Massachusetts Supreme Judicial Court Issues Important Decision Regarding Eyewitness Identification

The Massachusetts Supreme Judicial Court yesterday delivered an important decision regarding how trial judges should talk to juries about witness identifications of defendants.  The name of the case is Commonwealth v. Gomes.

The defendant was convicted of mayhem and breaking and entering into a vehicle following an incident in which he slashed the victim’s face with a box cutter while the victim sat in his car.  The defendant complained on appeal that the trial judge did not properly instruct the jury.  The Supreme Judicial Court rejected the defendant’s argument and affirmed his convictions.  However, the Court said scientific research had made new discoveries regarding witness identifications and drafted a new instruction for judges to read to juries when the defendant argues he has been wrongly identified.

The Court said it has long recognized that mistaken eyewitness identification causes more wrongful convictions than all other causes combined.  The Innocence Project has reported that in cases where DNA testing exonerated individuals convicted of crimes, eyewitness misidentification played a role 72% of the time.  Accordingly, the SJC wants jury instructions to provide the jurors with the information they need to effectively evaluate the accuracy of an eyewitness identification.  To that end, the SJC ruled that the following scientific principles should be included in the jury instructions in cases where the defendant’s identity is disputed.

1) Human memory does not function like a video recording.  Scientific research has established that memory cannot reproduce a scene like watching a videotape.  Instead, memory involves a three step process.  First the memory is acquired, then it is retained, and finally it is retrieved.  The complex process of creating, retaining, and retrieving a memory can be affected by a variety of factors including the witness’s opportunity to view the event (for example, the proximity of the witness to the event, the lighting conditions, and the length of the event), the witness’s eyesight, and the witness’s sobriety.  It has also been proven that people of all races may find it more difficult to accurately identify members of a different race than members of their own race.

2) An eyewitness who expresses certainty in his or her identification may not indicate the accuracy of the identification.  Scientific research has shown that in most cases, witness confidence or certainty is not a good indicator of whether the identification is actually accurate.  The research also established that in a situation where an eyewitness makes an identification but does not indicate a level of certainty, any subsequent claim of certainty deserves little weight in evaluating the accuracy of the identification.  This is an important point, because jurors tend to credit a witness who expresses certainty in his or her identification of the defendant.

3) A highly stressful situation can reduce an eyewitness’s ability to accurately make an identification.  Scientific research has revealed that a witness’s ability to recognize faces and remember details is significantly impaired by high levels of stress.  This research flies in the face of the popular concept that a highly stressful event will be “burned into” a witness’s memory.

4) A witness’s memory can be influenced by information received by the witness before or after an identification procedure.  Leading questions and suggestive wording used prior to an identification procedure can impact a witness’s memory.  After an identification is made, if the witness is told that he or she is correct, the witness’s level of certainty in the identification may increase. 

5) More than one identification procedure makes it less likely that a correct identification will be made.  If a witness participates in an identification procedure (such as a mugshot viewing) and then later participates in another identification procedure that includes the same suspect (such as a lineup), there is a greater chance for a misidentification.  The concern is that the witness’s memory of the suspect might be from the prior identification procedure rather than the original event.

This case represents a huge breakthrough in criminal law.  There is nothing more powerful than a victim who points to the defendant in court and says, “that’s the person who hurt me” in front of the jury.  In most cases, the victim participated in some sort of identification procedure (typically a photo array or a show up identification) before trial that led to the defendant’s arrest.  Defense attorneys have long argued the many reasons why witnesses might misidentify defendants, but the new jury instructions will provide jurors with the necessary guidance to consider all of the factors that lead to inaccurate identifications.