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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Johnson, 420
Supreme Judicial Court of Massachusetts,
Argued
Decided
[420
Jane A. Sullivan, Asst. Dist. Atty., for Com.
Before [420
[420
The
defendant appeals from his conviction of larceny from a person after a trial by
a jury of six in the
We recite
the facts found by the judge. On
When Goncalves finished using the telephone, a white female with
a limp approached him and asked him for a dollar. Goncalves told the
woman that he did not have any money. A
black male armed with a machete then approached. The man grabbed Goncalves's
wallet and at the same time the woman snatched money from Goncalves's
front pocket. The assailants discarded
the wallet after removing the money.
They left the area together in an automobile. Goncalves pursued
them in his own automobile, but he lost sight of them in [420 Mass. 460] a
public housing project. The entire
incident described lasted only a few minutes.
Approximately
forty‑five minutes later, Goncalves went to the
Area D‑4 police station and reported the robbery. He described the male assailant as a twenty‑seven
to thirty year old black male, six feet tall with a medium build, weighing 170
pounds, and wearing a black cap, blue jeans, and a brown sweatshirt. Goncalves was shown
about six books containing photographs of suspects, but was unable to identify
his assailants. (FN2) Goncalves then
accompanied a police officer to view a group of potential suspects. Once again, Goncalves
did not make an identification.
The day
following the incident, four police officers arrived at Goncalves's
place of employment at approximately 5 P.M.
They told Goncalves that they wanted him to
view two
suspects. Goncalves
accompanied the officers. When they
arrived at the location where the suspects were being held, Goncalves
saw a group of six to eight people. Only
one adult black male, the defendant, was present and a female with a limp was
the only adult white female present. The
two suspects were being "detained" by police officers but they were
not handcuffed. The defendant and the
woman were brought forward a few steps by the officers. Goncalves then
identified the pair as his assailants. Goncalves based his identification in part on the fact that
the clothing worn by the suspects was the same as that worn by his assailants.
The
defendant possessed several characteristics that did not match Goncalves's initial description of the male assailant. A booking photograph taken of the defendant
at the time of his arrest, the day after the incident, shows that the defendant
had a moustache. Yet Goncalves
had never mentioned that the male assailant had a moustache. The booking sheet indicates that the
defendant is thirty‑seven years old and weighs 220 pounds, whereas Goncalves had described a man of approximately twenty‑seven
years in age, weighing [420 Mass.
461] 170 pounds, with a medium
build. Finally, at the time of the
hearing on the motion to suppress the defendant was missing several front
teeth. When describing his assailants to
the police, Goncalves did not tell them that the male
assailant had missing teeth.
[1][2] The
judge ruled that Goncalves's identification of the
defendant was tainted because it was made at an unnecessarily suggestive showup. The evidence
presented at the motion hearing supports this conclusion. Although one‑on‑one
confrontations are not per se excludable, they are disfavored because of their
inherently suggestive nature. See Commonwealth v. Howell, 394 Mass. 654,
660, 477 N.E.2d 126 (1985); Commonwealth v. Barnett, 371 Mass. 87,
92, 354 N.E.2d 879 (1976), cert. denied, 429 U.S. 1049, 97 S.Ct.
760, 50 L.Ed.2d 765 (1977). Showups have been permitted when conducted in the immediate
aftermath of a crime and in exigent circumstances. Commonwealth v. Barnett, supra
at 92, 354 N.E.2d 879. See Stovall v. Denno,
388 U.S. 293, 301‑302, 87 S.Ct. 1967, 1972‑1973,
18 L.Ed.2d 1199 (1967). The showup employed by the police in this case was conducted
eighteen hours after the crime. It took
place in the area of the housing project where Goncalves
had seen his assailants drive the previous night; the defendant was brought forward from the
group before Goncalves positively identified
him; and the defendant was wearing
clothes similar to those worn by the male assailant. Based on these facts, the judge was warranted
in concluding that the identification procedure was unnecessarily suggestive.
Although
the judge found the identification procedure unnecessarily suggestive, he found
that the identification was admissible because it was reliable. (FN3)
In so doing, the judge relied on Appeals Court decisions which have
adopted the "reliability test," set forth in Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), regarding the
admissibility of identifications [420
Mass. 462] obtained through
unnecessarily suggestive procedures.
(FN4) See Commonwealth v. Hicks, 17 Mass.App.Ct.
