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CONWAY_FINAL

NOTE
A New Era of Eyewitness Identification
Law: Putting Eyewitness Testimony on
Trial

SARA CONWAY+

ABSTRACT
Erroneous eyewitness identifications are the leading cause of wrongful
convictions. This has gone far past mere conjecture, it is now a fact born
out by more than 250 cases of DNA exonerations. And this is just the tip of
the iceberg. The Supreme Courts due process test is outdated and
ineffective, and the Court has shown a decided reluctance to reevaluate its
methodology. Volumes of literature on the fallibility of human memory
and perception have amassed over the last thirty years, proving that
memory is a selective process which can be altered by outside influences.
This new science requires a change in the way that courts treat eyewitness
testimony, and Massachusetts has pioneered the reform effort. The time
has come for states to take stock of the new scientific consensus available to
them. States need to follow Massachusetts lead and reconsider outdated
eyewitness identification procedures and adopt procedures that reflect the
teachings of modern science of memory and perception because, when the
stakes are so high, due process does not permit second best.

Candidate for Juris Doctor, New England Law | Boston (2016). B.A., Political Science,
Clark University (2012). I would like to thank my family, for their love and encouragement;
Joe Stanton, for suggesting this important topic; Professor Friedman, for his continued
support; and all of the Editors and Associates who have worked diligently to improve the
substance and quality of this paper.
+ New

England Law Review Scribes Award Winner, 20142015.

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INTRODUCTION
The trial which might determine the accuseds fate may well not be that
in the courtroom but that at the pretrial confrontation, with the State
aligned against the accused, the witness the sole jury, and the accused
unprotected against the overreaching, intentional or unintentional, and
with little or no effective appeal from the judgment there rendered by the
witnessthats the man.1

dentif[ying] . . . the accused [as a] wrongdoer is a necessary


element of every crime.2 When a crime is reported, police contact
the victims and witnesses and employ various procedures in
hopes of obtaining an identification.3 These procedures are largely
experimental.4 During a lineup, law enforcement officials test their
hypothesis that a particular suspect is the perpetrator. 5 As with any
experiment, the validity of its results depends on the design and
implementation of the underlying procedures, whichthose analyzing the
result of the experiment would hopewould be careful and unbiased.6
Unfortunately, testimony derived from these procedures is as convincing
as it is flawed.7 Volumes of literatureincluding 2,000 published studies
on the fallibility of human memory and perceptionhave amassed over
the last thirty years, proving that memory is a selective process which can
be altered by outside influences. 8 This new science requires a change in the
way that courts treat eyewitness testimony, a reform effort pioneered by
the Massachusetts court system.9 In the past four years, the Massachusetts

United States v. Wade, 388 U.S. 218, 23536 (1967).


Ray Moses, Misidentification: The Caprices of Eyewitness Testimony in Criminal Cases, CENTER
FOR CRIM. JUST. ADVOC., http://criminaldefense.homestead.com/eyewitnessmis
identification.html#anchor_53 (last visited Jan. 6, 2016). Identifications can fall into one of five
categories: showups, photographic arrays, line-ups, object identifications, and in-court
identifications. 7 No. 2 Crim. Prac. Guide 3 (2006); Stanley Z. Fisher, Eyewitness Identification
Reform in Massachusetts, 91 MASS. L. REV. 52, 54 (2008) (showups are the most common
identification procedure); Report of the Special Master at 29, State v. Henderson, 27 A.3d 872,
902 (N.J. 2011) (No. A-8-09) (noting a single suspect is presented to a witness during a
showup).
3 Bennett L. Gershman, The Eyewitness Conundrum: How Courts, Police and Attorneys Can
Reduce Mistakes by Eyewitnesses, N.Y. ST. B.A. J. 24, 28 (2009).
2

4 See SUPREME JUDICIAL COURT STUDY GROUP ON EYEWITNESS EVIDENCE, REPORT AND
RECOMMENDATIONS TO THE JUSTICES 73 (2013) [hereinafter SJC REPORT].
5

Id.
See id.
7 See id. at 1.
8 See id. at 1517.
9 See Brief for the Innocence Project, Inc. as Amicus Curiae at 3, Commonwealth v.
6

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Supreme Judicial Court (SJC) adopted important safeguards [for


defendants and the judicial system] against convictions based on unreliable
eyewitness evidence.10 Massachusetts is just one of several states that have
taken such strides; some preceded and others will surely follow. 11 National
reforms are still developing, but one thing is already clear: Massachusetts
got it right, and the legal system is better for it.12
This Note argues that Massachusetts approach to eyewitness
identifications appropriately marries science and law, creating a set of
standards governing eyewitness evidence that better protects defendants
from the dangers associated with mistaken identifications. Part I is an
overview of the problems associated with eyewitness identification and the
Supreme Courts willingness to accept unreliable, unnecessarily suggestive
evidence. Part I also discusses recent changes in eyewitness identification
law through the lens of recent Massachusetts jurisprudence. Part II
highlights what is at stake if the identification rules remain unchanged.
Part III considers the reasons why Massachusetts got it right. Finally, Part
IV argues that other courts should follow Massachusetts approach to
ensure future eyewitness identification will be less suggestive, more
reliable, and have a deleterious effect on the risk of future wrongful
convictions.
I.

Background
A. The Big Picture

Eyewitness identification is an invaluable law enforcement tool.13 At


least 80,000 prosecutions each year depend in large measure on eyewitness
testimony.14 Such testimony can serve as a key piece of evidence in
obtaining accurate convictions.15 Unfortunately, eyewitness identification is

Bastaldo, (No. SJC-11763), 2011 WL 12654561 (Mass. 2011) (describing Massachusetts as the
vanguard of addressing the dangers of eyewitness misidentification and collecting cases);
see also Eric Pilch, Massachusetts at Forefront of Reforming Treatment of Eyewitness Identification
Evidence in Court, INNOCENCE PROJECT (Aug. 29, 2014, 11:10 AM), http://
http://www.innocenceproject.org/news-events-exonerations/massachusetts-at-forefront-ofreforming-treatment-of-eyewitness-identification-evidence-in-court.
10 See Fisher, supra note 2, at 60.
11 See infra note 172.
12 See infra Part III.
13 Commonwealth v. Walker, 953 N.E.2d 195, 208 n.16 (Mass. 2011).
14 Steven B. Duke, Eyewitness Testimony Doesnt Make it True, HARTFORD COURANT (June 11,
2006),
http://articles.courant.com/2006-06-11/news/0606120550_1_eyewitness-identificationdna-evidence-dna-analysis.
15

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

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also the greatest source of wrongful convictions.16 An oft-cited study of the


first 250 DNA exonerations reveals that 76 percent involved mistaken
eyewitness identifications.17 In some cases, more than one eyewitness
misidentified the innocent individuals as the perpetrator. 18 Almost all of
the eyewitnesses at the exonerees trials testified that they were certain they
identified the correct person.19 The trial records from these DNA
exoneration cases exposed two interrelated problems: suggestive
identification procedures and unreliable identifications. 20
The idea that eyewitness identifications present a host of issues for
criminal procedure is hardly revolutionary.21 Courts and commentators
alike have noted, documented, and studied the problems associated with
eyewitness identifications for over 100 years.22 In 1967, the United States
Supreme Court observed that [i]dentification evidence is peculiarly
riddled with innumerable dangers . . . . The vagaries of eyewitness
identification are well-known; the annals of criminal law are rife with
instances of mistaken identification.23 However, while the Court has
recognized the existence of this problem, it has dealt with this reality in
the handiest way possibleall but ignoring it.24
Instead of confronting the unreliability of eyewitness identification
head on, the Court initially deferred to the criminal defense bar by
suggesting that cross-examination would be an adequate vehicle for

16

Id.; see also Commonwealth v. Johnson, 650 N.E.2d 1257, 1261 (Mass. 1995) (There is no
question that the danger of mistaken identification . . . poses a real threat to the truth-finding
process. . . . Indeed, mistaken identification is believed widely to be the primary cause of
erroneous convictions.).
17 BRANDON L. GARRETT, CONVICTING THE INNOCENT: WHERE CRIMINAL PROSECUTIONS GO
WRONG 48 (2011) [hereinafter GARRETT].
18

THE JUSTICE PROJECT, EYEWITNESS IDENTIFICATION: A POLICY REVIEW 2, available at


https://public.psych.iastate.edu/glwells/The_Justice%20Project_Eyewitness_Identification_%2
0A_Policy_Review.pdf (last visited Jan. 6, 2016) [hereinafter A POLICY REVIEW].
19 GARRETT, supra note 17.
20 Id.
21 HUGO MNSTERBERG, ON THE WITNESS STAND: ESSAYS ON PSYCHOLOGY AND CRIME 1011
(1908) [hereinafter MNSTERBERG].
22 PAUL C. GIANNELLI ET AL., SCIENTIFIC EVIDENCE 9.02, at 1 (Matthew Bender 5th ed.
2014); Deborah Davis & Elizabeth F. Loftus, The Dangers of Eyewitnesses for the Innocent:
Learning from the Past and Projecting into the Age of Social Media, 46 NEW ENG. L. REV. 769, 774
(2012).
23

United States v. Wade, 388 U.S. 218, 228 (1967).


See, e.g., Perry v. New Hampshire, 132 S. Ct. 716 (2012) (declining to update the due
process test governing the admissibility of eyewitness identification testimony).
24

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challenging eyewitness testimony.25 Cross-examination has been revered


among scholars as the greatest legal engine ever invented for the
ascertainment of the truth.26 Regrettably, though, when applied in the
context of eyewitness testimony, it proves to be a dismayingly tenuous
solution to what has become a colossal problem. 27 Cross-examination is, of
course, an essential component of a fair trial; however, it cannot provide a
complete picture of accuracy and reliability.28 Far more is needed to
confront an accusation as famously unreliable as eyewitness
identification.29 Courts have only recently begun to develop more
appropriate solutions to the problem.30
Despite widespread acceptance of the unreliability of eyewitness
testimony, it took decades of documented scientific and psychological
study before the legal system was finally ready to hear what eyewitness
researchers had to say.31 Thankfully, courts and police departments have
accepted and slowly embraced the empirical data on the fallibility of
witness memory and its effect on the reliability of eyewitness evidence. 32
Since at least 2011, the Massachusetts SJC has taken considerable steps
toward reducing the risk of wrongful convictions by committing
substantial resources to studying the science behind witness
identification.33 After thirty years of empirical research and the efforts of
other courts, the SJC began to reevaluate its acceptance of eyewitness
25

See Wade, 388 U.S. at 22728.


C. DOYLE, TRUE WITNESS: COPS, COURTS, SCIENCE, AND THE BATTLE AGAINST
MISIDENTIFICATION 37 (Palgrave MacMillan ed., 2005) (quoting the great John Henry Wigmore
to explain lawyers mystic faith in the power of cross-examination).
27 See Brandon L. Garrett, Eyewitnesses and Exclusion, 65 VAND. L. REV. 451, 454 (2012)
(explaining that standard tools like cross-examination cannot show how unsound
identification procedures alter the very memory of an eyewitness); Christian Sheehan, Making
the Jurors the "Experts": The Case for Eyewitness Identification Jury Instructions, 52 B.C. L. REV.
651, 665 (2011) (describing cross-examination as an effective tool for exposing a dishonest or
biased witness, but ill equipped to confront an honest but mistaken witness who, because
she is giving testimony she believes to be true, will not display the demeanor of someone who
is lying). In fact, one expert reported that no expert in the field is able to separate accurate
from inaccurate witnesses based on their testimony alone because [t]heres just no good
markers for the error. Report of the Special Master, supra note 2, at 50.
28 Wade, 388 U.S. at 235.
29 See id.
30 See discussion infra Part III.
31 Saul Kassin, Book Review, 25 AM. PSYCHOL. L. SOCY NEWS 4, 5 (Winter 2005) (reviewing
DOYLE, supra note 26).
26 JAMES

32 See Sandra Guerra Thompson, Eyewitness Identifications and State Courts As Guardians
Against Wrongful Conviction, 7 OHIO ST. J. CRIM. L. 603, 604 (2010).
33

SJC REPORT, supra note 4, at 1.

