Commonwealth v. Gomes , 470 Mass. 352 ( 2015 )

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SJC-11537
COMMONWEALTH vs. JEREMY D. GOMES.
Berkshire. September 2, 2014. - January 12, 2015.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ.
Identification. Evidence, Identification. Practice, Criminal,
Request for jury instructions, Instructions to jury.
Indictments found and returned in the Superior Court
Department on October 24, 2011.
The cases were tried before by John A. Agostini, J.
The Supreme Judicial Court granted an application for
direct appellate review.
John Fennel, Committee for Public Counsel Services, for the
defendant.
John Bossé, Assistant District Attorney, for the
Commonwealth.
The following submitted briefs for amici curiae:
Daniel F. Conley, District Attorney, & Cailin M. Campbell,
Assistant District Attorney, for District Attorney for the
Suffolk District.
Lisa J. Steele for Massachusetts Association of Criminal
Defense Lawyers.
David W. Ogden, Daniel S. Volchok, Francesco Valentini, &
Nathalie F.P. Gilfoyle, of the District of Columbia, & John C.
Polley for American Psychological Association & another.
2
M. Chris Fabricant & Karen Newirth, of New York, Joshua D.
Rogaczewski & Johnny H. Walker, of the District of Columbia, &
Kevin M. Bolan for the Innocence Network.
GANTS, C.J. In the early morning of September 10, 2011,
the defendant slashed the face of the victim, Zachary Sevigny,
with a box cutter while the victim was sitting in the driver's
seat of his vehicle. A Superior Court jury found the defendant
guilty of mayhem, in violation of G. L. c. 265, § 14; assault
and battery by means of a dangerous weapon, in violation of
G. L. c. 265, § 15A (b); and breaking and entering a vehicle in
the nighttime with the intent to commit a felony, in violation
of G. L. c. 266, § 16.1 On appeal, the defendant claims that the
judge erred by giving the model jury instruction regarding
eyewitness identification that we adopted in Commonwealth v.
Rodriguez, 378 Mass. 296, 310-311 (Appendix) (1979), rather than
the instruction he requested, which would have informed the jury
about various scientific principles regarding eyewitness
identification. We conclude that the judge did not err by
declining to instruct the jury about these principles where the
defendant offered no expert testimony, scholarly articles, or
treatises that established that these principles were "so
1
The judge sentenced the defendant to concurrent State
prison terms of from eight to twelve years on the mayhem
conviction, from seven to ten years on the conviction of assault
and battery by means of a dangerous weapon, and from three to
five years for breaking and entering a vehicle in the nighttime
with intent to commit a felony.
3
generally accepted that . . . a standard jury instruction
stating [those principles] would be appropriate." Commonwealth
v. Santoli, 424 Mass. 837, 845 (1997), citing Commonwealth v.
Hyatt, 419 Mass. 815, 818-819 (1995). Therefore, we affirm the
convictions of mayhem and of breaking and entering.2
However, now that we have the benefit of the Report and
Recommendations of the Supreme Judicial Court Study Group on
Eyewitness Evidence (Study Group Report),3 and the comments in
2
We vacate the defendant's conviction and sentence on the
charge of assault and battery by means of a dangerous weapon.
The defendant contends on appeal that his convictions of mayhem
and for assault and battery by means of a dangerous weapon were
based on the same conduct, the defendant's slashing of the
victim's face, and that the convictions are duplicative because
assault and battery by means of a dangerous weapon is a lesser
included offense of the theory of mayhem presented to the jury.
The Commonwealth agrees that the convictions are duplicative,
and so do we. "A crime is a lesser-included offense of another
crime if each of its elements is also an element of the other
crime." Commonwealth v. Martin, 425 Mass. 718, 722 (1997),
quoting Commonwealth v. Perry, 391 Mass. 808, 813 (1984).
"Mayhem (second theory) is essentially an assault and battery by
means of a dangerous weapon, with the additional aggravating
factors of a specific intent to maim or disfigure, and certain
forms of resultant physical injury. Therefore, the latter is a
lesser included offense of the former." Martin, supra. See
Commonwealth v. Ogden O., 448 Mass. 798, 808 (2007). "The
appropriate remedy for the imposition of duplicative convictions
is to vacate both the conviction and sentence on the lesser
included offense, and to affirm the conviction on the more
serious offense." Commonwealth v. Mello, 420 Mass. 375, 398
(1995).
3
See Supreme Judicial Court Study Group on Eyewitness
Evidence: Report and Recommendations to the Justices (July 25,
2013) (Study Group Report), available at
http://www.mass.gov/courts/docs/sjc/docs/eyewitness-evidence-
4
response to it,4 we conclude that there are scientific principles
regarding eyewitness identification that are "so generally
accepted" that it is appropriate in the future to instruct
juries regarding these principles so that they may apply the
principles in their evaluation of eyewitness identification
evidence. We include as an Appendix to this opinion a
provisional jury instruction regarding eyewitness identification
evidence, and we invite comments regarding its content and
clarity before we declare it a model instruction.5 This
provisional instruction should be given, where appropriate, in
trials that commence after issuance of this opinion until a
model instruction is issued.
Background. At approximately 1:30 A.M. on September 10,
2011, the defendant, who appeared intoxicated, walked into a
gasoline station convenience store in Pittsfield, bumped into a
customer, Lindsay Holtzman, and asked the employee who was
working the cash register, Jordan Wilson, for a box of matches.
report-2013.pdf [http://perma.cc/WY4M-YNZN] (last visited Jan.
8, 2015).
4
The comments in response to the Study Group Report can be
found at http://www.mass.gov/courts/docs/sjc/docs/eyewitness-
evidence-report-comments.pdf [http://perma.cc/UF62-STVZ] (last
visited Jan. 8, 2015).
5
We acknowledge the amicus briefs submitted by the
Innocence Network; the American Psychological Association and
the Center for Law, Brain & Behavior; the District Attorney for
the Suffolk District; and the Massachusetts Association of
Criminal Defense Lawyers.
5
Wilson asked the defendant to apologize to Holtzman. In
response, the defendant cursed and stared at Wilson, and
challenged him to a fight. Wilson laughed and gave the
defendant a box of matches. The defendant left the store, but
continued to yell at Wilson to meet him outside to fight.
When the defendant left the store, the victim and his
friend, Gerald Mortensen, were sitting in the victim's
automobile, parked in a well-lit portion of the store's parking
lot, approximately ten to fifteen feet from the front door of
the store. The victim was in the driver's seat with the window
down. After the victim and the defendant made eye contact, the
defendant approached the vehicle and said to the victim, "What
the fuck are you looking at, tough guy?" The victim responded,
"I'm not looking at anything." The defendant then pulled a box
cutter from his back pocket, reached inside the vehicle with his
left arm, and slashed the victim with the blade behind the
victim's ear and down his face.
Mortensen, who was sitting on the passenger's side, ran
inside the store, said that his friend had been cut, and told a
store clerk to call for help. Mortensen and Holtzman then left
the store and watched as the defendant walked backwards toward a
corner of the parking lot, still staring at the victim. The
victim was taken to a hospital where he received approximately
thirty stitches.
6
On September 15, Wilson went to the Pittsfield police
station to meet with Detective Timothy Koenig. Wilson said that
he had seen the person who injured the victim before and could
identify him. Detective Koenig created a pool of 975 archived
photographs that fit Wilson's description of the person. Wilson
used a computer, which displayed twelve photographs per page, to
look through the pool. He eventually selected the defendant's
photograph. When he made the identification, he reported that
he was "110 per cent positive."
Detective Koenig then created a simultaneous array
containing eight photographs, one of which depicted the
defendant, and presented the array that same day to Mortensen
and the victim separately.6 Mortensen stated that none of the
6
Before presenting the array to both Gerald Mortensen and
the victim, Detective Timothy Koenig read nine advisements to
the witnesses: (1) "I am going to show you a group of photos
that are in random order"; (2) "[t]he person who committed the
crime may or may not be included, so you should not feel
compelled to make an identification"; (3) "[i]t is just as
important to clear innocent people as it is to identify possible
perpetrators"; (4) "[w]hether or not you identify someone, the
police will continue to investigate"; (5) "[a]fter you are done,
I will not be able to provide you with any feedback or comments
on the results of the process"; (6) "[p]lease do not discuss
this identification procedure, or the results, with other
witnesses in this case or with the media"; (7) "[p]eople may not
appear exactly as they did at the time of the event, because
features such as clothing or head/facial hair are subject to
change"; (8) "[a]s you look at each photo, if you see someone
that you recognize, please tell me how you know the person, and
in your own words, how sure you are of the identification"; and
(9) "[i]f you identify someone, I will ask you to place your
7
photographs showed the assailant. The victim said that he did
not think the assailant "[wa]s anyone in these photos," but
added that if he had to choose somebody, it would be the man
with a chin similar to that of the assailant; that man was the
defendant. Holtzman did not view a photographic array, although
Detective Koenig attempted to reach her by telephone more than
once to do so.
On September 18, Holtzman, Mortensen, and the victim were
driving together, and stopped for gasoline at a different
service station in Pittsfield.7 Holtzman and the victim entered
the convenience store while Mortensen stayed inside the victim's
vehicle. The victim testified that he briefly left the store to
retrieve exact change from his automobile to purchase drinks and
cigarettes. When he reentered the store, he immediately saw the
defendant and recognized him as the assailant. After he put
down his change, the victim and Holtzman left the store
together, and confirmed with each other that the man in the
store was the assailant. The victim then told Mortensen that
the defendant was inside the store. When the defendant left the
store, Mortensen agreed that the defendant was the assailant and
initials and the date on a form I will give you, clearly marking
your selection."
7
Lindsay Holtzman did not know the victim or Mortensen
before the incident on September 10.
8
the victim called the police on his cellular telephone.8
As the victim spoke with the police, the defendant left the
gasoline station in someone's automobile. The victim and
Mortensen followed the defendant to an apartment complex in
Pittsfield, with the victim communicating the defendant's
location to the police as he was driving. Shortly thereafter,
the police arrived at the apartment complex and asked the victim
and Mortensen to perform a showup identification; they
identified the defendant as the assailant. After the
defendant's arrest, Detective Koenig interviewed Holtzman, who
confirmed that the person in the convenience store on September
18 had been the same person she saw at the other convenience
store on September 10.
Before trial, the defendant filed motions to suppress
Holtzman's and the victim's pretrial identification of the
defendant.9 The trial judge denied the motions. At trial, the
defendant argued that he had been mistakenly identified as the
assailant, and offered the testimony of his father, Earl
8
Holtzman's recollection of this event differed slightly
from that of the victim. She testified that she recognized the
defendant standing three or four feet behind her in the store.
She said something to the victim and may have nudged his arm to
alert him to the defendant's presence. The victim then left the
store while she waited in line and finished making her
purchases. After leaving the store, she walked over to the
vehicle as the victim was telephoning the police.
9
No motion was filed with respect to Mortensen.
9
Kirchner, who said that he lived with the defendant and that the
defendant did not leave his apartment on the evening of the
attack.
Discussion. 1. The defendant's requested eyewitness
identification instruction. The defendant requested that the
judge provide a jury instruction regarding eyewitness
identification that essentially mirrored a model instruction
that had become effective in New Jersey approximately one week
before the defendant's trial commenced.10 The proffered jury
instruction was considerably longer and more detailed than the
10
In State v. Henderson, 208 N.J. 208, 219, 228-229 (2011),
the New Jersey Supreme Court, having earlier remanded the case
to a special master who considered more than 200 published
scientific studies on human memory and eyewitness identification
during a ten-day hearing, rendered a landmark decision regarding
eyewitness identification where it concluded that "the court
system should develop enhanced jury charges on eyewitness
identification for trial judges to use." The court delegated to
its criminal practice committee and committee on model criminal
jury charges the task of drafting the revised model jury
instructions. Id. at 298-299. On July 19, 2012, the court
released the model instructions, which became effective on
September 4, 2012. See Press Release, Supreme Court Releases
Eyewitness Identification Criteria for Criminal Cases (July 19,
2012), available at
http://www.judiciary.state.nj.us/pressrel/2012/pr120719a.htm
[http://perma.cc/VQF3-SXH4] (last visited Jan. 8, 2015). The
New Jersey model instructions can be found at
http://www.judiciary.state.nj.us/criminal/charges/idinout.pdf
[http://perma.cc/4BE2-F79V] (last visited Jan. 8, 2015).
