“Eyewitness misidentification is the single greatest cause of wrongful convictions nationwide, playing a role in 72% of convictions overturned through DNA testing.”
Two cases recently decided on the same day by the Supreme Judicial Court (“SJC”) have made important strides in helping prevent wrongful convictions due to misidentification. In Commonwealth v. Crayton, the SJC excluded an in-court identification of the defendant where the witnesses were never asked to identify the defendant before trial. The Court also held that the in-court identification of the defendant in Commonwealth v. Collins should have been excluded where the witness had been unable to make a positive identification prior to trial.
To examine the importance of these recent cases, we should first explore why eyewitness identification evidence, while powerful evidence to juries, can be so unreliable that it can lead to the extraordinary rate of wrongful convictions noted above.
Social Science on Memory
In Massachusetts, the Supreme Judicial Court (“SJC”) was so concerned by similar figures that it convened a Study Group on Eyewitness Evidence (“Study Group”), made up of judges, defense lawyers, and prosecutors from across the Commonwealth. The result was a 2013 report that analyzed the relevant body of social science research and made recommendations.
As reported by the Study Group, research shows that memory is not like a videotape that accurately records and can be played back; thus, identification memories are malleable and susceptible to modification because of a number of factors. These factors include system variables, which are factors that the criminal justice system can influence, and estimator factors, which are inherent in the event and which the criminal justice system cannot alter.
The system variables include:
- Witness confidence: There is little correlation between a witness’ confidence in her identification and its accuracy.
- Blind administration: Lineup administrators who know the identity of the suspect often consciously or unconsciously communicate this to the witness.
- Construction of the lineup or photo array: Lineups that are properly constructed (including subjects whose clothing and appearance match the suspects; there are at least five fillers; and there is only one suspect), accurately test a witness’ memory.
- Sequential v. simultaneous lineups and photo arrays: Research cited by the Study Group indicates that witnesses who view all subjects at once tend to choose the person who most looks like the perpetrator, rather than deciding whether the person is the perpetrator or not.
- Showups: A showup identification, where a single person is shown to a witness, while useful, carries risks of misidentification. These risks can be balanced by the benefit of a fresh memory if the showup is conducted within two hours of the witness perceiving the event.
Estimator variables include:
- Distance and lighting: Recent studies cited by the Group indicate that even for a person with 20/20 vision, perception of faces begins to diminish at 25 feet and faces are unrecognizable at 134 feet. People are also inaccurate in estimating distances.
- Condition and characteristics of the witness: Ability to perceive is affected by physical and mental condition and age.
- Weapon focus: The presence of a weapon can distract a witness away from the perpetrator.
- Cross-racial/cross-ethnic identification: A witness may find it more difficult to identify a person of a different race/ethnicity.
- Unconscious transference: A witness can confuse a person seen near the crime scene with the perpetrator of the crime.
Massachusetts Law on Eyewitness Identification
The state of Massachusetts law in this area had been that a pre-trial eyewitness identification would be excluded where a defendant was able to show that it was more likely than not that a witness’ out-of-court identification of her was so unnecessarily suggestive that it would be conducive to irreparable misidentification and deprive the defendant of her right to due process. Meaning that an in-court identification, itself already suggestive, would only be excluded if it was tainted by an unnecessarily suggested pre-trial identification. For example, one-on-one identifications (showups) where the eyewitness is shown one suspect or one photo and asked if that is the person whom he saw commit the crime, are generally disfavored, and the SJC has acknowledged that this identification procedure is inherently suggestive. However, showups are not considered unnecessarily suggestive in all circumstances; where police can demonstrate that there was a good reason to use a one-on-one identification procedure, the identification will not be excluded. Such good reasons can include getting an identification within hours of the crime, to ensure that the police have the right person in custody and get a prompt identification while the events are still fresh in the witness’ mind.
The SJC had been silent on the issue of pre-trial identifications that were not unnecessarily suggestive but where, defendants argued, other circumstances made the in-court identification so problematic that it would violate their due process right, until Crayton and Collins.