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testimony and construct more rigid rules governing the collection,


admission, and deliverance of eyewitness testimony. 34 Many police
departments, prosecutors, defense attorneys, and legal scholars have since
taken steps to evaluate the science behind memory and eyewitness
identification for the criminal justice system.35 Of course, members of these
groups approach the subject with varying and often conflicting interests,
given the nature of their jobs.36 Despite the tension, there is resounding
agreement that eyewitness practices and procedures should reflect the
findings of science, and that all involved in the criminal justice system,
including jurors, should be educated about the often counterintuitive ways
in which memory works.37 Generally, the consensus boils down to: (1)
adopt police procedures for interviewing witnesses and conducting
identification procedures that minimize suggestion and promote accuracy
and completeness; (2) exclude unreliable identifications from trial
evidence.38 This new scientific consensus requires a change in the way the
court system and police personnel deal with collecting and using
eyewitness evidence.39
Several state supreme courts have begun demanding less suggestive,
more reliable eyewitness evidence.40 Other courts, including the United
States Supreme Court, remain reluctant to adapt to the changing
environment of eyewitness identification law, eschewing scientific
developments for conventionalalbeit flawedwisdom regarding human
memory.41 What follows is a reviewthough by no means
comprehensiveof the changing landscape of eyewitness identification
law, and a pitch for the remaining courts to reexamine their practices

34

See discussion infra Part III.


SJC REPORT, supra note 4, at 1.
36 See DOYLE, supra note 26, at 173 (discussing the tension between eyewitness researchers
and prosecutors).
37 SJC REPORT, supra note 4, at 2.
38 Davis & Loftus, supra note 22, at 775.
39 SJC REPORT, supra note 4, at 1.
40 See State v. Guilbert, 49 A.3d 705, 730 (Conn. 2012); Commonwealth v. Collins, 21 N.E.3d
528, 537 (Mass. 2014); Commonwealth v. Crayton, 21 N.E.3d 157, 169 (Mass. 2014);
Commonwealth v. Walker, 953 N.E.2d 195, 20809 (Mass. 2011); State v. Henderson, 27 A.3d
872, 878 (N.J. 2011); State v. Lawson, 291 P.3d 673, 69697 (Or. 2012).
41 SJC REPORT, supra note 4, at 8. See, e.g., Perry v. New Hampshire, 132 S. Ct. 716, 732
(2012); United States v. Jones, 689 F.3d 12, 18 (1st Cir. 2012); MNSTERBERG, supra note 21, at
1011 (observing dismayingly that applied psychology can point out the many patently
obvious flaws of human memory, but [t]he lawyer and the judge and the juryman are sure
that they do not need the experimental psychologist. . . . They go on thinking that their legal
instinct and their common sense supplies them with all that is needed and somewhat more.).
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concerning eyewitness evidence.42


B. Federal Precedent: Modest Constitutional Protections for Criminal
Defendants
1.

Right to Counsel

The Supreme Court first addressed the hazards associated with


eyewitness identification in a trilogy of cases decided in 1967. 43 In United
States v. Wade and Gilbert v. California, the Court held that a defendant has a
right to counsel at a post-indictment lineup under the Sixth Amendment.44
The Court further ruled that a per se rule of exclusion for courtroom
identifications would not be justified, because counsels presence at the
initial lineup would enable him to attack both the in-court and out-of-court
identification.45 According to the Court, factors relevant to attacking
eyewitness identifications would include: (1) the eyewitnesss opportunity
to view the commission of the crime, (2) any discrepancy between the prelineup description and the defendants actual description, (3) whether
another person was identified prior to the lineup, (4) whether the
defendant was identified by picture prior to the lineup, (5) whether the
eyewitness failed to identify the defendant on a prior occasion, and (6) the
amount of time between the alleged act and the lineup identification.46
2.

Due ProcessFrom Suggestiveness to Reliability

In Stovall v. Denno, the Court focused on the eyewitness identification


procedure itself and ruled that an unnecessarily suggestive identification
would violate a defendants due process rights.47 Analyzing the
suggestiveness of a procedure would depend on the totality of the
circumstances surrounding the identification.48 Ten years later, the Court
shifted its focus away from suggestiveness, concluding instead that
reliability is the linchpin in determining the admissibility of identification
testimony.49 The Court delineated a two-part test: (1) whether the police
used an impermissibly suggestive identification procedure, and if so, (2)

42

See infra parts I.BIV.A.2.iii.


See United States v. Wade, 388 U.S. 218, 228 (1967); Gilbert v. California, 388 U.S. 263, 269
(1967); Stovall v. Denno, 388 U.S. 293, 294 (1967).
43

44

Wade, 388 U.S. at 23637; Gilbert, 388 U.S. at 272.


Wade, 388 U.S. at 24041.
46 Id. at 241.
47 388 U.S. 293, 30102 (1967).
48 Id.
49 Manson v. Brathwaite, 432 U.S. 98, 114 (1977) (emphasis added).
45

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whether under the totality of the circumstances, the suggestive procedure


gave rise to a substantial likelihood of irreparable misidentification.50 The
Court listed five factors to be weighed in assessing the reliability of an
identification procedure: (i) the witness opportunity to view the criminal
at the time of the crime, (ii) the witness degree of attention, (iii) the
accuracy of his prior description of the criminal, (iv) the level of certainty
demonstrated at the confrontation, and (v) the time between the crime and
the confrontation.51
3.

Limitations

The safeguards the Court adopted have been criticized as modest


constitutional protections against the most blatantly unfair kinds of police
identification procedures.52 Indeed, what began as modest has since been
diluted even further over time.53 After Wade, the Court placed two
significant restrictions on the right to counsel that rendered the right nearly
ineffectual concerning the risk of erroneous identifications. 54 In 1972, the
Court held that the right did not attach until the initiation of judicial
criminal proceedings, meaning that neither an arrest, nor a pre-indictment
identification procedure would trigger a defendants right to counsel no
matter how essential counsels presence would be to avoid prejudice to the
accuseds rights further down the line.55 In 1973, the Court held that a
defendant does not have the right to counsel at a photographic display,
even if the display occurred after the right attached. 56 Because most lineups
occur before the commencement of judicial proceedings, and photo
displays are the most common method of identification, the right to
counsel has not played a central role in many cases.57
The Court has subsequently limited the reach of its due process
framework as well.58 In Perry v. New Hampshire, the Court held that due
process review does not apply in the absence of police involvement. 59 In

50

Id. at 107.
Id. at 9899.
52 Gershman, supra note 3, at 24.
53 See GIANNELLI ET AL., supra note 22, at 5.
54 See id.
55 See id.; William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90
HARV. L. REV. 489, 497 (1977) (citing Kirby v. Illinois, 406 U.S. 682, 689 (1972)).
51

56 See GIANNELLI ET AL., supra note 22, at 5 (citing United States v. Ash, 413 U.S. 300, 321
(1973)).
57

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

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such instances, the Court tests reliability through the rights and
opportunities generally designed for that purpose, namely, the presence
of counsel, cross-examination, the rules of evidence, and jury instructions. 60
Further, the Courts due process analysis itself is riddled with issues. 61
Under the Courts two-part test, if a court finds that the police procedure
involved in an identification was not suggestive, the analysis stops. 62 The
Court does not go on to assess whether the identification is otherwise
unreliable.63 Yet we now know that a number of factors unrelated to police
conduct can skew the reliability of an identification.64 Worse, under the
second prong of the Courts test, an identification procedure that is found
to be unnecessarily suggestive may still be admissible if a court finds it
reliable.65 But scientific research has proven that the factors the Manson
Court announced are not an adequate instrument for testing reliability
because they can be affected by suggestive conduct. 66 Therefore, prong one
of the test contaminates prong two.67 Nonetheless, the Perry Court declined
to update the Manson factors despite having mountains of scientific data
documenting the fallibility of eyewitness evidence at its disposal. 68 The
Court was decidedly unwilling to implement per se rules or judicial
screening measures that would make unreliable identifications
inadmissible because the jury, not the judge, traditionally determines the
reliability of evidence.69
Courts have continued to use this test to evaluate suggestiveness and
reliability without regard to the well-developed body of scientific data
proving that eyewitness identifications are hopelessly unreliable.70
Recently, though, some state courts have rejected the test altogether. 71
Other than Massachusetts, no state has put together a more concrete
60

Id.
See Davis & Loftus, supra note 22, at 777.
62 Id. at 769.
63 Id.
64 See infra Part II.C.2.
65 See Manson v. Brathwaite, 432 U.S. 98, 106 (1977).
66 Davis & Loftus, supra note 22, at 777.
67 Id.
68 See id. at 782.
69 See Perry v. New Hampshire, 132 S. Ct. 716, 728 (2012).
70 See Dana Walsh, The Dangers of Eyewitness Identification: A Call for Greater State
Involvement to Ensure Fundamental Fairness, 36 B.C. INTL & COMP. L. REV. 1415, 1430, 1441
(2013) (quoting Commonwealth v. Johnson, 650 N.E.2d 1257, 1262 (Mass. 1995)).
71 See GIANNELLI ET AL., supra note 22, at 6 n.45 (citing State v. Dubose, 699 N.W.2d 582,
59394 (Wis. 2005) (ruling that out-of-court showups are unnecessarily suggestive and are
inadmissible unless the procedure was necessary).
61

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framework for analyzing eyewitness identification in light of these


scientific developments.72
C. The New Era of Eyewitness Identification Law in Massachusetts
1.

Out-of-Court Identifications

In Commonwealth v. Walker, the SJC did what the Supreme Court


refused to: it adopted a rule of per se exclusion for unnecessarily
suggestive out-of-court identifications.73 The SJC also noted that a
photographic array composed entirely of suspects significantly and
needlessly increases the risk of misidentification and false prosecution. 74
Thus, the SJC set forth new guidance for police to follow: absent exigent or
extraordinary circumstances, the police should not show a photographic
array to an eyewitness containing fewer than five fillers for every suspect,
whether simultaneous or sequential.75 The SJC did not opine whether
failure to follow the new procedure would make the identification
inadmissible.76 Instead, it convened a Study Group to consider how best to
deter unnecessarily suggestive procedure and to determine the sufficiency
of existing jury instructions in evaluating eyewitness testimony.77 The
Study Groups findings guided two subsequent cases that expanded the
rule pronounced in Walker.78
2.

In-Court Identifications

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

72

See infra Part I.C.


See Commonwealth v. Walker, 953 N.E.2d 195, 205 n.13 (Mass. 2011) (citing
Commonwealth v. Johnson, 650 N.E.2d 1257, 126263 (Mass. 1995)).
73

74

See id. at 208.


Id.
76 Id.
77 Id. at 208 n.16.
78 See Commonwealth v. Collins, 21 N.E.3d 528, 536 (Mass. 2014); Commonwealth v.
Crayton, 21 N.E.3d 157, 168, 169 (Mass. 2014).
75

79

See Crayton, 21 N.E.3d at 172.