Although the defendant cited the Henderson opinion in his
request for a jury instruction, the defendant did not inform the
judge that the instruction he proffered was a model jury
instruction in New Jersey; his attorney merely told the judge
that the proffered instruction "seem[ed] to be an appropriate
instruction in New Jersey."
10
Rodriguez instruction. It would have instructed the jury on
various principles regarding eyewitness identification and human
memory, most importantly that (1) human memory does not operate
like a video recording that a person can replay to recall what
happened;11 (2) a witness's level of confidence in an
identification may not indicate its accuracy;12 (3) high levels
of stress can reduce the likelihood of making an accurate
identification;13 (4) information from other witnesses or outside
11
The defendant's proffered jury instruction provided:
"Human memory is not foolproof. Research has revealed
that human memory is not like a video recording that a
witness need only replay to remember what happened. Memory
is far more complex. . . . The process of remembering
consists of three stages: (1) acquisition -- the
perception of the original event; (2) retention -- the
period of time that passes between the event and the
eventual recollection of a piece of information; and (3)
retrieval -- the stage during which a person recalls stored
information. At each of these stages, memory can be
affected by a variety of factors." (Citation omitted.)
12
The proffered jury instruction provided:
"Although nothing may appear more convincing than a
witness's categorical identification of a perpetrator, you
must critically analyze such testimony. Such
identifications, even if made in good faith, may be
mistaken. Therefore, when analyzing such testimony, be
advised that a witness's level of confidence, standing
alone, may not be an indication of the reliability of the
identification."
13
The proffered jury instruction provided:
"Even under the best viewing conditions, high levels
of stress can reduce an eyewitness's ability to recall and
make an accurate identification."
11
sources can affect the reliability of an identification and
inflate an eyewitness's confidence in the identification;14 and
(5) viewing the same person in multiple identification
procedures may increase the risk of misidentification.15
The judge denied the request and gave an identification
instruction consistent with the Rodriguez instruction. The
judge reasoned that the principles included in the defendant's
request were more appropriate for expert testimony or for
closing argument.16 Furthermore, the judge explained:
14
The proffered jury instruction provided:
"You may consider whether the witness was exposed to
opinions, descriptions, or identifications given by other
witnesses, to photographs or newspaper accounts, or to any
other information or influence, that may have affected the
independence of his/her identification. Such information
can affect the independent nature and reliability of a
witness's identification and inflate the witness's
confidence in the identification."
15
The proffered jury instruction provided:
"When a witness views the same person in more than one
identification procedure, it can be difficult to know
whether a later identification comes from the witness's
memory of the actual, original event or of an earlier
identification procedure. As a result, if a witness views
an innocent suspect in multiple identification procedures,
the risk of mistaken identification is increased. You may
consider whether the witness viewed the suspect multiple
times during the identification process and, if so, whether
that affected the reliability of the identification."
16
Before trial, the judge allowed the defendant's motion
for funds to obtain an expert on the reliability of eyewitness
identification evidence. The judge denied the Commonwealth's
12
"[T]his [proposed instruction] adds facts in. The process
of remembering consists of three stages. That may be true.
That may not be true. I have no idea myself but there is
no information given to the jury that that is in fact
accurate. So I cannot instruct them as a matter of law
that that's what the law is."
The defendant objected to the omission of that part of his
requested instruction, which recited these five scientific
principles, so we review for prejudicial error. See
Commonwealth v. Cruz, 445 Mass. 589, 591 (2005).
The issue before us is not whether the judge had the
discretion to give the proffered instruction, but whether he
abused his discretion by refusing to do so. See Hyatt, 419
Mass. at 818-819 (no error in declining to instruct on cross-
racial identification, but giving proposed instruction "may be
appropriate in the judge's discretion"). We conclude that,
given the record before him, the judge did not abuse his
discretion in denying the defendant's proposed jury instruction.
We have long recognized that "a principle concerning
eyewitness identifications may become so generally accepted
that, rather than have expert testimony on the point, a standard
jury instruction stating that principle would be appropriate."
Santoli, 424 Mass. at 845. See Hyatt, supra ("We recognize
that, based on a trial record or on the published results of
studies, or both, some new principle concerning the process of
motion to exclude expert testimony, but the defendant never
called an expert at trial.
13
eyewitness identification may become sufficiently reliable so as
to justify formulating a jury instruction that should be given
in particular circumstances on request, in addition to those
instructions that we identified in [Rodriguez, 378 Mass. at 310-
311,] and Commonwealth v. Pressley, 390 Mass. 617, 619-620
[1983]"). The defendant here did not provide the judge with any
expert testimony, scholarly articles, or treatises that would
reasonably have enabled the judge to determine whether the
principles in the defendant's proposed instruction were "so
generally accepted" that it would be appropriate to instruct the
jury regarding them.17 Where the defendant failed to furnish
such information, and where there was an instruction approved by
this court that was not erroneous but, at worst, inadequate and
incomplete, the judge did not abuse his discretion in denying
the proffered instruction and charging the jury in accordance
with the Rodriguez instruction. See Cruz, 445 Mass. at 595 n.4,
598, 600 (no error in judge's refusal to give jury instruction
that "there is no proven relationship between a witness'[s]
confidence in his identification and the accuracy of the
witness'[s] identification" where defendant did not call expert
17
The only citations to scientific studies in the record
are located in the disclosure of the defendant's proffered
expert witness on eyewitness identification, regarding the
subject matter of his proposed testimony. The defendant made no
reference to this document in requesting his proposed jury
instruction on identification testimony.
14
witness and "there was no hearing or testimony regarding the
reliability of these scientific studies or their general
acceptance in scientific community"); Hyatt, 419 Mass. at 818
("The defendant points to no relevant empirical study that
assessed the relative reliability of cross-racial and non-cross-
racial identifications in confrontations of the sort involved
here").
Although we conclude that the judge in this case did not
abuse his discretion, and therefore affirm the defendant's
convictions of mayhem and of breaking and entering a vehicle in
the nighttime with intent to commit a felony, we take this
opportunity to revisit our jurisprudence regarding eyewitness
identification jury instructions in general and the Rodriguez
instruction in particular. In Commonwealth v. Walker, 460 Mass.
590, 604 n.16 (2011), we recognized that "eyewitness
identification is the greatest source of wrongful convictions
but also an invaluable law enforcement tool in obtaining
accurate convictions," and declared our intention to convene the
Study Group to consider, among other matters, "whether existing
model jury instructions provide adequate guidance to juries in
evaluating eyewitness testimony." We noted that our creation of
the Study Group reflected "our willingness to revisit our
jurisprudence" regarding eyewitness identification evidence.
Id. at 606. With the Study Group Report completed and the
15
comments to that report received, it is now time to do what we
declared we were willing to do with respect to eyewitness
identification jury instructions.18
2. Model jury instruction. The Rodriguez instruction
derives from the model set forth in United States v. Telfaire,
469 F.2d 552, 555 (D.C. Cir. 1972), which recognized the
"special problems" with the reliability of eyewitness
identifications and the need for an identification instruction
that "emphasizes to the jury the need for finding that the
circumstances of the identification are convincing beyond a
reasonable doubt." See Rodriguez, 378 Mass. at 302. We adopted
the Telfaire model "to assist a jury in evaluating the
reliability of a positive identification of the defendant as the
perpetrator of the crime by a witness." Commonwealth v.
Franklin, 465 Mass. 895, 910 (2013). Over time, we have
modified and supplemented it. See Commonwealth v. Cuffie, 414
Mass. 632, 640 (1993) (removing language that risked suggesting
that witness's first sighting of offender was always accurate);
Santoli, 424 Mass. at 845 (omitting language emphasizing
"strength of the identification"). See also Pressley, 390 Mass.
at 620 (establishing supplemental instruction on "possibility of
18
We thank the Study Group for its thorough review of the
research regarding eyewitness identification and its thoughtful
recommendations. We also thank those who submitted comments
regarding the Study Group Report.
16
an honest but mistaken identification"); Franklin, 465 Mass. at
912 (judge should provide, on request, identification
instruction where eyewitness gave partial identification). At
its core, though, the Rodriguez instruction delineates factors
for the jury to consider when evaluating an eyewitness
identification, such as (1) the opportunity the witness had to
observe the offender; (2) the length of time between the crime
and the identification; (3) the witness's prior familiarity with
the offender; (4) the circumstances surrounding any
identification procedure; (5) whether the identification
procedure was a lineup or photographic array rather than a
single-person showup; (7) whether the witness failed to make an
identification or made an inconsistent identification before
identifying the defendant; and (8) the credibility of the
witness.19 It focuses the jury on factors they "should consider"
19
The instruction, as set forth in Commonwealth v.
Franklin, 465 Mass. 895, 910 n.24 (2013), states:
"One of the most important issues in this case is the
identification of the defendant as the perpetrator of the
crime. The Government has the burden of proving identity
beyond a reasonable doubt. It is not essential that the
witness himself be free from doubt as to the correctness of
his statement. However, you, the jury, must be satisfied
beyond a reasonable doubt of the accuracy of the
identification of the defendant before you may convict him.
If you are not convinced beyond a reasonable doubt that the
defendant was the person who committed the crime, you must
find the defendant not guilty.
17
"Identification testimony is an expression of belief
or impression by the witness. Its value depends on the
opportunity the witness had to observe the offender at the
time of the offense and to make a reliable identification
later.
"In appraising the identification testimony of a
witness, you should consider the following:
"Are you convinced that the witness had the capacity
and an adequate opportunity to observe the offender?
"Whether the witness had an adequate opportunity to
observe the offender at the time of the offense will be
affected by such matters as how long or short a time was
available, how far or close the witness was, how good were
lighting conditions, whether the witness had had occasion
to see or know the person in the past.
"In general, a witness bases any identification he
makes on his perception through the use of his senses.
Usually the witness identifies an offender by the sense of
sight -- but this is not necessarily so, and he may use
other senses.
"Are you satisfied that the identification made by the
witness subsequent to the offense was the product of his
own recollection? You may take into account the
circumstances under which the identification was made.
"If the identification by the witness may have been
influenced by the circumstances under which the defendant
was presented to him for identification, you should
scrutinize the identification with great care.
"You may also consider the length of time that lapsed
between the occurrence of the crime and the opportunity of
the witness, some time after the occurrence of the crime,
to see and identify the defendant as the offender, as a
factor bearing on the reliability of the identification.
"You may also take into account that an identification
made by picking the defendant out of a group of similar
individuals is generally more reliable than one which
results from the presentation of the defendant alone to the
witness.
18
that may affect the accuracy of an eyewitness's positive
identification of the defendant, and poses questions the jury
should ask themselves. It generally does not instruct the jury
as to how those factors may affect the accuracy of the
identification.
The New Jersey model instruction, as earlier noted, goes
well beyond the Rodriguez instruction by telling the jury what
principles have emerged from the research regarding eyewitness
identification. We now consider, first, what it means for a
principle of eyewitness identification to be "so generally
"You may take into account any occasions in which the
witness failed to make an identification of [the]
defendant, or made an identification that was inconsistent
with his identification at trial.
"Finally, you must consider the credibility of each
identification witness in the same way as any other
witness, consider whether he is truthful, and consider
whether he had the capacity and opportunity to make a
reliable observation on the matter covered in his
testimony.
"I again emphasize that the burden of proof on the
prosecutor extends to every element of the crime charged,
and this specifically includes the burden of proving beyond
a reasonable doubt the identity of the defendant as the
perpetrator of the crime with which he stands charged. If
after examining the testimony, you have a reasonable doubt
as to the accuracy of the identification, you must find the
defendant not guilty."
