) the time between the crime andthe confrontation.”51

3. Limitations

The safeguards the Court adopted have been criticized as “modestconstitutional protections against the most blatantly unfair kinds of policeidentification procedures.”52 Indeed, what began as modest has since beendiluted even further over time.53 After Wade , the Court placed twosignificant restrictions on the right to counsel that rendered the right nearly

ineffectual concerning the risk of erroneous identifications.54

In 1972, theCourt held that the right did not attach until the initiation of judicialcriminal proceedings, meaning that neither an arrest, nor a pre-indictmentidentification procedure would trigger a defendant’s right to counsel nomatter how essential counsel’s presence would be to avoid prejudice to theaccused’s rights further down the line.55 In 1973, the Court held that adefendant does not have the right to counsel at a photographic display,even if the display occurred after the right attached.56 Because most lineupsoccur before the commencement of judicial proceedings, and photodisplays are the most common method of identification, the right tocounsel has not played a central role in many cases.57

The Court has subsequently limited the reach of its due process

framework as well.58

In Perry v. New Hampshire , the Court held that dueprocess review does not apply in the absence of police involvement.59 In

50 Id. at 107.51 Id. at 98–99.52 Gershman, supra note 3, at 24.53 See GIANNELLI ET AL., supra note 22, at 5. 54 See id. 55 See id.; William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights , 90

HARV. L. REV. 489, 497 (1977) (citing Kirby v. Illinois, 406 U.S. 682, 689 (1972)).56 See GIANNELLI ET AL., supra note 22, at 5 (citing United States v. Ash, 413 U.S. 300, 321

(1973)).

57 See id. 58 See Perry v. New Hampshire, 132 S. Ct. 716, 720 (2012).59 Id. at 721.




such instances, the Court tests reliability through “the rights andopportunities generally designed for that purpose,” namely, the presenceof counsel, cross-examination, the rules of evidence, and jury instructions.60

Further, the Court’s due process analysis itself is riddled with issues.61

Under the Court’s two-part test, if a court finds that the police procedureinvolved in an identification was not suggestive, the analysis stops.62 TheCourt does not go on to assess whether the identification is otherwiseunreliable.63 Yet we now know that a number of factors unrelated to policeconduct can skew the reliability of an identification.64 Worse, under thesecond prong of the Court’s test, an identification procedure that is foundto be unnecessarily suggestive may still be admissible if a court finds itreliable.65 But scientific research has proven that the factors the Manson Court announced are not an adequate instrument for testing reliability because they can be affected by suggestive conduct.66 Therefore, prong oneof the test contaminates prong two.67 Nonetheless, the Perry Court declined

to update the Manson factors despite having mountains of scientific datadocumenting the fallibility of eyewitness evidence at its disposal.68 TheCourt was decidedly unwilling to implement per se rules or judicialscreening measures that would make unreliable identificationsinadmissible because “the jury, not the judge, traditionally determines thereliability of evidence.”69

Courts have continued to use this test to evaluate suggestiveness andreliability without regard to the well-developed body of scientific dataproving that eyewitness identifications are “hopelessly unreliable.”70 Recently, though, some state courts have rejected the test altogether.71 Other than Massachusetts, no state has put together a more concrete

60 Id. 61 See Davis & Loftus, supra note 22, at 777.62 Id. at 769.63 Id. 64 See infra Part II.C.2.65 See Manson v. Brathwaite, 432 U.S. 98, 106 (1977).66 Davis & Loftus, supra note 22, at 777.67 Id. 68 See id. at 782.69 See Perry v. New Hampshire, 132 S. Ct. 716, 728 (2012).70 See Dana Walsh, The Dangers of Eyewitness Identification: A Call for Greater State

Involvement to Ensure Fundamental Fairness , 36 B.C. INT’L & COMP. L. REV. 1415, 1430, 1441(2013) (quoting Commonwealth v. Johnson, 650 N.E.2d 1257, 1262 (Mass. 1995)).

71 See GIANNELLI ET AL., supra note 22, at 6 n.45 (citing State v. Dubose, 699 N.W.2d 582,593–94 (Wis. 2005) (ruling that out-of-court showups are unnecessarily suggestive and areinadmissible unless the procedure was “necessary”).




framework for analyzing eyewitness identification in light of thesescientific developments.72

C. The New Era of Eyewitness Identification Law in Massachusetts

1. Out-of-Court Identifications

In Commonwealth v. Walker , the SJC did what the Supreme Courtrefused to: it adopted a rule of per se exclusion for unnecessarilysuggestive out-of-court identifications.73 The SJC also noted that aphotographic array composed entirely of suspects significantly andneedlessly increases the risk of misidentification and false prosecution.74 Thus, the SJC set forth new guidance for police to follow: absent exigent orextraordinary circumstances, the police should not show a photographicarray to an eyewitness containing fewer than five fillers for every suspect,whether simultaneous or sequential.75 The SJC did not opine whetherfailure to follow the new procedure would make the identificationinadmissible.76 Instead, it convened a Study Group to consider how best todeter unnecessarily suggestive procedure and to determine the sufficiencyof existing jury instructions in evaluating eyewitness testimony.77 TheStudy Group’s findings guided two subsequent cases that expanded therule pronounced in Walker.78

2. In-Court Identifications

In Commonwealth v. Crayton , the SJC examined the suggestiveness of in-court identifications and established a new standard for the admission ofsuch identifications based on common-law principles of fairness, again incontrast to prevailing federal case law.79 The new standard dictates thatwhere an eyewitness has not participated before trial in an identificationprocedure, the court will treat the in-court identification as an in-courtshowup, and will admit it only where there is “good reason” for its

72 See infra Part I.C.73 See Commonwealth v. Walker, 953 N.E.2d 195, 205 n.13 (Mass. 2011) (citing

Commonwealth v. Johnson, 650 N.E.2d 1257, 1262–63 (Mass. 1995)).74 See id. at 208.75 Id. 76 Id. 77 Id. at 208 n.16.78 See Commonwealth v. Collins, 21 N.E.3d 528, 536 (Mass. 2014); Commonwealth v.

Crayton, 21 N.E.3d 157, 168, 169 (Mass. 2014).79 See Crayton , 21 N.E.3d at 172.




admission.80 The SJC also changed the procedural mandates of suchidentifications, and announced that while the defendant usually bears the burden of moving to suppress an identification, the court will now place

the burden on the prosecutor to move in limine to admit the in-courtidentification where there has been no out-of-court identification; and, thedefendant will bear the burden of showing that the in-court identificationwould be unnecessarily suggestive and that there is not “good reason” forit.81

In Commonwealth v. Collins , the SJC declared that Crayton’s “goodreason” standard would also apply to in-court-showup identificationsmade after a witness made anything “less than an unequivocal positiveidentification of the defendant during a nonsuggestive identificationprocedure.”82

3. New Ways to Instruct the Jury

In Commonwealth v. Gomes , the court revisited its jurisprudence oneyewitness identification.83 The SJC identified a limitation in prioridentification instructions—the instructions focus on factors the juryshould consider in evaluating the accuracy of an eyewitness’s positiveidentification of a defendant, but fail to instruct the jury as to how thosefactors may affect the accuracy of the identification.84 The SJC created anew model jury instruction that expressly incorporated “scientificprinciples regarding eyewitness identification that are so generallyaccepted” that they should be applied when the jury evaluates eyewitnessidentification evidence.85

The same day, the SJC issued an opinion in Commonwealth v. Johnson.86 The court held that an eyewitness identification instruction is not required,

though it is allowed, where there was no positive identification made, andno eyewitness testimony significantly incriminating the defendant.87 TheSJC reasoned that information that the witnesses failed to identify thedefendant in a line-up constitutes exculpatory evidence indicating that thedefendant was not the perpetrator, the gravity of which the jury could

80 Id. at 169.81 See id. 82 Collins , 21 N.E.3d at 536.83 See Commonwealth v. Gomes, 22 N.E.3d 897, 900 (Mass. 2015).84 See id. at 906–07 (emphasis in original).

85 See id. at 907.86 22 N.E.3d 155, 156 (2015).87 Id.




weigh in light of the totality of the evidence.88

II. The Fallibility of Eyewitness Identifications

There is almost nothing more convincing than a live human being whotakes the stand, points a finger at the defendant, and says “That’s theone!”89

A. Far More Is at Stake Than Meets the Eye

Some might assume that eyewitness identification only affects criminaldefendants, and those that do might also wonder why they should careabout eyewitness misidentification.90 The best answer might come in theform of an appeal to our collective conscience.91 If for no other reason, weshould care about the fallibilities of eyewitness evidence because the risk ofnot caring is so great.92 Some rather unsettling numbers make the cost ofinaction unmistakably clear.93 In 2011, Brandon Garrett published a study

of the first 250 DNA exonerations, which revealed that 76% of cases (190out of 250 cases) involved convictions based on mistaken eyewitnessidentification.94 This is, itself, undeniably a profound injustice.95 Butconsider how vast these numbers could become.96 In 2010, a total of 81,934defendants were convicted in federal criminal prosecutions.97 The sameyear, the government had a 93% conviction rate—81% of convicteddefendants were sentenced to prison, 27% for greater than five years.98 Meanwhile, more than 80,000 prosecutions each year across state andfederal jurisdictions depend in large measure on eyewitness testimony.99 Ohio State University Ph.D student Arye Rattner completed a doctoral

88 Id. at 160.

89 Watkins v. Sowders, 449 U.S. 341, 352 (1981) (quoting ELIZABETH F. LOFTUS , EYEWITNESSTESTIMONY 19 (1979)).

90 See A POLICY REVIEW , supra note 18, at 9.91 See id.92 See Gary L. Wells et al., Eyewitness Identification Reforms: Are Suggestiveness-Induced Hits

and Guesses True Hits? , 7 PERSP. PSYCHOL. SCI. 264, 268 (2012) (postulating that identificationsmade during certain lineup procedures are lucky guesses).