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admission.80 The SJC also changed the procedural mandates of such


identifications, and announced that while the defendant usually bears the
burden of moving to suppress an identification, the court will now place
the burden on the prosecutor to move in limine to admit the in-court
identification where there has been no out-of-court identification; and, the
defendant will bear the burden of showing that the in-court identification
would be unnecessarily suggestive and that there is not good reason for
it.81
In Commonwealth v. Collins, the SJC declared that Craytons good
reason standard would also apply to in-court-showup identifications
made after a witness made anything less than an unequivocal positive
identification of the defendant during a nonsuggestive identification
procedure.82
3.

New Ways to Instruct the Jury

In Commonwealth v. Gomes, the court revisited its jurisprudence on


eyewitness identification.83 The SJC identified a limitation in prior
identification instructionsthe instructions focus on factors the jury
should consider in evaluating the accuracy of an eyewitnesss positive
identification of a defendant, but fail to instruct the jury as to how those
factors may affect the accuracy of the identification.84 The SJC created a
new model jury instruction that expressly incorporated scientific
principles regarding eyewitness identification that are so generally
accepted that they should be applied when the jury evaluates eyewitness
identification evidence.85
The same day, the SJC issued an opinion in Commonwealth v. Johnson.86
The court held that an eyewitness identification instruction is not required,
though it is allowed, where there was no positive identification made, and
no eyewitness testimony significantly incriminating the defendant. 87 The
SJC reasoned that information that the witnesses failed to identify the
defendant in a line-up constitutes exculpatory evidence indicating that the
defendant was not the perpetrator, the gravity of which the jury could

80

Id. at 169.
See id.
82 Collins, 21 N.E.3d at 536.
83 See Commonwealth v. Gomes, 22 N.E.3d 897, 900 (Mass. 2015).
84 See id. at 90607 (emphasis in original).
85 See id. at 907.
86 22 N.E.3d 155, 156 (2015).
87 Id.
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weigh in light of the totality of the evidence.88


II. The Fallibility of Eyewitness Identifications
There is almost nothing more convincing than a live human being who
takes the stand, points a finger at the defendant, and says Thats the
one!89

A. Far More Is at Stake Than Meets the Eye


Some might assume that eyewitness identification only affects criminal
defendants, and those that do might also wonder why they should care
about eyewitness misidentification.90 The best answer might come in the
form of an appeal to our collective conscience. 91 If for no other reason, we
should care about the fallibilities of eyewitness evidence because the risk of
not caring is so great.92 Some rather unsettling numbers make the cost of
inaction unmistakably clear.93 In 2011, Brandon Garrett published a study
of the first 250 DNA exonerations, which revealed that 76% of cases (190
out of 250 cases) involved convictions based on mistaken eyewitness
identification.94 This is, itself, undeniably a profound injustice.95 But
consider how vast these numbers could become. 96 In 2010, a total of 81,934
defendants were convicted in federal criminal prosecutions.97 The same
year, the government had a 93% conviction rate81% of convicted
defendants were sentenced to prison, 27% for greater than five years.98
Meanwhile, more than 80,000 prosecutions each year across state and
federal jurisdictions depend in large measure on eyewitness testimony.99
Ohio State University Ph.D student Arye Rattner completed a doctoral
88

Id. at 160.
Watkins v. Sowders, 449 U.S. 341, 352 (1981) (quoting ELIZABETH F. LOFTUS, EYEWITNESS
TESTIMONY 19 (1979)).
89

90

See A POLICY REVIEW, supra note 18, at 9.


See id.
92 See Gary L. Wells et al., Eyewitness Identification Reforms: Are Suggestiveness-Induced Hits
and Guesses True Hits?, 7 PERSP. PSYCHOL. SCI. 264, 268 (2012) (postulating that identifications
made during certain lineup procedures are lucky guesses).
91

93

See GARRETT, supra note 17, at 48.


Id.
95 See A POLICY REVIEW, supra note 18, at 2.
96 See UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES ATTORNEYS ANNUAL
STATISTICAL REPORT FISCAL YEAR 2010 5 (2010), available at http://www.justice.gov/sites/
94

default/files/usao/legacy/2011/09/01/10statrpt.pdf.
97 Id.
98 Id.
99 Duke, supra note 14.

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dissertation that may help bring the horrifying potential of these figures to
light.100 Rattner analyzed 205 cases of wrongful conviction that occurred
over a period of eighty-five years involving first and second degree
murder, manslaughter, attempted murder, robbery (armed and unarmed),
forcible rape, attempted rape, forgery, larceny, and arson. 101 The
eyewitnesses misidentified the defendants in fifty-two percent of the 205
cases.102 Based on a survey of 188 judges, prosecuting attorneys, public
defenders, sheriffs and police chiefs, and forty-one state attorneys general,
Rattner and others later estimated that 0.5% of individuals convicted of the
aforementioned crimesknown to the FBI as index crimeswere
innocent.103 The authors discovered that even if the criminal justice system
were 99.5% accurate, there would still be nearly 10,000 wrongful
convictions each year for index crimes alone.104 Stated differently, 10,000
people would go to jail for someone elses crime.105
Allowing just one innocent person to be sent to jail should strike us as
an unfathomable outcome in a system purportedly designed to ascertain
truth.106 Allowing 190 innocent people to be convicted because of a
mistaken identification is, by all accounts, the result of a systemic failure to
safeguard the rights of criminal defendants.107 A justice system that permits
such blatantly unreliable evidence to be used against defendants is no
better than the trials by ordeal of our past.108 Evidence used to convict
100 See Arye Rattner, Convicting the Innocent: When Justice Goes Wrong (1983)
(unpublished Ph.D dissertation, The Ohio State University) (on file with Thompson Library,
The Ohio State University), available at https://etd.ohiolink.edu/rws_etd/document/get/

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


Conviction and the Criminal Justice System, 12 LAW & HUM. BEHAV. 283 (1988).
101

Rattner, supra note 100, at 3942.


Id. at 86.
103 See C. RONALD HUFF, ARYE RATTNER & EDWARD SAGARIN, CONVICTED BUT INNOCENT:
WRONGFUL CONVICTION AND PUBLIC POLICY xiv (1996).
104 Id. at xxii.
105 See id.
106 See generally Susan A. Bandes, Protecting the Innocent as the Primary Value of the Criminal
Justice System, 7 OHIO ST. J. CRIM. L. 413, 416 (2009) (reviewing GEORGE C. THOMAS III, THE
SUPREME COURT ON TRIAL: HOW THE AMERICAN JUSTICE SYSTEM SACRIFICES INNOCENT
DEFENDANTS (2008)). Justice Sutherland once said that the governments interest in a criminal
prosecution is not that it shall win a case, but that justice shall be done. Berger v. United
States, 295 U.S. 78, 88 (1935). He further explained that [i]t is as much his duty to refrain from
improper methods calculated to produce a wrongful conviction as it is to use every legitimate
means to bring about a just one. Id.
102

107

See A POLICY REVIEW, supra note 18, at 2.


Cf.
History
of
the
Judiciary,
COURTS
AND
TRIBUNALS
JUDICIARY,
http://www.judiciary.gov.uk/about-the-judiciary/history-of-the-judiciary/ (last visited Jan. 7,
108

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New England Law Review

criminal defendants must be procured by proper police procedure and


responsibly scrutinized by the judiciaryanything less is kangaroo
court.109
Other consequences of inaction may convince stalwart critics of this
appeal.110 Inaccurate eyewitness identifications not only contribute to
convicting the innocent, but the inverse is also truethe guilty are still
out there doing the crimes.111 Every instance of exoneration tells two
stories: one of a person wrongfully convicted, and another of a victim
whose assailant is never caught.112 And, while the guilty remain at large,
the innocent are detained at a cost upwards of $25,000 per year. 113 Clearly,
we have a vested interest in taking stock of the procedures within the
justice systems control that exacerbate the problem.114 There is a lot at
stakesome suggest that [t]o do justice to our respect for liberty, it is
incumbent upon us to do all we can to enhance the accuracy of the criminal
justice system.115 In fact, the continued legitimacy of our justice system
may well depend on our response to the shortcomings of our system that
condemns the innocent.116 We should demand more from our justice
system than bare reliance on flawed evidence, especially when such
evidence plays an integral role in criminal prosecutions. 117

2016). A trial by ordeal is an ancient judicial practice whereby the accused were subjected to
painful and dangerous tests involving hot iron or boiling water to determine guilt or
innocence in criminal cases. Id. The ordeal was based on the assumption that God would
exercise his power in favor of the innocent; therefore if they survived the ordeal they were
adjudged innocent. Id.
109 Cf. Spano v. New York, 360 U.S. 315, 325 (1959) (Douglas, J., concurring) (This is a case
of an accused, who is scheduled to be tried by a judge and jury, being tried in a preliminary
way by the police. This is a kangaroo court procedure . . . . ).
110

See A POLICY REVIEW, supra note 18, at 9.


Yes, Im Sure-Thats The One!, MEMORY
http://www.memorylossonline.com/eyewitness.htm.
111

LOSS

&

THE

BRAIN

(2003),

112

Fisher, supra note 2, at 66.


Nancy G. La Vigne & Julie Samuels, The Growth & Increasing Cost of the Federal Prison
System: Drivers and Potential Solutions, URBAN INSTITUTE JUST POLICY CENTER 2 (2012) available
at www.urban.org/research/publication/growth-increasing-cost-federal-prison-system-drivers
113

-and-potential-solutions/view/full_report.
114 See A POLICY REVIEW, supra note 18, at 2.
115 Id. at 9.
116 Jay Nelson, Facing Up to Wrongful Convictions: Broadly Defining "New" Evidence at the
Actual Innocence Gateway, 59 HASTINGS L.J. 711, 711 (2008).
117

See Davis & Loftus, supra note 22 at 80809.

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95

B. Eyewitness Identifications Play an Important Evidentiary Role


Eyewitness identification evidence plays a critical role in the
apprehension and prosecution of criminals; it is some of the most common
and compelling evidence brought against criminal defendants. 118 In the
eyes of a prosecutor, confident eyewitness testimony provides invaluable
evidence.119 In many criminal prosecutions, eyewitness identification is not
just powerful evidence, it is essential because forensic evidence, for
instance, fingerprints, might not be available. 120 In cases where eyewitness
identification is the sole piece of evidence, we must examine the evidence
with the most critical eye.121
Eyewitness evidence undoubtedly has a powerful impact on juries.122
Aside from a smoking pistol, nothing carries as much weight with a jury
as the testimony of an actual witness.123 For example, Marcus Lyons was
wrongfully convicted of rape in 1987 and served three years in prison and
sixteen years on parole before he was exonerated by DNA evidence that
proved he was not the perpetrator.124 A juror later recounted the powerful
effect the jury felt when the victim was shaking like a leaf when she
identified Lyons at trial.125
Specifically, witness certainty carries considerable potential to
influence jurors.126 As the Supreme Court noted more than a quarter
century ago: juries will not often discredit the testimony of a witness who
states that he saw the defendant commit the crime, rather, such testimony

118

A POLICY REVIEW, supra note 18, at 2.


Sheehan, supra note 27, at 653.
120 Id.
121 NATL INST. OF JUSTICE, U.S. DEPT OF JUSTICE, EYEWITNESS EVIDENCE: A GUIDE FOR LAW
ENFORCEMENT 15 (1999), available at https://www.ncjrs.gov/pdffiles1/nij/178240.pdf
[hereinafter GUIDE FOR LAW ENFORCEMENT]; INNOCENCE PROJECT, REEVALUATING LINEUPS:
WHY WITNESSES MAKE MISTAKES AND HOW TO REDUCE THE CHANGE OF A MISIDENTIFICATION 4
(2009), available at http://www.innocenceproject.org/files/imported/eyewitness_id_report-5.pdf
[hereinafter REEVALUATING LINEUPS].
119

122

Watkins v. Sowders, 449 U.S. 341, 352 (1981).