In addition, "[f]airness to a defendant compels the trial
judge to give an instruction on the possibility of an honest but
mistaken identification when the facts permit it and when the
defendant requests it." Id., quoting Commonwealth v. Pressley,
390 Mass. 617, 620 (1983).
19
accepted" that it is appropriate to include in a model
instruction, and, second, whether the five principles at issue
in this case are "so generally accepted" that it is appropriate
that they now be included in a revised model jury instruction.
a. "So generally accepted." The phrase "so generally
accepted" sounds like the test in Frye v. United States, 293 F.
1013, 1014 (D.C. Cir. 1923), for the admissibility of expert
testimony based on scientific knowledge, which asks "whether the
community of scientists involved generally accepts the theory or
process," Commonwealth v. Lanigan, 419 Mass. 15, 24 (1994),
quoting Commonwealth v. Curnin, 409 Mass. 218, 222 (1991), and
which was once the exclusive test governing the admissibility of
expert testimony. See Lanigan, supra at 25-26 (adopting
standard in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579
[1993], while maintaining Frye standard as alternative means to
establish reliability of expert testimony). But satisfaction of
the Frye test meant only that expert testimony would be
admissible in evidence. It did not mean that the jury were
required to accept the scientific principles that had gained
general acceptance in the relevant scientific community. See
Commonwealth v. Hinds, 450 Mass. 1, 12 n.7 (2007) (model
instruction on expert testimony, stating, "it is completely up
to [the jury] to decide whether [they] accept the testimony of
an expert witness, including the opinions that the witness
20
gave"). In contrast, where a principle is included in a jury
instruction, it becomes part of a judge's instructions of law,
which the jury generally must accept. See Commonwealth v.
Johnson, 441 Mass. 1, 7 (2004); Commonwealth v. Watkins, 425
Mass. 830, 840 (1997) ("We presume that a jury follow all
instructions given to [them] . . ."). Therefore, the Frye test
cannot define "so generally accepted" in this context; the
standard for including a principle of eyewitness identification
in a model jury instruction must be higher than a standard that
would simply permit a judge to admit expert testimony.20
20
Nor can we look to the standard for judicial notice to
define the meaning of "so generally accepted" in this context.
A court may take judicial notice of adjudicative facts that are
"not subject to reasonable dispute in that it is either (1)
generally known within the territorial jurisdiction of the trial
court or (2) capable of accurate and ready determination by
resort to resources whose accuracy cannot reasonably be
questioned." Mass. G. Evid. § 201(b) (2014). Matters of common
knowledge may be judicially noticed, see Commonwealth v. Hartman
404 Mass. 306, 313 n.9 (1989), but "[f]acts which ordinarily are
not known without the aid of expert testimony or other proof
cannot be said to be matters of common knowledge." Id., quoting
Mady v. Holy Trinity Roman Catholic Polish Church, 223 Mass. 23,
26 (1916). The principles at issue in eyewitness identification
are not matters of common knowledge. Nor can these principles
be readily looked up in an authoritative source; rather, they
require review of the considerable scientific literature and
published research studies regarding eyewitness identification.
Therefore, these principles, no matter how well accepted they
may be in the relevant scientific community, are not the type of
adjudicative facts of which a court generally may take judicial
notice. Moreover, "[i]n a criminal case, the court shall
instruct the jury that they may, but are not required to, accept
as conclusive any fact which the court has judicially noticed."
Mass. G. Evid. § 201(e) (2014). See Commonwealth v. Kingsbury,
378 Mass. 751, 755 (1979).
21
To determine when a principle of eyewitness identification
is "so generally accepted" that it is appropriate to incorporate
into a model instruction, we focus on the instruction's
underlying purpose and the concerns it is intended to alleviate.
The accuracy of an eyewitness identification is often the
critical issue in a criminal case, the difference between a
conviction and an acquittal. See State v. Cabagbag, 127 Haw.
302, 313 (2012) ("Without appropriate instructions from the
court, the jury may be left without sufficient guidance on how
to assess critical testimony, sometimes the only testimony, that
ties a defendant to an offense"). We have long recognized that
the mistaken eyewitness identification of a defendant whom the
witness had never seen before the crime "is the primary cause of
erroneous convictions, outstripping all other causes combined."
Commonwealth v. Martin, 447 Mass. 274, 293 (2006) (Cordy, J.,
dissenting).21 See Franklin, 465 Mass. at 909; Irwin v.
21
According to the Innocence Project, "Eyewitness
misidentification is the single greatest cause of wrongful
convictions nationwide, playing a role in 72% of convictions
overturned through [deoxyribonucleic acid] testing"). Innocence
Project, Eyewitness Misidentification,
http://www.innocenceproject.org/understand/Eyewitness-
Misidentification.php [http://perma.cc/XAQ2-4QJG] (last visited
Jan. 8, 2015). The National Registry of Exonerations has
recorded 522 known exonerations of persons whose cases involved
at least one witness who mistakenly identified the exoneree as
the perpetrator of the crime. See National Registry of
Exonerations, Exoneration Detail List,
http://www.law.umich.edu/special/exoneration/Pages/detaillist.as
px [http://perma.cc./DPD3-BJBB] (last visited Jan. 8, 2015).
22
Commonwealth, 465 Mass. 834, 848-849 (2013); Commonwealth v.
Francis, 390 Mass. 89, 100 (1983).
Our jury instructions are intended to provide the jury with
the guidance they need to capably evaluate the accuracy of an
eyewitness identification. See Francis, 390 Mass. at 101 ("We
permit, indeed require, the judge to instruct the jury
concerning factors that bear on the reliability of eyewitness
identification"); Commonwealth v. Rodriguez, 6 Mass. App. Ct.
738, 742 (1978), S.C., 378 Mass. 296 (1979). If we were to
define "so generally accepted" so narrowly that none of the
scientific principles regarding eyewitness identification could
See also Connors, Lundregan, Miller, & McEwen, U.S. Department
of Justice, Convicted by Juries, Exonerated by Science: Case
Studies in the Use of DNA Evidence to Establish Innocence After
Trial 15-17, 24 (1996), at
https://www.ncjrs.gov/pdffiles/dnaevid.pdf
[http://perma.cc/RUA3-8NKW] (last visited Jan. 8, 2015)
("[E]yewitness testimony was the most compelling evidence" in
majority of twenty-four sexual assault cases reviewed where
defendants were convicted and later exonerated); B.L. Garrett,
Convicting the Innocent: Where Criminal Prosecutions Go Wrong
48 (2011) (analyzing 250 wrongful convictions and finding 190
involved eyewitness misidentification). There have been forty
exonerations in Massachusetts since 1990, and twenty of those
cases involved mistaken eyewitness identification. See National
Registry of Exonerations, supra. See also Irwin v.
Commonwealth, 465 Mass. 834, 849 n.25 (2013), citing Fisher,
Convictions of Innocent Persons in Massachusetts: An Overview,
12 B.U. Pub. Int. L.J. 1, 64 & n.278 (2002) ("A summary of
several studies of erroneous convictions in Massachusetts
concluded that, in over half of the cases where convicted
defendants were later officially exonerated, the convictions
involved mistaken identifications by eyewitnesses, including by
multiple eyewitnesses who had had ample opportunity to observe
the perpetrator").
23
survive the test, we would continue to use the Rodriguez
instruction, which generally identifies factors a jury may
consider in applying their common sense, and would require the
results of the relevant research to be communicated to the jury
solely through expert testimony, where such testimony is
offered. The problem with this approach is that the research
makes clear that common sense is not enough to accurately
discern the reliable eyewitness identification from the
unreliable, because many of the results of the research are not
commonly known, and some are counterintuitive. See State v.
Guilbert, 306 Conn. 218, 234-235 (2012) (there is "near perfect
scientific consensus" that "eyewitness identifications are
potentially unreliable in a variety of ways unknown to the
average juror"); Henderson, 208 N.J. at 274 (juror surveys and
mock-jury studies "reveal generally that people do not
intuitively understand all of the relevant scientific
findings"). See also Perry v. New Hampshire, 132 S. Ct. 716,
739 (2012) (Sotomayor, J., dissenting) ("Study after study
demonstrates that eyewitness recollections are highly
susceptible to distortion by postevent information or social
cues; that jurors routinely overestimate the accuracy of
eyewitness identifications; that jurors place the greatest
weight on eyewitness confidence in assessing identifications
even though confidence is a poor gauge of accuracy; and that
24
suggestiveness can stem from sources beyond police-orchestrated
procedures" [footnotes omitted]).22 If the research regarding
eyewitness identification could be communicated to the jury only
through expert testimony, very few juries would hear it, because
expert testimony is not often proffered in cases where
eyewitness identification is at issue, and because the admission
of expert testimony is left to the sound discretion of the trial
judge. See Commonwealth v. Watson, 455 Mass. 246, 257 (2009)
("[E]xpert testimony concerning the reliability of eyewitness
identification is not admissible as of right, but is left to the
discretion of the trial judge").
Having balanced the importance of instructing juries about
the generally accepted principles that can inform their
understanding of eyewitness identification with the risks of
requiring them to accept principles that may still be suspect or
in flux, we conclude that a principle is "so generally accepted"
that it is appropriate to include in a model eyewitness
22
See Benton, Ross, Bradshaw, Thomas, & Bradshaw,
Eyewitness Memory Is Still Not Common Sense: Comparing Jurors,
Judges and Law Enforcement to Eyewitness Experts, 20 Applied
Cognitive Psychol. 115, 119 (2006) (survey found that jurors and
experts differed on eighty-seven per cent of survey's statements
about eyewitness identification); Schmechel, O’Toole, Easterly,
& Loftus, Beyond the Ken? Testing Jurors' Understanding of
Eyewitness Reliability Evidence, 46 Jurimetrics 177, 204 (2006)
("a substantial number of jurors come to each trial with basic
misunderstandings about the way memory works in general and
about specific factors that can affect the reliability of
eyewitness identifications").
25
identification instruction where there is a near consensus in
the relevant scientific community adopting that principle.
After reviewing the scholarly research, analyses by other
courts, amici submissions, and the Study Group Report and
comments, we conclude that there are various principles
regarding eyewitness identification for which there is a near
consensus in the relevant scientific community and that it is
appropriate to revise the Rodriguez instruction to include them.
See Study Group Report, supra at 17 ("The scientific studies
have produced a consensus among experts about the . . .
variables that have been shown to affect the reliability of
eyewitness identification"). See also Guilbert, 306 Conn. at
234-236; Cabagbag, 127 Haw. at 310-311; State v. Lawson, 352 Or.
724, 740 (2012); State v. Clopten, 223 P.3d 1103, 1108 (Utah
2009); Report of the Special Master, State vs. Henderson, N.J.
Supreme Ct., No. A-8-08, at 14 (June 18, 2010), available at
http://www.judiciary.state.nj.us/pressrel/henderson%20final%20br
ief%20.pdf%20%2800621142%29.pdf [http://perma.cc/EA3S-453F]
(last visited Jan. 8, 2015) (Special Master's Report).23,24
23
In a 2001 survey of experts in the field of psychology,
researchers found that at least eighty-seven per cent of experts
believed the following principles were reliable enough to be
presented in court: "[a]n eyewitness's confidence can be
influenced by factors that are unrelated to identification
accuracy" (ninety-five per cent), "[e]xposure to mug shots of a
suspect increases the likelihood that the witness will later
choose that suspect in a lineup" (ninety-five per cent),
26
We are not alone in concluding that certain scientific
principles should be incorporated into a model jury instruction
on eyewitness identification. New Jersey has done so most
comprehensively, promulgating a ten-page model instruction after
concluding that its previous model, which was similar to the
Rodriguez instruction, see Henderson, 208 N.J. at 226-227,
"overstate[d] the jury's inherent ability to evaluate evidence
offered by eyewitnesses who honestly believe their testimony is
accurate." Id. at 218, 298-299. See National Research Council
"[e]yewitness testimony about an event often reflects not only
what they actually saw but information they obtained later on"
(ninety-four per cent), and "an eyewitness's confidence is not a
good predictor of his or her identification accuracy" (eighty-
seven per cent). Kassin, Tubb, Hosch, & Memon, On the "General
Acceptance" of Eyewitness Testimony Research: A New Survey of
the Experts, 56 Am. Psychol. 405, 407-412 (2001). See Malpass,
Ross, Meissner, & Marcon, The Need for Expert Psychological
Testimony on Eyewitness Identification, in Expert Testimony on
the Psychology of Eyewitness Identification 15 (2009) ("[I]t
would be very difficult to sustain the position that many of the
findings in research on eyewitness memory lack general agreement
within the scientific community").