93 See GARRETT , supra note 17, at 48.94 Id. 95 See A POLICY REVIEW , supra note 18, at 2.96 See UNITED STATES DEPARTMENT OF JUSTICE , UNITED STATES ATTORNEYS’ ANNUAL

STATISTICAL REPORT FISCAL YEAR 2010 5 (2010), available at http://www.justice.gov/sites/

default/files/usao/legacy/2011/09/01/10statrpt.pdf.

97 Id. 98 Id. 99 Duke, supra note 14.




dissertation that may help bring the horrifying potential of these figures tolight.100 Rattner analyzed 205 cases of wrongful conviction that occurredover a period of eighty-five years involving first and second degree

murder, manslaughter, attempted murder, robbery (armed and unarmed),forcible rape, attempted rape, forgery, larceny, and arson.101 Theeyewitnesses misidentified the defendants in fifty-two percent of the 205cases.102 Based on a survey of 188 judges, prosecuting attorneys, publicdefenders, sheriffs and police chiefs, and forty-one state attorneys general,Rattner and others later estimated that 0.5% of individuals convicted of theaforementioned crimes—known to the FBI as “index” crimes—wereinnocent.103 The authors discovered that even if the criminal justice systemwere 99.5% accurate, there would still be nearly 10,000 wrongfulconvictions each year for index crimes alone.104 Stated differently, 10,000people would go to jail for someone else’s crime.105

Allowing just one innocent person to be sent to jail should strike us as

an unfathomable outcome in a system purportedly designed to ascertaintruth.106 Allowing 190 innocent people to be convicted because of amistaken identification is, by all accounts, the result of a systemic failure tosafeguard the rights of criminal defendants.107 A justice system that permitssuch blatantly unreliable evidence to be used against defendants is no better than the trials by ordeal of our past.108 Evidence used to convict

100 See Arye Rattner, Convicting the Innocent: When Justice Goes Wrong (1983)(unpublished Ph.D dissertation, The Ohio State University) (on file with Thompson Library,The Ohio State University), available at https://etd.ohiolink.edu/rws_etd/document/get/

osu1263045052/inline [hereinafter Rattner]; Arye Rattner, Convicted but Innocent: Wrongful

Conviction and the Criminal Justice System , 12 LAW & HUM. BEHAV. 283 (1988).101 Rattner, supra note 100, at 39–42.102 Id. at 86.103 See C. RONALD HUFF , ARYE RATTNER & EDWARD SAGARIN , CONVICTED BUT INNOCENT:

WRONGFUL CONVICTION AND PUBLIC POLICY xiv (1996).104 Id. at xxii.105 See id. 106 See generally Susan A. Bandes, Protecting the Innocent as the Primary Value of the Criminal

Justice System , 7 OHIO ST. J. CRIM. L. 413, 416 (2009) (reviewing GEORGE C. THOMAS III, THE

SUPREME COURT ON TRIAL: HOW THE AMERICAN JUSTICE SYSTEM SACRIFICES INNOCENT

DEFENDANTS (2008)). Justice Sutherland once said that the government’s interest in a criminal

prosecution “is not that it shall win a case, but that justice shall be done.” Berger v. United

States, 295 U.S. 78, 88 (1935). He further explained that “[i]t is as much his duty to refrain from

improper methods calculated to produce a wrongful conviction as it is to use every legitimatemeans to bring about a just one.” Id.

107 See A POLICY REVIEW , supra note 18, at 2.108 Cf. History of the Judiciary , COURTS AND TRIBUNALS JUDICIARY ,

http://www.judiciary.gov.uk/about-the-judiciary/history-of-the-judiciary/ (last visited Jan. 7,




criminal defendants must be procured by proper police procedure andresponsibly scrutinized by the judiciary—anything less is kangaroocourt.109

Other consequences of inaction may convince stalwart critics of thisappeal.110 Inaccurate eyewitness identifications not only contribute toconvicting the innocent, but the inverse is also true—“the guilty are stillout there doing the crimes.”111 Every instance of exoneration tells twostories: one of a person wrongfully convicted, and another of a victimwhose assailant is never caught.112 And, while the guilty remain at large,the innocent are detained at a cost upwards of $25,000 per year. 113 Clearly,we have a vested interest in taking stock of the procedures within the justice system’s control that exacerbate the problem.114 There is a lot atstake—some suggest that “[t]o do justice to our respect for liberty, it isincumbent upon us to do all we can to enhance the accuracy of the criminal justice system.”115 In fact, the continued legitimacy of our justice system

may well depend on our response to the shortcomings of our system thatcondemns the innocent.116 We should demand more from our justicesystem than bare reliance on flawed evidence, especially when suchevidence plays an integral role in criminal prosecutions.117

2016). A trial by ordeal is an ancient judicial practice whereby the accused were subjected topainful and dangerous tests involving hot iron or boiling water to determine guilt orinnocence in criminal cases. Id. The ordeal was based on the assumption that God wouldexercise his power in favor of the innocent; therefore if they survived the ordeal they wereadjudged innocent. Id.

109 Cf. Spano v. New York , 360 U.S. 315, 325 (1959) (Douglas, J., concurring) (“This is a case

of an accused, who is scheduled to be tried by a judge and jury, being tried in a preliminaryway by the police. This is a kangaroo court procedure . . . . ”).

110 See A POLICY REVIEW , supra note 18, at 9.111 “Yes, I’m Sure-That’s The One! ,” MEMORY LOSS & THE BRAIN (2003),

http://www.memorylossonline.com/eyewitness.htm.112 Fisher, supra note 2, at 66.113 Nancy G. La Vigne & Julie Samuels, The Growth & Increasing Cost of the Federal Prison

System: Drivers and Potential Solutions, URBAN INSTITUTE JUST POLICY CENTER 2 (2012) available

at www.urban.org/research/publication/growth-increasing-cost-federal-prison-system-drivers

-and-potential-solutions/view/full_report.114 See A POLICY REVIEW , supra note 18, at 2.115 Id. at 9.116 Jay Nelson, Facing Up to Wrongful Convictions: Broadly Defining "New" Evidence at the

Actual Innocence Gateway , 59 HASTINGS L.J. 711, 711 (2008).117 See Davis & Loftus, supra note 22 at 808–09.




B. Eyewitness Identifications Play an Important Evidentiary Role

Eyewitness identification evidence plays a critical role in theapprehension and prosecution of criminals; it is some of the most commonand compelling evidence brought against criminal defendants.118 In theeyes of a prosecutor, confident eyewitness testimony provides invaluableevidence.119 In many criminal prosecutions, eyewitness identification is not just powerful evidence, it is essential because forensic evidence, forinstance, fingerprints, might not be available.120 In cases where eyewitnessidentification is the sole piece of evidence, we must examine the evidencewith the most critical eye.121

Eyewitness evidence undoubtedly has a powerful impact on juries.122 “Aside from a smoking pistol, nothing carries as much weight with a juryas the testimony of an actual witness.”123 For example, Marcus Lyons waswrongfully convicted of rape in 1987 and served three years in prison andsixteen years on parole before he was exonerated by DNA evidence that

proved he was not the perpetrator.124 A juror later recounted the powerfuleffect the jury felt when the victim was “shaking like a leaf” when sheidentified Lyons at trial.125

Specifically, witness certainty carries considerable potential toinfluence jurors.126 As the Supreme Court noted more than a quartercentury ago: juries will not often discredit the testimony of a witness whostates that he saw the defendant commit the crime, rather, such testimony

118 A POLICY REVIEW , supra note 18, at 2.119 Sheehan, supra note 27, at 653.120 Id. 121 NAT’L INST. OF JUSTICE , U.S. DEP’T OF JUSTICE , EYEWITNESS EVIDENCE: A GUIDE FOR LAW

ENFORCEMENT 15 (1999), available at https://www.ncjrs.gov/pdffiles1/nij/178240.pdf[hereinafter GUIDE FOR LAW ENFORCEMENT]; INNOCENCE PROJECT , REEVALUATING LINEUPS: WHY WITNESSES MAKE MISTAKES AND HOW TO REDUCE THE CHANGE OF A MISIDENTIFICATION 4(2009), available at http://www.innocenceproject.org/files/imported/eyewitness_id_report-5.pdf[hereinafter REEVALUATING LINEUPS].

