MA SJC Jury Instructions Blog Post


MA SJC Jury Instructions Blog Post

By Matt Kellner

Matt is a paralegal in the Strategic Litigation Department, where he identifies potential test cases, conducts research, and assists the department’s three attorneys with case-related  tasks.

On November 16, 2015, the Massachusetts Supreme Judicial Court (SJC) approved

new model jury instructions

on eyewitness identification. With the announcement of the new instructions, the SJC


demonstrates its fidelity to a more scientific and just treatment of eyewitness identification evidence, one of the leading factors contributing to wrongful conviction (eyewitness misidentifications played a role in 71% of the 333 exonerations nationwide that were later overturned by DNA evidence). Massachusetts has now joined

New Jersey

and a handful of other states in implementing robust, science-based jury instructions, a key recommendation of the National Academy of Sciences’ landmark 2014


on the reliability of eyewitness identification procedures.

The announcement culminates several years of jury instruction reform efforts by the SJC and the SJC’s Study Group on Eyewitness Identification, with extensive input from the Innocence Project, the Innocence Network and other stakeholders. In fact, the final instructions incorporate many of the suggestions submitted by the Innocence Network during a period of public commentary on provisional jury instructions issued by the SJC in a January 2015 case,

Commonwealth v. Gomes

. For instance, the Innocence Network recommended that the final Massachusetts instructions include a pre-charge explaining some of the factors that affect a witness’s memory or identification to be read before opening statements or an eyewitness’s testimony. The pre-charge addresses the nature of memory so that the jury can evaluate eyewitness testimony free from common misconceptions that might otherwise color how they view that evidence.  The pre-charge also directs jurors to “examine the identification with care” because “[t]he mind does not work like a video recorder.”

The new model instructions recognize and incorporate an extensive body of scientific research on memory, perception and eyewitness identifications. Notably, in finalizing the jury instructions, the SJC included language directing juries to consider whether police “followed protocols established or recommended by the Supreme Judicial Court or [law enforcement]. . . that are designed to diminish the risk of suggestion.”  If any of those protocols were not followed, you should evaluate the identification with particular care.” Both rigorous scientific research and the lessons from the DNA exonerations demonstrate that law enforcement agencies can help reduce the risk of wrongful conviction by following best practices during the administration of identification procedure, such as live lineups or photo arrays. Whereas the earlier version of the model instructions simply told jurors to consider whether police abided by established or recommended procedures, the final instructions allow a trial judge to take judicial notice of police protocols and, when relevant, read those protocols to the jury. Not only does this addition provide juries with more information when weighing the reliability of identification evidence, it allows courts to tailor their instructions to the facts and issues of individual cases. As

Massachusetts Lawyers Weekly


last week, a wide range of stakeholders have noted that the updates in the final model instructions, like the addition of this cautionary instruction, make the instructions, in the words of one former Massachusetts prosecutor, more “user friendly.”

As the Innocence Project and the Innocence Network continue to urge comprehensive eyewitness identification reform in Massachusetts—most recently through

amicus curiae

briefs in the cases of

Kyle Johnson


Santiago Navarro

before the Supreme Judicial Court—the state’s new model jury instructions offer an encouraging embrace of scientific advancements in our understanding of memory and eyewitness identifications, as well as a greater sense of fairness and reliability in the criminal justice system.





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Donna Feroli-Karo May 5, 2016 at 6:29 pm Reply   

Hello Matt,
I have a brother who has been incarcerated for 32 years, in large part, due to the most outrageous and egregious prosecutorial misconduct in the history of the court system. Though I had no history in the court system until my brother was arrested, I was shocked and outraged by the things I saw and heard. This not being sufficient evidence to prove my statement, I do possess the documents from the trial which I felt certain would exonerate my brother. However, no matter whom I contacted, no one was willing to take on this evil prosecutor. I hold two documents which contradict each other in which the prosecutor states that he had never given any money to his immunized witness and a second document which lists the tens of thousands of dollars which were paid to the witness for her testimony. These funds included auto repairs, dental work, airfare for the family of the immunized witness to visit her out of state, and cash receipts. Many of these expenses continued long after the trial ended. The jurists however, were never made privy to this information. My brother was represented by Kevin Reddington who was a fairly inexperienced attorney and at the time was practicing as a public defender.

Long story short, my brother John Feroli was with two men in 1984 who killed two drug dealers. The lead witness, an immunized co-conspirator testified, “John didn’t hurt, shoot, or threaten anyone. He wasn’t in it from the beginning. He just happened to be there. I feel sorry for him.” I’m assuming that there is nothing you can do to help me but I pray that you will try.

If you are seeking to right the wrongs which have been imposed by unscrupulous prosecutors, please feel free to contact me via e-mail, phone, whatever is convenient for you sir. I am desperate for resolution to this nightmare, as my mother and family are as well and would appreciate any assistance you can offer. Thanks so much for reading my ‘rant’.
Donna Feroli-Karo

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