Where science conflicts with common sense: Eyewitness identification reform in massachusetts.

• Author: Gants, Ralph D.

1. INTRODUCTION

   Consider an eyewitness who testifies: "I could never forget the man who pointed the gun at me. It was him, sitting right in front of me. I am one hundred percent certain." Common sense would strongly credit the testimony--the victim observed the assailant during a traumatic, seemingly unforgettable event and expressed no doubt about that person's identity. However, decades of scientific research on memory and perception recommend greater caution because the factors affecting the accuracy of an eyewitness identification are often unfamiliar to jurors and are counterintuitive. (1) For instance, high stress and the visible presence of a weapon during the commission of the crime may decrease the likelihood of an accurate identification. (2) If the witness is of a different race than the person identified, the risk of error increases. (3) A witness's confidence in an eyewitness identification also is less correlated with accuracy than most would expect. (4) And had the identification first taken place in the courtroom during trial, the highly suggestive courtroom environment would further impair the reliability of the identification. (5)

   The Supreme Judicial Court of Massachusetts has long recognized the fallibility of eyewitness identification evidence as "the primary cause of erroneous convictions," and has relied upon research demonstrating its infirmities. (6) Yet, until recently, Massachusetts judges generally did not instruct the jury to consider a variety of factors recognized in scientific research that affects the accuracy of eyewitness identifications. (7) In addition, first-time incourt eyewitness identifications were not subjected to the same level of scrutiny as their out-of-court counterparts: single-person showups.

   In 2011, acknowledging eyewitness identification evidence as "the greatest source of wrongful convictions but also an invaluable law enforcement tool in obtaining accurate convictions," the court convened the Supreme Judicial Court Study Group on Eyewitness Identification ("Study Group"). (8) The purpose of the Study Group was to "consider how [Massachusetts] can best deter unnecessarily suggestive procedures and whether existing model jury instructions provide adequate guidance to juries in evaluating eyewitness testimony." (9) The Study Group was comprised of law school professors and attorneys, as well as representatives from the four Massachusetts trial court departments with criminal or juvenile jurisdiction, the Attorney General's office, a District Attorney's office, the public defender's office (also known as the "Committee for Public Counsel Services"), the Office of Inspector General, and the Massachusetts Chiefs of Police Association ("Chiefs of Police"). (10) In 2013, the Study Group published a 162-page comprehensive review of the state of scientific research on eyewitness identification evidence and its recommendations on best practices for police departments, enhanced jury instructions, pretrial hearings, and continued education for judges and practitioners ("Study Group Report"). (11) The Study Group Report provided the foundation for the Supreme Judicial Court to reexamine the admissibility and the evaluation of eyewitness identification evidence in Massachusetts.

   During my first year as Chief Justice, the court overhauled its treatment of first-time in-court positive eyewitness identifications in a pair of cases, Commonwealth v. Crayton (12) and Commonwealth v. Collins, (13) and crafted a provisional model eyewitness identification jury instruction in Commonwealth v. Gomes (14) which was subsequently revised after a public comment period. (15) Meanwhile, individual police departments in Massachusetts have adopted new police protocols for eyewitness identification procedures, and legislation is pending that would establish uniform protocols. (16) Eyewitness identification reform has progressed both inside and outside of the courts through a shared commitment to learning from reliable scientific research.

2. CRAYTONAND COLLINS: FIRST-TIME IN-COURT (POSITIVE) EYEWITNESS IDENTIFICATIONS

   Showup identifications, in which the police present a sole individual to an eyewitness rather than as part of a lineup or photographic array, are suggestive and "generally disfavored" (17) because the witness reasonably may assume that the police have identified the individual as a suspect. (18) In Massachusetts, police officers need "good reason" to conduct a showup in order for the identification to be admissible, which generally means that the showup must be conducted within a few hours of the eyewitness's observation of the alleged offender. (19) Yet, first-time in-court identifications, where the eyewitness identifies the defendant sitting at counsel's table, have been admitted as a matter of course. (20) In Commonwealth v. Crayton, the court addressed the inconsistent treatment of these two similar procedures, and recognized that first-time in-court identifications are essentially showups that are conducted inside the courtroom long after the alleged crime. (21) The court further developed its approach to in-court identifications in Commonwealth v. Collins, where an in-court identification followed a non-suggestive out-of-court identification in which the witness made "something less than an unequivocal positive identification." (22) In Collins, the eyewitness viewed a photographic array but did not positively identify the defendant; she stated that she could not decide between two photographs, one of which depicted the defendant. (23)

   Several federal and state courts have confronted first-time in-court identifications but few have found them to be impermissibly suggestive. (24) In Crayton, the court examined three differences between an in-court identification and a showup that arguably could justify treating first-time in-court identifications as more reliable than out-of-court showups: (1) the identification procedure takes place in front of the judge and the jury; (2) the eyewitness is subject to immediate cross-examination; and (3) the defendant can request a less suggestive procedure, such as an in-court lineup. (25) None of these differences, though, persuaded the court that first-time in-court identifications are more reliable than out-of-court showups.

   First, the court recognized the critical distinction between assessing confidence versus assessing accuracy. The opportunity for the jury to view the identification procedure in court may improve the jury's ability to assess how confident the witness is, perhaps by evaluating the witness's "facial expression, voice inflection, and body language." (26) However, "[s]ocial science research has shown that a witness's level of confidence in an identification is not a reliable predictor of the accuracy of the identification...." (27) This is especially true "where the level of confidence is inflated by its suggestiveness." (28) There are few identification procedures more suggestive than asking a witness whether the offender is in the courtroom, when the witness knows that the person sitting at defense counsel's table is the person charged with the crime. Consequently, an in-court identification can generally inflate a witness's confidence in the identification, making it more difficult for the jury to assess the accuracy of the identification.

   Second, the court was not convinced that, given the "unusually powerful" effect that the confidence of an eyewitness can have on the jury, the immediacy of cross-examination could nullify the suggestiveness. (29) A showup identification conducted on the eve of trial outside the courtroom, long after the alleged crime occurred, would not be admissible if defense counsel attended the identification procedure and cross-examined the witness. (30) Why should a court admit such an identification conducted inside the courtroom? The immediacy might even decrease the effectiveness of cross-examination because "defense counsel [would have] little opportunity to prepare... [,]" (31) thus not nullifying the suggestiveness.

   Third, the court rejected the premise that the defendant should bear the burden of seeking a less suggestive in-court identification procedure...