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Massachusetts Guide to Evidence 2025 Edition MA R EVID § 1112

Current as of January 01, 2025 | Updated by Findlaw Staff

(a) Sources of Law. The admissibility of eyewitness identification evidence in the Commonwealth is governed by the United States Constitution, Article 12 of the Massachusetts Declaration of Rights, and common-law principles of fairness.

(1)Article 12 of the Massachusetts Declaration of Rights. Under Article 12 of the Massachusetts Declaration of Rights, an out-of-court identification resulting from an identification procedure arranged by the police may be admissible unless the defendant files a timely motion to suppress before trial and establishes by a preponderance of the evidence that the identification procedure was so unnecessarily suggestive and conducive to irreparable mistaken identification as to deny the defendant due process of law.

(2)Common-Law Principles of Fairness. Under common-law principles of fairness, an out-of-court identification, whether or not arranged by the police, may be excluded if the defendant files a timely motion to suppress before trial and establishes that the danger of unfair prejudice substantially outweighs the probative value of the identification. The judge must weigh the suggestiveness of the identification against the strength of its independent source to determine whether the identification is reliable.

(b) Out-of-Court Identifications, Including Showups and Photographic Arrays.

(1)Identification Procedures.

(A) Showups. To satisfy the burden set forth in Subsection (a)(1), the defendant must establish by a preponderance of the evidence (i) that the police lacked good reason to conduct the showup, or (ii) the police so needlessly added to the showup's suggestiveness that the identification was conducive to irreparable mistaken identification. In determining whether the police had good reason to conduct a showup, a judge may consider (i) the nature of the crime and concerns for public safety, (ii) the need for efficient investigation in the aftermath of a crime, and (iii) the usefulness of prompt confirmation of the accuracy of information. Prior to a showup identification, the person conducting the procedure must instruct the witness as follows: “You are going to be asked to view a person; the alleged wrongdoer may or may not be the person you are about to view; it is just as important to clear an innocent person from suspicion as it is to identify the wrongdoer; regardless of whether you identify someone, we will continue to investigate; if you identify someone, I will ask you to state, in your own words, how certain you are.”

(B) Photographic Arrays. To determine whether the defendant has satisfied the burden set forth in Subsection (a)(1), the judge should consider the following:

(i) whether the police properly informed the person making the identification that (a) the wrongdoer may or may not be in the depicted photographs, (b) it is just as important to clear a person from suspicion as to identify a person as the wrongdoer, (c) the depicted individuals may not appear exactly as they did on the date of the incident because features such as weight and head and facial hair may change, and (d) the investigation will continue regardless of whether an identification is made;

(ii) whether the person making the identification was asked to state the degree of certainty of any identification;

(iii) whether the array was composed of persons who possess reasonably similar features and characteristics; and

(iv) whether the array contained at least five fillers for every photograph of the suspect.

(C) Lineups. Persons arranging a lineup should take precautions against directing undue attention to any participant. A participant may be required to make changes in appearance to conform with the description of the alleged perpetrator. During a voice procedure, the witness should not view the participants while listening to the words spoken by them. The participants should not repeat the words heard by the witness at the scene.

(2)Subsequent Out-of-Court Identifications. When an out-of-court identification resulting from an identification procedure arranged by the police is suppressed, a subsequent out-of-court identification of the defendant by the same witness may be admissible only if the Commonwealth establishes by clear and convincing evidence that the subsequent identification has an independent source. In determining whether the Commonwealth has met its burden, the judge must consider

(A) the extent of the witness's opportunity to observe the defendant at the time of the crime;

(B) prior errors, if any, (i) in description, (ii) in identifying another person, or (iii) in failing to identify the defendant;

(C) the receipt of other suggestions; and

(D) the lapse of time between the crime and the identification.

(3)Third-Party Testimony Regarding Out-of-Court Identifications. If a witness testifies at trial and is subject to cross-examination about having made an out-of-court statement of identification, a third party, including a police officer, may subsequently testify concerning the alleged statement, regardless of whether the witness admitted, denied, or claimed not to remember making the statement. The third party's testimony may be admitted for both substantive and impeachment purposes.

(c) In-Court Identifications.

(1)When There Has Been an Out-of-Court Identification.

(A) An in-court identification of the defendant by an eyewitness present during commission of the crime may be admissible if the eyewitness (i) participated before trial in an identification procedure and (ii) made an unequivocal positive identification of the defendant.

(B) If the out-of-court identification of the defendant was suppressed as unnecessarily suggestive, an in-court identification by the same witness is not admissible unless the Commonwealth establishes by clear and convincing evidence that the in-court identification has an independent source.

(C) If the out-of-court identification of the defendant was suppressed under common-law principles of fairness, an in-court identification by the same witness is inadmissible because the Commonwealth cannot establish that it would be reliable.

(2)When There Has Not Been an Out-of-Court Identification.

(A) If an eyewitness present during the commission of a crime did not participate before trial in an identification procedure, or did not make an unequivocal positive identification, an in-court identification by the same witness is inadmissible unless there is good reason for its admission.

(B) In cases subject to Subsection (c)(2)(A), the Commonwealth must move in limine to admit the in-court identification. Once the motion is filed, the defendant bears the burden of showing that the in-court identification would be unnecessarily suggestive and that there is no good reason for its admission.

(d) Expert Testimony. Expert testimony on the issue of eyewitness identification is admissible at the discretion of the judge.

(e) Inanimate Objects. The identification of an inanimate object is subject to common-law principles of fairness and may implicate due process principles.

(f) Composite Drawings and Sketches. Composite drawings and sketches may be admissible unless the defendant establishes a substantial likelihood of irreparable misidentification resulting from impermissible suggestiveness.

(g) Jury Instructions.

(1)Positive Eyewitness Identification. Where the jury heard eyewitness evidence that positively identified the defendant and the identification of the defendant as the person who committed or participated in the alleged crime is contested, the judge should give the Model Eyewitness Identification Instruction.

(2)Partial Eyewitness Identification. Upon request, where an eyewitness partially identified the defendant, the judge should give some variation of the Model Eyewitness Identification Instruction that includes information about the risk of an honest but mistaken observation.

(3)Cross-Racial Identification. The judge should omit the cross-racial component of the Model Eyewitness Identification Instruction only if all parties agree that there was no cross-racial identification. Where the instruction is given, the judge has discretion to add references to ethnicity.

(4)Failure to Identify or Inconsistent Identification. The judge should instruct the jury to 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.

(5)Preliminary/Contemporaneous Instruction. Upon request, before opening statements or immediately before or after the testimony of an identifying witness, the judge must give the Preliminary/Contemporaneous Instruction.

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Cite this article: FindLaw.com - Massachusetts Guide to Evidence 2025 Edition MA R EVID § 1112 - last updated January 01, 2025 | https://codes.findlaw.com/ma/massachusetts-guide-to-evidence-2025-edition/ma-r-evid-sect-1112/

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