Supreme Judicial Court Updates Jury Instruction on Eyewitness Identification, but Defense Counsel Must Remain Vigilant

The Supreme Judicial Court, in a January 12, 2015 decision that had been long-awaited by the Massachusetts criminal defense bar, ruled that defendants are entitled to an updated jury instruction regarding purported eyewitness identification that reflects current scientific principles.  The decision, which is captioned Commonwealth v. Gomes, updated a 1979 jury instruction regarding the reliability of identification based upon purported eyewitnesses.  Criminal defense attorneys knew a decision regarding this issue was upcoming because, in 2011, the Supreme Judicial Court noted that “eyewitness identification is the greatest source of wrongful convictions but also an invaluable law enforcement tool in obtaining accurate convictions,” and ordered the creation of a Study Group on Eyewitness Evidence. 

In Gomes, the Supreme Judicial Court recognized there now exists “a near consensus in the relevant scientific community” regarding the reliability of eyewitness evidence that was not available when the current Massachusetts jury instruction regarding eyewitnesses was created in 1979, and that these new scientific findings require an updated jury instruction so that jurors will understand that eyewitness testimony often is unreliable.  More specifically, jurors in Massachusetts must now be instructed about the following five aspects of eyewitness identification, which have been established through multiple scientific studies:

• “Human memory does not function like a video     recording but is a complex process that consists of three stages: acquisition, retention, and retrieval.”

• An eyewitness’s expressed certainty in an identification, standing alone, may not indicate the accuracy of the identification, especially where the witness did not describe that level of certainty when the witness first made the identification.”

• “High levels of stress can reduce an eyewitness’s ability to make an accurate identification.”

• “Information that is unrelated to the initial viewing of the event, which an eyewitness receives before or after making an identification, can influence the witness’s later recollection of the memory or of the identification.”

• “A prior viewing of a suspect at an identification procedure may reduce the reliability of a subsequent identification procedure in which the same suspect is shown.” 

 Significantly, although the Supreme Judicial Court incorporated 30 years of scientific research into developing this updated jury instruction, the Court also explicitly authorized prosecutors and defense attorneys to continue to seek expert witness testimony regarding the reliability of eyewitness testimony, and established that a trial “judge may also allow an expert to challenge the generally accepted principles we incorporated, and, where the judge finds the expert’s challenge to be persuasive, the judge may modify the model instruction accordingly.” 

 Consequently, although the Gomes update to the eyewitness testimony jury instruction is generally a positive development for ensuring clients receive a fair trial, defense counsel must remain vigilant and seek expert testimony whenever the specific facts of a case suggest the government might rely upon alleged eyewitness testimony that might be unreliable.