122 Watkins v. Sowders, 449 U.S. 341, 352 (1981).123 ELIZABETH F. LOFTUS & KATHERINE KETCHAM , WITNESS FOR THE DEFENSE: THE ACCUSED ,

THE EYEWITNESS , AND THE EXPERT WHO PUTS MEMORY ON TRIAL 15–16 (1991).124 The Cases: Marcus Lyons , INNOCENCE PROJECT , http://www.innocenceproject.org/

Content/Marcus_Lyons.php (last visited Jan. 6, 2016).125 GARRETT , supra note 17, at 48. 126 See Michael R. Leippe et al., Cueing Confidence in Eyewitness Identifications: Influence of

Biased Lineup Instructions and Pre-Identification Memory Feedback Under Varying Lineup

Conditions , 33 LAW & HUM. BEHAV. 194, 194 (2009) (explaining that “[f]actfinders tend to

overestimate the accuracy of eyewitnesses who express confidence in their identifications”).




is unhesitatingly accepted.127 In fact, some psychologists “estimate thatwitness[] . . . identifications are believed 79.8 percent of the time, regardlessof whether they are correct.”128 However, despite the stock juries put in a

confident witness, studies prove that confidence is for the most part only“modestly related” to witness accuracy, and sometimes entirelyunrelated.129 This is because “witnesses’ confidence in their memories arehighly malleable and can readily be altered by information received bywitnesses both before and after an identification procedure.”130 Twoprominent researchers in the field concluded, “the eyewitness accuracy-confidence relationship is weak under good laboratory conditions andfunctionally useless in forensically representative settings.”131 Still, some juries accept it at face value.132

C. Not All Eyewitness Identifications are Created Equal

In some cases, eyewitness testimony can be extremely reliable—such as

when the crime was committed by someone the witness knows.133

Common sense (and an undeniable body of empirical research) counselsthat the same cannot be said of crimes committed by strangers.134 The starkreality is that eyewitness identifications are not always reliable—even anhonest and well intentioned witness can make mistakes, such asidentifying the wrong person135—and a less than accurate identification canmean the difference between a conviction and acquittal.136 This means thecriminal justice system must take into account modern scientific principlesregarding eyewitness memory.137

127 Sowders , 449 U.S. at 352.128 Cindy J. O’Hagan, When Seeing Is Not Believing: The Case for Eyewitness Expert Testimony ,

81 GEO. L.J. 741, 749 (1993).129 Leippe et al., supra note 126, at 194.130 Report of the Special Master, supra note 2, at 30–31.131 GIANNELLI ET AL., supra note 22, at 2. 132 See id. at 4. 133 See Noah Clements, Flipping A Coin: A Solution for the Inherent Unreliability of Eyewitness

Identification Testimony , 40 IND. L. REV. 271, 289 (2007). This is true in roughly half of all violentcriminal offenses. Id.

134 Felix Frankfurter, The Case of Sacco and Vanzetti , THE ATLANTIC (March 1, 1927),http://www.theatlantic.com/magazine/archive/1927/03/the-case-of-sacco-and-vanzetti/306625/(“The identification of strangers is proverbially untrustworthy.”).

135 GUIDE FOR LAW ENFORCEMENT , supra note 121, at 1.136 See Commonwealth v. Gomes, 22 N.E.3d 897, 905 (Mass. 2015).137 See SJC REPORT , supra note 4, at 59.




1. The Science Behind Memory and Perception

A vast body of comprehensive, consistent scientific evidence regardingeyewitness evidence and testimony has accumulated in the three decadessince Manson was decided.138 This science requires a change in the way thatcourts, law enforcement, prosecutors, and the defense bar deal witheyewitness identification evidence.139

Studies have identified a number of factors that affect witness memory,and therefore, eyewitness identifications.140 Scientific literature dividesthese categories into two separate categories: estimator variables andsystem variables.141 Estimator variables are considered those factors thatexist independent of the criminal justice system; they are “inherent in theevent.”142 The criminal justice system has no control over estimatorvariables, but estimator variables can substantially impact the reliability ofan identification.143 Examples include environmental conditions when theidentification is made, the amount of time a witness had to observe an

event, lighting conditions, the witness’s stress level, whether theperpetrator wore a disguise, the presence or absence of a weapon, andwhether the witness and perpetrator are of the same or different races. 144 System variables are those factors that the criminal justice system caninfluence, such as police conduct during the identification.145 There is aconsensus among researchers that both types of variables affect thereliability of eyewitness identification.146 The consensus boils down to fivegenerally accepted principles:

(i) Human memory does not function like a video recording butis a complex process that consists of three stages: acquisition,retention, and retrieval; (ii) An eyewitness’s expressed certaintyin an identification, standing alone, may not indicate the accuracy

of the identification, especially where the witness did notdescribe that level of certainty when the witness first made theidentification; (iii) High levels of stress can reduce aneyewitness’s ability to make an accurate identification; (iv)Information that is unrelated to the initial viewing of the event,

138 Report of the Special Master, supra note 2, at 72.139 SJC REPORT , supra note 4, at 14.140 See GIANNELLI ET AL., supra note 22, at 1. 141 Id. 142 SJC REPORT , supra note 4, at 2.143 Id. 144 Id.; SJC REPORT , supra note 4, at 2; GIANNELLI ET AL., supra note 22, at 2–3. 145 SJC REPORT , supra note 4, at 2.146 Saul M. Kassin et al., On the “General Acceptance” of Eyewitness Testimony Research: A New

Survey of the Experts , 56 AM. PSYCHOLOGIST , 405, 407–11 (2001).




which an eyewitness receives before or after making anidentification, can influence the witness’s later recollection of thememory or of the identification; and (v) A prior viewing of asuspect at an identification procedure may reduce the reliability

of a subsequent identification procedure in which the samesuspect is shown.147

2. Police Practice and Procedure

Mistaken identifications happen, and they are sometimes broughtabout by common police procedures.148 Studies show that the manner inwhich the investigating officer obtains information from an eyewitness candirectly impact the amount and accuracy of the information received in theexchange.149 For example, instructing the witness prior to conducting theidentification procedure can assist the witness’s memory of theperpetrator.150 The use of fillers in a photographic display, if chosencorrectly, can help authorities judge the reliability of an identification.151

However, it is much more difficult to obtain a reliable identification if aninsufficient number of fillers are used.152 Additionally, lineupadministrators who know the identity of the suspect often suggest thatinformation to the witness, whether consciously or unconsciously.153 Furthermore, research shows that eyewitnesses viewing a simultaneouslineup—where every member appears at once—tend to make relative judgments.154 Witnesses will decide which individual member mostresembles the perpetrator by comparing the members to each other, ratherthan comparing each member to their memory of the perpetrator.155 Relative judgments are particularly dangerous when a lineup is composedentirely of innocent fillers and an innocent suspect, and does not include aguilty suspect.156

147 Commonwealth v. Gomes, 22 N.E.3d 897, 911–16 (Mass. 2015).148 Mistaken Eyewitness Identifications , MID ATLANTIC INNOCENCE PROJECT ,

http://www.exonerate.org/policy-2/causes-of-wrongful-convictions/mistaken-eyewitness-identifications/ (last visited Jan. 7, 2016).

149 GUIDE FOR LAW ENFORCEMENT , supra note 121, at 15.150 Id. at 19.151 A POLICY REVIEW , supra note 18, at 3.152 Id. at 6.153 See Sarah M. Greathouse & Margaret Bull Kovera, Instruction Bias and Lineup Presentation

Moderate the Effects of Administrator Knowledge on Eyewitness Identification, 33 LAW & HUM. BEHAV. 70, 71 (2009).

154 See State v. Henderson, 27 A.3d 872, 901 (N.J. 2011); A POLICY REVIEW , supra note 18 at 3.155 A POLICY REVIEW , supra note 18, at 3.156 Id.




Showups can be a “useful—and necessary—technique when used inappropriate circumstances. But carry . . . risks of misidentification” becauseonly one individual is presented to the witnesses.157 Thus, showups fail to

provide safeguards to account for witnesses with poor memories, or thosethat are inclined to guess, because mistaken identifications made during ashowup will always point to the suspect.158 As Gary Wells, a leading expertin the field put it: “[w]hen you do a showup . . . [y]ou have no fillers, andso it’s not really a test of the witness’s memory. It may just simply be a testof the witness’s willingness to in effect say, ‘Yes, that’s the person.’ Sohence the title.”159 In essence, they are inherently suggestive.160

Some have suggested that modernizing identification procedure toaccommodate scientific advances requires a complete overhaul of lineupmethods.161 Massachusetts has pioneered that effort by reevaluatingidentification practice and procedure, and adopting stringent rules for theadmission of eyewitness testimony in court.162

ANALYSIS

III. Massachusetts Got it Right

Massachusetts’ approach to eyewitness identifications is superior tothe Supreme Court’s because it addresses reliability at “ both the frontend—its collection by law enforcement—as well as the back end—whenand how it is used in courts.”163 Instead of ignoring it, the SJC and themembers of its study group delved unhesitatingly into the new science onhuman memory, and took account of its implications for the criminal justice system by adjusting its practices to meet new and developingstandards.164 The SJC’s approach is a long-overdue change in eyewitness

identification law.165 It will not change the variables affecting human

157 Report of the Special Master, supra note 2, at 29.158 Id.159 Deposition of Gary L. Wells at 25, Bibbins v. City of Baton Rouge, 489 F. Supp. 2d 562

(M.D. La. 2007).160 Henderson , 27 A.3d at 903.161 A POLICY REVIEW , supra note 18, at 3.162 See Pilch, supra note 9.163 Letter from Barry C. Scheck & Karen A. Newirth to Christine P. Burack 2 (Jan 24, 2014),

in RICHARD M. PAGE , BOSTON BAR ASS’N , COMMENTS OF THE BOSTON BAR ASS’NS CRIMINAL

LAW SECTION ON THE REPORT OF THE SUPREME JUDICIAL COURT STUDY GROUP ON EYEWITNESS

EVIDENCE (2014).164 See SJC REPORT , supra note 4, at 15.165 See Zoraida Fernandez, Crayton & Collins: Preventing Eyewitness Misidentification in




memory, but it is certainly a welcomed acknowledgment of scientificresearch proving that eyewitness identifications are prone to error, andshould not be treated as if they are immune.166 Increased interaction

between the court and social science means that courts will analyzetwenty-first century evidence backed by twenty-first century scientificknowledge.167