574, 460 N.E.2d 1053 (1984). See also Commonwealth v. Riley, 26 Mass.App.Ct. 550, 553‑554, 530 N.E.2d 181 (1988);
Commonwealth v. Laaman, 25 Mass.App.Ct. 354, 362, 518 N.E.2d 861 cert. denied, 488
U.S. 834, 109 S.Ct. 95, 102 L.Ed.2d 71 (1988);
Commonwealth v. Jones, 25 Mass.App.Ct. 55,
60, 514 N.E.2d 1337 (1987); Commonwealth v. Key, 19 Mass.App.Ct. 234, 472 N.E.2d 1381 (1985);
Commonwealth v. Gordon, 6 Mass.App.Ct.
230, 374 N.E.2d 1228 (1978).
[3]
Although the Appeals Court has applied the due process analysis set forth in
the Brathwaite
case, this court has never accepted the reasoning in Brathwaite as an accurate interpretation
of the due process requirements of art. 12 of the Declaration of Rights of the
Massachusetts Constitution. (FN5) Whether we should embrace Brathwaite, as have the majority of
other States, is a question we have left open. Commonwealth v. Melvin, 399
Mass. 201, 205, 503 N.E.2d 649 (1987). Commonwealth v. Correia,
381 Mass. 65, 81, 407 N.E.2d 1216 (1980). Commonwealth v. Venios,
378 Mass. 24, 26‑28, 389 N.E.2d 395 (1979). In cases involving an unnecessarily
suggestive identification, we have adhered to [420 Mass. 463] the
stricter rule of per se exclusion previously followed by the Supreme Court and
first set forth in the Wade‑Gilbert‑
Stovall trilogy (FN6) of cases. Commonwealth v. Botelho,
369 Mass. 860, 865‑869, 343 N.E.2d 876 (1976). See
Commonwealth v. Dinkins, 415 Mass. 715, 720‑721, 615 N.E.2d 570
(1993);
Commonwealth v. Smith, 414 Mass. 437, 442‑443, 608 N.E.2d 1018
(1993);
Commonwealth v. Thornley, 406 Mass. 96, 98‑99,
546 N.E.2d 350 (1989); Commonwealth v. Melvin, supra at 205, 503
N.E.2d 649.
The rule
of per se exclusion, set forth in
Commonwealth v. Botelho, supra, (FN7) states that
the defendant bears the burden of demonstrating, by a preponderance of the
evidence, that the "witness was subjected by the State to a confrontation
that was unnecessarily suggestive and thus offensive to due process." Id.
at 866, 343 N.E.2d 876. If this is
established, then the prosecution is barred from introducing that particular
confrontation in evidence at trial. Id. (FN8)
As for other identifications the witness may have made of the defendant,
"the prosecution is limited to introducing at trial only such
identifications by the witness as are shown at the suppression hearing not to
be the product of the suggestive confrontation‑‑the later
identifications, to be usable, must have an independent source." Id. The prosecution must demonstrate the
existence of an independent source by "clear and convincing
evidence." Id. at 868, 343 N.E.2d 876.
"In
deciding whether a particular confrontation was unnecessarily suggestive, the
judge is to consider 'the totality of [420
Mass. 464] the circumstances
surrounding it' (Stovall, 388 U.S. at
302 [87 S.Ct. at 1972‑1973] )."
Commonwealth v. Botelho, supra at 867, 343
N.E.2d 876. Additionally, in
determining whether a separate identification has a
source independent of the unnecessarily suggestive identification, the judge
considers the following factors:
"(1) The extent of the witness' opportunity to observe the
defendant at the time of the crime;
prior errors, if any, (2) in description, (3) in identifying another
person or (4) in failing to identify the defendant; (5) the receipt of other suggestions, and (6)
the lapse of time between the crime and the identification." Id.
at 869, 343 N.E.2d 876, quoting
Commonwealth v. Ross, 361 Mass. 665, 671 n. 2, 282 N.E.2d 70 (1972),
judgment vacated on other grounds, 410 U.S. 901, 93 S.Ct.
968, 35 L.Ed.2d 265 (1973).
The
Commonwealth now urges us to abandon the per se rule of exclusion and, like the
Appeals Court, follow the reliability test of Brathwaite. Under the "reliability" test, if a
defendant demonstrates that an identification was unnecessarily suggestive,
evidence of that identification is not per se excluded. Neil v. Biggers,
409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401
(1972). Instead, the court must
determine whether the identification was, under the "totality of the
circumstances," nevertheless reliable. Id. at 198‑199, 93 S.Ct. at 381‑382.
