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Massachusetts SJC adopts new procedure for show up identification procedures in Robbery appeal

The Massachusetts Supreme Judicial Court upheld the trial court’s decision to allow two witnesses’ identification of a robbery suspect as admissible evidence despite the lack of protocol and questions surrounding the identifications’ reliability.  The SJC alternated the procedures going forward requiring an instruction prior to the identification as in Line up identifications. The case adopting this new rule is Commonwealth v. Christian German decided November 13, 2019.

The case involved a robbery that occurred as a restaurant owner and three employees were leaving the restaurant late at night. As the women exited the restaurant, one of them got in the front seat of a waiting taxi. The other two employees waited as the owner locked the door. A man approached the three women standing outside of the restaurant, demanding their belongings. While one of the women threw her belongings on the ground, the owner ran around the corner to her vehicle to call 911. The robber then followed the other two women across the street, continuing to demand their property. Men on a nearby rooftop yelled at the robber, and the robber fired a gun in their direction and then left. When police arrived, two of the women had left in the taxi, while the owner and one employee remained to speak to police. After searching the area, officers found the suspect and detained him. One officer told the owner and employee that officers had detained a man, although they did not know if he was the robber, and that they needed witnesses to indicate whether or not he was the robber. While the officer wanted to transport the women one at a time to see the detained suspect, the women insisted that they would not go unless they stayed together and if assured that the suspect would not be able to see them.  The officer acquiesced and drove the two women to where the man was detained. Without any prompting, upon the officer pointing the police cruiser’s headlights at the suspect, both women simultaneously stated that the suspect was the robber and that they were 100% certain.

At trial, defense counsel argued that the women’s identification was improper where the women identified the man while sitting in a police cruiser together, not separate, and where the police officer did not provide adequate instructions prior to eliciting the “showup” identification. Defense counsel also argued that they should be allowed to introduce expert testimony that the witnesses’ degree of certainty of the suspect’s identity was questionable.

The SJC allowed the identifications because the police officer told the women that, while a man was in custody, officers did not know if he was the robber, and that the women simultaneously and immediately identified the man, without being influenced by one another. Although the officer did not give specific instructions to the women as is done in photographic line-ups following the Silva-Santiagoprotocol, the instructions the officer gave in this case were sufficient.

The Court also found that the expert testimony regarding the witnesses’ degree of certainty was inadmissible because the expert would have supported his opinion with conclusions that the women’s general, rather than specific, description of the robber was likely erroneous. While the expert could testify regarding the reliability of a witness’s recalled memory, the expert was not allowed to opine whether the police had an adequate basis to stop the suspect based on the witnesses’ descriptions.

Ultimately, the Court held that, similar to those given in photographic line-ups, “show up” identifications of suspects should be preceded by the following instructions going forward:

“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.”

In this case, however, the protocol was not required and the officer’s minimal instructions were sufficient prior to the women’s identification of the suspect.

You can read the SJC decision in German on the Justia website by following this link.  To learn more about current issues in criminal defense you can follow Attorney DelSignore on Facebook.  



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