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Angiulo: Questioning the Reliabilty of Eyewitness Identifications

Monday, February 15, 2016


Somtimes, awful things happen and the wrong person is accused.  One way that happens is through witness identifications that are mistaken, procedures that are too suggestive, or because of circumstances that are unfair.  However it happens, the results are the same: unfair eyewitness identifications at trial used as evidence against the accused.  

In a worst case scenario, this kind of testimony solves none of the problems meant to be solved by our criminal justice system.  The victim finds no justice, the perpetrator is not apprehended, and an innocent person is subject to the mechanations of government.  

The much anticipated Supreme Judicial Court opinion of Commonwealth v. Johnson , released February 12, 2016, outlines how Massachusetts courts can focus their evaluation of identification testimony.  In Johnson, the court reiterated that admissibility has become more than whether or not the police acted appropriately.  There is a seperate, but related, issue about whether the identification was consistent with common law principles of fairness.

The facts in Johnson revolve around an apartment that was burlarized.  During that break in, the perpetrator and victim fought each other while the perpetrator was armed with a knife.  The perpetrator fled and the victim did not identify the person.  Certainly, something terrible happened and somewhere out there in the world is a person who did it.

As the old saying goes, however, it's not always what you know, but what you can prove that matters.  For law enforcement, one of the major tools in proving a case is identifying a perpetrator.  Identification procedures are standardized and subject to protocols, but are generally one of three types.  Whether it is a photographic array, show up, or line up procedure the goal is for an eyewitness to pick a suspect if possible.  

The problem is that external factors can effect the witness. Those factors may be things that the police can control, like whether the witness receives positive feedback after making an identification.  Of special concern to the Johnson court were identifications that came from highly suggestive circumstances not caused by law enforcement.  

The problem is that suggestive circumstances have been proven to create a memory loop for witnesses.  The suggestive circumstances work to create an inflated confidence in a witness's identification.  This, in turn, operates to inflate the witness's memory about the quality of their original ability to observe the incident.  This troubling set of circumstances reaches its apex when the witness testifies at trial.  Now, that testimony is more than just what the witness saw that night and the identification; it includes the inflated and false memories.

One of the legal issues discussed in Johnson is how the “value of an identification depends on the strength of its source independent of the suggestive circumstances of the identification.”  To put it plainly, the Johnson opinion includes explicit legal standards for reviewing whether identification testimony should be in front of a jury.  Those standards include an obligation to balance that suggestiveness against the strength of the source.  If, at the end of that evaluation, it would be unfair for a jury to give any weight to the testimony then it will not be admitted.  This metric puts a great deal of pressure on judges to make what can be a close call, but is an example of why the selection of members of the judiciary is such a rigorous and thorough process. 

In Johnson the Supreme Judicial Court chose to focus trial courts on this aspect of eyewitness identifications because a jury may not be relied on, alone, to fairly protect defendants from unreliable procedures.  The Johnson court does not rule that eyewitness testimony is itself unreliable.  Instead, it further refined what it takes for this evidence to be fairly admitted at trial.   

Leonardo Angiulo is an Attorney in the city of Worcester handling legal matters across the Commonwealth. He can be reached by email [email protected] and found on the web at www.angiulolaw.com


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