A. Stronger Trial Protections

1. Massachusetts’ Approach Takes Account of System andEstimator Variables

The Supreme Court’s approach under Manson and Perry offersdefendants limited constitutional protections.168 By establishing a test thatdepends entirely on suggestive police procedures, the Manson-Perry approach fails to take account of estimator variables such as environmentalconditions, the duration of the witness’s observation, lighting conditions,and stress.169 Social science has definitively proven that these factorsinfluence eyewitness accuracy.170

What is more, the Manson-Perry approach says that reliability can savean unnecessarily suggestive identification procedure—the test is set up insuch a manner that highly suggestive police procedures will not rise to thelevel of a due process violation if the Court finds the identificationreliable.171 Paradoxically, the Court uses unreliable factors to judge“reliability.”172 Social scientists have since methodically undercut thevalidity of this approach by exposing flaws in each of the Manson factors.173 In fact, the “reliability” criteria the Court announced are faulty to the pointthat the test fails functionality; this means that potential misidentificationsresulting from egregious suggestions can, and will, fall through the

Massachusetts , ZALKIND DUNCAN & BERNSTEIN LLP, (Jan. 2, 2015), http://www.bostonlawyer

blog.com/2015/01/02/crayton-collins-preventing-eyewitness-misidentification-massachusetts/.166 Id. 167 See SJC REPORT , supra note 4, at 59.168 Gershman, supra note 3, at 25.169 See Thompson, supra note 32, at 605.170 See Report of the Special Master, supra note 2, at 44–48.171 See Gershman, supra note 3, at 25.172 Brief of the Conn. Criminal Def. Lawyers Ass’n & Conn. Psychologist Ass’n in Support

of Petitioner at 7, Revels v. State, 99 A.3d 1130 (Conn. 2014) (No. 01-1015), 2015 WL 273048

(explaining that the scientific and legal community generally agree the test is fatally flawed);Garrett, supra note 27, at 453.

173 Garrett, supra note 27, at 476.




cracks.174 Therefore, the Supreme Court’s test is not just inaccurate—it has become “misleading[ly] incomplete” in light of scientific developmentsupon which the Court remains thunderously silent.175 Massachusetts’

approach makes up for the Supreme Court’s historic misunderstanding ofmodern science.176 The SJC’s approach explicitly takes account of estimator variables by

instructing the jury that “memory can be affected by a variety of factors.”177 The SJC’s instructions tell the jury to consider, inter alia: the degree ofattention the witness paid the offender; the distance between the witnessand the offender; lighting conditions; length of time the witness had toview the offender; the witness’s stress level; whether a disguise wasinvolved or the offender’s face was obstructed; whether a weapon wasinvolved; whether the witness knew the offender; and whether the witnessand offender are of different races.178 These factors are an important, if notessential, component for the jury to consider because estimator variables

directly impact witness memory and encourage faulty identifications.179

Further, the Supreme Court’s rationale for remaining faithful to itsdefective due process test is that the test aims to deter police misconduct,yet the Court does not address any of the factors within the criminal justicesystem’s control that would indisputably provide a check on police behavior.180 The SJC’s approach is far superior because it targets thesesystem variables head-on and accounts for the influence of thesesuggestive procedures on reliability.181 By directly addressing both types ofvariables known to affect identification accuracy, the SJC’s approach is farmore likely to catch a mistaken identification before it takes its devastatingtoll.182

174 See Gershman, supra note 3, at 24; David A. Sonenshein & Robin Nilon, Eyewitness Errors

and Wrongful Convictions: Let's Give Science a Chance , 89 OR. L. REV. 263, 270 (2010).175 See Benjamin E. Rosenberg, Rethinking the Right to Due Process in Connection with Pretrial

Identification Procedures: An Analysis and a Proposal , 79 KY. L.J. 259, 262 (1991).176 SJC REPORT , supra note 4, at 47.177 Commonwealth v. Gomes, 22 N.E.3d 897, app. at 919 (Mass. 2015).178 Id. at app. at 919–21.179 See Davis & Loftus, supra note 22, at 808.180 See Perry v. New Hampshire, 132 S. Ct. 716, 721 (2012); Thompson, supra note 32, at 605

(describing the capacity of the Supreme Court's due process test to protect against suggestivepolice practices as an “utter failure”).

181 See, e.g. , Commonwealth v. Walker, 953 N.E.2d 195, 208 (Mass. 2011) (mandating at leastfive fillers per suspect in a simultaneous or photographic array).

182 Gershman, supra note 3, at 24 (urging courts to develop improved approaches toeyewitness identifications to “ensure the accuracy of eyewitness testimony and reduce the

incidence of courtroom misidentifications”).




2. Massachusetts’ Approach Confronts the Problem Head onwith Per Se Rules

The stark reality is that while the Supreme Court purported to havedesigned a test that influences police behavior, its approach barelymitigates the damage that police misconduct can cause.183 TheMassachusetts approach, in contrast, prevents police misconduct fromoccurring in the first place by utilizing per se rules.184 The Massachusettsapproach implements proper procedures and guidelines for police tofollow in conducting lineups, showups, and photo arrays;185 and excludesunnecessarily suggestive identifications per se.186 This approach providesincentive for the police to discontinue suggestive procedures wherealternative procedures are available.187 As one scholar put it: “[a]n ounce ofprevention in terms of proper procedures that prevent false positives isworth a pound of cure.”188

The Supreme Court’s approach lacks this preventative function.189 The

Court has repeatedly refused to adopt per se rules regarding eyewitnesstestimony,190 discounting such rules as “inflexible rules of exclusion thatmay frustrate rather than promote justice.”191 The Court takes issue withper se rules because it sees such an approach as “go[ing] too far since itsapplication automatically and peremptorily, and without consideration ofalleviating factors, keeps evidence from the jury that is reliable and

183 See Perry , 132 S. Ct. at 736.184 Commonwealth v. Johnson, 650 N.E.2d 1257, 1263 (Mass. 1995) (“[I]t appears clear to us

that the reliability test does little or nothing to discourage police from using suggestiveidentification procedure.”); cf. Susan R. Klein, Identifying and (Re)formulating Prophylactic Rules,

Safe Harbors, and Incidental Rights in Constitutional Criminal Procedure , 99 MICH. L. REV. 1030,1065 (2001) (recognizing that “a proper lineup beats the right to counsel at a lineup . . . handsdown”).

185 See Klein, supra note 184, at 1065 (calling for same).186 See Johnson , 650 N.E.2d at 1260; Walker , 953 N.E.2d at 205 n.13.187 Martinis M. Jackson, Timely Death of the Show-Up Procedure: Why the Supreme Court

Should Adopt a Per Se Exclusionary Rule , 56 HOW. L.J. 329, 349 (2012).188 Klein, supra note 184, at 1065 n.160.189 Thompson, supra note 32, at 624.190 See Neil v. Biggers, 409 U.S. 188, 199 (1972) (concluding that per se rules of exclusion for

unnecessarily suggestive identifications “have no place in the present case” and creating a set

of factors the Court will analyze to determine an identification’s reliability despite its

suggestiveness); Manson v. Brathwaite, 432 U.S. 98, 112, 114 (1977) (expressly declining to

adopt a rule of per se exclusion and settling on a “totality of the circumstances” approachdependent on the Biggers factors).

191 Manson , 432 U.S. at 113.




relevant.”192 And, because the per se approach “denies the trier reliableevidence, it may result, on occasion, in the guilty going free”—whichwould be, in a word, “Draconian.”193 Therefore, the Court prefers that the

jury assess the reliability of an identification considering the totality of thecircumstances.194 While the Supreme Court admonishes per se rules for “going too far,”

it is now clear that allowing the jury to asses reliability under the totality ofthe circumstances approach does not go far enough. 195 By treatingchallenges to eyewitness evidence as questions of credibility for the jury toaddress, rather than examining such challenges as questions ofadmissibility for the judge, the Court essentially weighs the scale in favorof the prosecution196 because juries are susceptible to accepting eyewitnessevidence at face value.197 The SJC directly addresses the danger ofeyewitness identification, in following the research cited by scientificstudies, by creating rules that govern its admissibility before it gets to the

jury.198

Thus, the message comes straight from the horse ’s mouth: “‘[o]nly arule of per se exclusion can ensure the continued protection against thedanger of mistaken identification and wrongful convictions’ arising fromsuggestive identification procedures.”199

3. Helpful Jury Instructions

Juries play an important role in the American criminal justice system.200 They are, in essence, the gods of guilt.201 At the close of trial, we expect

192 Id. at 112.193 Id. at 112–13.194 See Davis & Loftus, supra note 22, at 777.195 See Walsh, supra note 70, at 1444 (arguing that the Supreme Court’s approach does not

adequately ensure defendant’s access to fundamentally fair proceedings and that state courts

