Massachusetts at Forefront of Reforming Treatment of Eyewitness Identification Evidence in Court

By Eric Pilch, Paralegal, Strategic Litigation

Today’s Innocence Blog features a post by guest blogger Eric Pilch, who works for the Innocence Project’s Strategic Litigation Department, identifying promising test cases, evaluating case materials, and conducting research. Eric’s post is a follow-up to the article featured on the Innocence Blog yesterday about the Massachusetts Supreme Judicial Court’s evaluation of how eyewitness testimony is handled and presented to juries.

The Massachusetts Supreme Judicial Court (SJC) appears poised to reform the way eyewitness evidence is treated in criminal cases, indicating that it will likely release a significant ruling on the issue. The Innocence Project is hopeful that the court’s decision will follow the example set by the Supreme Court of New Jersey in State v. Henderson and the Supreme Court of Oregon in State v. Lawson, two landmark cases that created a new legal framework for evaluating identification evidence based on decades of scientific research on eyewitness perception and memory. Eyewitness misidentification is the leading contributing cause of wrongful convictions nationwide, appearing in 72% of the 317 cases overturned by DNA evidence.

The SJC’s engagement around how eyewitness evidence is handled by the court began in 2011 when the court decided Commonwealth v. Walker, a case where the defendant was identified by an eyewitness, but the method used by police officers did not conform to procedures outlined in the court’s earlier decisions. As a result, the court created the Supreme Judicial Court Study Group on Eyewitness Evidence, composed of criminal justice stakeholders who were tasked with reviewing the scientific research on eyewitness memory and issuing recommendations.

The study group’s report was released in July 2013 and included five recommendations, each of which are crucial to ensuring an improvement in the reliability of eyewitness evidence: 1) The SJC should “take judicial notice … of the modern psychological principles regarding eyewitness memory”; 2) Police departments should adopt uniform statewide procedures for conducting lineups and show-ups and should conduct comprehensive training on their scientific support; 3) Pretrial judicial inquiry into the reliability of eyewitness evidence should be expanded; 4) Expansive science based jury instructions should be adopted; and 5) The SJC should create a committee to develop professional training for judges and lawyers on the new procedures.

The SJC justices invited public comment on the report, and earlier this year the Innocence Project responded with a letter that has now been publicly released (see pg. 27). The letter “commends the Supreme Judicial Court for achieving a consensus among stakeholders in the criminal justice system that comprehensively addresses the reliability of eyewitness identification evidence at both the front end — its collection by law enforcement — as well as the back end — when and how it is used in courts.”

Although the study group’s excellent report reflects a serious commitment to improving the reliability of eyewitness evidence, the Innocence Project expressed concern about the procedures for handling pre-trial challenges — opportunities for a defendant to challenge the reliability of the identification evidence. The SJC report falls short in failing to enshrine concrete guidelines that lower courts can rely on when ruling on these challenges. The Innocence Project’s submission noted, “Scientific research has demonstrated that the amount of suggestion that can substantially contaminate memory is directly correlated to the strength of the original memory.” So, for example, a witness who is far away from a nighttime crime scene and has only a short opportunity to view the perpetrator will be affected by a small amount of suggestion. The Innocence Project urged the justices to clarify that courts must evaluate the strength of the witness’s original memory when making reliability determinations.

The SJC has also accepted a trio of cases presenting eyewitness identification issues—Commonwealth v. Jeremy Gomes, Commonwealth v. Kenneth Johnson, and Commonwealth v. Walter Crayton—and will be hearing oral arguments on September 2, 2014. The Innocence Network worked with pro bono counsel McDermott Will & Emery LLP to prepare an amicus brief for the court, urging it to improve the legal framework governing eyewitness evidence and to accept the recommendations of the SJC study group with limited modifications.

The SJC has been at the forefront of important changes in the way courts treat eyewitness identification evidence. Changes in the state’s framework for evaluating eyewitness testimony hold the exciting potential of not only bringing procedures in line with scientific consensus but will provide greater protections to innocent defendants subject to eyewitness misidentifications.