ELIZABETH F. LOFTUS & KATHERINE KETCHAM, WITNESS FOR THE DEFENSE: THE ACCUSED,
THE EYEWITNESS, AND THE EXPERT WHO PUTS MEMORY ON TRIAL 1516 (1991).
123

124

The Cases: Marcus Lyons, INNOCENCE PROJECT, http://www.innocenceproject.org/


Content/Marcus_Lyons.php (last visited Jan. 6, 2016).
125 GARRETT, supra note 17, at 48.
126 See Michael R. Leippe et al., Cueing Confidence in Eyewitness Identifications: Influence of
Biased Lineup Instructions and Pre-Identification Memory Feedback Under Varying Lineup
Conditions, 33 LAW & HUM. BEHAV. 194, 194 (2009) (explaining that [f]actfinders tend to
overestimate the accuracy of eyewitnesses who express confidence in their identifications).

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is unhesitatingly accepted.127 In fact, some psychologists estimate that


witness[] . . . identifications are believed 79.8 percent of the time, regardless
of whether they are correct.128 However, despite the stock juries put in a
confident witness, studies prove that confidence is for the most part only
modestly related to witness accuracy, and sometimes entirely
unrelated.129 This is because 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.130 Two
prominent researchers in the field concluded, the eyewitness accuracyconfidence relationship is weak under good laboratory conditions and
functionally useless in forensically representative settings.131 Still, some
juries accept it at face value.132
C. Not All Eyewitness Identifications are Created Equal
In some cases, eyewitness testimony can be extremely reliablesuch as
when the crime was committed by someone the witness knows.133
Common sense (and an undeniable body of empirical research) counsels
that the same cannot be said of crimes committed by strangers. 134 The stark
reality is that eyewitness identifications are not always reliableeven an
honest and well intentioned witness can make mistakes, such as
identifying the wrong person135and a less than accurate identification can
mean the difference between a conviction and acquittal. 136 This means the
criminal justice system must take into account modern scientific principles
regarding eyewitness memory.137

127

Sowders, 449 U.S. at 352.


Cindy J. OHagan, When Seeing Is Not Believing: The Case for Eyewitness Expert Testimony,
81 GEO. L.J. 741, 749 (1993).
128

129

Leippe et al., supra note 126, at 194.


Report of the Special Master, supra note 2, at 3031.
131 GIANNELLI ET AL., supra note 22, at 2.
132 See id. at 4.
133 See Noah Clements, Flipping A Coin: A Solution for the Inherent Unreliability of Eyewitness
Identification Testimony, 40 IND. L. REV. 271, 289 (2007). This is true in roughly half of all violent
criminal offenses. Id.
134 Felix Frankfurter, The Case of Sacco and Vanzetti, THE ATLANTIC (March 1, 1927),
http://www.theatlantic.com/magazine/archive/1927/03/the-case-of-sacco-and-vanzetti/306625/
(The identification of strangers is proverbially untrustworthy.).
130

135

GUIDE FOR LAW ENFORCEMENT, supra note 121, at 1.


See Commonwealth v. Gomes, 22 N.E.3d 897, 905 (Mass. 2015).
137 See SJC REPORT, supra note 4, at 59.
136

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New Era of Eyewitness Identification Law

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97

The Science Behind Memory and Perception

A vast body of comprehensive, consistent scientific evidence regarding


eyewitness evidence and testimony has accumulated in the three decades
since Manson was decided.138 This science requires a change in the way that
courts, law enforcement, prosecutors, and the defense bar deal with
eyewitness identification evidence.139
Studies have identified a number of factors that affect witness memory,
and therefore, eyewitness identifications.140 Scientific literature divides
these categories into two separate categories: estimator variables and
system variables.141 Estimator variables are considered those factors that
exist independent of the criminal justice system; they are inherent in the
event.142 The criminal justice system has no control over estimator
variables, but estimator variables can substantially impact the reliability of
an identification.143 Examples include environmental conditions when the
identification is made, the amount of time a witness had to observe an
event, lighting conditions, the witnesss stress level, whether the
perpetrator wore a disguise, the presence or absence of a weapon, and
whether the witness and perpetrator are of the same or different races.144
System variables are those factors that the criminal justice system can
influence, such as police conduct during the identification. 145 There is a
consensus among researchers that both types of variables affect the
reliability of eyewitness identification.146 The consensus boils down to five
generally accepted principles:
(i) Human memory does not function like a video recording but
is a complex process that consists of three stages: acquisition,
retention, and retrieval; (ii) An eyewitnesss expressed certainty
in an identification, standing alone, may not indicate the accuracy
of the identification, especially where the witness did not
describe that level of certainty when the witness first made the
identification; (iii) High levels of stress can reduce an
eyewitnesss ability to make an accurate identification; (iv)
Information that is unrelated to the initial viewing of the event,
138

Report of the Special Master, supra note 2, at 72.


SJC REPORT, supra note 4, at 14.
140 See GIANNELLI ET AL., supra note 22, at 1.
141 Id.
142 SJC REPORT, supra note 4, at 2.
143 Id.
144 Id.; SJC REPORT, supra note 4, at 2; GIANNELLI ET AL., supra note 22, at 23.
145 SJC REPORT, supra note 4, at 2.
146 Saul M. Kassin et al., On the General Acceptance of Eyewitness Testimony Research: A New
Survey of the Experts, 56 AM. PSYCHOLOGIST, 405, 40711 (2001).
139

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v. 50 | 81

which an eyewitness receives before or after making an


identification, can influence the witnesss later recollection of the
memory or of the identification; and (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.147

2.

Police Practice and Procedure

Mistaken identifications happen, and they are sometimes brought


about by common police procedures.148 Studies show that the manner in
which the investigating officer obtains information from an eyewitness can
directly impact the amount and accuracy of the information received in the
exchange.149 For example, instructing the witness prior to conducting the
identification procedure can assist the witnesss memory of the
perpetrator.150 The use of fillers in a photographic display, if chosen
correctly, can help authorities judge the reliability of an identification.151
However, it is much more difficult to obtain a reliable identification if an
insufficient number of fillers are used.152 Additionally, lineup
administrators who know the identity of the suspect often suggest that
information to the witness, whether consciously or unconsciously.153
Furthermore, research shows that eyewitnesses viewing a simultaneous
lineupwhere every member appears at oncetend to make relative
judgments.154 Witnesses will decide which individual member most
resembles the perpetrator by comparing the members to each other, rather
than comparing each member to their memory of the perpetrator.155
Relative judgments are particularly dangerous when a lineup is composed
entirely of innocent fillers and an innocent suspect, and does not include a
guilty suspect.156

147

Commonwealth v. Gomes, 22 N.E.3d 897, 91116 (Mass. 2015).


Mistaken
Eyewitness
Identifications,
MID
ATLANTIC
INNOCENCE
PROJECT,
http://www.exonerate.org/policy-2/causes-of-wrongful-convictions/mistaken-eyewitnessidentifications/ (last visited Jan. 7, 2016).
149 GUIDE FOR LAW ENFORCEMENT, supra note 121, at 15.
150 Id. at 19.
151 A POLICY REVIEW, supra note 18, at 3.
152 Id. at 6.
153 See Sarah M. Greathouse & Margaret Bull Kovera, Instruction Bias and Lineup Presentation
Moderate the Effects of Administrator Knowledge on Eyewitness Identification, 33 LAW & HUM.
BEHAV. 70, 71 (2009).
148

154

See State v. Henderson, 27 A.3d 872, 901 (N.J. 2011); A POLICY REVIEW, supra note 18 at 3.
A POLICY REVIEW, supra note 18, at 3.
156 Id.
155

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99

Showups can be a usefuland necessarytechnique when used in


appropriate circumstances. But carry . . . risks of misidentification because
only one individual is presented to the witnesses. 157 Thus, showups fail to
provide safeguards to account for witnesses with poor memories, or those
that are inclined to guess, because mistaken identifications made during a
showup will always point to the suspect. 158 As Gary Wells, a leading expert
in the field put it: [w]hen you do a showup . . . [y]ou have no fillers, and
so its not really a test of the witnesss memory. It may just simply be a test
of the witnesss willingness to in effect say, Yes, thats the person. So
hence the title.159 In essence, they are inherently suggestive.160
Some have suggested that modernizing identification procedure to
accommodate scientific advances requires a complete overhaul of lineup
methods.161 Massachusetts has pioneered that effort by reevaluating
identification practice and procedure, and adopting stringent rules for the
admission of eyewitness testimony in court.162

ANALYSIS
III. Massachusetts Got it Right
Massachusetts approach to eyewitness identifications is superior to
the Supreme Courts because it addresses reliability at both the front
endits collection by law enforcementas well as the back endwhen
and how it is used in courts.163 Instead of ignoring it, the SJC and the
members of its study group delved unhesitatingly into the new science on
human memory, and took account of its implications for the criminal
justice system by adjusting its practices to meet new and developing
standards.164 The SJCs approach is a long-overdue change in eyewitness
identification law.165 It will not change the variables affecting human

157

Report of the Special Master, supra note 2, at 29.


Id.
159 Deposition of Gary L. Wells at 25, Bibbins v. City of Baton Rouge, 489 F. Supp. 2d 562
(M.D. La. 2007).
158

160

Henderson, 27 A.3d at 903.


A POLICY REVIEW, supra note 18, at 3.
162 See Pilch, supra note 9.
163 Letter from Barry C. Scheck & Karen A. Newirth to Christine P. Burack 2 (Jan 24, 2014),
in RICHARD M. PAGE, BOSTON BAR ASSN, COMMENTS OF THE BOSTON BAR ASSNS CRIMINAL
LAW SECTION ON THE REPORT OF THE SUPREME JUDICIAL COURT STUDY GROUP ON EYEWITNESS
EVIDENCE (2014).
161

164
165

See SJC REPORT, supra note 4, at 15.


See Zoraida Fernandez, Crayton & Collins: Preventing Eyewitness Misidentification in

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memory, but it is certainly a welcomed acknowledgment of scientific


research proving that eyewitness identifications are prone to error, and
should not be treated as if they are immune. 166 Increased interaction
between the court and social science means that courts will analyze
twenty-first century evidence backed by twenty-first century scientific
knowledge.167
A. Stronger Trial Protections
1.

Massachusetts Approach Takes Account of System and


Estimator Variables

The Supreme Courts approach under Manson and Perry offers


defendants limited constitutional protections.168 By establishing a test that
depends entirely on suggestive police procedures, the Manson-Perry
approach fails to take account of estimator variables such as environmental
conditions, the duration of the witnesss observation, lighting conditions,
and stress.169 Social science has definitively proven that these factors
influence eyewitness accuracy.170
What is more, the Manson-Perry approach says that reliability can save
an unnecessarily suggestive identification procedurethe test is set up in
such a manner that highly suggestive police procedures will not rise to the
level of a due process violation if the Court finds the identification
reliable.171 Paradoxically, the Court uses unreliable factors to judge
reliability.172 Social scientists have since methodically undercut the
validity of this approach by exposing flaws in each of the Manson factors.173
In fact, the reliability criteria the Court announced are faulty to the point
that the test fails functionality; this means that potential misidentifications
resulting from egregious suggestions can, and will, fall through the

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


blog.com/2015/01/02/crayton-collins-preventing-eyewitness-misidentification-massachusetts/.
166 Id.
167 See SJC REPORT, supra note 4, at 59.
168 Gershman, supra note 3, at 25.
169 See Thompson, supra note 32, at 605.
170 See Report of the Special Master, supra note 2, at 4448.
171 See Gershman, supra note 3, at 25.
172 Brief of the Conn. Criminal Def. Lawyers Assn & Conn. Psychologist Assn in Support
of Petitioner at 7, Revels v. State, 99 A.3d 1130 (Conn. 2014) (No. 01-1015), 2015 WL 273048
(explaining that the scientific and legal community generally agree the test is fatally flawed);
Garrett, supra note 27, at 453.
173

Garrett, supra note 27, at 476.

