Where Science Conflicts with Common Sense: Eyewitness Identification Reform in Massachusetts
I. INTRODUCTION Consider an eyewitness who testifies: "I could never forget the man who pointed the gun at me. It was him, sitting right in front of me. I am one hundred percent certain." Common sense would strongly credit the testimony the victim observed the assailant during a traumatic, seemingly unforgettable event and expressed no doubt about that person's identity. However, decades of scientific research on memory and perception recommend greater caution because the factors affecting the accuracy of an eyewitness identification are often unfamiliar to jurors and are counterintuitive. (1) For instance, high stress and the visible presence of a weapon during the commission of the crime may decrease the likelihood of an accurate identification. (2) If the witness is of a different race than the person identified, the risk of error increases. (3) A witness's confidence in an eyewitness identification also is less correlated with accuracy than most would expect. (4) And had the identification first taken place in the courtroom during trial, the highly suggestive courtroom environment would further impair the reliability of the identification. (5) The Supreme Judicial Court of Massachusetts has long recognized the fallibility of eyewitness identification evidence as "the primary cause of erroneous convictions," and has relied upon research demonstrating its infirmities. (6) Yet, until recently, Massachusetts judges generally did not instruct the jury to consider a variety of factors recognized in scientific research that affects the accuracy of eyewitness identifications. (7) In addition, first time incourt eyewitness identifications were not subjected to the same level of scrutiny as their out of court counterparts: single person showups. In 2011, acknowledging eyewitness identification evidence as "the greatest source of wrongful convictions but also an invaluable law enforcement tool in obtaining accurate convictions," the court convened the Supreme Judicial Court Study Group on Eyewitness Identification "Study Group" (8) The purpose of the Study Group was to "consider how [Massachusetts] can best deter unnecessarily suggestive procedures and whether existing model jury instructions provide adequate guidance to juries in evaluating eyewitness testimony." (9) The Study Group was comprised of law school professors and attorneys, as well as representatives from the four Massachusetts trial court departments with criminal or juvenile jurisdiction, the Attorney General's office, a District Attorney's office, the public defender's office (also known as the "Committee for Public Counsel Services" the Office of Inspector General, and the Massachusetts Chiefs of Police Association "Chiefs of Police" (10) In 2013, the Study Group published a 162 page comprehensive review of the state of scientific research on eyewitness identification evidence and its recommendations on best practices for police departments, enhanced jury instructions, pretrial hearings, and continued education for judges and practitioners "Study Group Report" (11) The Study Group Report provided the foundation for the Supreme Judicial Court to reexamine the admissibility and the evaluation of eyewitness identification evidence in Massachusetts. During my first year as Chief Justice, the court overhauled its treatment of first time in court positive eyewitness identifications in a pair of cases, Commonwealth v. Crayton (12) and Commonwealth v. Collins, (13) and crafted a provisional model eyewitness identification jury instruction in Commonwealth v. Gomes (14) which was subsequently revised after a public comment period. (15) Meanwhile, individual police departments in Massachusetts have adopted new police protocols for eyewitness identification procedures, and legislation is pending that would establish uniform protocols. (16) Eyewitness identification reform has progressed both inside and outside of the courts through a shared commitment to learning from reliable scientific research.