In determining whether an identification was reliable, and thus there
was no "substantial likelihood of irreparable misidentification," the
court must examine several factors. Id. at 199, 201, 93 S.Ct.
at 382, 383. Manson v. Brathwaite,
supra 432 U.S. at 106, 97 S.Ct. at 2248‑2249. These factors are (1) the opportunity of the
witness to view the criminal at the time of the crime, (2) the witness's degree
of attention, (3) the accuracy of the witness's prior description of the
criminal, (4) the level of certainty demonstrated by the witness at the
confrontation, and (5) the length of time between the crime and the confrontation. Neil
v. Biggers, supra 409 U.S. at 199‑200, 93 S.Ct. at 382‑383. Manson v. Brathwaite,
supra 432 U.S. at 114, 97 S.Ct. at 2253. "Against these factors is to be weighed
the corrupting effect of the suggestive identification itself." Id.
[4] The
case at bar presents us with the opportunity to establish our position with
regard to the Brathwaite
decision. We have carefully considered
the matter and, for the reasons set [420
Mass. 465] forth, we conclude that
we cannot accept Brathwaite
as satisfying the requirements of art. 12.
We conclude that art. 12 requires the application of the stricter per se
approach described in Commonwealth v. Botelho, supra.
Our past
resistance to the so‑called reliability test reflects this court's
concern that the dangers present whenever eyewitness evidence is introduced
against an accused require the utmost protection against mistaken
identifications. There is no question
that the danger of mistaken identification by a victim or a witness poses a
real threat to the truth‑finding process of criminal trials. Indeed, mistaken identification is believed
widely to be the primary cause of erroneous convictions. See Gross, Loss of Innocence: Eyewitness Identification and Proof of Guilt,
16 J. Legal Stud. 395, 396 (1987); Note,
Twenty‑Years of Diminishing Protection:
A Proposal to Return to the Wade Trilogy's Standards, 15 Hofstra L.Rev. 583, 605‑606
(1987); Grossman, Suggestive
Identifications: The Supreme Court's Due
Process Test Fails to Meet its Own Criteria, 11 U.Balt.L.Rev.
53, 65 (1981). See also Wright v. United States, 404 F.2d 1256,
1262 (D.C.Cir.1968) (Bazelon, J., dissenting)
("Since mistaken identifications are probably the greatest cause of
erroneous convictions, we must require the fairest identification procedures
available under the circumstances. With
the stakes so high, due process does not permit second best" [footnote
omitted] ). Compounding this problem is
the tendency of juries to be unduly receptive to eyewitness evidence.
Manson v. Brathwaite, supra 432 U.S. at
120, 97 S.Ct. at 2255‑2256 (Marshall, J.,
dissenting). See State v. Long, 721 P.2d 483, 490‑491 (Utah 1986); Grossman,
supra at 65. We have stated that
"[t]he law has not taken the position that a jury can be relied on to
discount the value of an identification by a proper appraisal of the
unsatisfactory circumstances in which it may have been made. On the contrary, this court, like others, has
read the Constitution to require that where the conditions are shown to have
been highly and unnecessarily suggestive, the identification should not be
brought to the attention of the jury." Commonwealth v. Marini,
375 Mass. 510, 519, 378 N.E.2d 51 (1978).
[420 Mass. 466] These concerns were at the heart of the Wade trilogy of cases. The Wade Court acknowledged that "the
vagaries of eyewitness identification are well‑known; the annals of criminal law are rife with
instances of mistaken identification." United States v. Wade, 388 U.S. 218, 228,
87 S.Ct. 1926, 1932‑1933, 18 L.Ed.2d 1149 (1967). In declaring that the accused has a right to
counsel at a postindictment lineup, the Court
recognized that the presence of counsel was necessary because "[t]he trial
which might determine the accused's fate may well not
be that in the courtroom but that at the pretrial confrontation, with the State
aligned against the accused, the witness the sole jury, and the accused
unprotected against the overreaching, intentional or unintentional, and with
little or no effective appeal from the judgment there rendered by the witness‑‑'that's
the man.' " Id. at 235‑236, 87 S.Ct. at 1936‑1937.
The "reliability test" is unacceptable because it provides
little or no protection from unnecessarily suggestive identification
procedures, from mistaken identifications and, ultimately, from wrongful
convictions.
[5] The Brathwaite
Court examined three primary "interests" before holding that the per
se rule should be abandoned in favor of the less protective
"reliability" test. The first
of these was the concern regarding the dangers presented by eyewitness
evidence.