“should adopt more robust measures that would prevent misidentifications from appearing in

court.”). 196 Jackson, supra note 187, at 345 (questioning whether the jury should be allowed to

analyze what protection, if any, this fact affords the innocent).197 See supra Part II.B.198 See supra Part I.C.199 Commonwealth v. Crayton, 21 N.E.3d 157, 164–65 (Mass. 2014) (citing Commonwealth

v. Johnson, 650 N.E.2d 1257, 1265 (Mass. 1995)).200 See Perry v. New Hampshire, 132 S. Ct. 716, 720 (2012) (explaining that when evidence is

admitted at trial the jury determines its worth).201 See CRIMINAL MODEL JURY INSTRUCTIONS , FOR USE IN THE DIST. CT., INSTRUCTION 1.120

(COMM. OF MASS., DIST. CT. DEP’T OF THE TRIAL CT. 2013), available at

http://www.mass.gov/courts/docs/courts-and-judges/courts/district-court/jury-instructions-criminal/1120-preliminary-instruction-to-jury-before-trial.pdf [hereinafter PRELIMINARY




juries to deliver a verdict—a task, which stripped down to its Latin rootsmeans “to speak the truth.”202 Jurors are instructed that if they try the caseaccording to the evidence presented, they will arrive at a “true and just

verdict”—as if there is a talismanic algorithm juries can follow to guaranteesuch a result.203 Yet, as we are so often reminded, a true and just result isfar from guaranteed.204 Still, we assure juries of their ability to find thetruth205 and send them to the jury room—the proverbial “ black box”—where they deliberate in private and return to the courtroom to give theirverdict without reasons for it.206 The sheer magnitude of this task obligatesthe criminal justice system to realistically assess what the jury is actuallycapable of deciding, and, once the decision is made that an issue is “for the jury,” to give jurors the tools to analyze it properly.207 The damage is donethe moment the jury hears the witness say “that’s the man;”208 even themost skillful defense attorney cannot unring that bell.209

The Supreme Court passed on the opportunity to adopt rules that

would actually result in the exclusion of unreliable eyewitness testimony,choosing instead to elect the jury as arbiter of reliability.210 Under theMassachusetts approach, an unnecessarily suggestive identification willnever get to the jury.211 However, for those identifications that do maketheir way to the jury, the SJC has developed a set of instructions that willeducate jurors on the factors affecting identification accuracy.212 In doingso, the SJC acknowledges that putting blind faith in the good sense judgment of American juries to sort out issues of who to believe and why

INSTRUCTION TO JURY BEFORE TRIAL: INSTRUCTION 1.120]. For an interesting read on theconcept of the “gods of guilt,” see MICHAEL CONNELLY , THE GODS OF GUILT (2013).

202 Commonwealth v. Rodriguez, 383 N.E.2d 851, 857 (Mass. App. Ct. 1978).203 See PRELIMINARY INSTRUCTION TO JURY BEFORE TRIAL: INSTRUCTION 1.120, supra note 201,

at 9.204 See infra text accompanying notes 292–300.205 See, e.g. , Rodriguez , 383 N.E.2d at 857–58 (“I can’t think of twelve people who are more

responsible in terms of being able to reach the truth in a given case than the twelve of youwho will deliberate this case.”).

206 GARRETT , supra note 17, at 172. 207 See Thompson, supra note 32, at 620.208 See United States v. Wade, 388 U.S. 218, 236 (1967).209 See supra note 135–36 and accompanying text.210 See Manson v. Brathwaite , 432 U.S. 98, 116 (1977) (“We are content to rely upon the good

sense and judgment of American juries . . . . Juries are not so susceptible that they cannotmeasure intelligently the weight of identification testimony that has some questionable

feature.”). 211 See Commonwealth v. Walker, 953 N.E.2d 195, 205 n.13 (Mass. 2011).212 See Thompson, supra note 32, at 620.




provides an insufficient measure of protection when it comes to eyewitnesstestimony, which is notoriously unreliable, and perplexinglycomplicated.213 If, as so many analysts have irrefutably proven, juries are ill

equipped to understand the fallibility of eyewitness memory andaccurately scrutinize eyewitness identifications, then allowing juries carte blanche access to eyewitness testimony means that courts are passivelycompliant in a scheme that encourages juries to place unjustified relianceon eyewitness identifications.214 The SJC’s instructions school the jury onthe factors that are now so generally accepted by social scientists that theirexclusion from consideration undermines the validity of an identificationprocedure, and any resulting identification testimony.215

IV. Other Jurisdictions Should Follow Suit

A. States Have the Power to Reform Eyewitness Identification Law, forGood Reason

1. The Power

States have the power to reform eyewitness identification proceduresand law.216 States can interpret their own constitutions in a manner thatprovides greater protection against unreliable eyewitness testimony thanthat afforded under the federal standard.217 Additionally, rules governing

213 See id. (criticizing the Supreme Court’s failure to do the same as misguided).214 See O'Hagan, supra note 128, at 748.215 Commonwealth v. Gomes, 22 N.E.3d 897, 911–16 (Mass. 2015).

216 See, e.g. , State v. Chapple, 660 P.2d 1208 (Ariz. 1983); People v. McDonald, 690 P.2d 709(Cal. 1984); State v. Ledbetter, 881 A.2d 290 (Conn. 2005); State v. Marquez, 967 A.2d 56 (Conn.2009); State v. Guilbert, 49 A.3d 705 (Conn. 2012); State v. Artis, 101 A.3d 915 (Conn. 2014);Benn v. United States, 978 A.2d 1257 (D.C. 2009); Brodes v. State, 614 S.E.2d 766 (Ga. 2005);State v. Almarez, 301 P.3d 242 (Idaho 2013); Bomas v. State, 987 A.2d 92 (Md. 2010); State v.Warren, 635 P.2d 1236 (Kan. 1981); Commonwealth v. Jones, 666 N.E.2d 994 (Mass. 1996);Commonwealth v. Santoli, 680 N.E.2d 1116 (Mass. 1997); Commonwealth v. Silva-Santiago,906 N.E.2d 299 (Mass. 2009); Walker , 953 N.E.2d 195; Commonwealth v. Collins, 21 N.E.3d 528(Mass. 2014); Commonwealth v. Crayton, 21 N.E.3d 157 (Mass. 2014); State v. Delgado, 902A.2d 888 (N.J. 2006); State v. Henderson, 27 A.3d 872 (N.J. 2011); People v. Adams, 423 N.E.2d379 (N.Y. 1981); People v. LeGrand, 867 N.E.2d 374 (N.Y. 2007); State v. Lawson, 291 P.3d 673(Or. 2012); State v. Copeland, 226 S.W.3d 287 (Tenn. 2007); State v. Long, 721 P.2d 483 (Utah1986); State v. Ramirez, 817 P.2d 774 (Utah 1991); State v. Dubose, 699 N.W.2d 582 (Wis. 2005).

217 Mills v. Rogers , 457 U.S. 291, 300 (1982) (“State law may recognize liberty interests more

extensive than those independently protected by the Federal Constitution.”); see, e.g. ,Commonwealth v. Johnson, 650 N.E.2d 1257, 1261 (Mass. 1995); Henderson , 27 A.3d at 919 &n.10; Adams , 423 N.E.2d at 383–84; Ramirez , 817 P.2d at 780; Dubose , 699 N.W. 2d at 594–95.




the admissibility of evidence are within the province of state courts.218 Asthe Supreme Court recognized, evidentiary rules that empower states toexclude relevant evidence because of its prejudicial effect or tendency to

mislead the jury are important protections against unreliable eyewitnessidentifications.219 In fact, eyewitness identifications made under suggestivecircumstances embody the very evil such rules are designed to prevent.220 As Justice Marshall observed in his vigorous dissent in Manson: States areempowered—and indeed, encouraged—to create their own eyewitnessidentification rules to thwart the hazardous effect of the Court’s inadequatestandards.221 Justice Brennan, who joined Justice Marshall’s Manson dissent,said it best in a celebrated article on individual rights under stateconstitutions: “State courts cannot rest when they have afforded theircitizens the full protections of the federal Constitution” because withoutthe protective force of state law “the full realization of our liberties cannot be guaranteed.”222

Massachusetts’ approach intercepts suggestive, unreliable eyewitnessevidence by excluding it per se—and, in the case of in-court identifications,unless the prosecutor can show good cause for its admission—rather thanadmitting it based on subjective notions of reliability.223 Courts in other jurisdictions should consider playing a similarly active role concerning theadmission of eyewitness testimony.224 Given the substantial proof thateyewitness identification reform is both necessary and effective, courts

218 See, e.g. , MASS. R. EVID. 403 (“Relevant evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice . . . misleading the jury. . . .”);

Lawson , 291 P.3d at 684 (establishing a revised test governing the admissibility of eyewitnesstestimony under the state evidentiary code).

219

Perry v. New Hampshire, 132 S. Ct. 716, 720 (2012). Several state appellate courts havetaken this approach. See, e.g. , Lawson , 291 P.3d at 688; State v. Chen, 952 A.2d 1094, 1103 (N.J.Super. Ct. App. Div. 2008); State v. Hibl, 714 N.W.2d 194, 204–05 (Wis. 2006).

220 Lawson , 291 P.3d at 684 (quoting State v. Classen, 590 P.2d 1198, 1200 (Or. 1979))(explaining that “[e]vidence law has long provided for excluding certain evidence as a class

when its questionable reliability vitiates the value of its possible truthfulness in the particularcase, apart from any question of constitutional law”).

