Professional Documents
Culture Documents
Conway: A New Era of Eyewitness Identification Law
Conway: A New Era of Eyewitness Identification Law
NOTE
A New Era of Eyewitness Identification
Law: Putting Eyewitness Testimony on
Trial
SARA CONWAY+
ABSTRACT
Erroneous eyewitness identifications are the leading cause of wrongful
convictions. This has gone far past mere conjecture, it is now a fact born
out by more than 250 cases of DNA exonerations. And this is just the tip of
the iceberg. The Supreme Courts due process test is outdated and
ineffective, and the Court has shown a decided reluctance to reevaluate its
methodology. Volumes of literature on the fallibility of human memory
and perception have amassed over the last thirty years, proving that
memory is a selective process which can be altered by outside influences.
This new science requires a change in the way that courts treat eyewitness
testimony, and Massachusetts has pioneered the reform effort. The time
has come for states to take stock of the new scientific consensus available to
them. States need to follow Massachusetts lead and reconsider outdated
eyewitness identification procedures and adopt procedures that reflect the
teachings of modern science of memory and perception because, when the
stakes 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 continued
support; and all of the Editors and Associates who have worked diligently to improve the
substance and quality of this paper.
+ New
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INTRODUCTION
The trial which might determine the accuseds fate may well not be that
in the courtroom but that at the pretrial confrontation, with the State
aligned against the accused, the witness the sole jury, and the accused
unprotected against the overreaching, intentional or unintentional, and
with little or no effective appeal from the judgment there rendered by the
witnessthats the man.1
4 See SUPREME JUDICIAL COURT STUDY GROUP ON EYEWITNESS EVIDENCE, REPORT AND
RECOMMENDATIONS TO THE JUSTICES 73 (2013) [hereinafter SJC REPORT].
5
Id.
See id.
7 See id. at 1.
8 See id. at 1517.
9 See Brief for the Innocence Project, Inc. as Amicus Curiae at 3, Commonwealth v.
6
2015
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Background
A. The Big Picture
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-ofreforming-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 Doesnt Make it True, HARTFORD COURANT (June 11,
2006),
http://articles.courant.com/2006-06-11/news/0606120550_1_eyewitness-identificationdna-evidence-dna-analysis.
15
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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-finding
process. . . . Indeed, mistaken identification is believed widely to be the primary cause of
erroneous convictions.).
17 BRANDON L. GARRETT, CONVICTING THE INNOCENT: WHERE CRIMINAL PROSECUTIONS GO
WRONG 48 (2011) [hereinafter GARRETT].
18
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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
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34
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Right to Counsel
42
44
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Limitations
50
Id. at 107.
Id. at 9899.
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)).
51
56 See GIANNELLI ET AL., supra note 22, at 5 (citing United States v. Ash, 413 U.S. 300, 321
(1973)).
57
See id.
See Perry v. New Hampshire, 132 S. Ct. 716, 720 (2012).
59 Id. at 721.
58
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89
such instances, the Court tests reliability through the rights and
opportunities generally designed for that purpose, namely, the presence
of counsel, cross-examination, the rules of evidence, and jury instructions. 60
Further, the Courts due process analysis itself is riddled with issues. 61
Under the Courts two-part test, if a court finds that the police procedure
involved in an identification was not suggestive, the analysis stops. 62 The
Court does not go on to assess whether the identification is otherwise
unreliable.63 Yet we now know that a number of factors unrelated to police
conduct can skew the reliability of an identification.64 Worse, under the
second prong of the Courts test, an identification procedure that is found
to be unnecessarily suggestive may still be admissible if a court finds it
reliable.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 one
of the test contaminates prong two.67 Nonetheless, the Perry Court declined
to update the Manson factors despite having mountains of scientific data
documenting the fallibility of eyewitness evidence at its disposal. 68 The
Court was decidedly unwilling to implement per se rules or judicial
screening measures that would make unreliable identifications
inadmissible because the jury, not the judge, traditionally determines the
reliability of evidence.69
Courts have continued to use this test to evaluate suggestiveness and
reliability without regard to the well-developed body of scientific data
proving 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.
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. INTL & 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,
59394 (Wis. 2005) (ruling that out-of-court showups are unnecessarily suggestive and are
inadmissible unless the procedure was necessary).