Manson v. Brathwaite, supra 432 U.S. at
112, 97 S.Ct. at 2251‑2252. The Court acknowledged that a witness's
recollection "can be distorted easily by the circumstances or by later
actions of the police." Id.
While the per se approach addresses this concern, the Court stated, it
"goes too far since its application automatically and peremptorily, and
without consideration of alleviating factors, keeps evidence from the jury that
is reliable and relevant." Id.
We believe
that Justice Marshall, dissenting in Brathwaite, had a more realistic view of the trial
process when he stated:
"this conclusion totally
ignores the lessons of Wade. The dangers of mistaken identification are,
as Stovall held, simply too great to
permit unnecessarily suggestive identifications. Neither
Biggers nor the Court's [420 Mass. 467] opinion
today points to any contrary empirical evidence. Studies since Wade have only reinforced the validity of its assessment of the
dangers of identification testimony." Id. at 125, 97 S.Ct.
at 2258‑2259 (Marshall, J., dissenting).
Indeed,
studies conducted by psychologists and legal researchers since Brathwaite
have confirmed that eyewitness testimony is often hopelessly unreliable. (FN9)
Permitting the admission of an identification obtained through
unnecessarily suggestive procedures can only serve to exacerbate this
problem. Furthermore, contrary to the Brathwaite
Court's unsubstantiated claim, the per se approach does not keep relevant and
reliable identification evidence from the jury.
Subsequent identifications shown to come from a source independent of
the suggestive identification remain admissible under the per se approach.
Commonwealth v. Botelho, 369 Mass. 860,
866, 343 N.E.2d 876 (1976). See People v. Adams, 53 N.Y.2d 241, 251,
440 N.Y.S.2d 902, 423 N.E.2d 379 (1981).
The per se approach excludes only the unnecessarily suggestive
identification and subsequent tainted identifications. Id. As stated earlier, the court examines five
factors in determining whether there was an independent source for subsequent
identifications by the witness of the defendant. If, for example, the prosecution is able to
demonstrate that the witness got a good look at his assailant and his initial
description matches a description of the defendant, the court may conclude that
there was an independent source and may admit evidence of any identification
subsequent to the unnecessarily suggestive one.
The Brathwaite
Court also discussed the public interest in deterring police from using identification
procedures which are unnecessarily suggestive.
The Court acknowledged that [420
Mass. 468] the per se rule is
superior in promoting that interest because it provides greater deterrence
against police misconduct. The Court
nevertheless concluded: "The police
will guard against unnecessarily suggestive procedures under the totality rule,
as well as the per se one, for fear that their actions will lead to the
exclusion of identifications as unreliable." Manson v. Brathwaite,
supra 432 U.S. at 112, 97 S.Ct. at 2252.
To
the contrary, it appears clear to us that the reliability test does little or
nothing to discourage police from using suggestive identification
procedures. One commentator has noted
that "under Brathwaite,
the showup has flourished, because the totality
approach has failed to discourage this practice. As a deterrent to suggestive police
practices, the Federal standard is quite weak.
Almost any suggestive lineup will still meet reliability standards." Note, Twenty‑Years of Diminishing
Protection, 15 Hofstra L.Rev.
583, 606 (1987). Indeed, an example of
this result is seen in the instant case:
the suggestion inherent in the showup
procedure that was used to identify the defendant is plain. Furthermore, the showup
was unnecessarily suggestive in that it was not conducted immediately after the
crime or in exigent circumstances. See Commonwealth v. Barnett, 371 Mass. 87,
92, 354 N.E.2d 879 (1976). Yet the
motion judge permitted the introduction of the identification based on his
opinion that the identification was reliable.
Rather than deterring unreliable identification procedures, the effect
of the Biggers‑
Brathwaite reliability test has been, and would
be in this Commonwealth, a message to police that, absent extremely aggravating
circumstances, suggestive showups will not result in
suppression. Whether or not to use a
more fair and accurate identification procedure is, under that test, left to
the officer's discretion. See Grossman, supra at 60.