24
We note that the instruction we adopted in Commonwealth
v. Rodriguez, 378 Mass. 296, 310-311 (Appendix) (1979), already
essentially includes two principles on which there is at least
near consensus in the relevant scientific community, that is,
"that an identification made by picking the defendant out of a
group of similar individuals is generally more reliable than one
which results from the presentation of the defendant alone to
the witness," and that where the "identification by the witness
may have been influenced by the circumstances under which the
defendant was presented to him for identification, [the jury]
should scrutinize the identification with great care."
Therefore, it is more accurate to say that we are adding
scientific principles to our eyewitness identification
instruction rather than incorporating such principles into our
instruction for the first time.
27
of the National Academies, Identifying the Culprit: Assessing
Eyewitness Identification 28 (2014) (pending publication)
(National Academies) ("The New Jersey instructions adopted,
following the Henderson decision, are by far the most detailed
set of jury instructions regarding eyewitness identification
evidence"). Other States have also incorporated scientific
principles of eyewitness identification into model jury
instructions. See, e.g., Cabagbag, 127 Haw. at 314; Connecticut
Criminal Jury Instruction 2.6-4 Identification of Defendant
(2013), available at
http://www.jud.ct.gov/ji/criminal/part2/2.6-4.htm
[http://perma.cc/B9PS-DS8X] (last visited Jan. 8, 2015); 1-6
Maine Jury Instruction Manual § 6-22A (4th ed. 2012); Model Utah
Jury Instructions, Second Edition, CR404 Eyewitness
Identification (2014), available at
http://www.utcourts.gov/resources/muji/index.asp?page=crim&view=
all_crim [http://perma.cc/X9V3-2759] (last visited Jan. 8,
2015).
We recognize that even a principle for which there is near
consensus is subject to revision based on further research
findings, and that no principle of eyewitness identification
should be treated as if set in stone. Therefore, we acknowledge
the possibility that, as the science evolves, we may need to
28
revise our new model instruction's description of a principle.25
We also recognize the possibility that a party may offer expert
testimony at trial that properly may persuade a trial judge to
depart from the model instruction. See Lawson, 352 Or. at 741
("[A]cknowledgment of the existence of th[is] research . . . is
not intended to preclude any party in a specific case from
validating scientific acceptance of further research or from
challenging particular aspects of the research described in this
opinion").
b. Five generally accepted principles regarding eyewitness
identification. We turn now to the five principles at issue in
this case that we determine to have achieved a near consensus in
the relevant scientific community and therefore are "so
generally accepted" that it is appropriate that they now be
included in a revised model jury instruction regarding
eyewitness identification. We also summarize the research that
informed our conclusions as to each generally accepted
principle.26
25
We will look to our newly reconstituted Supreme Judicial
Court Committee on Eyewitness Identification to assist us in
recognizing the need for such revision.
26
This list of generally accepted principles is not
intended to be exhaustive, as we only address the principles
most relevant to the case before us. Therefore, the exclusion
of a principle should not be construed to suggest that it is not
so generally accepted as to be worthy of inclusion in a model
jury instruction on eyewitness identification. In fact, the
29
i. Human memory does not function like a video recording
but is a complex process that consists of three stages:
acquisition, retention, and retrieval. The central principle
that has emerged from over 2,000 published studies over the past
thirty years is that "memory does not function like a videotape,
accurately and thoroughly capturing and reproducing a person,
scene or event. . . . Memory is, rather[,] a constructive,
dynamic and selective process." Study Group Report, supra at
15, quoting Special Master's Report, supra at 9. See E.F.
Loftus, J.M. Doyle, & J.E. Dysart, Eyewitness Testimony: Civil
and Criminal § 2-2, at 14 (5th ed. 2013); Brigham, Wasserman, &
Meissner, Disputed Eyewitness Identification Evidence:
Important Legal and Scientific Issues, 36 Ct. Rev., no. 2, 1999,
at 13. Rather, memories are made through a three-stage process:
"acquisition -- 'the perception of the original event';
retention [or storage] -- 'the period of time that passes
between the event and the eventual recollection of a particular
piece of information'; and retrieval -- the 'stage during which
a person recalls stored information.'" Study Group Report,
supra at 16, quoting Henderson, 208 N.J. at 245.
ii. An eyewitness's expressed certainty in an
identification, standing alone, may not indicate the accuracy of
provisional jury instruction we include in the Appendix to this
decision incorporates principles beyond the five addressed here.
30
the identification, especially where the witness did not
describe that level of certainty when the witness first made the
identification. We have long questioned the reliability of a
witness's certainty as a reflection of accuracy. See
Commonwealth v. Jones, 423 Mass. 99, 110 n.9 (1996); Santoli,
424 Mass. at 846 ("[T]here is significant doubt about whether
there is any correlation between a witness's confidence in her
identification and the accuracy of her recollection"); Cruz, 445
Mass. at 597-600 (court stated it was prepared to consider in
future whether weak confidence-accuracy relationship warrants
instruction). Our doubts are now supported by the research.
"[S]tudies show that, under most circumstances, witness
confidence or certainty is not a good indicator of
identification accuracy." Lawson, 352 Or. at 777 (Appendix).
See Study Group Report, supra at 19.27
This does not mean that eyewitness certainty is never
correlated with accuracy; it means simply that the existence and
strength of the correlation depends on the circumstances. After
27
See Commonwealth v. Crayton, ante 228, 239 n.15 (2014),
quoting Wells, Memon, & Penrod, Eyewitness Evidence: Improving
Its Probative Value, 7 Psychol. Sci. in the Pub. Interest 45, 66
(2006) ("Even among 'highly confident witnesses, [studies]
indicate that 20 to 30% could be in error'"); Crayton, supra,
quoting Wells & Quinlivan, Suggestive Eyewitness Identification
Procedures and the Supreme Court's Reliability Test in Light of
Eyewitness Science: 30 Years Later, 33 Law & Hum. Behav. 1, 11-
12 (2009) ("the less-than-perfect correlation between height and
gender in humans is 'considerably greater' than the correlation
between certainty and accuracy in eyewitness identifications").
31
viewing the crime but before the identification procedure, an
eyewitness's expressed level of certainty does not correlate
with accuracy. See Study Group Report, supra; Henderson, 208
N.J. at 254 n.7.28 Where an eyewitness makes a positive
identification and expresses a level of certainty immediately
after the identification procedure, there is some correlation
between certainty and accuracy, but there is not yet a near
consensus regarding the strength of that correlation.29 There
is, however, a near consensus in the research that, where an
eyewitness during an identification procedure did not express
certainty when first asked to make an identification, a
subsequent claim of certainty by that witness deserves little
weight in evaluating the accuracy of that identification. See
28
See Cutler & Penrod, Forensically Relevant Moderators of
the Relation Between Eyewitness Identification Accuracy and
Confidence, 74 J. Applied Psychol. 650, 652 (1989) (meta-
analysis showing that pre-lineup confidence "certainly should
not be used in the evaluation of eyewitness identification
accuracy").
29
Compare Study Group Report, supra at 19, quoting Report
of the Special Master, State vs. Henderson, N.J. Supreme Ct.,
No. A-8-08, at 34 (Special Master's Report) ("confidence
expressed immediately after making an identification has only a
low correlation to the accuracy of the identification"), with
Wells & Olson, Eyewitness Testimony, 54 Ann. Rev. Psychol. 277,
283 (2003) (more recent studies "indicate that the
certainty-accuracy relation is stronger" if analysis is
restricted to witnesses who actually made identifications,
thereby excluding witnesses who did not identify anyone). See
also Sporer, Read, Penrod, & Cutler, Choosing, Confidence, and
Accuracy: A Meta–Analysis of the Confidence–Accuracy Relation
in Eyewitness Identification Studies, 118 Psychol. Bull. 315,
322 (1995).
32
Henderson, 208 N.J. at 254 ("Confirmatory feedback can distort
memory. As a result, to the extent confidence may be relevant
in certain circumstances, it must be recorded in the witness'[s]
own words before any possible feedback"); Lawson, 352 Or. at 745
("Retrospective self-reports of certainty are highly susceptible
to suggestive procedures and confirming feedback, a factor that
further limits the utility of the certainty variable").30,31
Although the research regarding the correlation (or lack of
correlation) between eyewitness certainty and accuracy is
complex and still evolving, it is necessary to inform a jury
30
See Wells & Bradfield, Distortions in Eyewitnesses'
Recollections: Can the Postidentification–Feedback Effect Be
Moderated?, 10 Psychol. Sci. 138, 138 (1999) ("The idea that
confirming feedback would lead to confidence inflation is not
surprising. What is surprising, however, is that confirming
feedback that is given after the identification leads
eyewitnesses to misremember how confident they were at the time
of the identification"). See also Commonwealth v. Collins, ante
255, 263 n.10 (2014), quoting National Research Council of the
National Academies, Identifying the Culprit: Assessing
Eyewitness Identification 75 (2014) (pending publication)
("[I]n-court confidence statements may . . . be less reliable
than confidence judgments made at the time of an initial out-of-
court identification . . . . The confidence of an eyewitness may
increase by the time of the trial as a result of learning more
information about the case, participating in trial preparation,
and experiencing the pressures of being placed on the stand").
31
"Because 'a witness's confidence in the accuracy of his
identification grows once he learns that the police believe he
made the correct identification,' we have previously announced
that we 'expect' police to use protocols for photographic arrays
that include a 'procedure requir[ing] the administrator to ask
the witness to state, in his or her own words, how certain he or
she is of any identification.'" Collins, supra at 263 n.11,
quoting Commonwealth v. Silva-Santiago, 453 Mass. 782, 791, 798
(2009).
33
about this tenuous relationship because there is a near
consensus that jurors tend to give more weight to a witness's
certainty in evaluating the accuracy of an identification than
is warranted by the research. See Commonwealth v. Collins, ante
255, 264 n.14 (2014), quoting Study Group Report, supra at 20
("Studies show that eyewitness confidence is the single most
influential factor in juror determinations regarding the
accuracy of an eyewitness identification"); Cabagbag, 127 Haw.
at 311; Clopten, 223 P.3d at 1108 ("Indeed, juries seemed to be
swayed the most by the confidence of an eyewitness, even though
such confidence correlates only weakly with accuracy").32
Therefore, it is necessary to inform the jury that an
eyewitness's expressed certainty in an identification, standing
alone, may not indicate the accuracy of an identification, and
that this is especially true where the witness did not describe
that level of certainty when the witness first made an
identification.
32
See Cutler, Penrod, & Dexter, Juror Sensitivity to
Eyewitness Identification Evidence, 14 Law & Hum. Behav. 185,
190 (1990) (mock-jury experiment showed jurors "gave
disproportionate weight to the confidence of the witness");
Wells, Lindsay, & Ferguson, Accuracy, Confidence, and Juror
Perceptions in Eyewitness Identification, 64 J. Applied Psychol.
440, 446 (1979) ("The data indicate that although jurors'
decisions to believe the witness are highly related to their
ratings of the witnesses' confidence, the confidence-accuracy
relationship is very poor").
