In the recent case of Commonwealth v. Walter Crayton, the Massachusetts Supreme Judicial Court established a new standard for the admission at trial of an in-court identification of the defendant where the witness had not, prior to trial, been asked to participate in an out of court identification procedure. The new rule imposes the burden on the Commonwealth to request. prior to trial, that the prospective witness be permitted to make an in-court identification if there has not been any previous identification of the defendant.
Once the prosecutor makes this request, the burden remains on the defendant to establish that the proposed in-court identification would be “unnecessarily suggestive” and that there would be no “good reason” for it. Examples of “good reason” for the first identification procedure by a witness against a defendant at trial may include circumstances where the eyewitness was familiar with the defendant before the commission of the crime; or where the eyewitness was the arresting officer. In other words, circumstances where the witness and the defendant were known to one another or where the identity of the defendant is not a live issue at trial – where the witness is not identifying the defendant based solely on his memory of witnesses the defendant at the time of the incident and therefore, little risk of misidentification from the in-court show-up.
Under Article 12 of the Massachusetts Declaration of Rights, an out-of-court eyewitness identification is not admissible if the circumstances surround that purported identification are so unnecessarily suggestive and conducive to irreparable misidentification that its admission would deprive the defendant of his right to due process. A one on one show-up identification procedure, where the suspect is presented to an eyewitness for identification, may be unnecessarily suggestive if there is no good reason for it. The courts have ruled there is, generally, good reason for these one on one identification procedures under some circumstances. For instance, if the identification is conducted in a relatively short time after the crime and the police are seeking to determine if they have captured the suspect or if he is still at large.
A one on one show-up identification however, of asking the witness to identify the defendant at trial, is inherently suggestive. The witness on the witness stand is asked to identify the perpetrator of the crime while the defendant is sitting in the courtroom, at counsel table by his attorney. The Massachusetts Supreme Judicial Court correctly acknowledge that in these circumstances, even a witness who had never seen the defendant before will infer that he is the suspect by virtue of the fact that he is the one on trial. The witness knows that the person sitting there is the one who has been charged with the crime and the witness may make this identification not based on his own memory, but in reliance of the prosecutor and the circumstances at trial.
Moving forward, the SJC mandates that an in-court identification shall only be admitted into evidence where there is “good reason”.
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