61
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Out-of-Court Identifications
In-Court Identifications
In Commonwealth v. Crayton, the SJC examined the suggestiveness of incourt identifications and established a new standard for the admission of
such identifications based on common-law principles of fairness, again in
contrast to prevailing federal case law. 79 The new standard dictates that
where an eyewitness has not participated before trial in an identification
procedure, the court will treat the in-court identification as an in-court
showup, and will admit it only where there is good reason for its
72
74
79
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80
Id. at 169.
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 90607 (emphasis in original).
85 See id. at 907.
86 22 N.E.3d 155, 156 (2015).
87 Id.
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Id. at 160.
Watkins v. Sowders, 449 U.S. 341, 352 (1981) (quoting ELIZABETH F. LOFTUS, EYEWITNESS
TESTIMONY 19 (1979)).
89
90
93
default/files/usao/legacy/2011/09/01/10statrpt.pdf.
97 Id.
98 Id.
99 Duke, supra note 14.
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dissertation that may help bring the horrifying potential of these figures to
light.100 Rattner analyzed 205 cases of wrongful conviction that occurred
over 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 The
eyewitnesses misidentified the defendants in fifty-two percent of the 205
cases.102 Based on a survey of 188 judges, prosecuting attorneys, public
defenders, sheriffs and police chiefs, and forty-one state attorneys general,
Rattner and others later estimated that 0.5% of individuals convicted of the
aforementioned crimesknown to the FBI as index crimeswere
innocent.103 The authors discovered that even if the criminal justice system
were 99.5% accurate, there would still be nearly 10,000 wrongful
convictions each year for index crimes alone.104 Stated differently, 10,000
people would go to jail for someone elses 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 ascertain
truth.106 Allowing 190 innocent people to be convicted because of a
mistaken identification is, by all accounts, the result of a systemic failure to
safeguard the rights of criminal defendants.107 A justice system that permits
such 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/
107
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2016). A trial by ordeal is an ancient judicial practice whereby the accused were subjected to
painful and dangerous tests involving hot iron or boiling water to determine guilt or
innocence in criminal cases. Id. The ordeal was based on the assumption that God would
exercise his power in favor of the innocent; therefore if they survived the ordeal they were
adjudged 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 preliminary
way by the police. This is a kangaroo court procedure . . . . ).
110
LOSS
&
THE
BRAIN
(2003),
112
-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
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118
122
124
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127
129
135
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2.
147
154
See State v. Henderson, 27 A.3d 872, 901 (N.J. 2011); A POLICY REVIEW, supra note 18 at 3.
A POLICY REVIEW, supra note 18, at 3.
156 Id.
155
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ANALYSIS
III. Massachusetts Got it Right
Massachusetts approach to eyewitness identifications is superior to
the Supreme Courts because it addresses reliability at both the front
endits collection by law enforcementas well as the back endwhen
and how it is used in courts.163 Instead of ignoring it, the SJC and the
members of its study group delved unhesitatingly into the new science on
human memory, and took account of its implications for the criminal
justice system by adjusting its practices to meet new and developing
standards.164 The SJCs approach is a long-overdue change in eyewitness
identification law.165 It will not change the variables affecting human
157
160
164
165
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cracks.174 Therefore, the Supreme Courts test is not just inaccurateit has
become misleading[ly] incomplete in light of scientific developments
upon which the Court remains thunderously silent. 175 Massachusetts
approach makes up for the Supreme Courts historic misunderstanding of
modern science.176
The SJCs approach explicitly takes account of estimator variables by
instructing the jury that memory can be affected by a variety of factors.177
The SJCs instructions tell the jury to consider, inter alia: the degree of
attention the witness paid the offender; the distance between the witness
and the offender; lighting conditions; length of time the witness had to
view the offender; the witnesss stress level; whether a disguise was
involved or the offenders face was obstructed; whether a weapon was
involved; whether the witness knew the offender; and whether the witness
and offender are of different races. 178 These factors are an important, if not
essential, component for the jury to consider because estimator variables
directly impact witness memory and encourage faulty identifications.179
Further, the Supreme Courts rationale for remaining faithful to its
defective 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 justice
systems control that would indisputably provide a check on police
behavior.180 The SJCs approach is far superior because it targets these
system variables head-on and accounts for the influence of these
suggestive procedures on reliability.181 By directly addressing both types of
variables known to affect identification accuracy, the SJCs approach is far
more likely to catch a mistaken identification before it takes its devastating
toll.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 91921.
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 suggestive
police practices as an utter failure).