221 See Manson v. Brathwaite, 432 U.S. 98, 128–29 (1977) (Marshall, J., dissenting) (“It is

therefore important to note that the state courts remain free, in interpreting state constitutions,to guard against the evil clearly identified by this case.”); Oregon v. Hass, 420 U.S. 714, 719

(1975) (“[A] State is free as a matter of its own law to impose greater restrictions on policeactivity than those this Court holds to be necessary upon federal constitutional standards.”).

222 Brennan, Jr., supra note 55, at 491.223 See infra Part III.A.2.224 See SJC REPORT , supra note 4, at 63; Gershman, supra note 3, at 25 (calling on trial judges

to adopt specific procedural safeguards to allow juries to carefully evaluate an eyewitness’s

testimony).




should not sit idle and allow the reform effort to fragment or remainlimited by the Supreme Court’s outdated precedent.225 It is imperative thatstate courts interpret their own constitutions to ensure such protections in

light of the Supreme Court’s reluctance to update eyewitness identification jurisprudence to align with modern scientific understanding.226 Byadopting the Massachusetts approach, other courts would “take a giantstep forward in preventing the ‘primary evil’ that the Supreme Courtinitially wanted to avoid.”227 This would, in turn, give states the final sayon eyewitness identification law because the Supreme Court would beprecluded from reviewing their decisions.228 Therefore, where the SupremeCourt has proven its reluctance to adequately safeguard the rights of theaccused, states should step in to develop more expansive constitutionalprotections.229 In other words, the buck should stop with the states.230

2. The Reasons

i. Eyewitness Identifications Will Be Less Suggestive

Clearly, states have the power to reform eyewitness identificationlaw.231 Must they also be given an incentive?232 Other states should followMassachusetts’ lead because the new practices and procedures willincrease the accuracy and reliability of eyewitness evidence.233 The processof obtaining eyewitness identifications begins with police procedure.234 Thescientific debate about best police practices is over235—eyewitness evidence

225 Brief of the Conn. Criminal Def. Lawyers Ass’n and Conn. Psychology Ass’n, supra note172, at 20.

226 See Walsh, supra note 70, at 1417 (calling on state courts to adopt the New JerseySupreme Court’s approach in State v. Henderson, 27 A.3d 872 (N.J. 2011)).

227 Jared T. Dotson, The Linchpin of Identification Evidence: The Unreliability of Eyewitnesses and

the Need for Reform in West Virginia , 117 W. VA. L. REV. 775, 814 (2014).228 Brennan, Jr., supra note 55, at 501 (“[T]he state decisions not only cannot be overturned

by, they indeed are not even reviewable by, the Supreme Court of the United States. We areutterly without jurisdiction to review such state decisions.”).

229 See id. at 503 (“With federal scrutiny diminished, state courts must respond byincreasing their own.”).

230 See id. 231 See supra note 222 and accompanying text.232 See Jackson, supra note 187, at 355 (urging the Supreme Court to reform its eyewitness

identification test).233 See GUIDE FOR LAW ENFORCEMENT , supra note 121, at 2.234 SJC REPORT , supra note 4, at 9.235 William G. Brooks III, When it Comes to Eyewitness ID Best Practices, the Science Is Settled ,

DISPATCH (Dec. 2014), http://cops.usdoj.gov/html/dispatch/12-2014/eyewitness_ID_best_




is susceptible to contamination by police action.236 In fact, it is well-knownthat some identification procedures actually increase the risk of falseidentification.237 Courts cannot allow the process of obtaining an

identification that will eventually be used to convict a criminal defendantto begin with a tainted procedure.238 It follows that by improvingidentification procedures we can improve the quality of eyewitnessevidence.239

The SJC’s per se rules and the Study Group’s findings deliver a clearmessage to law enforcement—unnecessarily suggestive procedures are off-limits, a fairer alternative must be used.240 The SJC specifically instructspolice to follow its new five-filler per suspect mandate.241 This type ofapproach creates a set of best practices for police to follow on a case-by-case basis because, “[b]y indicating disapproval of certain practices, thecourt[] implicitly require[s] police to do the opposite, thus effectivelycreating a set of rules for obtaining identification evidence in a non-

suggestive manner.”242

This means that law enforcement will need toquickly develop proper procedures to conform to the rule.243 Additionally, the SJC’s Study Group developed a set of carefully

crafted best practices for police to follow that will decrease the likelihoodof misidentification and enhance the witness’s ability to recognize theoffender at a later time.244 The Study Group recommends that the officershould instruct the witness that the alleged wrongdoer may or may not bein the photographic or in-person display.245 These cautionary instructionsare a significant step toward making identification procedures lesssuggestive and more reliable.246 Delivering such instructions informs thewitness that it is just as important to clear a person from suspicion as it is toidentify a person as the wrongdoer,247 and reduces the pressure a witness

practices.asp.236 See A POLICY REVIEW , supra note 18, at 3.237 See id. 238 See SJC REPORT , supra note 4, at 9.239 A POLICY REVIEW , supra note 18, at 3.240 See Manson v. Brathwaite, 432 U.S. 98, 125 (1977) (Marshall, J., dissenting).241 Commonwealth v. Walker, 953 N.E.2d 195, 208 (Mass. 2011).242 Thompson, supra note 32, at 624.243 See Manson , 432 U.S. at 125 (Marshall, J., dissenting) (postulating that a per se rule

would require a change in police behavior).244 SJC REPORT , supra note 4, at 9.

245 Id. at 89.246 Id. at 47–48.247 Id. at 89.




might feel to choose a suspect from a lineup when the culprit is notactually present.248 The Study Group suggests that officers should avoidshowups if possible.249 If the officer must conduct a showup, it should take

place within two hours after the witness’s observation of the suspect because “the benefits of fresh memory seem to balance the risks of unduesuggestion,” therefore reducing the risk of misidentification.250 Further, theofficer should not conduct a showup if the suspect is seated in the rear of apolice cruiser, a cell, or any custody-related enclosure.251 The officersshould also prevent the witness from hearing any conversations betweenlaw enforcement or other witnesses pertaining to the suspect orinvestigation.252

Regarding photographic displays and line-ups, the SJC recommendsthat each array contain at least five fillers—which must fit the generaldescription of the offender—and only one suspect who does not stand outfrom the rest of the photographs in any way.253 Composing an array in this

manner is a critical step because it will ensure that an individual is notidentified based on the composition of the lineup by reducing the chancethat a witness will make a relative judgment.254 This effectively reduces thechance that a witness will identify “an innocent suspect simply because thesuspect is the only lineup member that resembles the perpetrator.”255 Asone state Supreme Court observed: “[p]roperly constructed lineups test awitness’ memory and decrease the chance that a witness is simplyguessing.”256

Officers should also conduct photo arrays and line-ups double-blind,meaning that no one present should know the identity of the suspect. 257 Conducting double-blind administration can prevent law enforcementofficials from giving “inadvertent clues” about the identity of the suspect tothe eyewitness during a lineup procedure258 because it “takes the lineupadministrators’ behaviors out of the game.”259

248 A POLICY REVIEW , supra note 18, at 3.249 SJC REPORT , supra note 4, at 87.250 Id. at 26, 87 (internal citation omitted).251 Id. at 87.252 Id. 253 Id. at 89.254 A POLICY REVIEW , supra note 18, at 6.255 Id.256 State v. Henderson, 27 A.3d 872, 897 (N.J. 2011).

257 See SJC REPORT , supra note 4, at 90.258 A POLICY REVIEW , supra note 18, at 3.259 See GARY L. WELLS ET AL., AM. JUDICATURE SOC’Y , A TEST OF THE SIMULTANEOUS VS.




Currently, over 200 Massachusetts police departments follow thesepractices.260 Other courts should adopt the same practices to ensure thatpolice are not using suggestive procedures that taint the reliability of an

identification.261

Unfortunately, there are still no consistent or uniformstandards governing identification procedures across states or even policedepartments.262 However, social science research and real-world experiencehave shown that such reforms work.263 There is no longer reason to doubtthe usefulness of these police practices; it is time for law enforcementagencies nationwide to update their eyewitness identification practices toreflect the scientifically sound principles of human memory, asMassachusetts has done.264

Courts do not have to go at this alone.265 If police training commissionswould require that police higher-ups receive specialized training in thenew eyewitness identification procedures, they could ensure that everyofficer within that jurisdiction is trained in the new procedures.266 Such

training would give officers the knowledge required to make proceduraldecisions in the heat of the moment.267 However, like any comprehensiveeffort, it would be an expensive endeavor.268 Legislatures could contributeto this effort by increasing funds available for statewide police training oneyewitness identification,269 and by requiring police departments toreevaluate their eyewitness identification practices, as some have alreadydone.270 Following the procedures adopted by the SJC and recommended

SEQUENTIAL LINEUP METHODS 17 (2011), available at http://www.popcenter.org/library/

reading/PDFs/lineupmethods.pdf.260 See SJC REPORT , supra note 4, at 9.261 See generally Thompson, supra note 32, at 608 (“[R]ules adopted at a statewide level will

bring about the kind of change needed to raise the quality of identification evidence.”). 262 Press Release, Innocence Project, As More States Weigh Improving Lineups, New

Innocence Project Report Shows Extent of the Problem and Effectiveness of Reform (July 16,2009), http://www.innocenceproject.org/news-events-exonerations/press-releases/as-more-

states-weigh-improving-lineups-new-innocence-project-report-shows-extent-of-the-problem-and-effectiveness-of-reform.

