Boston Criminal Lawyers Blog
The issue of the reliability of eyewitness identifications has been a hot topic in Massachusetts courts the last few years. Several cases from the Massachusetts Supreme Judicial Court and Appeals Court have touched upon the danger of suggestiveness of eyewitness identifications, their reliability and consequently, their admissibility against defendants at trial. Commonwealth v. Johnson, decided by the SJC on February 12, 2016, is yet another decision highlighting suggestive identification issues.
The Johnson case involved an issue where the defendant, prior to trial, moved to suppress (or exclude) the identification of him by the victim of a robbery because, he argued, it was made under circumstances that were impermissibly suggestive and therefore, unreliable to be admissible as an identification of him at trial. 
These issues are litigated in Massachusetts courts daily, and most often, it isn’t much of a big deal as far as the law goes. But in this case, the major issue that sets this case apart from most others is that the impermissible identification procedure didn’t come from the police…
To provide some background, the victim, who lived in Brockton, Massachusetts, came home to find someone a man with a gun robbing his apartment. The man got away and the victim reported the incident to the police but there were no leads on who the suspect was. A week later, after discovery that his cousin had also been robbed and that incident had been captured on surveillance video, both the victim and his cousin called the Brockton police to give them the lead on the suspect. The cousin had showed the victim a photograph of the suspect, who by the appearance of the person in the surveillance video, thought “could possibly be” the suspect – a boyhood friend of both victims. After looking at the photograph provided by his cousin, the victim “identified” Johnson as the person who had robbed him.
Brockton Police then assembled an 8 person photographic array and asked the victim if he could identify the intruder. Not surprisingly, he picked out the photo of the person that his cousin had shown him that was captured from the surveillance video from the other break-in. Thereafter, Johnson was indicted in Brockton Superior Court on several robbery charges, including Armed Assault in a Dwelling and Breaking and Entering in the Daytime.
Prior to trial, Johnson moved to suppress the out-of-court identifications of him by the victim – the ID from the singular photo shown from the cousin, as well as the identification from the 8-person photo array shown by the Brockton Police.
The motion was heard by Superior Court Judge Cornelius Moriarty, who found that, although the police did not violate Johnson’s constitutional rights in administering the 8 person photographic array, both that and prior identification of Johnson were suppressed because they were “impermissibly gained by the suggestive circumstances.” As a result, any in-court identifications were also precluded from trial because the Commonwealth had not met its burden to show that any in-court identification of Johnson would be based upon an independent source not having been affected by the previous tainted circumstances.
The reason Judge Moriarty’s decision is important is because he rationally and logically analyzed the totality of the circumstances and found that they were a product of suggestive circumstances. In most cases, a defendant must prove that an identification was unnecessarily suggestive because the out-of-court identification procedures administered by the police was suggestive. The difference in this case, however, is that the suggestive procedure was not administered by the police, but by the victim’s own cousin.
Despite no wrongdoing on the part of the police, the SJC has held that “where a witness’s identification of a defendant arises from highly or especially suggestive circumstances, its admissibility ‘should not turn on whether government agents had a hand in causing the confrontation’ because ‘the evidence would be equally unreliable in each instance.'”
The judge, therefore, had absolute discretion to exclude relevant evidence if he found that its probative value is substantially outweighed by the danger of unfair prejudice. Clearly, as it applied in this case, he found that any value in permitting the victim to identify Johnson at trial was outweighed by the danger of the highly suggestive identification procedure resulting from his cousin showing him a singular photograph of the suspect.
The reason, the SJC has recognized, is that suggestive procedures are likely to bolster an eyewitness’s certainty regarding an identification and alter the witness’s memory regarding the quality of the observation of the offender. This would serve dangerous and unfair against any person standing trial as it could impermissibly affect a jury’s ability to accurately evaluate identification evidence and might not properly protect a defendant from an unreliable identification admitted against him.
Certainly, in determining whether any particularly circumstances were probative and if its value outweighed any unfair prejudice, the courts would consider several factors including: the quality of the witnesss’s opportunity to observe the suspect at the time of the crime; the lapse of time between the crime and the identification; the witeness’s earlier description of the suspect and whether that ultimately matches the defendant; and whether the witness ever identified another person as the suspect or even failed to identify the defendant as the suspect.
But merely because a judge has excluded an out-of-court identification does not mean that all identifications of the defendant are excluded from the trial. The government may still offer a subsequent out-of-court ID by the witness during trial but only of the prosecutor can prove, by clear and convincing evidence, that the subsequent identification is reliable (rests on a source independent of the unnecessarily suggestive confrontation) – otherwise known as the “independent source doctrine”.
With this background in mind, the Massachusetts SJC took the issue one step further… Does the independent source doctrine still apply where both out-of-court identifications were declared inadmissible under common-law principles of fairness???
NO, and this is because, logically, a subsequent in-court identification can’t be more reliable that an earlier out-of-court ID under circumstances of inherent suggestiveness and the passage of time. The more time that passes between an initial observation and a later ID procedure, the less reliable the recollection later will be.
Boston Criminal Lawyer Lefteris K. Travayiakis has experience representing persons charged with major felony and misdemeanor crimes in Massachusetts, as well as handling post-conviction and criminal appeals matter.
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