Instruction 9.160, Criminal Model Jury Instructions for Use in the District Court

MODEL EYEWITNESS IDENTIFICATION INSTRUCTION

This instruction should be given in any case in which the jury heard eyewitness evidence that

positively identified the defendant and in which the identification of the defendant as the person who

com m itted or participated in the alleged crim e(s) is contested. W here there is no positive

identification but a partial identification of the defendant, as discussed in Commonwealth v. Franklin,

465 Mass. 895, 910-12 (2013), this instruction or “som e variation” of it should be given upon

request. The instruction is set forth at 473 Mass. 1051 (2015).

The Commonwealth has the burden of proving beyond a reasonable

doubt that the defendant is the person who committed (or participated in)

the alleged crime(s). If you are not convinced beyond a reasonable doubt

that the defendant is the person who committed (or participated in) the

alleged crime(s), you must find the defendant not guilty.

Where a witness has identified the defendant as the person who

committed (or participated in) the alleged crime(s), you should examine the

identification with care. As with any witness, you must determine the

witness’s credibility, that is, do you believe the witness is being honest?

Even if you are convinced that the witness believes his or her identification

is correct, you still must consider the possibility that the witness made a

mistake in the identification. A witness may honestly believe he or she saw

a person, but perceive or remember the event inaccurately. You must

1. Opportunity to view the event.

decide whether the witness’s identification is not only truthful, but accurate.

People have the ability to recognize others they have seen and to

accurately identify them at a later time, but research and experience have

shown that people sometimes make mistakes in identification.

The mind does not work like a video recorder. A person cannot just

replay a mental recording to remember what happened. Memory and

perception are much more complicated. Remembering something requires

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three steps. First, a person sees an event. Second, the person’s mind

stores information about the event. Third, the person recalls stored

information. At each of these stages, a variety of factors may affect — or

even alter — someone’s memory of what happened and thereby affect the

accuracy of identification testimony. This can happen without

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the witness

being aware of it.

I am going to list some factors that you should consider in

determining whether identification testimony is accurate.

You should consider the opportunity

the witness had to observe the alleged offender at the time of the event.

For example, how good a look did the witness get of the person and for

how long? How much attention was the witness paying to the person at

that time? How far apart were the witness and the person? How good

were the lighting conditions? You should evaluate a witness’s testimony

about his or her opportunity to observe the event with care.iii

a. If there was evidence that a disguise was involved or the alleged offender’s

face was obscured.

You should consider whether the person was disguised or had

his or her facial features obscured. For example, if the person

wore a hat, mask, or sunglasses, it may affect the witness’s

ability to accurately identify the person.iv

b. If there was evidence that the alleged offender had a distinctive face or feature.

You should consider whether the person had a distinctive face

or feature.v

You should consider

c. If there was evidence that a weapon was involved.

whether the witness saw a weapon during the event. If the

event is of short duration, the visible presence of a weapon may

distract the witness’s attention away from the person’s face.

But the longer the event, the more time the witness may have to

get used to the presence of a weapon and focus on the person’s

face.vi

2. Characteristics of the witness.

You should consider the physical and

mental characteristics of the witness when the observation was made. For

example, how good was the witness’s eyesight? Was the witness

experiencing illness, injury, or fatigue? Was the witness under a high level

of stress? High levels of stress may reduce a person’s ability to make an

accurate identification.vii

a. If there was evidence that the witness and the person identified are family

members, friends, or longtime acquaintances.

If the person identified is a witness’s family member, friend, or

longtime acquaintance, you should consider the witness’s prior

familiarity with the person.viii

You should

b. If there was evidence that drugs or alcohol were involved.

consider whether, at the time of the observation, the witness

was under the influence of alcohol or drugs and, if so, to what

degree.

3. Cross-racial identification.

4. Passage of time.

5. Expressed certainty.

Omit the following instruction only if all parties agree that there was no cross-racial identification.

The trial judge has the discretion to add the references to ethnicity to the instruction. See

Commonwealth v. Bastaldo, 472 Mass. 16, 29-30 (2015).

If the witness and the person

identified appear to be of different races (or ethnicities), you should

consider that people may have greater difficulty in accurately identifying

someone of a different race (or ethnicity) than someone of their own race

(or ethnicity).ix

You should consider how much time passed

between the event observed and the identification. Generally, memory is

most accurate immediately after the event and begins to fade soon

thereafter.x

You may consider a witness’s identification

even where the witness is not free from doubt regarding its accuracy. But

you also should consider that a witness’s expressed certainty in an

identification, standing alone, may not be a reliable indicator of the

accuracy of the identification, especially where the witness did not

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6. Exposure to outside information.

describe that level of certainty when the witness first made the

identification.xii

You should consider that the

accuracy of identification testimony may be affected by information that the

witness received between the event and the identification,

or received

xiii

after the identification.

Such information may include identifications

xiv

made by other witnesses, physical descriptions given by other witnesses,

photographs or media accounts, or any other information that may affect

the independence or accuracy of a witness’s identification. Exposure to

xv

such information not only may affect the accuracy of an identification, but

also may affect the witness’s certainty in the identification and the

witness’s memory about the quality of his or her opportunity to view the

event.