263 Id. 264 See SJC REPORT , supra note 4, at 3–4; Brooks III, supra note 235.265 See Gershman, supra note 3, at 24.266 See Fisher, supra note 2, at 54.267 SJC REPORT , supra note 4, at 36.268 Id. at 49.269 See Fisher, supra note 2, at 62; Michael C. Dorf & Charles F. Sabel, A Constitution of

Democratic Experimentalism , 98 COLUM. L. REV. 267, 340 (1998).270 See, e.g. , WIS. STAT. ANN. § 175.50 (Westlaw 2015); VA. CODE ANN. § 19.2-390.02

(Westlaw 2015); see also Katherine R. Kruse, Instituting Innocence Reform: Wisconsin’s New




by reformers would make eyewitness identifications more reliable.271

ii. Future Eyewitness Testimony Will Be More Reliable

The SJC’s approach to eyewitness identifications enhances theadministration of justice by replacing the dangerously unpredictabletotality test—which allows fundamentally flawed, “seriously unreliableand misleading evidence to be put before juries”272—with per se rules thatmitigate many dangers posed to defendants from eyewitnessidentifications.273 The Supreme Court’s test is outdated and misguided—

the SJC has employed a far more sensible calculus.274 If excluding reliableevidence and allowing the guilty to go free is Draconian, as the SupremeCourt suggests, then admitting unnecessarily suggestive, unreliableevidence that leads to an innocent defendant’s conviction must be equallynefarious, if not downright diabolical.275 The SJC’s new eyewitnessevidence rules work to prevent the latter from occurring.276

Under the SJC’s approach, unnecessarily suggestive identifications areper se excluded.277 In essence, “the prosecution is limited to introducing . . .only such identifications by the witness as are shown at the suppressionhearing not to be the product of the suggestive confrontation.”278 True, allidentifications have a degree of suggestion—especially showups— but notall identifications will be excluded.279 Importantly, “[r]eliable evidence ofeyewitness identification will continue to be admissible where it arisesfrom a non-suggestive out-of-court identification procedure.”280 Further,the SJC will admit an in-court identification made without a prior

Governance Experiment , 2006 WIS. L. REV. 645, 649 n.237 (2006).271 See supra Part III.A.1–3.272 Manson v. Brathwaite, 432 U.S. 98, 128 (1977) (Marshall, J., dissenting).273 Suzannah B. Gambell, The Need to Revisit the Neil v. Biggers Factors: Suppressing

Unreliable Eyewitness Identifications , 6 WYO. L. REV. 189, 214 (2006).274 See Commonwealth v. Johnson, 650 N.E.2d 1257, 1265 (Mass. 1995) (concluding that

“[o]nly a rule of per se exclusion can ensure the continued protection against the danger ofmistaken identification and wrongful convictions.”).

275 See In re Winship, 397 U.S. 358, 372 (1970) (Harlan, J., concurring) (“[I]t is far worse to

convict an innocent man than to let a guilty man go free.”); Johnson , 650 N.E.2d at 1263 (“[T]he

admission of unnecessarily suggestive identification procedures under the reliability testwould likely result in the innocent being jailed while the guilty remain free.”).

276 See , e.g. , Commonwealth v. Collins, 21 N.E.3d 528, 534–35 (Mass. 2014) (discussing thedangers of allowing suggestive identifications).

277 Commonwealth v. Walker, 953 N.E.2d 195, 204 & 205 n.13 (Mass. 2011).

278 Johnson , 650 N.E.2d at 1260 (quotation omitted).279 See Commonwealth v. Crayton, 21 N.E.3d 157, 164–67 (Mass. 2014).280 Id. at 171.




identification procedure, or one made after a less than equivocal positiveidentification when there is good reason for it.281 This means that the in-court identifications that are admitted will be more reliable.282

For instance, there would be good reason for a first-time in-courtidentification where a police officer witnesses the commission of a crimeand identifies the defendant in court; in that case, the in-court identificationsimply confirms that the defendant is actually the person who was arrestedfor the crime.283 Also, there would be good reason for a first-time in-courtshowup where the testifying eyewitness knew the defendant prior to thecommission of the crime; for instance, where a victim testifies in a caseinvolving domestic violence.284 In both circumstances, an in-court showupwould not pose a significant risk of misidentification and the jury wouldunderstand that the identification is being made only to confirm that theperson sitting in the defendant’s chair is the person whose conduct is atissue, not as a means of identification evidence.285

Similarly, the good reason standard essentially means that an in-courtshowup made after a less than equivocal positive identification will only beadmissible if it is more reliable than the witness’s prior failure to make anidentification—therefore it does not carry the same risk ofmisidentification.286 For example, in the domestic violence context, thevictim who was familiar with the assailant in the prior example might havefailed to make a positive identification prior to trial out of fear, or anunwillingness to cooperate with the police due to the nature of her or hisrelationship with the assailant.287 Thus, it is clear that requiring goodreason to admit an identification adequately addresses the dangers ofsuggestive eyewitness identification as well as the difficulty juries facewhen asked to accurately evaluate the reliability of a suggestiveidentification.288 In fact, all that is lost by imposing the good reasonstandard is the harmful evidentiary weight that unnecessarily suggestiveshowup procedures carry, and the risk that the jury will afford them moreweight than they are due.289

281 Id. at 169; Collins , 21 N.E.3d at 536.282 See Crayton , 21 N.E.3d at 171.283 See id. at 170.284 Id. 285 See id. 286 Collins , 21 N.E.3d at 536–37.

287 Id. at 537 n.16.288 See Commonwealth v. Crayton, 21 N.E.3d 157, 171 n.20 (Mass. 2014).289 Id. at 171.




Applying these new rules to old cases provides a helpful illustration.290 For example, Harry Cashin was convicted of first-degree murder in 1932and sentenced to death.291 The only witness who attempted to identify the

defendant at trial was a woman who previously stated to police and thedistrict attorney that she could not identify the defendant as the suspect;she testified during a lower court proceeding that she did not knowwhether the defendant was the suspect.292 The witness—later characterized by the appellate court as a “self-confessed perjurer”—was allowed totestify during the defendant’s trial nonetheless.293 His conviction waseventually reversed on appeal.294 This witness would not have beenallowed to testify under the good reason standard.295 Similarly, Larry Fullerwas convicted of aggravated rape in 1981 when the victim testified at trialthat she was certain Fuller was her attacker.296 However, the victim failedto identify Mr. Fuller when she was presented with a photo array includinghis picture two days after the attack, and identified Mr. Fuller with

expressed hesitation when shown another photo lineup five days after herattack.297 The second photo lineup included several photos, but the onlyone that was in both of them was Fuller’s.298 Under the SJC’s new test, therewould be no good reason—or any reason, really—to allow the victim totestify about the identification in this case.299

iii. Courts Will Avoid Wrongful Convictions

The SJC’s recent eyewitness evidence cases have been heralded as animportant stride in helping to prevent wrongful convictions caused bymisidentifications.300 The rules that come out of these cases are far moreprotective than similarly situated federal rules.301 The importance of thisdecision cannot be understated, as one of the fundamental purposes of the

290 See O’Hagan, supra note 128, at 750.291 People v. Cashin, 182 N.E. 74, 75 (N.Y. 1932).292 Id. at 75–76.293 Id. at 76.294 Id. at 77.295 See Commonwealth v. Crayton, 21 N.E.3d 157, 171 (Mass. 2014).296 A POLICY REVIEW , supra note 18, at 15.297 Id. at 14.298 Id. 299 Cf. id. (explaining that even the investigating officer recommended the investigation be

suspended because the victim was unsure of the suspect).300 Fernandez, supra note 165.301 Id.




courts is ensuring criminal defendants receive a fair trial.302 Of course, theSupreme Court reminds us, from time to time, that the operative word is fair—not perfect.303 And no one expects an error-free, perfect trial;304 nor

should they, according to the Court.305

But should a criminal defendantwalking into a courtroom, knowing that nothing can undo the pointedfinger of an eyewitness, feel confident that their trial could even beconsidered fair when the methods used to obtain the identification areunscrupulous and the rules governing its admissibility are ineffective?306 Moreover, does labeling a trial “legally fair” have any meaning if we knowthe result is not factually accurate?307 Alarmingly, recent Supreme Courtprecedent suggests that a modicum of fairness is enough.308 The Courtwaits until “evidence is so extremely unfair that its admission violatesfundamental conceptions of justice” before sounding due process alarms.309 The SJC’s approach sounds the death knell on unfair evidence sooner,which can mean the difference between incarceration and freedom for an

innocent individual sitting in the defendant’s chair.310

The Supreme Court has acknowledged that there are “rights so basic toa fair trial that their infraction can never be treated as harmless error”311 including, for example, the admission of a coerced confession,312 the rightto counsel,313 an impartial judge,314 confrontation,315 and an impartial jury.316

302 Thompson, supra note 32, at 605.303 See , e.g. , Delaware v. Van Arsdall , 475 U.S. 673, 681 (1986) (“As we have stressed on

more than one occasion, the Constitution entitles a criminal defendant to a fair trial, not aperfect one.”).

304 See United States v. Hasting, 461 U.S. 499, 508–09 (1983).305 See id. 306 Cf. Gambell, supra note 273, at 214 (criticizing the Supreme Court’s failure to adopt per

se rules of exclusion for unnecessarily suggestive identifications as violative of fundamentalfairness).

307 See generally Ken Strutin, The Age of Innocence: Actual, Legal and Presumed , LLRX.COM (May 5, 2011), http://www.llrx.com/features/ageofinnocence.htm#_ftnref7 (discussing theimplications of legal and factual innocence).