34
iii. High levels of stress can reduce an eyewitness's
ability to make an accurate identification. "[A]n eyewitness
under high stress is less likely to make a reliable
identification of the perpetrator." Special Master's Report,
supra at 43. "[H]igh levels of stress significantly impair a
witness's ability to recognize faces and encode details into
memory." Lawson, 352 Or. at 769 (Appendix). There is
"considerable support for the hypothesis that high levels of
stress negatively impact both accuracy of eyewitness
identification as well as accuracy of recall of crime-related
details." Deffenbacher, Bornstein, Penrod, & McGorty, A Meta-
Analytic Review of the Effects of High Stress on Eyewitness
Memory, 28 Law & Hum. Behav. 687, 699 (2004) (Deffenbacher et
al.). See Study Group Report, supra at 29 n.27, citing
Deffenbacher et al., supra at 695 (thirty-nine per cent of
participants under high-stress conditions correctly identified
suspect in target-present lineups compared to fifty-nine per
cent of participants under low-stress conditions).33 This
33
In another experiment, 509 active duty military personnel
in military survival school training were subjected to high- or
low-stress interrogations. See Morgan, Hazlett, Doran, Garrett,
Hoyt, Thomas, Baranoski, & Southwick, Accuracy of Eyewitness
Memory for Persons Encountered During Exposure to Highly Intense
Stress, 27 Int'l J.L. & Psychiatry 265, 267-268 (2004). When
subjects were asked to identify the interrogator in a lineup or
photographic array, "the accuracy of eyewitness recognition
. . . for the interrogator appeared to be greater for the low-,
compared to the high-stress condition." Id. at 272. "These
35
principle is counterintuitive to the "common misconception that
faces seen in highly stressful situations can be 'burned into' a
witness's memory." Lawson, 352 Or. at 770 (Appendix). See
Morgan, Hazlett, Doran, Garrett, Hoyt, Thomas, Baranoski, &
Southwick, Accuracy of Eyewitness Memory for Persons Encountered
During Exposure to Highly Intense Stress, 27 Int'l J.L. &
Psychiatry 265, 274 (2004) (rejecting "popular conception that
most people would never forget the face of a clearly seen
individual who had physically confronted them and threatened
them"). Therefore, it is important to inform the jury of this
principle lest they evaluate an identification made under high
stress based on the "common misconception."
iv. Information that is unrelated to the initial viewing
of the event, which an eyewitness receives before or after
making an identification, can influence the witness's later
recollection of the memory or of the identification. "An
extensive body of studies demonstrates that the memories of
data provide robust evidence that eyewitness memory for persons
encountered during events that are personally relevant, highly
stressful, and realistic in nature may be subject to substantial
error." Id. at 274. See Morgan, Southwick, Steffian, Hazlett,
& Loftus, Misinformation Can Influence Memory for Recently
Experienced, Highly Stressful Events, 36 Int'l J.L. & Psychiatry
11, 16 (2013) (similar study of military personnel at survival
school found that "human memory for realistic, recently
experienced stressful events is subject to substantial error.
In addition, . . . memories for stressful events are also
highly vulnerable to modification by exposure to
misinformation").
36
witnesses for events and faces, and witnesses' confidence in
their memories, are highly malleable and can readily be altered
by information received by witnesses both before and after an
identification procedure." Special Master's Report, supra at
30-31. See B.L. Garrett, Convicting the Innocent: Where
Criminal Prosecutions Go Wrong 48-49 (2011) (reviewing trial
records for 161 wrongful convictions involving eyewitness
misidentification and finding that seventy-eight per cent
involved police contamination of identification). This outside
information, known as "feedback," affects witnesses' memory
differently depending on whether the witness receives feedback
before or after making an identification. See Study Group
Report, supra at 21-22; Henderson, 208 N.J. at 253. "Jurors,
however, tend to be unaware of . . . how susceptible witness
certainty is to manipulation by suggestive procedures or
confirming feedback." Lawson, 352 Or. at 778 (Appendix).
Preidentification feedback may contaminate the witness's
memory. For instance, suggestive wording and leading questions
prior to participating in an identification procedure can
influence the process of forming a memory. See Study Group
Report, supra at 21; Lawson, 352 Or. at 786-788 (Appendix).34
34
See also Loftus & Zanni, Eyewitness Testimony: The
Influence of the Wording of a Question, 5 Bull. Psychonomic
Soc'y 86, 88 (1975) (changing wording of question from "[d]id
you see a broken headlight" to "[d]id you see the broken
37
Postidentification feedback is information unrelated to the
witness's actual memory that suggests to the witness that he or
she correctly identified the suspect. See Study Group Report,
supra at 22; Henderson, 208 N.J. at 255; Lawson, 352 Or. at 744.
This confirmatory information may boost the witness's level of
certainty without increasing the likelihood of an accurate
identification. See Lawson, supra; Special Master's Report,
supra at 33 ("A number of studies have demonstrated that
witnesses' confidence in their identifications, and their
memories of events and faces, are readily tainted by information
that they receive after the identification procedure").35
headlight" led to more false recognitions [emphasis added]);
Loftus, Leading Questions and the Eyewitness Report, 7 Cognitive
Psychol. 560, 566 (1975) (after watching videotape of vehicle
driving on road where there was no barn, 17.3 per cent of
participants who were asked to estimate vehicle's speed "when it
passed the barn" claimed to see barn, compared to 2.7 per cent
of participants whose question did not mention barn).
35
In one experiment, witnesses who made false
identifications at a target-absent lineup were given either
confirming feedback ("Good. You identified the actual
suspect"), disconfirming feedback ("Actually, the suspect was
number _"), or no feedback. Wells & Bradfield, "Good, You
Identified the Suspect": Feedback to Eyewitnesses Distorts
Their Reports of the Witnessing Experience, 83 J. Applied
Psychol. 360, 363 (1998). Not only did confirmatory feedback
affect witness reports of how certain they were at the time of
the identification, but it also distorted "their reports of the
witnessing experience." Id. at 367. Witnesses receiving
confirming feedback reported "a better view of the culprit, a
greater ability to make out details of the face, greater
attention to the event, [and] a stronger basis for making an
identification," compared to witnesses receiving no feedback.
Id. at 366. Additionally, a meta-analysis of ten published and
38
Although police officers are common potential sources of
feedback, feedback from cowitnesses and other private actors can
also influence a witness's memory. "When a witness is permitted
to discuss the event with other witnesses or views another
witness's identification decision, the witness may alter his or
her own memory or identification decision to conform to that of
the cowitness." Lawson, 352 Or. at 788 (Appendix). See
Henderson, 208 N.J. at 268-271.36
four unpublished studies, totaling approximately 2,400
participants, showed that participants who received confirming
feedback "expressed significantly more retrospective confidence
in their decision compared with participants who received no
feedback" and "significantly inflate[d] their reports to suggest
better witnessing conditions at the time of the crime, stronger
memory at the time of the lineup, and sharper memory abilities
in general." Douglass & Steblay, Memory Distortion in
Eyewitnesses: A Meta–Analysis of the Post-identification
Feedback Effect, 20 Applied Cognitive Psychol. 859, 863–865
(2006). See Crayton, supra at 239 n.15, quoting Wells &
Quinlivan, Suggestive Eyewitness Identification Procedures and
the Supreme Court's Reliability Test in Light of Eyewitness
Science: 30 Years Later, 33 Law & Hum. Behav. 1, 12 (2009)
(suggestive confirmatory effect "is stronger for mistaken
eyewitnesses than it is for accurate eyewitnesses, thereby
making inaccurate eyewitnesses look more like accurate
eyewitnesses and undermining the certainty-accuracy relation").
36
When pairs of subjects viewed a crime and discussed who
they believed was the culprit, researchers concluded that "post-
identification feedback does not have to be presented by the
experimenter or an authoritative figure (e.g. police officer) in
order to affect a witness'[s] subsequent crime-related
judgments." Skagerberg, Co–Witness Feedback in Line-
Ups, 21 Applied Cognitive Psychol. 489, 494 (2007). When the
cowitnesses agreed with one another, they reported having better
views of the culprit, higher certainty, and more willingness to
testify compared to cowitnesses who disagreed on the culprit's
39
v. A prior viewing of a suspect at an identification
procedure may reduce the reliability of a subsequent
identification procedure in which the same suspect is shown. A
prior viewing of a suspect in an identification procedure raises
doubts about the reliability of a subsequent identification
procedure involving the same suspect. See Study Group Report,
supra at 25, citing Special Master's Report, supra at 27-28.
"[S]uccessive views of the same person can make it difficult to
know whether the later identification stems from a memory of the
original event or a memory of the earlier identification
procedure." Henderson, 208 N.J. at 255. See Collins, supra at
262 n.9, citing Study Group Report, supra at 78-79 ("An
eyewitness may recall the defendant's face, but not recall that
the source of the eyewitness's memory was the defendant's
presence in a pretrial lineup or photographic array rather than
the defendant's presence at the scene of the crime");
Commonwealth v. Scott, 408 Mass. 811, 826 (1990) ("danger of
misidentification is increased if the photograph of the same
individual is included in different arrays"); Lawson 352 Or. at
784 (Appendix).
One form of this source memory problem is "mugshot
exposure," where a witness's viewing of an innocent suspect's
identity -- even though none of the photographic arrays showed
the actual suspect. Id. at 493-495.
 40
mugshot can heighten the chances of a later misidentification.
See Study Group Report, supra at 25, citing Henderson, supra at
256. A meta-analysis of eleven published articles showed that
"prior mugshot exposure decreases accuracy at a subsequent
lineup, both in terms of reductions in rates for hits and
correct rejections as well as in terms of increases in the rate
for false alarms." Deffenbacher, Bornstein, & Penrod, Mugshot
Exposure Effects: Retroactive Interference, Mugshot Commitment,
Source Confusion, and Unconscious Transference, 30 Law & Hum.
Behav. 287, 306 (2006). See id. at 299 (fifteen per cent of
subject witnesses misidentified innocent person in lineup when
seeing person for first time, while thirty-seven per cent of
witnesses with mugshot exposure misidentified innocent person).37
37
"Unconscious transference" is a similar phenomenon that
occurs "when a witness confuses a person seen at or near the
crime scene with the actual perpetrator." Study Group Report,
supra at 31, quoting Special Master's Report, supra at 46. In
one experiment, witnesses were asked to identify the assailant
from a target-absent lineup containing an innocent bystander
they had seen previously near the crime scene; witnesses "were
nearly three times more likely to misidentify the bystander than
were control subjects." Ross, Ceci, Dunning, & Toglia,
Unconscious Transference and Mistaken Identity: When a Witness
Misidentifies a Familiar but Innocent Person, 79 J. Applied
Psychol. 918, 923 (1994). "Regardless of the content of the
lineup (bystander present or assailant present), a majority of
the transference subjects thought the assailant and the
bystander were the same person who was seen in two different
places." Id. at 924. However, we recognize that there is less
conclusive support for unconscious transference, and it is not
clear still how or why it occurs. Id. at 919, 929-930.
41
c. Provisional model jury instruction. After evaluating
the scientific evidence and concluding that the aforementioned
principles are so generally accepted that they may be stated in
a model jury instruction, we propose in the Appendix to this
opinion a new provisional jury instruction regarding eyewitness
identification. We have made the jury instruction provisional
to allow for public comment and possible future revision before
we declare it a model, but it should be given, where
appropriate, in trials that commence after issuance of this
opinion until a model instruction is issued. We intend the new
instruction to have no retroactive application. See Santoli,
424 Mass. at 845 (declining retroactively to apply new rule to
omit "strength of the identification" language). See also
Commonwealth v. Ashley, 427 Mass. 620, 628 (1998) (declining
retroactively to apply Santoli); Commonwealth v. Payne, 426
Mass. 692, 698 (1998) (same).