181
See, e.g., Commonwealth v. Walker, 953 N.E.2d 195, 208 (Mass. 2011) (mandating at least
five fillers per suspect in a simultaneous or photographic array).
182 Gershman, supra note 3, at 24 (urging courts to develop improved approaches to
eyewitness identifications to ensure the accuracy of eyewitness testimony and reduce the
incidence of courtroom misidentifications).
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The stark reality is that while the Supreme Court purported to have
designed a test that influences police behavior, its approach barely
mitigates the damage that police misconduct can cause.183 The
Massachusetts approach, in contrast, prevents police misconduct from
occurring in the first place by utilizing per se rules.184 The Massachusetts
approach implements proper procedures and guidelines for police to
follow in conducting lineups, showups, and photo arrays; 185 and excludes
unnecessarily suggestive identifications per se.186 This approach provides
incentive for the police to discontinue suggestive procedures where
alternative procedures are available.187 As one scholar put it: [a]n ounce of
prevention in terms of proper procedures that prevent false positives is
worth a pound of cure.188
The Supreme Courts approach lacks this preventative function.189 The
Court has repeatedly refused to adopt per se rules regarding eyewitness
testimony,190 discounting such rules as inflexible rules of exclusion that
may frustrate rather than promote justice.191 The Court takes issue with
per se rules because it sees such an approach as go[ing] too far since its
application automatically and peremptorily, and without consideration of
alleviating factors, keeps evidence from the jury that is reliable and
183
185
191
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relevant.192 And, because the per se approach denies the trier reliable
evidence, it may result, on occasion, in the guilty going freewhich
would be, in a word, Draconian.193 Therefore, the Court prefers that the
jury assess the reliability of an identification considering the totality of the
circumstances.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 of
the circumstances approach does not go far enough.195 By treating
challenges to eyewitness evidence as questions of credibility for the jury to
address, rather than examining such challenges as questions of
admissibility for the judge, the Court essentially weighs the scale in favor
of the prosecution196 because juries are susceptible to accepting eyewitness
evidence at face value.197 The SJC directly addresses the danger of
eyewitness identification, in following the research cited by scientific
studies, by creating rules that govern its admissibility before it gets to the
jury.198 Thus, the message comes straight from the horses mouth: [o]nly a
rule of per se exclusion can ensure the continued protection against the
danger of mistaken identification and wrongful convictions arising from
suggestive identification procedures.199
3.
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.
Id. at 11213.
194 See Davis & Loftus, supra note 22, at 777.
195 See Walsh, supra note 70, at 1444 (arguing that the Supreme Courts approach does not
adequately ensure defendants access to fundamentally fair proceedings and that state courts
should adopt more robust measures that would prevent misidentifications from appearing in
court.).
193
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, 16465 (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. DEPT OF THE TRIAL CT. 2013), available at
http://www.mass.gov/courts/docs/courts-and-judges/courts/district-court/jury-instructionscriminal/1120-preliminary-instruction-to-jury-before-trial.pdf
[hereinafter
PRELIMINARY
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juries to deliver a verdicta task, which stripped down to its Latin roots
means to speak the truth.202 Jurors are instructed that if they try the case
according to the evidence presented, they will arrive at a true and just
verdictas if there is a talismanic algorithm juries can follow to guarantee
such a result.203 Yet, as we are so often reminded, a true and just result is
far from guaranteed.204 Still, we assure juries of their ability to find the
truth205 and send them to the jury roomthe proverbial black box
where they deliberate in private and return to the courtroom to give their
verdict without reasons for it.206 The sheer magnitude of this task obligates
the criminal justice system to realistically assess what the jury is actually
capable 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 done
the moment the jury hears the witness say thats the man;208 even the
most 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 the
Massachusetts approach, an unnecessarily suggestive identification will
never get to the jury.211 However, for those identifications that do make
their way to the jury, the SJC has developed a set of instructions that will
educate jurors on the factors affecting identification accuracy. 212 In doing
so, 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 the
concept of the gods of guilt, see MICHAEL CONNELLY, THE GODS OF GUILT (2013).
202
203
Commonwealth v. Rodriguez, 383 N.E.2d 851, 857 (Mass. App. Ct. 1978).
See PRELIMINARY INSTRUCTION TO JURY BEFORE TRIAL: INSTRUCTION 1.120, supra note 201,
at 9.