Welcome Changes in the Law
Commonwealth v. Crayton
In Crayton, the defendant was charged with viewing child pornography at a public library. He was arrested after two middle school students saw what they believed to be pictures of naked or nearly-naked children on a computer screen being used by a man who was white, bald, and had a small beard or goatee. They alerted library personnel and gave a description of the man viewing the images; in the interim, the man at the computer station left. The following day, a man fitting that description was seen at the library and was later arrested by the police. The police showed a library worker a photo array to see if he could identify the man at the computer station who had been viewing these images but he was not able to identify anyone. No one asked the two students to participate in an identification procedure before trial.
The defendant asked the judge to prevent the two students from doing an in-court identification of him during trial and the judge denied his request, noting that the in-court identification could not be tainted by anything suggestive because there had been no pre-trial identification. On appeal, the SJC concluded that where an eyewitness to a crime has not participated in a pre-trial identification procedure, the in-court identification will be treated as an in-court showup and will be admitted only where there is good reason for its admission. In so ruling, the Court noted that in-court identifications are like showups in their inherent suggestiveness, and perhaps more so because the witness will infer that the prosecutor and the police, following an investigation, believe that the person being tried is the perpetrator of the crime.
Commonwealth v. Collins
Collins involved a drug deal gone wrong. In December 2006, the victim and his companion agreed to purchase 2 kilograms of cocaine from the defendant for $38,000. After initially meeting at the victim’s girlfriend’s apartment, where the cocaine was shown to the defendant, they all agreed that the defendant would return that evening with the money. When the defendant returned, he demanded the money and when it was not immediately forthcoming, he hit the victim in the back of the head and shot him and then shot at the companion, striking him 3 times but not killing him. During the altercation the victim’s girlfriend (the eyewitness) was in a closed-door bedroom with her grandson. Before the shooting, the defendant opened the door, stood at the doorway for a second and looked at her before closing the door again. When she heard shooting, the woman peeked out of the door for a second and saw the defendant demanding the money and shooting into the living room and hitting the victim over the head. She closed the door and did not hear any more shooting. After the defendant was arrested, the eyewitness was shown a sequential photo array, meaning she was shown photos one at a time instead of all at once, and said “no” to each one shown to her. After viewing all of the photos, she said it was between number 8 and number 4. The defendant’s photo was the fourth one shown to her. She also asked to see the photos from a side-view but was told that could not be provided.
At trial, she testified about being shown the photo array and identifying the two photos. She was cross-examined, but defense counsel did not object to this testimony. After cross-examination, the eyewitness was asked whether she saw the person in the courtroom whom she had seen the night of the crime in her apartment. She answered affirmatively and pointed at the defendant. After he was convicted, the defendant then asked for a new trial, claiming that he received ineffective assistance of counsel because his trial lawyer failed to object to the eyewitness’ in-court identification. The SJC cited its Crayton opinion and ruled that, in the future, where an eyewitness to a crime has made less than an unequivocal positive identification of the defendant during a non-suggestive identification procedure, the witness’ in-court identification of the defendant will be admitted only where there is a good reason for it. Unfortunately for this defendant, because he did not object to the in-court identification and because of the Court’s determination that no substantial risk of miscarriage of justice arose from its admission, and considered with other compelling evidence of his guilt, he was not successful in his appeal.
Although this welcome change in the law of eyewitness identification will not change many of the variables that affect human memory and contribute to misidentification, it does show further acknowledgement from the court of the established social science research that indicates that eyewitness identifications are error-prone and cannot always be relied upon to pronounce a defendant’s guilt. We hope these cases are a harbinger of more positive changes in the law to come.
 For the complete list of system and estimator variables, please see the Group’s report, pp. 15-32.
 The Massachusetts Declaration of Rights has been more protective than the federal constitution in this regard, with the latter allowing unnecessarily suggestive out-of-court identifications where they are reliable under the totality of the circumstances. The SJC has noted that this would do little or nothing to discourage police from using suggestive identification procedures. Crayton, SJC-11639, Dec. 17, 2014 (citing Mason v. Brathwaite, 432 U.S. 98, 110, 113 (1977)).