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101

cracks.174 Therefore, the Supreme Courts test is not just inaccurateit has
become misleading[ly] incomplete in light of scientific developments
upon which the Court remains thunderously silent. 175 Massachusetts
approach makes up for the Supreme Courts historic misunderstanding of
modern science.176
The SJCs approach explicitly takes account of estimator variables by
instructing the jury that memory can be affected by a variety of factors.177
The SJCs instructions tell the jury to consider, inter alia: the degree of
attention the witness paid the offender; the distance between the witness
and the offender; lighting conditions; length of time the witness had to
view the offender; the witnesss stress level; whether a disguise was
involved or the offenders face was obstructed; whether a weapon was
involved; whether the witness knew the offender; and whether the witness
and offender are of different races. 178 These factors are an important, if not
essential, component for the jury to consider because estimator variables
directly impact witness memory and encourage faulty identifications.179
Further, the Supreme Courts rationale for remaining faithful to its
defective due process test is that the test aims to deter police misconduct,
yet the Court does not address any of the factors within the criminal justice
systems control that would indisputably provide a check on police
behavior.180 The SJCs approach is far superior because it targets these
system variables head-on and accounts for the influence of these
suggestive procedures on reliability.181 By directly addressing both types of
variables known to affect identification accuracy, the SJCs approach is far
more likely to catch a mistaken identification before it takes its devastating
toll.182

174

See Gershman, supra note 3, at 24; David A. Sonenshein & Robin Nilon, Eyewitness Errors
and Wrongful Convictions: Let's Give Science a Chance, 89 OR. L. REV. 263, 270 (2010).
175 See Benjamin E. Rosenberg, Rethinking the Right to Due Process in Connection with Pretrial
Identification Procedures: An Analysis and a Proposal, 79 KY. L.J. 259, 262 (1991).
176 SJC REPORT, supra note 4, at 47.
177 Commonwealth v. Gomes, 22 N.E.3d 897, app. at 919 (Mass. 2015).
178 Id. at app. at 91921.
179 See Davis & Loftus, supra note 22, at 808.
180 See Perry v. New Hampshire, 132 S. Ct. 716, 721 (2012); Thompson, supra note 32, at 605
(describing the capacity of the Supreme Court's due process test to protect against suggestive
police practices as an utter failure).
181

See, e.g., Commonwealth v. Walker, 953 N.E.2d 195, 208 (Mass. 2011) (mandating at least
five fillers per suspect in a simultaneous or photographic array).
182 Gershman, supra note 3, at 24 (urging courts to develop improved approaches to
eyewitness identifications to ensure the accuracy of eyewitness testimony and reduce the
incidence of courtroom misidentifications).

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Massachusetts Approach Confronts the Problem Head on


with Per Se Rules

The stark reality is that while the Supreme Court purported to have
designed a test that influences police behavior, its approach barely
mitigates the damage that police misconduct can cause.183 The
Massachusetts approach, in contrast, prevents police misconduct from
occurring in the first place by utilizing per se rules.184 The Massachusetts
approach implements proper procedures and guidelines for police to
follow in conducting lineups, showups, and photo arrays; 185 and excludes
unnecessarily suggestive identifications per se.186 This approach provides
incentive for the police to discontinue suggestive procedures where
alternative procedures are available.187 As one scholar put it: [a]n ounce of
prevention in terms of proper procedures that prevent false positives is
worth a pound of cure.188
The Supreme Courts approach lacks this preventative function.189 The
Court has repeatedly refused to adopt per se rules regarding eyewitness
testimony,190 discounting such rules as inflexible rules of exclusion that
may frustrate rather than promote justice.191 The Court takes issue with
per se rules because it sees such an approach as go[ing] too far since its
application automatically and peremptorily, and without consideration of
alleviating factors, keeps evidence from the jury that is reliable and

183

See Perry, 132 S. Ct. at 736.


Commonwealth v. Johnson, 650 N.E.2d 1257, 1263 (Mass. 1995) ([I]t appears clear to us
that the reliability test does little or nothing to discourage police from using suggestive
identification procedure.); cf. Susan R. Klein, Identifying and (Re)formulating Prophylactic Rules,
Safe Harbors, and Incidental Rights in Constitutional Criminal Procedure, 99 MICH. L. REV. 1030,
1065 (2001) (recognizing that a proper lineup beats the right to counsel at a lineup . . . hands
down).
184

185

See Klein, supra note 184, at 1065 (calling for same).


See Johnson, 650 N.E.2d at 1260; Walker, 953 N.E.2d at 205 n.13.
187 Martinis M. Jackson, Timely Death of the Show-Up Procedure: Why the Supreme Court
Should Adopt a Per Se Exclusionary Rule, 56 HOW. L.J. 329, 349 (2012).
188 Klein, supra note 184, at 1065 n.160.
189 Thompson, supra note 32, at 624.
190 See Neil v. Biggers, 409 U.S. 188, 199 (1972) (concluding that per se rules of exclusion for
unnecessarily suggestive identifications have no place in the present case and creating a set
of factors the Court will analyze to determine an identifications reliability despite its
suggestiveness); Manson v. Brathwaite, 432 U.S. 98, 112, 114 (1977) (expressly declining to
adopt a rule of per se exclusion and settling on a totality of the circumstances approach
dependent on the Biggers factors).
186

191

Manson, 432 U.S. at 113.

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103

relevant.192 And, because the per se approach denies the trier reliable
evidence, it may result, on occasion, in the guilty going freewhich
would be, in a word, Draconian.193 Therefore, the Court prefers that the
jury assess the reliability of an identification considering the totality of the
circumstances.194
While the Supreme Court admonishes per se rules for going too far,
it is now clear that allowing the jury to asses reliability under the totality of
the circumstances approach does not go far enough.195 By treating
challenges to eyewitness evidence as questions of credibility for the jury to
address, rather than examining such challenges as questions of
admissibility for the judge, the Court essentially weighs the scale in favor
of the prosecution196 because juries are susceptible to accepting eyewitness
evidence at face value.197 The SJC directly addresses the danger of
eyewitness identification, in following the research cited by scientific
studies, by creating rules that govern its admissibility before it gets to the
jury.198 Thus, the message comes straight from the horses mouth: [o]nly a
rule of per se exclusion can ensure the continued protection against the
danger of mistaken identification and wrongful convictions arising from
suggestive identification procedures.199
3.

Helpful Jury Instructions

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

192

Id. at 112.
Id. at 11213.
194 See Davis & Loftus, supra note 22, at 777.
195 See Walsh, supra note 70, at 1444 (arguing that the Supreme Courts approach does not
adequately ensure defendants access to fundamentally fair proceedings and that state courts
should adopt more robust measures that would prevent misidentifications from appearing in
court.).
193

196 Jackson, supra note 187, at 345 (questioning whether the jury should be allowed to
analyze what protection, if any, this fact affords the innocent).
197 See supra Part II.B.
198 See supra Part I.C.
199 Commonwealth v. Crayton, 21 N.E.3d 157, 16465 (Mass. 2014) (citing Commonwealth
v. Johnson, 650 N.E.2d 1257, 1265 (Mass. 1995)).
200 See Perry v. New Hampshire, 132 S. Ct. 716, 720 (2012) (explaining that when evidence is
admitted at trial the jury determines its worth).
201

See CRIMINAL MODEL JURY INSTRUCTIONS, FOR USE IN THE DIST. CT., INSTRUCTION 1.120
(COMM. OF MASS., DIST. CT. DEPT OF THE TRIAL CT. 2013), available at
http://www.mass.gov/courts/docs/courts-and-judges/courts/district-court/jury-instructionscriminal/1120-preliminary-instruction-to-jury-before-trial.pdf
[hereinafter
PRELIMINARY

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juries to deliver a verdicta task, which stripped down to its Latin roots
means to speak the truth.202 Jurors are instructed that if they try the case
according to the evidence presented, they will arrive at a true and just
verdictas if there is a talismanic algorithm juries can follow to guarantee
such a result.203 Yet, as we are so often reminded, a true and just result is
far from guaranteed.204 Still, we assure juries of their ability to find the
truth205 and send them to the jury roomthe proverbial black box
where they deliberate in private and return to the courtroom to give their
verdict without reasons for it.206 The sheer magnitude of this task obligates
the criminal justice system to realistically assess what the jury is actually
capable of deciding, and, once the decision is made that an issue is for the
jury, to give jurors the tools to analyze it properly. 207 The damage is done
the moment the jury hears the witness say thats the man;208 even the
most skillful defense attorney cannot unring that bell. 209
The Supreme Court passed on the opportunity to adopt rules that
would actually result in the exclusion of unreliable eyewitness testimony,
choosing instead to elect the jury as arbiter of reliability.210 Under the
Massachusetts approach, an unnecessarily suggestive identification will
never get to the jury.211 However, for those identifications that do make
their way to the jury, the SJC has developed a set of instructions that will
educate jurors on the factors affecting identification accuracy. 212 In doing
so, the SJC acknowledges that putting blind faith in the good sense
judgment of American juries to sort out issues of who to believe and why

INSTRUCTION TO JURY BEFORE TRIAL: INSTRUCTION 1.120]. For an interesting read on the
concept of the gods of guilt, see MICHAEL CONNELLY, THE GODS OF GUILT (2013).
202
203

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

at 9.
204

See infra text accompanying notes 292300.


See, e.g., Rodriguez, 383 N.E.2d at 85758 (I cant think of twelve people who are more
responsible in terms of being able to reach the truth in a given case than the twelve of you
who will deliberate this case.).
205

206

GARRETT, supra note 17, at 172.


See Thompson, supra note 32, at 620.
208 See United States v. Wade, 388 U.S. 218, 236 (1967).
209 See supra note 13536 and accompanying text.
210 See Manson v. Brathwaite, 432 U.S. 98, 116 (1977) (We are content to rely upon the good
sense and judgment of American juries . . . . Juries are not so susceptible that they cannot
measure intelligently the weight of identification testimony that has some questionable
feature.).
207

211
212

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

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provides an insufficient measure of protection when it comes to eyewitness


testimony, which is notoriously unreliable, and perplexingly
complicated.213 If, as so many analysts have irrefutably proven, juries are ill
equipped to understand the fallibility of eyewitness memory and
accurately scrutinize eyewitness identifications, then allowing juries carte
blanche access to eyewitness testimony means that courts are passively
compliant in a scheme that encourages juries to place unjustified reliance
on eyewitness identifications.214 The SJCs instructions school the jury on
the factors that are now so generally accepted by social scientists that their
exclusion from consideration undermines the validity of an identification
procedure, and any resulting identification testimony. 215
IV. Other Jurisdictions Should Follow Suit
A. States Have the Power to Reform Eyewitness Identification Law, for
Good Reason
1.