The witness may not realize that his or her memory has been

xvi

affected by this information.xvii

An identification made after suggestive conduct by the police or

others should be scrutinized with great care. Suggestive conduct may

include anything that a person says or does that might influence the

witness to identify a particular individual.

Suggestive conduct need not

xviii

7. Identification procedures.

be intentional, and the person doing the “suggesting” may not realize that

he or she is doing anything suggestive.xix

An identification

a. If there was evidence of a photographic array or a lineup.

may occur through an identification procedure conducted by

police, which involves showing the witness a (set of

photographs) (lineup of individuals). Where a witness identified

the defendant from a (set of photographs) (lineup), you should

consider all of the factors I have already described about a

witness’s perception and memory. You also should consider

the number of (photographs shown) (individuals in the lineup),

whether anything about the defendant’s (photograph) (physical

appearance in the lineup) made the defendant stand out from

the others, whether the person (showing the photographs)

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(presenting the lineup) knew who was the suspect and could

have, even inadvertently, influenced the identification,

and

xxi

whether anything was said to the witness that may have

influenced the identification.

You should consider that an

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identification made by picking a defendant out of a group of

similar individuals is generally less suggestive than one that

results from the presentation of a defendant alone to a witness.

b. Upon request, the judge should also give an instruction about the source

of the defendant’s photograph within the array.

You have heard that the police showed the witness a number of

photographs. The police have photographs of people from a

variety of sources, including the Registry of Motor Vehicles.

You should not make any negative inference from the fact that

the police had a photograph of the defendant.

An identification may occur

c. If there was evidence of a showup.

through an identification procedure conducted by police known

as a showup, in which only one person is shown to a witness.

A showup is more suggestive than asking a witness to select a

person from a group of similar individuals, because in a showup

only one individual is shown and the witness may believe that

the police consider that individual to be a potential suspect.

xxiii

You should consider how much time has passed between the

event and the showup because the risk of an inaccurate

identification arising from the inherently suggestive nature of a

showup generally increases as time passes.xxiv

You should

d. If there was evidence of a photographic array, lineup, or showup.

consider whether the police, in showing the witness (a set of

photographs) (a lineup) (a showup), followed protocols

established or recommended by the Supreme Judicial Court or

the law enforcement agency conducting the identification

procedure 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.

The trial judge may take judicial notice of police protocols regarding eyewitness identification that

have been established or recommended by the Supreme Judicial Court, and include in the

instruction those established or recommended protocols that are relevant to the evidence in the

case. See Commonwealth v. Walker, 460 Mass. 590, 604 (2011) (“Unless there are exigent or

extraordinary circumstances, the police should not show an eyewitness a photographic array. . .

that contains fewer than five fillers for every suspect photograph. . . . W e expect police to follow

our guidance to avoid this needless risk”); Commonwealth v. Silva-Santiago, 453 Mass. 782, 797-

98 (2009) (“W hat is practicable in nearly all circumstances is a protocol to be employed before a

photographic array is provided to an eyewitness, making clear to the eyewitness, at a minimum

that: he will be asked to view a set of photographs; the alleged wrongdoer may or may not be in

the photographs depicted in the array; it is just as important to clear a person from suspicion as to

identify a person as the wrongdoer; individuals depicted in the photographs may not appear

exactly as they did on the date of the incident because features such as weight and head and

facial hair are subject to change; regardless of whether an identification is made, the investigation

will continue; and the procedure requires the administrator to ask the witness to state, in his or her

own words, how certain he or she is of any identification”); id. at 798 (“W e decline at this time to

hold that the absence of any protocol or comparable warnings to the eyewitnesses requires that

the identifications be found inadmissible, but we expect such protocols to be used in the future”);

id. at 797 (“W e have yet to conclude that an identification procedure is unnecessarily suggestive

unless it is administered by a law enforcement officer who does not know the identity of the

suspect [double-blind procedure], recognizing that it may not be practicable in all situations. At

the same time, we acknowledge that it is the better practice [compared to a non-blind procedure]

because it eliminates the risk of conscious or unconscious suggestion”). If the Legislature were to

establish police protocols by statute, the judge should instruct the jury that they may consider

8. Failure to identify or inconsistent identification.

9. Totality of the evidence.

protocols established by the Legislature. The judge also may take judicial notice of those

protocols and include them in the instruction.

The trial judge also may include established or recommended procedures where the evidence

shows that they were established or recommended by the law enforcement agency conducting the

investigation at the time of the identification procedure.

e. If there was evidence of a multiple viewings of the defendant by

the same witness.

You should consider whether the witness viewed the defendant

in multiple identification procedures or events. When a witness

views the same person in more than one identification

procedure or event, it may be difficult to know whether a later

identification comes from the witness’s memory of the original

event, or from the witness’s observation of the person at an

earlier identification procedure or event.xxv

You should

consider whether a witness ever failed to identify the defendant, or made

an identification that was inconsistent with the identification that the

witness made at the trial.

In evaluating the accuracy of a witness’s

identification, you should consider all of the relevant factors that I have

discussed, in the context of the totality of the evidence in this case.

Specifically, you should consider whether there was other evidence in the

case that tends to support or to cast doubt upon the accuracy of an

identification. If you are not convinced beyond a reasonable doubt that the

defendant is the person who committed (or participated in) the alleged

crime(s), you must find the defendant not guilty.