Our provisional instruction updates the Rodriguez
instruction with principles relevant to the evaluation of
eyewitness testimony for which there is at least a near
consensus in the relevant scientific community. It will provide
juries with more comprehensive guidance to evaluate and weigh
eyewitness identifications, but we recognize that not every
principle regarding eyewitness identification that has attained
a near consensus in the relevant scientific community is
42
included; nor are the included principles set forth in great
detail. We aspired in drafting the instruction for clarity,
brevity, and balance, recognizing that an eyewitness
identification instruction is only one of many instructions in a
jury charge. We also understand that the longer the jury
instruction, the greater the risk that it will implicitly
communicate the message that all eyewitness identifications
should be viewed as unreliable rather than simply evaluated with
caution and care, so we have balanced this risk with the need to
educate jurors.38 See National Academies, supra at 29 (noting
concern that "jury instructions cause jurors to become more
suspicious of all eyewitness identification evidence"). The
provisional instruction is longer than the Rodriguez
38
A recent experimental study of the New Jersey model jury
instructions revealed that they did not improve jurors' ability
to distinguish between "weak" and "strong" eyewitness testimony;
rather, the enhanced instructions "caused jurors to
indiscriminately discount testimony." Papailiou, Yokum, &
Robertson, The Novel New Jersey Eyewitness Instruction Induces
Skepticism But Not Sensitivity, Arizona Legal Studies Discussion
Paper No. 14-17, at 22 (Aug. 2014). "[U]se of the novel New
Jersey instruction substantially reduced the likelihood that the
defendant would be found guilty, but its reducing effect was the
same regardless of whether the eyewitness identification
testimony was weak or strong." Id. at 12-13. See also Vermont
Model Criminal Jury Instructions, Reporter's Note (Aug. 2012),
available at http://vtjuryinstructions.org/?page_id=662
[http://perma.cc/8WFD-42AF] (last visited Jan. 8, 2015)
(drafters of Vermont model instructions recognized that "the
general approach to eyewitness identification may be evolving"
but cautioned "against using a longer instruction on eyewitness
identification"). Our provisional jury instruction is
approximately 1,000 words shorter than the comparable New Jersey
model jury instruction.
43
instruction, but it will be the rare case where the entirety of
the instruction need be given, because a judge need only give
the portions of the provisional instruction that are relevant to
the eyewitness identification evidence involved in the case.
We expect the new model instruction will provide at least
one source of reliable information in cases where expert
testimony is not offered. Jury instructions offer certain
advantages over expert testimony: "they are focused and
concise, authoritative (in that juries hear them from the trial
judge, not a witness called by one side), and cost-free; they
avoid possible confusion to jurors created by dueling experts;
and they eliminate the risk of an expert invading the jury's
role or opining on an eyewitness'[s] credibility." Henderson,
208 N.J. at 298. See United States v. Jones, 689 F.3d 12, 19
(1st Cir. 2012). But see Clopten, 223 P.3d at 1110 (research
"has shown that a cautionary instruction does little to help a
jury spot a mistaken identification").
Nevertheless, our provisional instruction is not intended
in any way to preclude expert testimony regarding eyewitness
identification or to discourage judges from exercising their
discretion to permit such expert testimony. Cf. Clopten, supra
at 1107 ("It was never the intent of this court to establish
cautionary instructions as the sole means for educating juries
about eyewitness fallibility"). Expert testimony may be
44
important to elaborate on the generally accepted principles in a
model instruction and to explain how other variables relevant to
the particular case can affect the accuracy of the
identification. A judge may also allow an expert to challenge
the generally accepted principles we incorporated, and, where
the judge finds the expert's challenge to be persuasive, the
judge may modify the model instruction accordingly. See part
2.a, supra.
Conclusion. In the circumstances of this case, based on
the record before him, the judge did not abuse his discretion in
declining to give the New Jersey model jury instruction
regarding eyewitness identification and instead giving the
Rodriguez instruction. Therefore, we affirm the defendant's
judgments of conviction of mayhem and breaking and entering a
motor vehicle in the nighttime with intent to commit a felony.
We remand the case to the Superior Court to vacate the
defendant's judgment of conviction and sentence for assault and
battery by means of a dangerous weapon as duplicative of the
mayhem conviction. Because the sentence to be vacated was less
than the sentence of mayhem, and was ordered to be served
concurrent with that sentence, we do not order resentencing of
the defendant.
So ordered.
Appendix.1
One of the most important issues in this case is whether
the defendant is the person who committed [or participated in
the commission of] the crime[s]. The Commonwealth has the
burden of proving beyond a reasonable doubt that this defendant
was in fact the perpetrator of the crime[s] alleged in the
indictment[s].
The identification of the defendant as the person who
committed [or participated in the commission of] the crime[s]
may be proved by direct evidence or circumstantial evidence, or
by some combination of direct and circumstantial evidence, but
it must be proved beyond a reasonable doubt. If you are not
convinced beyond a reasonable doubt that the defendant is the
person who committed [or participated in the commission of] the
crime[s], you must find the defendant not guilty.
In evaluating eyewitness identification testimony, it is
not essential that a witness be free from doubt as to the
correctness of his or her identification of the defendant.
However, you, the jury, must be satisfied beyond a reasonable
doubt, based on all of the credible evidence, that this
1
The following jury instruction has not been adopted as an
official model. Rather, it is a provisional instruction that
trial courts should use until we adopt a model instruction after
soliciting comments from the public.
2
defendant is the person who committed [or participated in the
commission of] the crime[s] before you may convict him/her.
As with any witness, you must determine the credibility of
a witness identifying the defendant as the offender. If you
conclude that the witness is not telling the truth regarding the
person's identification, you shall disregard that testimony. If
you conclude that the witness intended to tell the truth, you
must also consider the possibility that the witness made a good
faith error in identification. That is, you should consider
whether the witness could be honestly mistaken in his or her
identification of the defendant.
Human beings have the ability to recognize other people
from past experiences and to identify them at a later time, but
research has shown that people sometimes make mistakes in
identification. That research has focused on the factors that
may affect the accuracy of an identification, including the
nature of human memory.
Research has shown that human memory is not like a video
recording that a witness need only replay to remember what
happened.2 Memory is far more complex. The process of
2
See Supreme Judicial Court Study Group on Eyewitness
Evidence: Report and Recommendations to the Justices 15 (July
25, 2013), available at
http://www.mass.gov/courts/docs/sjc/docs/eyewitness-evidence-
report-2013.pdf [http://perma.cc/WY4M-YNZN] (last visited Jan.
8, 2015) (Study Group Report), quoting Report of the Special
3
remembering consists of three stages: first, a person sees or
otherwise acquires information about the original event; second,
the person stores in the brain the information about the event
for a period of time until, third, the person attempts to recall
that stored information.3 At each of these stages, memory can be
affected by a variety of factors.4
Master, State vs. Henderson, N.J. Supreme Ct., Docket No. A-8-08
(June 10, 2010), at 9 (Special Master's Report) ("The central
precept is that memory does not function like a videotape,
accurately and thoroughly capturing and reproducing a person,
scene or event. . . . Memory is, rather[,] a constructive,
dynamic and selective process"); State v. Henderson, 208 N.J.
208, 245 (2011); State v. Lawson, 352 Or. 724, 771 (2012)
(Appendix). See also E.F. Loftus, J.M. Doyle, & J.E. Dysart,
Eyewitness Testimony: Civil and Criminal § 2-2, at 14 (5th ed.
2013) (Loftus et al.); Brigham, Wasserman, & Meissner, Disputed
Eyewitness Identification Evidence: Important Legal and
Scientific Issues, 36 Ct. Rev., no. 2, 1999, at 13.
3
See Study Group Report, supra at 16, quoting Henderson,
208 N.J. at 245 ("Three stages are involved in forming a memory:
stages: 'acquisition -- "the perception of the original event";
retention -- "the period of time that passes between the event
and the eventual recollection of a particular piece of
information"; and retrieval -- the "stage during which a person
recalls stored information"'").
4
For a detailed discussion of the three stages of memory
and how those stages may be affected, see Study Group Report,
supra at 16; National Research Council of the National
Academies, Identifying the Culprit: Assessing Eyewitness
Identification 40-46 (2014) (pending publication) (National
Academies) ("Encoding, storage, and remembering are not passive,
static processes that record, retain, and divulge their contents
in an informational vacuum, unaffected by outside influences").
See also State v. Guilbert, 306 Conn. 218, 235-236 (2012);
Henderson, 208 N.J. at 247; Loftus et al., supra at § 2-2, at 15
("Numerous factors at each stage affect the accuracy and
completeness of an eyewitness account").
4
Relying on some of the research that has been done in this
area, I am going to list some specific factors you should
consider in determining whether the identification testimony is
accurate. By instructing you on the factors to consider, I am
not expressing any opinion about the accuracy of any specific
memory of any particular witness. You, the jury, must decide
whether the witness's identification is accurate.
(1) The witness's opportunity to view the event. You
should consider the opportunity the witness had to observe the
offender at the time of the offense, how good a look the witness
had of the offender, the degree of attention the witness was
paying to the offender at that time, the distance between the
witness and the offender, how good the lighting conditions were,
and the length of time the witness had to observe the offender;
ADD ONLY IF RELEVANT TO THE EVIDENCE IN THE CASE:
[IF DISGUISE WAS INVOLVED OR FACE WAS OBSCURED] whether the
offender was disguised or had his/her features obscured in some
way;5
5
See Study Group Report, supra at 30, quoting Lawson, 352
Or. at 775 (Appendix) ("[S]tudies confirm that the use of a
disguise negatively affects later identification accuracy. In
addition to accoutrements like masks and sunglasses, studies
show that hats, hoods, and other items that conceal a
perpetrator’s hair or hairline also impair a witness’s ability
to make an accurate identification"); Henderson, 208 N.J. at 266
("Disguises and changes in facial features can affect a
witness'[s] ability to remember and identify a perpetrator");
State v. Clopten, 223 P.3d 1103, 1108 (Utah 2009) ("[A]ccuracy
5
[IF PERPETRATOR HAD DISTINCTIVE FACE OR FEATURE] whether
the perpetrator had a distinctive face or feature;6
[IF A WEAPON WAS INVOLVED] and whether the witness saw a
weapon during the event -- the visible presence of a weapon may
reduce the reliability of an identification if the crime is of
short duration, but the longer the event, the more time the
witness has to adapt to the presence of the weapon.7
is significantly affected by factors such as the amount of time
the culprit was in view, lighting conditions, use of a disguise,
distinctiveness of the culprit's appearance, and the presence of
a weapon or other distractions"); Wells & Olson, Eyewitness
Testimony, 54 Ann. Rev. Psychol. 277, 281 (2003) (Wells & Olson)
("Simple disguises, even those as minor as covering the hair,
result in significant impairment of eyewitness identification").
See also Cutler, A Sample of Witness, Crime, and Perpetrator
Characteristics Affecting Eyewitness Identification Accuracy, 4
Cardozo Pub. L. Pol'y & Ethics J. 327, 332 (2006) ("In data from
over 1300 eyewitnesses, the percentage of correct judgments on
identification tests was lower among eyewitnesses who viewed
perpetrators wearing hats [44%] than among eyewitnesses who
viewed perpetrators whose hair and hairlines were visible
[57%]"); Patterson & Baddeley, When Face Recognition Fails, 3 J.
Experimental Psychol. 406, 410 (1977).
6
See Study Group Report, supra at 30-31, quoting Lawson,
352 Or. at 774 ("Witnesses are better at remembering and
identifying individuals with distinctive features than they are
those possessing average features"); Clopten, 223 P.3d at 1108;
Wells & Olson, supra at 281 ("Distinctive faces are much more
likely to be accurately recognized than nondistinctive faces");
Shapiro & Penrod, Meta–Analysis of Facial Identification
Studies, 100 Psychol. Bull. 139, 140, 145 (1986) (meta-analysis
finding that distinctive targets were "easier to recognize than
ordinary looking targets").