The Power

States have the power to reform eyewitness identification procedures


and law.216 States can interpret their own constitutions in a manner that
provides greater protection against unreliable eyewitness testimony than
that afforded under the federal standard.217 Additionally, rules governing

213

See id. (criticizing the Supreme Courts failure to do the same as misguided).
See O'Hagan, supra note 128, at 748.
215 Commonwealth v. Gomes, 22 N.E.3d 897, 91116 (Mass. 2015).
216 See, e.g., State v. Chapple, 660 P.2d 1208 (Ariz. 1983); People v. McDonald, 690 P.2d 709
(Cal. 1984); State v. Ledbetter, 881 A.2d 290 (Conn. 2005); State v. Marquez, 967 A.2d 56 (Conn.
2009); State v. Guilbert, 49 A.3d 705 (Conn. 2012); State v. Artis, 101 A.3d 915 (Conn. 2014);
Benn v. United States, 978 A.2d 1257 (D.C. 2009); Brodes v. State, 614 S.E.2d 766 (Ga. 2005);
State v. Almarez, 301 P.3d 242 (Idaho 2013); Bomas v. State, 987 A.2d 92 (Md. 2010); State v.
Warren, 635 P.2d 1236 (Kan. 1981); Commonwealth v. Jones, 666 N.E.2d 994 (Mass. 1996);
Commonwealth v. Santoli, 680 N.E.2d 1116 (Mass. 1997); Commonwealth v. Silva-Santiago,
906 N.E.2d 299 (Mass. 2009); Walker, 953 N.E.2d 195; Commonwealth v. Collins, 21 N.E.3d 528
(Mass. 2014); Commonwealth v. Crayton, 21 N.E.3d 157 (Mass. 2014); State v. Delgado, 902
A.2d 888 (N.J. 2006); State v. Henderson, 27 A.3d 872 (N.J. 2011); People v. Adams, 423 N.E.2d
379 (N.Y. 1981); People v. LeGrand, 867 N.E.2d 374 (N.Y. 2007); State v. Lawson, 291 P.3d 673
(Or. 2012); State v. Copeland, 226 S.W.3d 287 (Tenn. 2007); State v. Long, 721 P.2d 483 (Utah
1986); State v. Ramirez, 817 P.2d 774 (Utah 1991); State v. Dubose, 699 N.W.2d 582 (Wis. 2005).
214

217

Mills v. Rogers, 457 U.S. 291, 300 (1982) (State law may recognize liberty interests more
extensive than those independently protected by the Federal Constitution.); see, e.g.,
Commonwealth v. Johnson, 650 N.E.2d 1257, 1261 (Mass. 1995); Henderson, 27 A.3d at 919 &
n.10; Adams, 423 N.E.2d at 38384; Ramirez, 817 P.2d at 780; Dubose, 699 N.W. 2d at 59495.

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the admissibility of evidence are within the province of state courts. 218 As
the Supreme Court recognized, evidentiary rules that empower states to
exclude relevant evidence because of its prejudicial effect or tendency to
mislead the jury are important protections against unreliable eyewitness
identifications.219 In fact, eyewitness identifications made under suggestive
circumstances embody the very evil such rules are designed to prevent. 220
As Justice Marshall observed in his vigorous dissent in Manson: States are
empoweredand indeed, encouragedto create their own eyewitness
identification rules to thwart the hazardous effect of the Courts inadequate
standards.221 Justice Brennan, who joined Justice Marshalls Manson dissent,
said it best in a celebrated article on individual rights under state
constitutions: State courts cannot rest when they have afforded their
citizens the full protections of the federal Constitution because without
the protective force of state law the full realization of our liberties cannot
be guaranteed.222
Massachusetts approach intercepts suggestive, unreliable eyewitness
evidence by excluding it per seand, in the case of in-court identifications,
unless the prosecutor can show good cause for its admissionrather than
admitting it based on subjective notions of reliability. 223 Courts in other
jurisdictions should consider playing a similarly active role concerning the
admission of eyewitness testimony. 224 Given the substantial proof that
eyewitness identification reform is both necessary and effective, courts
218 See, e.g., MASS. R. EVID. 403 (Relevant evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice . . . misleading the jury. . . .);
Lawson, 291 P.3d at 684 (establishing a revised test governing the admissibility of eyewitness
testimony under the state evidentiary code).
219 Perry v. New Hampshire, 132 S. Ct. 716, 720 (2012). Several state appellate courts have
taken this approach. See, e.g., Lawson, 291 P.3d at 688; State v. Chen, 952 A.2d 1094, 1103 (N.J.
Super. Ct. App. Div. 2008); State v. Hibl, 714 N.W.2d 194, 20405 (Wis. 2006).
220 Lawson, 291 P.3d at 684 (quoting State v. Classen, 590 P.2d 1198, 1200 (Or. 1979))
(explaining that [e]vidence law has long provided for excluding certain evidence as a class
when its questionable reliability vitiates the value of its possible truthfulness in the particular
case, apart from any question of constitutional law).
221 See Manson v. Brathwaite, 432 U.S. 98, 12829 (1977) (Marshall, J., dissenting) (It is
therefore important to note that the state courts remain free, in interpreting state constitutions,
to guard against the evil clearly identified by this case.); Oregon v. Hass, 420 U.S. 714, 719
(1975) ([A] State is free as a matter of its own law to impose greater restrictions on police
activity than those this Court holds to be necessary upon federal constitutional standards.).
222 Brennan, Jr., supra note 55, at 491.
223 See infra Part III.A.2.
224 See SJC REPORT, supra note 4, at 63; Gershman, supra note 3, at 25 (calling on trial judges
to adopt specific procedural safeguards to allow juries to carefully evaluate an eyewitnesss
testimony).

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should not sit idle and allow the reform effort to fragment or remain
limited by the Supreme Courts outdated precedent.225 It is imperative that
state courts interpret their own constitutions to ensure such protections in
light of the Supreme Courts reluctance to update eyewitness identification
jurisprudence to align with modern scientific understanding. 226 By
adopting the Massachusetts approach, other courts would take a giant
step forward in preventing the primary evil that the Supreme Court
initially wanted to avoid.227 This would, in turn, give states the final say
on eyewitness identification law because the Supreme Court would be
precluded from reviewing their decisions.228 Therefore, where the Supreme
Court has proven its reluctance to adequately safeguard the rights of the
accused, states should step in to develop more expansive constitutional
protections.229 In other words, the buck should stop with the states.230
2.

The Reasons
i.

Eyewitness Identifications Will Be Less Suggestive

Clearly, states have the power to reform eyewitness identification


law.231 Must they also be given an incentive? 232 Other states should follow
Massachusetts lead because the new practices and procedures will
increase the accuracy and reliability of eyewitness evidence. 233 The process
of obtaining eyewitness identifications begins with police procedure. 234 The
scientific debate about best police practices is over 235eyewitness evidence

225 Brief of the Conn. Criminal Def. Lawyers Assn and Conn. Psychology Assn, supra note
172, at 20.
226

See Walsh, supra note 70, at 1417 (calling on state courts to adopt the New Jersey
Supreme Courts approach in State v. Henderson, 27 A.3d 872 (N.J. 2011)).
227 Jared T. Dotson, The Linchpin of Identification Evidence: The Unreliability of Eyewitnesses and
the Need for Reform in West Virginia, 117 W. VA. L. REV. 775, 814 (2014).
228 Brennan, Jr., supra note 55, at 501 ([T]he state decisions not only cannot be overturned
by, they indeed are not even reviewable by, the Supreme Court of the United States. We are
utterly without jurisdiction to review such state decisions.).
229

See id. at 503 (With federal scrutiny diminished, state courts must respond by
increasing their own.).
230 See id.
231 See supra note 222 and accompanying text.
232 See Jackson, supra note 187, at 355 (urging the Supreme Court to reform its eyewitness
identification test).
233

See GUIDE FOR LAW ENFORCEMENT, supra note 121, at 2.


SJC REPORT, supra note 4, at 9.
235 William G. Brooks III, When it Comes to Eyewitness ID Best Practices, the Science Is Settled,
DISPATCH (Dec. 2014), http://cops.usdoj.gov/html/dispatch/12-2014/eyewitness_ID_best_
234

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is susceptible to contamination by police action.236 In fact, it is well-known


that some identification procedures actually increase the risk of false
identification.237 Courts cannot allow the process of obtaining an
identification that will eventually be used to convict a criminal defendant
to begin with a tainted procedure.238 It follows that by improving
identification procedures we can improve the quality of eyewitness
evidence.239
The SJCs per se rules and the Study Groups findings deliver a clear
message to law enforcementunnecessarily suggestive procedures are offlimits, a fairer alternative must be used.240 The SJC specifically instructs
police to follow its new five-filler per suspect mandate. 241 This type of
approach creates a set of best practices for police to follow on a case-bycase basis because, [b]y indicating disapproval of certain practices, the
court[] implicitly require[s] police to do the opposite, thus effectively
creating a set of rules for obtaining identification evidence in a nonsuggestive manner.242 This means that law enforcement will need to
quickly develop proper procedures to conform to the rule.243
Additionally, the SJCs Study Group developed a set of carefully
crafted best practices for police to follow that will decrease the likelihood
of misidentification and enhance the witnesss ability to recognize the
offender at a later time.244 The Study Group recommends that the officer
should instruct the witness that the alleged wrongdoer may or may not be
in the photographic or in-person display.245 These cautionary instructions
are a significant step toward making identification procedures less
suggestive and more reliable.246 Delivering such instructions informs the
witness that it is just as important to clear a person from suspicion as it is to
identify a person as the wrongdoer,247 and reduces the pressure a witness

practices.asp.
236 See A POLICY REVIEW, supra note 18, at 3.
237 See id.
238 See SJC REPORT, supra note 4, at 9.
239 A POLICY REVIEW, supra note 18, at 3.
240 See Manson v. Brathwaite, 432 U.S. 98, 125 (1977) (Marshall, J., dissenting).
241 Commonwealth v. Walker, 953 N.E.2d 195, 208 (Mass. 2011).
242 Thompson, supra note 32, at 624.
243 See Manson, 432 U.S. at 125 (Marshall, J., dissenting) (postulating that a per se rule
would require a change in police behavior).
244

SJC REPORT, supra note 4, at 9.


Id. at 89.
246 Id. at 4748.
247 Id. at 89.
245

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might feel to choose a suspect from a lineup when the culprit is not
actually present.248 The Study Group suggests that officers should avoid
showups if possible.249 If the officer must conduct a showup, it should take
place within two hours after the witnesss observation of the suspect
because the benefits of fresh memory seem to balance the risks of undue
suggestion, therefore reducing the risk of misidentification. 250 Further, the
officer should not conduct a showup if the suspect is seated in the rear of a
police cruiser, a cell, or any custody-related enclosure.251 The officers
should also prevent the witness from hearing any conversations between
law enforcement or other witnesses pertaining to the suspect or
investigation.252
Regarding photographic displays and line-ups, the SJC recommends
that each array contain at least five fillerswhich must fit the general
description of the offenderand only one suspect who does not stand out
from the rest of the photographs in any way. 253 Composing an array in this
manner is a critical step because it will ensure that an individual is not
identified based on the composition of the lineup by reducing the chance
that a witness will make a relative judgment.254 This effectively reduces the
chance that a witness will identify an innocent suspect simply because the
suspect is the only lineup member that resembles the perpetrator.255 As
one state Supreme Court observed: [p]roperly constructed lineups test a
witness memory and decrease the chance that a witness is simply
guessing.256
Officers should also conduct photo arrays and line-ups double-blind,
meaning that no one present should know the identity of the suspect. 257
Conducting double-blind administration can prevent law enforcement
officials from giving inadvertent clues about the identity of the suspect to
the eyewitness during a lineup procedure258 because it takes the lineup
administrators behaviors out of the game.259

248

A POLICY REVIEW, supra note 18, at 3.