308 See Perry v. New Hampshire, 132 S. Ct. 716, 723 (2012).309 Id. (internal quotation omitted).310 See Thompson, supra note 32, at 609 (observing that the Supreme Court’s Due Process

standard “failed to provide any meaningful protection against wrongful convictions” despite

its proclaimed commitment to reliability).311 United States v. Hasting, 461 U.S. 499, 508 n.6 (1983) (internal quotation omitted).312 Payne v. Arkansas, 356 U.S. 560, 561 (1958).313 Gideon v. Wainwright, 372 U.S. 335, 342–43 (1963) (quoting Powell v. Alabama, 287 U.S.

45, 68 (1932)).314 Tumey v. Ohio, 273 U.S. 510, 535 (1927).




The failure to exclude a procedurally suggestive identification should givereviewing courts the same pause as evidence wrongfully procured in theform of a coerced confession,317 which “ judicial experience shows to be

illusory and deceptive evidence . . . [and] a false foundation for anyconviction;”318 or would a criminal defendant asked to defend himselfwithout the aid of counsel because, “though he be not guilty, he faces thedanger of conviction because he does not know how to establish hisinnocence.”319

In a truly just society, no innocent person would spend time behind bars for a crime they did not commit.320 This notion was not lost on ourfounders.321 In 1770, John Adams explained to a jury that “[i]t is moreimportant that innocence be protected than it is that guilt be punished . . . ifinnocence itself is brought to the bar and condemned, perhaps to die, thenthe citizen will say, ‘whether I do good or whether I do evil is immaterial,for innocence itself is no protection,’ . . . that would be the end of security

whatsoever.”322

In 1785, in a letter on unjust laws, Benjamin Franklinreferred to the long and generally approved maxim that “it is better 100guilty Persons should escape than that one innocent person shouldsuffer.”323 Though protections for the innocent were once firmly embeddedin our system of rights,324 the idea seems to have somehow slipped out of

315 Pointer v. Texas, 380 U.S. 400, 404 (1965).316 Parker v. Gladden, 385 U.S. 363, 364 (1966).317 See Gambell, supra note 272, at 214.318 Payne v. Arkansas, 356 U.S. 560, 568 n.15 (1958) (quoting Stein v. New York, 346 U.S.

156, 191–92 (1952)).319 Gideon v. Wainwright, 372 U.S. 335, 345 (1963) (internal quotation and citation omitted).320

See Laura H. Nirider et al., Combating Contamination in Confession Cases , 79 U. CHI. L. REV. 837, 840 (reviewing GARRETT , supra note 17) (describing wrongful conviction as “justice

gone terribly wrong”). 321 See The Trial of William Wemms, James Hartegan, William M'Cauley, Hugh White, Matthew

Killroy, William Warren, John Carrol, and Hugh Montgomery, Soldiers in His Majesty's 29th

Regiment of Foot, for the Murder of Crispus Attucks, Samuel Gray, Samuel Maverick, James Caldwell,

and Patrick Carr, on Monday-Evening, the 5th of March, 1770 at 149, LIBRARY OF CONGRESS (April1, 2008), available at https://ia802205.us.archive.org/33/items/trialofwilliamwe00wemm/

trialofwilliamwe00wemm_bw.pdf (describing the protection of innocence).322 Id. 323 See Letter from Benjamin Franklin to Benjamin Vaughan (Mar. 14, 1785), in 9 ALBERT

HENRY SMYTH , THE WRITINGS OF BENJAMIN FRANKLIN , 1783–1788 at 293 (London 1906).324 See Universal Declaration of Human Rights, G.A. Res. 217 (III) A, U.N. Doc.

A/RES/217(III) art. 2, § 1 (Dec. 10, 1948) (including the presumption that everyone charged

with a criminal offense is presumed innocent until proven guilty); International Covenant onCivil and Political Rights, G.A. Res. 2200A (XXI), 21 U.N. GAOR, Supp. No. 16, U.N. Doc.A/6316, 999 U.N.T.S. 171 at 54, art. 14, § 2 (Dec. 16, 1966) (same).






Courts should follow Massachusetts’ approach because creatingstronger procedural safeguards for criminal defendants facing eyewitnesstestimony will “decrease the number of wrongful identifications and

should help to ensure that reliable eyewitness evidence is given the weightit deserves in legal proceedings.”336 Indeed, no rational counterargumentexists, because convictions in and of themselves do not further society’slaw enforcement goals if they are not accurate.337 Therefore, the criminal justice system does not risk “los[ing] any relevant, reliable, or otherwisedefensible information concerning guilt by the adoption of suchchanges.”338 Post hoc rationalization is similarly unavailing—even anattempt to fall back on the “it’s an imperfect system” argument339 fails because there is not, nor could there ever be, an empirically justifiablenumber of wrongful convictions.340 Justice Scalia nodded approvingly toknown wrongful conviction rate of .027 percent because, put differently,this number represents “a success rate of 99.973 percent.”341 The calculation

has since been debunked as “ludicrous,”342

but even if it were factuallyaccurate, should we be comforted by those numbers?343 The answer to thisquestion depends on whether society should judge the criminal justicesystem on its wins, or its losses.344 The system is supposed to functioneffectively—the person who committed the crime is supposed to pay thepenalty.345 So judging the system by its “wins” is a pointless endeavor.346 Amore informative approach would be to judge the system by its losses, andthen to ask what measures courts can take to prevent future errors.347

In light of the irrefutable scientific proof that suggestive police

to be embraced.”). 336 GUIDE FOR LAW ENFORCEMENT , supra note 121, at 2.337 Thompson, supra note 32.338 Risinger, supra note 335, at 798.339 See supra note 305 and accompanying text.340 See GARRETT , supra note 17, at 262–63. 341 Kansas v. Marsh, 548 U.S. 163, 198 (2006) (Scalia, J., concurring) (quoting Joshua

Marquis, Op-Ed., The Innocent and the Shammed , N.Y. TIMES , Jan. 26, 2006, at A23).342 Risinger, supra note 335, at 771 n.17.343 See GARRETT , supra note 17, at 263. 344 Cf. id. (posing the following hypothetical: a patron reports to his waiter that he found a

large bug in his soup and the waiter responds with a reassuring “Don’t worry, it will not

happen again too often. There have only been a few hundred reported cases of bugs in soup . .. with millions of bowls of soup served every year, we have an unparalleled sanitary souprate.” The waiter continues: “Because we found the bug in your soup, the system worked.”).

345 See supra note 202 and accompanying text.346 See GARRETT , supra note 17 at 262. 347 See id. at 264–65.




procedures lead to unreliable identifications, no identification worthy ofthe name can be based on these defective procedures.348 Permitting theinnocent to be adjudged guilty on defective proof means, in many cases,

the determination of guilt is based on nothing more than luck, or lackthereof.349 However, “ by better protecting the innocent from wrongfulconviction, we spare people the devastating ordeal of unjust incarcerationthat tears apart the families of innocent people and deprives them of theirmost fundamental liberties.”350 That alone should be enough; after all, thewrongfully convicted are real people whose lives are upended andoftentimes destroyed.351 Just ask Larry Fuller, who served more thaneighteen years in prison after he was erroneously identified,352 or HarryCashin, who was sentenced to death and served two years before hisconviction was reversed.353 The stakes are far too high to gamble onoutdated rules.354 Therefore, it is incumbent that every state, and every keyparticipant within the criminal justice system, employ every available tool

to prevent mistaken eyewitness identifications.355

CONCLUSION

Eyewitness identifications can lead to wrongful convictions. The rulesgoverning eyewitness identification testimony at the law enforcement and judicial levels are outdated—a fact borne out by hundreds of known DNAexonerations. It is now clear that by using less suggestive lineupprocedures, law enforcement officials can prevent witnessmisidentifications. It is equally clear that courts play an essential role inregulating police procedures and creating eyewitness identification rulesthat ensure the risk of wrongful conviction arising from mistakenidentification is diminished.

Massachusetts has taken an enlightened approached to eyewitness

348 See A POLICY REVIEW , supra note 18, at 20–23.349 See Wells et al., supra note 92, at 268 (postulating that identifications made during

certain lineup procedures are lucky guesses).350 A POLICY REVIEW , supra note 18, at 9.351 See generally Leslie Scott, “It Never, Ever Ends”: The Psychological Impact of Wrongful

Conviction , 5 AM. U. CRIM. L. BRIEF. 10 (2010) (describing the challenges facing exonerees before, during, and after their imprisonment).

352 A POLICY REVIEW , supra note 18, at 14.353 Hans Sherrer, Wrongly Convicted Database Record: Harry F. Cashin ,

http://forejustice.org/db/Cashin--Harry-F.html (last visited Jan. 8, 2016).

354 Commonwealth v. Johnson, 650 N.E.2d 1257, 1261 (Mass. 1995) (quoting Wright v.United States, 404 F.2d 1256, 1262 (D.C. Cir. 1968) (Bazelon, J., dissenting)).

355 See Gershman, supra note 3, at 29.




evidence, informed both by scientific study and the lessons of hundreds ofwrongful convictions. The new rules will make eyewitness identificationsless suggestive, more reliable, and ultimately more accurate, which will

decrease the risk of future wrongful convictions. The time has come forother states to follow Massachusetts’ lead and take affirmative stepstoward reshaping the landscape of eyewitness identification law.

Documents

Conway: A New Era of Eyewitness Identification Law