7
See Study Group Report, supra at 29, quoting Henderson,
208 N.J. at 262-263 ("'Weapon focus' can . . . impair a
witness's ability to make a reliable identification and describe
what the culprit looks like if the crime is of short duration");
6
(2) Characteristics of the witness. You should also
consider characteristics of the witness when the observation was
made, such as the quality of the witness's eyesight, whether the
witness knew the offender, and, if so, how well,8 and whether the
Guilbert, 306 Conn. at 253; Lawson, 352 Or. at 771-772
(Appendix). See also Kassin, Hosch, & Memon, On the "General
Acceptance" of Eyewitness Testimony Research: A New Survey of
the Experts, 56 Am. Psychol. 405, 407-412 (2001) (Kassin et al.)
(in 2001 survey, eighty-seven per cent of experts agree that
principle that "[t]he presence of a weapon impairs an
eyewitness's ability to accurately identify the perpetrator's
face" is reliable enough to be presented in court); Maass &
Köhnken, Eyewitness Identification: Simulating the "Weapon
Effect," 13 Law & Hum. Behav. 397, 405-406 (1989); Steblay, A
Meta–Analytic Review of the Weapon Focus Effect, 16 Law & Hum.
Behav. 413, 415–417 (1992) (meta-analysis finding "weapon-absent
condition[s] generated significantly more accurate descriptions
of the perpetrator than did the weapon-present condition"); id.
at 421 ("To not consider a weapon's effect on eyewitness
performance is to ignore relevant information. The weapon
effect does reliably occur, particularly in crimes of short
duration in which a threatening weapon is visible"); Wells &
Quinlivan, Suggestive Eyewitness Identification Procedures and
the Supreme Court's Reliability Test in Light of Eyewitness
Science: 30 Years Later, 33 Law & Hum. Behav. 1, 11 (2009).
But see National Academies, supra at 64 (recent meta-analysis
"shows that the effect of a weapon on accuracy is slight in
actual crimes, slightly larger in laboratory studies, and
largest for simulations").
8
See Study Group Report, supra at 135 (recommending
instruction stating, "If the witness had seen the defendant
before the incident, you should consider how many times the
witness had seen the defendant and under what circumstances");
Commonwealth v. Adams, 458 Mass. 766, 770-771 (2011)
("Traditional identification procedures such as photographic
arrays, showups, and lineups were designed primarily for
witnesses who had never before seen a particular individual, or
who may have seen the individual previously but on a limited
basis. They are not normally used, and are not required, for
witnesses who know an individual well"). See also Commonwealth
v. Pressley, 390 Mass. 617, 619 (1983) ("There may be cases in
7
witness was under a high degree of stress -- high levels of
stress, compared to low to medium levels, can reduce an
eyewitness's ability to accurately perceive an event;9
ADD ONLY IF RELEVANT TO THE EVIDENCE IN THE CASE:
which the parties are so well known to each other or so closely
related that under sufficient lighting and with appropriate
physical proximity, the identification by the victim is either
true or the victim is lying"); Commonwealth v. Stoddard, 38
Mass. App. Ct. 45, 48 (1995) (no error in omitting "honest but
mistaken" language where "victim knew the defendant as a regular
customer of the [gasoline] station and had encountered him
numerous times over a year and one-half"). But see Pezdek &
Stolzenberg, Are Individuals' Familiarity Judgments Diagnostic
of Prior Contact?, 20 Psychol. Crime & L. 302, 306 (2014)
(twenty-three per cent of study participants misidentified
subjects with unfamiliar faces as familiar, and only forty-two
per cent correctly identified familiar face as familiar).
9
See Study Group Report, supra at 29, quoting Special
Master's Report, supra at 43 ("The scientific literature reports
that, while moderate levels of stress improve cognitive
processing and might improve accuracy . . . , an eyewitness
under high stress is less likely to make a reliable
identification of the perpetrator"); Lawson, 352 Or. at 769
(Appendix). See also Deffenbacher, Bornstein, Penrod, &
McGorty, A Meta-Analytic Review of the Effects of High Stress on
Eyewitness Memory, 28 Law & Hum. Behav. 687, 699 (2004) (finding
"considerable support for the hypothesis that high levels of
stress negatively impact both accuracy of eyewitness
identification as well as accuracy of recall of crime-related
details"); Morgan, Hazlett, Doran, Garrett, Hoyt, Thomas,
Baranoski, & Southwick, Accuracy of Eyewitness Memory for
Persons Encountered During Exposure to Highly Intense Stress, 27
Int'l J. L. & Psychiatry 265, 272-274 (2004). But see Study
Group Report, supra, quoting Henderson, 208 N.J. at 262 ("There
is no precise measure for what constitutes 'high' stress, which
must be assessed based on the facts presented in individual
cases").
8
[IF DRUGS OR ALCOHOL WERE INVOLVED] whether the witness at
the time of the observation was under the influence of alcohol
or drugs, and if so, to what degree;
[IF WITNESS AND OFFENDER ARE OF DIFFERENT RACES] and
whether the witness and the offender are of different races --
research has shown that people of all races may have greater
difficulty in accurately identifying members of a different race
than they do in identifying members of their own race.10
(3) The time elapsed. You should consider how much time
elapsed between the event observed and the identification.
10
See Study Group Report, supra at 31 ("A witness may have
more difficulty identifying a person of a different race or
ethnicity"); Kassin et al., supra at 407-412 (in 2001 survey,
ninety per cent of experts agree that principle that
"[e]yewitnesses are more accurate when identifying members of
their own race than members of other races" is reliable enough
to be presented in court); Meissner & Brigham, Thirty Years of
Investigating the Own-Race Bias in Memory for Faces: A Meta-
Analytic Review, 7 Psychol., Pub. Pol'y, & L. 3, 15 (2001)
(meta-analysis of thirty-nine research articles concluding that
participants were "1.4 times more likely to correctly identify a
previously viewed own-race face when compared with performance
on other-race faces" and "1.56 times more likely to falsely
identify a novel other-race face when compared with performance
on own-race faces"); Wells & Olson, supra at 280-281. See also
Commonwealth v. Zimmerman, 441 Mass. 146, 154-155 (2004) (Cordy,
J., concurring); State v. Cabagbag, 127 Haw. 302, 310-311
(2012); Lawson, 352 Or. at 775 (Appendix); National Academies,
supra at 66, citing Grimsley, Innocence Project, What Wrongful
Convictions Teach Us About Racial Inequality, Innocence Blog
(Sept. 26, 2012, 2:30 P.M.), at
http://www.innocenceproject.org/Content/What_Wrongful_Conviction
s_Teach_Us_About_Racial_Inequality.php [http://perma.cc/KX2J-
XECN] (last visited Jan. 9, 2015) ("Recent analyses revealed
that cross-racial [mis]identification was present in 42 percent
of the cases in which an erroneous eyewitness identification was
made").
9
Generally, memory is most accurate right after the event and
begins to fade thereafter.11
(4) Witness's expressed certainty. Research shows that a
witness's expressed certainty in an identification, standing
alone, may not be a reliable indicator of the accuracy of the
identification,12 especially where the witness did not describe
that level of certainty when the witness first made the
identification.13
11
See Study Group Report, supra at 31-32, quoting Lawson,
352 Or. at 778 (Appendix) ("The more time that elapses between
an initial observation and a later identification procedure [a
period referred to in eyewitness identification research as a
'retention interval'] . . . the less reliable the later
recollection will be. . . . [D]ecay rates are exponential rather
than linear, with the greatest proportion of memory loss
occurring shortly after an initial observation, then leveling
off over time"); National Academies, supra at 11 ("For
eyewitness identification to take place, perceived information
must be encoded in memory, stored, and subsequently retrieved.
As time passes, memories become less stable").
12
See Study Group Report, supra at 19 ("Social science
research demonstrates that little correlation exists between
witness confidence and the accuracy of the identification");
Lawson, 352 Or. at 777 (Appendix) ("Despite widespread reliance
by judges and juries on the certainty of an eyewitness's
identification, studies show that, under most circumstances,
witness confidence or certainty is not a good indicator of
identification accuracy"); Clopten, 223 P.3d at 1108. See also
Commonwealth v. Cruz, 445 Mass. 589, 597-600 (2005);
Commonwealth v. Santoli, 424 Mass. 837, 845-846 (1997);
Commonwealth v. Jones, 423 Mass. 99, 110 n.9 (1996).
13
See Commonwealth v. Crayton, 470 Mass. 228, 239 (2014)
("Social 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, especially where the level
of confidence is inflated by its suggestiveness"); Henderson,
10
(5) Exposure to identification information from others. A
person's memory may be affected by information the person
received between the incident and the identification,14 as well
as after the identification,15 and the person may not realize
208 N.J. at 254 ("Confirmatory feedback can distort memory. As
a result, to the extent confidence may be relevant in certain
circumstances, it must be recorded in the witness'[s] own words
before any possible feedback"); Lawson, 352 Or. at 745
("Retrospective self-reports of certainty are highly susceptible
to suggestive procedures and confirming feedback, a factor that
further limits the utility of the certainty variable"); Wells &
Bradfield, Distortions in Eyewitnesses' Recollections: Can the
Postidentification–Feedback Effect Be Moderated?, 10 Psychol.
Sci. 138, 138 (1999) ("The idea that confirming feedback would
lead to confidence inflation is not surprising. What is
surprising, however, is that confirming feedback that is given
after the identification leads eyewitnesses to misremember how
confident they were at the time of the identification").
14
See Study Group Report, supra at 21-22; Special Master’s
Report, supra at 30-31 ("An extensive body of studies
demonstrates that the memories of witnesses for events and
faces, and witnesses' confidence in their memories, are highly
malleable and can readily be altered by information received by
witnesses both before and after an identification procedure");
Lawson, 352 Or. at 786 (Appendix) ("The way in which
eyewitnesses are questioned or converse about an event can alter
their memory of the event").
15
See Study Group Report, supra at 22, quoting Henderson,
208 N.J. at 255 (postidentification feedback "affects the
reliability of an identification in that it can distort memory,
create a false sense of confidence, and alter a witness'[s]
report of how he or she viewed an event"); Special Master's
report, supra at 33 ("A number of studies have demonstrated that
witnesses' confidence in their identifications, and their
memories of events and faces, are readily tainted by information
that they receive after the identification procedure"). See
also Commonwealth v. Collins, 470 Mass. 255, 263 (2014) ("Where
confirmatory feedback artificially inflates an eyewitness’s
level of confidence in his or her identification, there is also
11
that his or her memory has been affected.16 You may consider
whether the witness was exposed to identifications made by other
witnesses, to opinions or descriptions given by others,
including police officers, or to any other information or
influence.17 Such exposure may affect the independence and
reliability of a witness's identification, and may inflate the
witness's confidence in the identification.18
a substantial risk that the eyewitness's memory of the crime at
trial will 'improve'").
16
See Study Group Report, supra at 117, 136 n.4, citing
Principles of Neural Science, Box 62-1, at 1239 (Kandel,
Schwartz, & Jessell eds., 2000); Clark, Marshall, & Rosenthal,
Lineup Administrator Influences on Eyewitness Identification
Decisions, 15 J. Experimental Psychol.: Applied 63, 72 (2009)
("Most witnesses appeared to be unaware of the influence" of
lineup administrator in staged experiment).
17
See Henderson, 208 N.J. at 253 ("Confirmatory or post-
identification feedback presents the same risks. It occurs when
police signal to eyewitnesses that they correctly identified the
suspect"); Lawson, 352 Or. at 777-778 (Appendix); Hope, Ost,
Gabbert, Healey, & Lenton, "With a Little Help from My Friends
. . .": The Role of Co–Witness Relationship in Susceptibility
to Misinformation, 127 Acta Psychologica 476, 481 (2008);
Skagerberg, Co–Witness Feedback in Line-ups, 21 Applied
Cognitive Psychol. 489, 494 (2007) ("post-identification
feedback does not have to be presented by the experimenter or an
authoritative figure [e.g. police officer] in order to affect a
witness' subsequent crime-related judgments").