SJC REPORT, supra note 4, at 87.
250 Id. at 26, 87 (internal citation omitted).
251 Id. at 87.
252 Id.
253 Id. at 89.
254 A POLICY REVIEW, supra note 18, at 6.
255 Id.
256 State v. Henderson, 27 A.3d 872, 897 (N.J. 2011).
257 See SJC REPORT, supra note 4, at 90.
258 A POLICY REVIEW, supra note 18, at 3.
259 See GARY L. WELLS ET AL., AM. JUDICATURE SOCY, A TEST OF THE SIMULTANEOUS VS.
249

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Currently, over 200 Massachusetts police departments follow these


practices.260 Other courts should adopt the same practices to ensure that
police are not using suggestive procedures that taint the reliability of an
identification.261 Unfortunately, there are still no consistent or uniform
standards governing identification procedures across states or even police
departments.262 However, social science research and real-world experience
have shown that such reforms work. 263 There is no longer reason to doubt
the usefulness of these police practices; it is time for law enforcement
agencies nationwide to update their eyewitness identification practices to
reflect the scientifically sound principles of human memory, as
Massachusetts has done.264
Courts do not have to go at this alone. 265 If police training commissions
would require that police higher-ups receive specialized training in the
new eyewitness identification procedures, they could ensure that every
officer within that jurisdiction is trained in the new procedures. 266 Such
training would give officers the knowledge required to make procedural
decisions in the heat of the moment. 267 However, like any comprehensive
effort, it would be an expensive endeavor. 268 Legislatures could contribute
to this effort by increasing funds available for statewide police training on
eyewitness identification,269 and by requiring police departments to
reevaluate their eyewitness identification practices, as some have already
done.270 Following the procedures adopted by the SJC and recommended

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


reading/PDFs/lineupmethods.pdf.
260 See SJC REPORT, supra note 4, at 9.
261 See generally Thompson, supra note 32, at 608 ([R]ules adopted at a statewide level will
bring about the kind of change needed to raise the quality of identification evidence.).
262 Press Release, Innocence Project, As More States Weigh Improving Lineups, New
Innocence Project Report Shows Extent of the Problem and Effectiveness of Reform (July 16,
2009), http://www.innocenceproject.org/news-events-exonerations/press-releases/as-morestates-weigh-improving-lineups-new-innocence-project-report-shows-extent-of-the-problemand-effectiveness-of-reform.
263 Id.
264 See SJC REPORT, supra note 4, at 34; Brooks III, supra note 235.
265 See Gershman, supra note 3, at 24.
266 See Fisher, supra note 2, at 54.
267 SJC REPORT, supra note 4, at 36.
268 Id. at 49.
269 See Fisher, supra note 2, at 62; Michael C. Dorf & Charles F. Sabel, A Constitution of
Democratic Experimentalism, 98 COLUM. L. REV. 267, 340 (1998).
270 See, e.g., WIS. STAT. ANN. 175.50 (Westlaw 2015); VA. CODE ANN. 19.2-390.02
(Westlaw 2015); see also Katherine R. Kruse, Instituting Innocence Reform: Wisconsins New

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by reformers would make eyewitness identifications more reliable.271


ii. Future Eyewitness Testimony Will Be More Reliable
The SJCs approach to eyewitness identifications enhances the
administration of justice by replacing the dangerously unpredictable
totality testwhich allows fundamentally flawed, seriously unreliable
and misleading evidence to be put before juries272with per se rules that
mitigate many dangers posed to defendants from eyewitness
identifications.273 The Supreme Courts test is outdated and misguided
the SJC has employed a far more sensible calculus. 274 If excluding reliable
evidence and allowing the guilty to go free is Draconian, as the Supreme
Court suggests, then admitting unnecessarily suggestive, unreliable
evidence that leads to an innocent defendants conviction must be equally
nefarious, if not downright diabolical.275 The SJCs new eyewitness
evidence rules work to prevent the latter from occurring.276
Under the SJCs approach, unnecessarily suggestive identifications are
per se excluded.277 In essence, the prosecution is limited to introducing . . .
only such identifications by the witness as are shown at the suppression
hearing not to be the product of the suggestive confrontation.278 True, all
identifications have a degree of suggestionespecially showupsbut not
all identifications will be excluded.279 Importantly, [r]eliable evidence of
eyewitness identification will continue to be admissible where it arises
from a non-suggestive out-of-court identification procedure.280 Further,
the SJC will admit an in-court identification made without a prior

Governance Experiment, 2006 WIS. L. REV. 645, 649 n.237 (2006).


271

See supra Part III.A.13.


Manson v. Brathwaite, 432 U.S. 98, 128 (1977) (Marshall, J., dissenting).
273 Suzannah B. Gambell, The Need to Revisit the Neil v. Biggers Factors: Suppressing
Unreliable Eyewitness Identifications, 6 WYO. L. REV. 189, 214 (2006).
272

274 See Commonwealth v. Johnson, 650 N.E.2d 1257, 1265 (Mass. 1995) (concluding that
[o]nly a rule of per se exclusion can ensure the continued protection against the danger of
mistaken identification and wrongful convictions.).
275 See In re Winship, 397 U.S. 358, 372 (1970) (Harlan, J., concurring) ([I]t is far worse to
convict an innocent man than to let a guilty man go free.); Johnson, 650 N.E.2d at 1263 ([T]he
admission of unnecessarily suggestive identification procedures under the reliability test
would likely result in the innocent being jailed while the guilty remain free.).
276 See, e.g., Commonwealth v. Collins, 21 N.E.3d 528, 53435 (Mass. 2014) (discussing the
dangers of allowing suggestive identifications).
277

Commonwealth v. Walker, 953 N.E.2d 195, 204 & 205 n.13 (Mass. 2011).
Johnson, 650 N.E.2d at 1260 (quotation omitted).
279 See Commonwealth v. Crayton, 21 N.E.3d 157, 16467 (Mass. 2014).
280 Id. at 171.
278

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identification procedure, or one made after a less than equivocal positive


identification when there is good reason for it.281 This means that the incourt identifications that are admitted will be more reliable. 282
For instance, there would be good reason for a first-time in-court
identification where a police officer witnesses the commission of a crime
and identifies the defendant in court; in that case, the in-court identification
simply confirms that the defendant is actually the person who was arrested
for the crime.283 Also, there would be good reason for a first-time in-court
showup where the testifying eyewitness knew the defendant prior to the
commission of the crime; for instance, where a victim testifies in a case
involving domestic violence.284 In both circumstances, an in-court showup
would not pose a significant risk of misidentification and the jury would
understand that the identification is being made only to confirm that the
person sitting in the defendants chair is the person whose conduct is at
issue, not as a means of identification evidence.285
Similarly, the good reason standard essentially means that an in-court
showup made after a less than equivocal positive identification will only be
admissible if it is more reliable than the witnesss prior failure to make an
identificationtherefore it does not carry the same risk of
misidentification.286 For example, in the domestic violence context, the
victim who was familiar with the assailant in the prior example might have
failed to make a positive identification prior to trial out of fear, or an
unwillingness to cooperate with the police due to the nature of her or his
relationship with the assailant.287 Thus, it is clear that requiring good
reason to admit an identification adequately addresses the dangers of
suggestive eyewitness identification as well as the difficulty juries face
when asked to accurately evaluate the reliability of a suggestive
identification.288 In fact, all that is lost by imposing the good reason
standard is the harmful evidentiary weight that unnecessarily suggestive
showup procedures carry, and the risk that the jury will afford them more
weight than they are due.289

281

Id. at 169; Collins, 21 N.E.3d at 536.


See Crayton, 21 N.E.3d at 171.
283 See id. at 170.
284 Id.
285 See id.
286 Collins, 21 N.E.3d at 53637.
287 Id. at 537 n.16.
288 See Commonwealth v. Crayton, 21 N.E.3d 157, 171 n.20 (Mass. 2014).
289 Id. at 171.
282

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Applying these new rules to old cases provides a helpful illustration. 290
For example, Harry Cashin was convicted of first-degree murder in 1932
and sentenced to death. 291 The only witness who attempted to identify the
defendant at trial was a woman who previously stated to police and the
district attorney that she could not identify the defendant as the suspect;
she testified during a lower court proceeding that she did not know
whether the defendant was the suspect.292 The witnesslater characterized
by the appellate court as a self-confessed perjurerwas allowed to
testify during the defendants trial nonetheless.293 His conviction was
eventually reversed on appeal.294 This witness would not have been
allowed to testify under the good reason standard. 295 Similarly, Larry Fuller
was convicted of aggravated rape in 1981 when the victim testified at trial
that she was certain Fuller was her attacker. 296 However, the victim failed
to identify Mr. Fuller when she was presented with a photo array including
his picture two days after the attack, and identified Mr. Fuller with
expressed hesitation when shown another photo lineup five days after her
attack.297 The second photo lineup included several photos, but the only
one that was in both of them was Fullers.298 Under the SJCs new test, there
would be no good reasonor any reason, reallyto allow the victim to
testify about the identification in this case.299
iii. Courts Will Avoid Wrongful Convictions
The SJCs recent eyewitness evidence cases have been heralded as an
important stride in helping to prevent wrongful convictions caused by
misidentifications.300 The rules that come out of these cases are far more
protective than similarly situated federal rules.301 The importance of this
decision cannot be understated, as one of the fundamental purposes of the

290

See OHagan, supra note 128, at 750.


People v. Cashin, 182 N.E. 74, 75 (N.Y. 1932).
292 Id. at 7576.
293 Id. at 76.
294 Id. at 77.
295 See Commonwealth v. Crayton, 21 N.E.3d 157, 171 (Mass. 2014).
296 A POLICY REVIEW, supra note 18, at 15.
297 Id. at 14.
298 Id.
299 Cf. id. (explaining that even the investigating officer recommended the investigation be
suspended because the victim was unsure of the suspect).
291

300
301

Fernandez, supra note 165.


Id.

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courts is ensuring criminal defendants receive a fair trial.302 Of course, the


Supreme Court reminds us, from time to time, that the operative word is
fairnot perfect.303 And no one expects an error-free, perfect trial;304 nor
should they, according to the Court.305 But should a criminal defendant
walking into a courtroom, knowing that nothing can undo the pointed
finger of an eyewitness, feel confident that their trial could even be
considered fair when the methods used to obtain the identification are
unscrupulous and the rules governing its admissibility are ineffective? 306
Moreover, does labeling a trial legally fair have any meaning if we know
the result is not factually accurate?307 Alarmingly, recent Supreme Court
precedent suggests that a modicum of fairness is enough. 308 The Court
waits until evidence is so extremely unfair that its admission violates
fundamental conceptions of justice before sounding due process alarms.309
The SJCs approach sounds the death knell on unfair evidence sooner,
which can mean the difference between incarceration and freedom for an
innocent individual sitting in the defendants chair.310
The Supreme Court has acknowledged that there are rights so basic to
a fair trial that their infraction can never be treated as harmless error311
including, for example, the admission of a coerced confession, 312 the right
to counsel,313 an impartial judge,314 confrontation,315 and an impartial jury.316

302

Thompson, supra note 32, at 605.


See, e.g., Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986) (As we have stressed on
more than one occasion, the Constitution entitles a criminal defendant to a fair trial, not a
perfect one.).
303

304

See United States v. Hasting, 461 U.S. 499, 50809 (1983).


See id.
306 Cf. Gambell, supra note 273, at 214 (criticizing the Supreme Courts failure to adopt per
se rules of exclusion for unnecessarily suggestive identifications as violative of fundamental
fairness).
307 See generally Ken Strutin, The Age of Innocence: Actual, Legal and Presumed, LLRX.COM
(May 5, 2011), http://www.llrx.com/features/ageofinnocence.htm#_ftnref7 (discussing the
implications of legal and factual innocence).
305

308

See Perry v. New Hampshire, 132 S. Ct. 716, 723 (2012).