204
206
211
212
See Commonwealth v. Walker, 953 N.E.2d 195, 205 n.13 (Mass. 2011).
See Thompson, supra note 32, at 620.
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The Power
213
See id. (criticizing the Supreme Courts failure to do the same as misguided).
See O'Hagan, supra note 128, at 748.
215 Commonwealth v. Gomes, 22 N.E.3d 897, 91116 (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, 902
A.2d 888 (N.J. 2006); State v. Henderson, 27 A.3d 872 (N.J. 2011); People v. Adams, 423 N.E.2d
379 (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 (Utah
1986); State v. Ramirez, 817 P.2d 774 (Utah 1991); State v. Dubose, 699 N.W.2d 582 (Wis. 2005).
214
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 38384; Ramirez, 817 P.2d at 780; Dubose, 699 N.W. 2d at 59495.
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the admissibility of evidence are within the province of state courts. 218 As
the Supreme Court recognized, evidentiary rules that empower states to
exclude relevant evidence because of its prejudicial effect or tendency to
mislead the jury are important protections against unreliable eyewitness
identifications.219 In fact, eyewitness identifications made under suggestive
circumstances embody the very evil such rules are designed to prevent. 220
As Justice Marshall observed in his vigorous dissent in Manson: States are
empoweredand indeed, encouragedto create their own eyewitness
identification rules to thwart the hazardous effect of the Courts inadequate
standards.221 Justice Brennan, who joined Justice Marshalls Manson dissent,
said it best in a celebrated article on individual rights under state
constitutions: State courts cannot rest when they have afforded their
citizens the full protections of the federal Constitution because without
the protective force of state law the full realization of our liberties cannot
be guaranteed.222
Massachusetts approach intercepts suggestive, unreliable eyewitness
evidence by excluding it per seand, in the case of in-court identifications,
unless the prosecutor can show good cause for its admissionrather than
admitting it based on subjective notions of reliability. 223 Courts in other
jurisdictions should consider playing a similarly active role concerning the
admission of eyewitness testimony. 224 Given the substantial proof that
eyewitness 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 eyewitness
testimony under the state evidentiary code).
219 Perry v. New Hampshire, 132 S. Ct. 716, 720 (2012). Several state appellate courts have
taken 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, 20405 (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 particular
case, apart from any question of constitutional law).
221 See Manson v. Brathwaite, 432 U.S. 98, 12829 (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 police
activity 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 eyewitnesss
testimony).
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should not sit idle and allow the reform effort to fragment or remain
limited by the Supreme Courts outdated precedent.225 It is imperative that
state courts interpret their own constitutions to ensure such protections in
light of the Supreme Courts reluctance to update eyewitness identification
jurisprudence to align with modern scientific understanding. 226 By
adopting the Massachusetts approach, other courts would take a giant
step forward in preventing the primary evil that the Supreme Court
initially wanted to avoid.227 This would, in turn, give states the final say
on eyewitness identification law because the Supreme Court would be
precluded from reviewing their decisions.228 Therefore, where the Supreme
Court has proven its reluctance to adequately safeguard the rights of the
accused, states should step in to develop more expansive constitutional
protections.229 In other words, the buck should stop with the states.230
2.
The Reasons
i.
225 Brief of the Conn. Criminal Def. Lawyers Assn and Conn. Psychology Assn, supra note
172, at 20.
226
See Walsh, supra note 70, at 1417 (calling on state courts to adopt the New Jersey
Supreme Courts 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 are
utterly without jurisdiction to review such state decisions.).
229
See id. at 503 (With federal scrutiny diminished, state courts must respond by
increasing 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
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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
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might feel to choose a suspect from a lineup when the culprit is not
actually present.248 The Study Group suggests that officers should avoid
showups if possible.249 If the officer must conduct a showup, it should take
place within two hours after the witnesss observation of the suspect
because the benefits of fresh memory seem to balance the risks of undue
suggestion, therefore reducing the risk of misidentification. 250 Further, the
officer should not conduct a showup if the suspect is seated in the rear of a
police cruiser, a cell, or any custody-related enclosure.251 The officers
should also prevent the witness from hearing any conversations between
law enforcement or other witnesses pertaining to the suspect or
investigation.252
Regarding photographic displays and line-ups, the SJC recommends
that each array contain at least five fillerswhich must fit the general
description of the offenderand only one suspect who does not stand out
from 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 not
identified based on the composition of the lineup by reducing the chance
that a witness will make a relative judgment.254 This effectively reduces the
chance that a witness will identify an innocent suspect simply because the
suspect is the only lineup member that resembles the perpetrator.255 As
one state Supreme Court observed: [p]roperly constructed lineups test a
witness memory and decrease the chance that a witness is simply
guessing.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 enforcement
officials from giving inadvertent clues about the identity of the suspect to
the eyewitness during a lineup procedure258 because it takes the lineup
administrators behaviors out of the game.259
248
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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 of
mistaken 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 test
would likely result in the innocent being jailed while the guilty remain free.).