18
See Study Group Report, supra at 21-22; Henderson, 208
N.J. at 255; Lawson, 352 Or. at 744. See also Douglass &
Steblay, Memory Distortion in Eyewitnesses: A Meta–Analysis of
the Post-Identification Feedback Effect, 20 Applied Cognitive
Psychol. 859, 863–65 (2006) (participants who received
confirming feedback "expressed significantly more retrospective
confidence in their decision compared with participants who
received no feedback"); Wells & Bradfield, "Good, You Identified
12
An identification that is the product of some suggestive
conduct by the police or others should be scrutinized with
special caution and care. The risk that suggestion will affect
the identification is greater where the witness did not get so
good a look at the offender, because a witness who got a good
look is less likely to be influenced by suggestion.19
the Suspect": Feedback to Eyewitnesses Distorts Their Reports
of the Witnessing Experience, 83 J. Applied Psychol. 360, 366-
367 (1998) (witnesses receiving confirming feedback reported "a
better view of the culprit, a greater ability to make out
details of the face, greater attention to the event, [and] a
stronger basis for making an identification" compared to
witnesses receiving no feedback); Wells & Bradfield, Distortions
in Eyewitnesses' Recollections: Can the Postidentification–
Feedback Effect Be Moderated?, 10 Psychol. Sci. 138, 138 (1999);
National Academies, supra at 64 ("Research has . . . shown that
. . . if an eyewitness hears information or misinformation from
another person before law enforcement involvement, his or her
recollection of the event and confidence in the identification
can be altered . . .").
19
See Steblay, Wells, & Douglass, The Eyewitness Post
Identification Feedback Effect 15 Years Later: Theoretical and
Policy Implications, 20 Psychol. Pub. Pol. & L. 1, 10 (2014)
(significant but smaller postidentification feedback effect on
accurate eyewitnesses compared to inaccurate eyewitnesses). See
also Allan, Midjord, Martin, & Gabbert, Memory Conformity and
the Perceived Accuracy of Self Versus Other, 40 Memory &
Cognition 280, 285 (2011) (study participants with least amount
of time to view initial event, and who were told that their
partner had twice as long to view same event, were most likely
to conform their memory to their partner's recollection);
Deffenbacher, Bornstein, & Penrod, Mugshot Exposure Effects:
Retroactive Interference, Mugshot Commitment, Source Confusion,
and Unconscious Transference, 30 Law & Hum. Behav. 287, 288
(2006) (bias from mugshot exposure "is all the more problematic
when viewing of the perpetrator has occurred under less than
optimal viewing conditions"). Cf. Wells & Olson, supra at 283
(when accuracy is low due to poor witnessing conditions,
certainty-accuracy relationship is less correlated).
13
ADD ONLY IF RELEVANT TO THE EVIDENCE IN THE CASE:
[IF THERE WAS A PHOTOGRAPHIC ARRAY OR LINEUP] An
identification may occur as part of the police investigation
through the showing of an array of photographs or through a
lineup of individuals. You may take into account that any
identification that was made by picking the defendant out of a
group of similar individuals is generally more reliable than one
which results from the presentation of the defendant alone to a
witness.
You should consider whether the police in conducting the
photographic array or lineup followed established or recommended
procedures that are designed to diminish the risk of
suggestiveness.20 If there was evidence that any of those
procedures were not followed, you should evaluate the
identification with particular care and consider whether the
20
See Commonwealth v. Silva-Santiago, 453 Mass. 782, 797-
798 (2009) ("What is practicable in nearly all circumstances is
a protocol to be employed before a photographic array is
provided to an eyewitness, making clear to the eyewitness, at a
minimum that he will be asked to view a set of photographs; the
alleged wrongdoer may or may not be in the photographs depicted
in the array; it is just as important to clear a person from
suspicion as to identify a person as the wrongdoer; individuals
depicted in the photographs may not appear exactly as they did
on the date of the incident because features such as weight and
head and facial hair are subject to change; regardless of
whether an identification is made, the investigation will
continue; and the procedure requires the administrator to ask
the witness to state, in his or her own words, how certain he or
she is of any identification").
14
failure to follow the procedure affected the reliability of the
identification.
Where a witness identified the defendant in a photographic
array [or in a lineup], you should consider the number of
photographs in the array [or individuals in the lineup],21
whether there was anything about the defendant's photograph [or
the defendant's appearance in the lineup] that made him/her
stand out from the others,22 whether the person administering the
photographic array [or lineup] did not know who was the suspect
and therefore could not influence the witness's identification,23
21
See Commonwealth v. Walker, 460 Mass. 590, 604 (2011)
("Unless there are exigent or extraordinary circumstances,"
photographic array should not contain fewer than five fillers
for every suspect). See also Henderson, 208 N.J. at 251 (live
lineups should also employ minimum of five fillers).
22
See Wells & Olson, supra at 287 ("Ideally, lineup fillers
would be chosen so that an innocent suspect is not mistakenly
identified merely from 'standing out,' and so that a culprit
does not escape identification merely from blending in"); Silva-
Santiago, 453 Mass. at 795, quoting Commonwealth v. Melvin, 399
Mass. 201, 207 n.10 (1987) ("we 'disapprove of an array of
photographs which distinguishes one suspect from all the others
on the basis of some physical characteristic'"). See also
Henderson, 208 N.J. at 251; Lawson, 352 Or. at 781; Malpass,
Tredoux, & McQuiston-Surrett, Lineup Construction and Lineup
Fairness, in 2 Handbook of Eyewitness Psychology 156 (2007)
("Decades of empirical research suggest that mistaken eyewitness
identifications are more likely to occur when the suspect stands
out in a lineup").
23
See Silva-Santiago, 453 Mass. at 797 ("we acknowledge
that [a double-blind procedure] is the better practice because
it eliminates the risk of conscious or unconscious suggestion");
Guilbert, 306 Conn. at 237-238 (courts across country accept
that "identifications are likely to be less reliable in the
15
and whether anything was said to the witness that would suggest
that the suspect was among the persons shown in the photographic
array [or lineup], or that would suggest that the witness should
identify the suspect.24
[IF THERE WAS A SHOWUP] An identification may occur as
part of the police investigation through what is known as a
showup, where a suspect is shown alone to a witness. An
identification procedure in which a witness selects a person
absence of a double-blind, sequential identification
procedure"); Henderson, 208 N.J. at 249 ("The consequences are
clear: a non-blind lineup procedure can affect the reliability
of a lineup because even the best-intentioned, non-blind
administrator can act in a way that inadvertently sways an
eyewitness trying to identify a suspect"). See also National
Academies, supra at 18 ("As an alternative to a 'double-blind'
array, some departments use 'blinded' procedures. A blinded
procedure prevents an officer from knowing when the witness is
viewing a photo of the suspect, but can be conducted by the
investigating officer"); id. at 73 ("The committee recommends
blind [double-blind or blinded] administration of both photo
arrays and live lineups and the adoption of clear, written
policies and training on photo array and live lineup
administration. Police should use blind procedures to avoid the
unintentional or intentional exchange of information that might
bias an eyewitness").
24
See Clark, Marshall, & Rosenthal, Lineup Administrator
Influences on Eyewitness Identification Decisions, 15 J.
Experimental Psychol. Applied 63, 74 (2009) (subtle,
nondirective statements by lineup administrator "can lead a
witness to make an identification, particularly when the
perpetrator was not present"); Malpass & Devine, Eyewitness
Identification: Lineup Instructions and the Absence of the
Offender, 66 J. Applied Psychol. 482, 486-487 (1981) (where
subject witnesses were asked to identify assailant in staged
experiment, "[c]hanging the instruction from biased [suspect is
present in lineup] to unbiased [suspect may or may not be
present] resulted in fewer choices and fewer false
identifications without a decrease in correct identifications").
16
from a group of similar individuals in a photographic array or a
lineup is generally less suggestive than a showup, which is to
some degree inherently suggestive.25 You should consider how
long after the initial event the showup took place, as a fresh
memory of an event that occurred only a few hours earlier may
reduce the risks arising from the inherently suggestive nature
of a showup.26
25
See Study Group Report, supra at 26, citing Special
Master's Report, supra at 29 (showups carry their own risks of
misidentification "due to the fact that only one person is
presented to the witness"); Lawson, 352 Or. at 742-743 ("A
'showup' is a procedure in which police officers present an
eyewitness with a single suspect for identification, often [but
not necessarily] conducted in the field shortly after a crime
has taken place. Police showups are generally regarded as
inherently suggestive -- and therefore less reliable than
properly administered lineup identifications -- because the
witness is always aware of whom police officers have targeted as
a suspect"); Dysart & Lindsay, Show-up Identifications:
Suggestive Technique or Reliable Method?, in 2 Handbook of
Eyewitness Psychology 141 (2007) ("Overall, show-ups [fare]
poorly when compared with line-ups. Correct identification
rates are equal and false identification rates are about two to
three times as high with show-ups compared with line-ups"). See
also Silva-Santiago, 453 Mass. at 797; Commonwealth v. Martin,
447 Mass. 274, 279 (2006) ("One-on-one identifications are
generally disfavored because they are viewed as inherently
suggestive").
26
See Crayton, 470 Mass. at 235-236 ("there is generally
'good reason' [to conduct showup] where the showup
identification occurs within a few hours of the crime, because
it is important to learn whether the police have captured the
perpetrator or whether the perpetrator is still at large, and
because a prompt identification is more likely to be accurate
when the witness's recollection of the event is still fresh");
Study Group Report, supra at 141 n.30, quoting Special Master's
Report, supra at 29 ("The research shows, in fact, that the risk
of misidentification is not heightened if a showup is conducted
17
You should consider whether the police, in conducting the
showup, followed established or recommended procedures that are
designed to diminish the risk of suggestiveness. If any of
those procedures were not followed, you should evaluate the
identification with particular care and consider whether the
failure to follow the procedure affected the reliability of the
identification.
ADD ONLY IF RELEVANT TO THE EVIDENCE IN THE CASE:
[IF THERE WERE MULTIPLE VIEWINGS BY THE SAME WITNESS] You
should consider whether the witness viewed the defendant in
multiple identification procedures or events. When a witness
views the same person in more than one identification procedure
or event, it may be difficult to know whether a later
identification comes from the witness's memory of the actual,
original event, or from the witness's observation of the person
at an earlier identification procedure or event.27
immediately after the witnessed event, ideally within two hours:
the benefits of a fresh memory seem to balance the risks of
undue suggestion"). See also Dysart & Lindsay, The Effects of
Delay on Eyewitness Identification Accuracy: Should We Be
Concerned?, in 2 Handbook of Eyewitness Psychology 370 (2007)
(showups become particularly unreliable after twenty-four hours,
rather than two hours).
27
See Study Group Report, supra at 25, quoting Special
Master's Report, supra at 27-28 ("The problem is that successive
views of the same person create uncertainty as to whether an
ultimate identification is based on memory of the original
observation or memory from an earlier identification
procedure"); Henderson, 208 N.J. at 255; Deffenbacher,
18
(6) Failure to identify or inconsistent identification.
You may take into account whether a witness ever tried and
failed to make an identification of the defendant, or made an
identification that was inconsistent with the identification
that such witness made at trial.
(7) Totality of the evidence. You should consider all the
relevant factors that I have discussed, viewed in the context of
the totality of the evidence in this case, in evaluating the
accuracy of a witness's identification testimony. Specifically,
you should consider whether there was other evidence in the
case, direct or circumstantial, that tends to support or not to
support the accuracy of an identification. If you are not
convinced beyond a reasonable doubt that the defendant was the
person who committed [or participated in the commission of] the
crime[s], you must find the defendant not guilty.
Bornstein, & Penrod, Mugshot Exposure Effects: Retroactive
Interference, Mugshot Commitment, Source Confusion, and
Unconscious Transference, 30 Law & Hum. Behav. 287, 306 (2006)
("prior mugshot exposure decreases accuracy at a subsequent
lineup, both in terms of reductions in rates for hits and
correct rejections as well as in terms of increases in the rate
for false alarms"). See also Simmons v. United States, 390 U.S.
377, 383-384 (1968); Commonwealth v. Scott, 408 Mass. 811, 826
(1990).