Id. (internal quotation omitted).
310 See Thompson, supra note 32, at 609 (observing that the Supreme Courts Due Process
standard failed to provide any meaningful protection against wrongful convictions despite
its proclaimed commitment to reliability).
309

311

United States v. Hasting, 461 U.S. 499, 508 n.6 (1983) (internal quotation omitted).
Payne v. Arkansas, 356 U.S. 560, 561 (1958).
313 Gideon v. Wainwright, 372 U.S. 335, 34243 (1963) (quoting Powell v. Alabama, 287 U.S.
45, 68 (1932)).
312

314

Tumey v. Ohio, 273 U.S. 510, 535 (1927).

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The failure to exclude a procedurally suggestive identification should give


reviewing courts the same pause as evidence wrongfully procured in the
form of a coerced confession,317 which judicial experience shows to be
illusory and deceptive evidence . . . [and] a false foundation for any
conviction;318 or would a criminal defendant asked to defend himself
without the aid of counsel because, though he be not guilty, he faces the
danger of conviction because he does not know how to establish his
innocence.319
In a truly just society, no innocent person would spend time behind
bars for a crime they did not commit.320 This notion was not lost on our
founders.321 In 1770, John Adams explained to a jury that [i]t is more
important that innocence be protected than it is that guilt be punished . . . if
innocence itself is brought to the bar and condemned, perhaps to die, then
the citizen will say, whether I do good or whether I do evil is immaterial,
for innocence itself is no protection, . . . that would be the end of security
whatsoever.322 In 1785, in a letter on unjust laws, Benjamin Franklin
referred to the long and generally approved maxim that it is better 100
guilty Persons should escape than that one innocent person should
suffer.323 Though protections for the innocent were once firmly embedded
in our system of rights,324 the idea seems to have somehow slipped out of
315

Pointer v. Texas, 380 U.S. 400, 404 (1965).


Parker v. Gladden, 385 U.S. 363, 364 (1966).
317 See Gambell, supra note 272, at 214.
318 Payne v. Arkansas, 356 U.S. 560, 568 n.15 (1958) (quoting Stein v. New York, 346 U.S.
156, 19192 (1952)).
319 Gideon v. Wainwright, 372 U.S. 335, 345 (1963) (internal quotation and citation omitted).
320 See Laura H. Nirider et al., Combating Contamination in Confession Cases, 79 U. CHI. L.
REV. 837, 840 (reviewing GARRETT, supra note 17) (describing wrongful conviction as justice
gone terribly wrong).
316

321 See The Trial of William Wemms, James Hartegan, William M'Cauley, Hugh White, Matthew
Killroy, William Warren, John Carrol, and Hugh Montgomery, Soldiers in His Majesty's 29th
Regiment of Foot, for the Murder of Crispus Attucks, Samuel Gray, Samuel Maverick, James Caldwell,
and Patrick Carr, on Monday-Evening, the 5th of March, 1770 at 149, LIBRARY OF CONGRESS (April
1, 2008), available at https://ia802205.us.archive.org/33/items/trialofwilliamwe00wemm/
trialofwilliamwe00wemm_bw.pdf (describing the protection of innocence).
322 Id.
323 See Letter from Benjamin Franklin to Benjamin Vaughan (Mar. 14, 1785), in 9 ALBERT
HENRY SMYTH, THE WRITINGS OF BENJAMIN FRANKLIN, 17831788 at 293 (London 1906).
324 See Universal Declaration of Human Rights, G.A. Res. 217 (III) A, U.N. Doc.
A/RES/217(III) art. 2, 1 (Dec. 10, 1948) (including the presumption that everyone charged
with a criminal offense is presumed innocent until proven guilty); International Covenant on
Civil and Political Rights, G.A. Res. 2200A (XXI), 21 U.N. GAOR, Supp. No. 16, U.N. Doc.
A/6316, 999 U.N.T.S. 171 at 54, art. 14, 2 (Dec. 16, 1966) (same).

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our contemporary notions of justice.325 Many would agree that where we


once saw iron gates around the maxim innocent until proven guilty, the
due process protections the phrase once personified have been degraded to
the extent that they have been rendered useless in American
jurisprudence.326 The deck is now stacked against criminal defendants.327
Nowhere is this more apparent than the use of unreliable eyewitness
testimony.328
In the case of eyewitness identifications, the risk that the accused will
be wrongfully convicted is dangerously high. 329 In fact, it is unassailably
true that eyewitness mistakes are the leading cause of erroneous
convictions.330 And, if left undisturbed, erroneous eyewitness
identifications will continue to cause wrongful convictions. 331 The situation
will not change unless the eyewitness identification rules change. 332 There
is simply no getting around it.333 Consider this helpful syllogism: (1)
Police practices and legal rules produced hundreds of wrongful
convictions . . . in the past; (2) Police practices and legal rules remain
unchanged; (3) Therefore, wrongful convictions continue to be handed
down . . . .334 Anyone confronted with this simplistic deduction would
agree that the legal system must do everything within its power to reform
eyewitness identification procedure so that wrongful convictions are
avoided.335
325

See Kentucky v. Whorton, 441 U.S. 786, 789 (1979) (holding that an instruction on the
presumption of innocence is not required and failure to deliver the instruction, even when
requested, does not constitute reversible error); Kenneth Pennington, Innocent Until Proven
Guilty: The Origins of a Legal Maxim, 63 JURIST: STUD. CHURCH L. & MINISTRY 106, 106 (2003)
(explaining that the maxim innocent until proven guilty cannot be found anywhere in the
Magna Carta, the English Bill of Rights of 1689, the Declaration of Independence, or the
Constitution of the United States).
326 See Pennington, supra note 325, at 107.
327 See id.
328 Cf. id. (arguing that more than one witness is needed to condemn a criminal defendant
because nothing is certain when one party affirms and the other denies).
329

Commonwealth v. Johnson, 650 N.E.2d 1257, 1261 (Mass. 1995).


Gershman, supra note 3, at 29.
331 See Thompson, supra note 32, at 604.
332 See Margery Malkin Koosed, Reforming Eyewitness Identification Law and Practices to
Protect the Innocent, 42 CREIGHTON L. REV. 595, 609 (2009); Thompson, supra note 32.
330

333

See Thompson, supra note 32.


Id. at 604 n.3.
335 See, e.g., D. Michael Risinger, Innocents Convicted: An Empirically Justified Factual Wrongful
Conviction Rate, 97 J. CRIM. L. & CRIMINOLOGY 761, 796 (2007) (Any wrongful conviction that
can be corrected or avoided . . . ought to be corrected or avoided; in addition, system
alterations (reforms, if you will) that there is good reason to believe will accomplish this ought
334

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Courts should follow Massachusetts approach because creating


stronger procedural safeguards for criminal defendants facing eyewitness
testimony will decrease the number of wrongful identifications and
should help to ensure that reliable eyewitness evidence is given the weight
it deserves in legal proceedings.336 Indeed, no rational counterargument
exists, because convictions in and of themselves do not further societys
law enforcement goals if they are not accurate. 337 Therefore, the criminal
justice system does not risk los[ing] any relevant, reliable, or otherwise
defensible information concerning guilt by the adoption of such
changes.338 Post hoc rationalization is similarly unavailingeven an
attempt to fall back on the its an imperfect system argument339 fails
because there is not, nor could there ever be, an empirically justifiable
number of wrongful convictions.340 Justice Scalia nodded approvingly to
known wrongful conviction rate of .027 percent because, put differently,
this number represents a success rate of 99.973 percent.341 The calculation
has since been debunked as ludicrous,342 but even if it were factually
accurate, should we be comforted by those numbers? 343 The answer to this
question depends on whether society should judge the criminal justice
system on its wins, or its losses.344 The system is supposed to function
effectivelythe person who committed the crime is supposed to pay the
penalty.345 So judging the system by its wins is a pointless endeavor.346 A
more informative approach would be to judge the system by its losses, and
then to ask what measures courts can take to prevent future errors.347
In light of the irrefutable scientific proof that suggestive police

to be embraced.).
336 GUIDE FOR LAW ENFORCEMENT, supra note 121, at 2.
337 Thompson, supra note 32.
338 Risinger, supra note 335, at 798.
339 See supra note 305 and accompanying text.
340 See GARRETT, supra note 17, at 26263.
341 Kansas v. Marsh, 548 U.S. 163, 198 (2006) (Scalia, J., concurring) (quoting Joshua
Marquis, Op-Ed., The Innocent and the Shammed, N.Y. TIMES, Jan. 26, 2006, at A23).
342

Risinger, supra note 335, at 771 n.17.


See GARRETT, supra note 17, at 263.
344 Cf. id. (posing the following hypothetical: a patron reports to his waiter that he found a
large bug in his soup and the waiter responds with a reassuring Dont worry, it will not
happen again too often. There have only been a few hundred reported cases of bugs in soup . .
. with millions of bowls of soup served every year, we have an unparalleled sanitary soup
rate. The waiter continues: Because we found the bug in your soup, the system worked.).
343

345

See supra note 202 and accompanying text.


See GARRETT, supra note 17 at 262.
347 See id. at 26465.
346

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procedures lead to unreliable identifications, no identification worthy of


the name can be based on these defective procedures.348 Permitting the
innocent to be adjudged guilty on defective proof means, in many cases,
the determination of guilt is based on nothing more than luck, or lack
thereof.349 However, by better protecting the innocent from wrongful
conviction, we spare people the devastating ordeal of unjust incarceration
that tears apart the families of innocent people and deprives them of their
most fundamental liberties.350 That alone should be enough; after all, the
wrongfully convicted are real people whose lives are upended and
oftentimes destroyed.351 Just ask Larry Fuller, who served more than
eighteen years in prison after he was erroneously identified,352 or Harry
Cashin, who was sentenced to death and served two years before his
conviction was reversed.353 The stakes are far too high to gamble on
outdated rules.354 Therefore, it is incumbent that every state, and every key
participant within the criminal justice system, employ every available tool
to prevent mistaken eyewitness identifications.355

CONCLUSION
Eyewitness identifications can lead to wrongful convictions. The rules
governing eyewitness identification testimony at the law enforcement and
judicial levels are outdateda fact borne out by hundreds of known DNA
exonerations. It is now clear that by using less suggestive lineup
procedures,
law
enforcement
officials
can
prevent
witness
misidentifications. It is equally clear that courts play an essential role in
regulating police procedures and creating eyewitness identification rules
that ensure the risk of wrongful conviction arising from mistaken
identification is diminished.
Massachusetts has taken an enlightened approached to eyewitness
348

See A POLICY REVIEW, supra note 18, at 2023.


See Wells et al., supra note 92, at 268 (postulating that identifications made during
certain lineup procedures are lucky guesses).
349

350

A POLICY REVIEW, supra note 18, at 9.


See generally Leslie Scott, It Never, Ever Ends: The Psychological Impact of Wrongful
Conviction, 5 AM. U. CRIM. L. BRIEF. 10 (2010) (describing the challenges facing exonerees
before, during, and after their imprisonment).
352 A POLICY REVIEW, supra note 18, at 14.
353 Hans
Sherrer,
Wrongly
Convicted
Database
Record:
Harry
F.
Cashin,
http://forejustice.org/db/Cashin--Harry-F.html (last visited Jan. 8, 2016).
351

354 Commonwealth v. Johnson, 650 N.E.2d 1257, 1261 (Mass. 1995) (quoting Wright v.
United States, 404 F.2d 1256, 1262 (D.C. Cir. 1968) (Bazelon, J., dissenting)).
355

See Gershman, supra note 3, at 29.

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evidence, informed both by scientific study and the lessons of hundreds of


wrongful convictions. The new rules will make eyewitness identifications
less suggestive, more reliable, and ultimately more accurate, which will
decrease the risk of future wrongful convictions. The time has come for
other states to follow Massachusetts lead and take affirmative steps
toward reshaping the landscape of eyewitness identification law.