276 See, e.g., Commonwealth v. Collins, 21 N.E.3d 528, 53435 (Mass. 2014) (discussing the
dangers of allowing suggestive identifications).
277
Commonwealth v. Walker, 953 N.E.2d 195, 204 & 205 n.13 (Mass. 2011).
Johnson, 650 N.E.2d at 1260 (quotation omitted).
279 See Commonwealth v. Crayton, 21 N.E.3d 157, 16467 (Mass. 2014).
280 Id. at 171.
278
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Applying these new rules to old cases provides a helpful illustration. 290
For example, Harry Cashin was convicted of first-degree murder in 1932
and sentenced to death. 291 The only witness who attempted to identify the
defendant at trial was a woman who previously stated to police and the
district attorney that she could not identify the defendant as the suspect;
she testified during a lower court proceeding that she did not know
whether the defendant was the suspect.292 The witnesslater characterized
by the appellate court as a self-confessed perjurerwas allowed to
testify during the defendants trial nonetheless.293 His conviction was
eventually reversed on appeal.294 This witness would not have been
allowed to testify under the good reason standard. 295 Similarly, Larry Fuller
was convicted of aggravated rape in 1981 when the victim testified at trial
that she was certain Fuller was her attacker. 296 However, the victim failed
to identify Mr. Fuller when she was presented with a photo array including
his picture two days after the attack, and identified Mr. Fuller with
expressed hesitation when shown another photo lineup five days after her
attack.297 The second photo lineup included several photos, but the only
one that was in both of them was Fullers.298 Under the SJCs new test, there
would be no good reasonor any reason, reallyto allow the victim to
testify about the identification in this case.299
iii. Courts Will Avoid Wrongful Convictions
The SJCs recent eyewitness evidence cases have been heralded as an
important stride in helping to prevent wrongful convictions caused by
misidentifications.300 The rules that come out of these cases are far more
protective than similarly situated federal rules.301 The importance of this
decision cannot be understated, as one of the fundamental purposes of the
290
300
301
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302
304
308
311
United States v. Hasting, 461 U.S. 499, 508 n.6 (1983) (internal quotation omitted).
Payne v. Arkansas, 356 U.S. 560, 561 (1958).
313 Gideon v. Wainwright, 372 U.S. 335, 34243 (1963) (quoting Powell v. Alabama, 287 U.S.
45, 68 (1932)).
312
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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 (April
1, 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, 17831788 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 on
Civil 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).
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See Kentucky v. Whorton, 441 U.S. 786, 789 (1979) (holding that an instruction on the
presumption of innocence is not required and failure to deliver the instruction, even when
requested, does not constitute reversible error); Kenneth Pennington, Innocent Until Proven
Guilty: The Origins of a Legal Maxim, 63 JURIST: STUD. CHURCH L. & MINISTRY 106, 106 (2003)
(explaining that the maxim innocent until proven guilty cannot be found anywhere in the
Magna Carta, the English Bill of Rights of 1689, the Declaration of Independence, or the
Constitution of the United States).
326 See Pennington, supra note 325, at 107.
327 See id.
328 Cf. id. (arguing that more than one witness is needed to condemn a criminal defendant
because nothing is certain when one party affirms and the other denies).
329
333
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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 26263.
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
345
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CONCLUSION
Eyewitness identifications can lead to wrongful convictions. The rules
governing eyewitness identification testimony at the law enforcement and
judicial levels are outdateda fact borne out by hundreds of known DNA
exonerations. It is now clear that by using less suggestive lineup
procedures,
law
enforcement
officials
can
prevent
witness
misidentifications. It is equally clear that courts play an essential role in
regulating police procedures and creating eyewitness identification rules
that ensure the risk of wrongful conviction arising from mistaken
identification is diminished.
Massachusetts has taken an enlightened approached to eyewitness
348
350
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)).
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