Finally,
the Brathwaite
Court considered the impact of the two tests on the administration of
justice. It was here that the Court
found what it considered to be the most serious drawbacks of the per se
approach. However, it is also here, in
our view, that the Court erred most. The
Court opined: "Since it denies the trier reliable evidence, [the per se approach][420 Mass. 469] may result, on occasion,
in the guilty going free." Manson v. Brathwaite,
supra 432 U.S. at 112, 97 S.Ct. at 2252. The inverse of this is probably more
accurate: the admission of unnecessarily
suggestive identification procedures under the reliability test would likely
result in the innocent being jailed while the guilty remain free. See
Manson v. Brathwaite, supra at 127, 97 S.Ct. at 2259‑2260 (Marshall, J., dissenting)
("[I]f the police and the public erroneously conclude, on the basis of an
unnecessarily suggestive confrontation, that the right man has been caught and
convicted, the real outlaw must still remain at large"). The Brathwaite Court disregards the wisdom of Justice
Harlan when he wrote: "it is far
worse to convict an innocent man than to let a guilty man go free." In
re Winship, 397 U.S. 358, 372, 90 S.Ct. 1068, 1077, 25 L.Ed.2d 368 (1970) (Harlan, J.,
concurring).
Justice
Grimes of the New Hampshire Supreme Court expressed this concern accurately
when he wrote: "The dangers of
misidentification are well known and documented. See
United States v. Wade, 388 U.S. 218, 87 S.Ct.
1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); Stovall v. Denno,
388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199
(1967). In these cases the court
recognized '[a] major factor ... [in] the high incidence of miscarriage of
justice from mistaken identification has been the degree of suggestion inherent
in the manner in which the prosecution presents the suspect to witnesses for
pretrial identification.' United States v. Wade, 388 U.S. at 288
[87 S.Ct. at 1961‑1962].... Considering the complexity of the human mind
and the subtle effects of suggestive procedures upon it, a determination that
an identification was unaffected by such procedures must itself be open to
serious question. All things considered,
the consequences of misidentification are so great and the risks so high that
it is questionable if a totality‑of‑circumstances test provides
either a sufficient deterrence against the unnecessary use of one‑man showups or a sufficient protection against misidentifications
which
may result therefrom." State v. Leclair,
118 N.H. 214, 217‑218, 385 A.2d 831 (1978).
We
note that there are essential policy differences between other aspects of an
exclusionary rule and the rule supporting the per se exclusion of suggestive
identifications and tainted [420
Mass. 470] trial
identifications. The New York Court of
Appeals summed up these differences in
People v. Adams, 53 N.Y.2d 241, 250‑251, 440 N.Y.S.2d 902, 423 N.E.2d
379 (1981), when it stated: "The
rule excluding improper showups and evidence derived therefrom is different in both purpose and effect from the
exclusionary rule applicable to confessions and the fruits of searches and
seizures. In the latter cases generally
reliable evidence of guilt is suppressed because it was obtained
illegally. Although this serves to deter
future violations, it is collateral and essentially at variance with the truthfinding process (see, e.g., People v. McGrath, 46 N.Y.2d 12, 412 N.Y.S.2d 801, 385 N.E.2d 541
[1978], cert. denied, 440 U.S. 972, 99 S.Ct. 1535, 59
L.Ed.2d 788 [1979] ). But the rule
excluding improper pretrial identifications bears directly on guilt or
innocence. It is designed to reduce the
risk that the wrong person will be convicted as a result of suggestive identification
procedures employed by the police."
The
Court of Appeals continued: "A
reliable determination of guilt or innocence is the essence of a criminal
trial. A defendant's right to due
process would be only theoretical if it did not encompass the need to establish
rules to accomplish that end. Permitting
the prosecutor to introduce evidence of a suggestive pretrial identification
can only increase the risks of convicting the innocent in cases where it has
the desired effect of contributing to a conviction. In most instances, where the witness is able
to make an untainted identification in court, proof of the suggestive showup only serves to bolster the People's case. However, if the jury finds the in‑court
identification not entirely convincing it should not be permitted to resolve
its doubts by relying on the fact that the witness had identified the defendant
on a prior occasion if that identification was made under inherently suggestive
circumstances. Similarly, if the witness
is unable to identify the defendant at trial the defendant's conviction should
not rest solely upon evidence of a pretrial identification made under
circumstances which were likely to produce an unreliable result." Id.
at 251, 440 N.Y.S.2d 902, 423 N.E.2d 379.
Thus,
the Court of Appeals concluded:
"Excluding evidence of a suggestive showup
does not deprive the prosecutor [420
Mass. 471] of reliable evidence of
guilt. The witness would still be
permitted to identify the defendant in court if that identification is based on
an independent source." Id.
The
reliability approach has the further effect of expanding a reviewing court's
powers because it allows the court to examine subjectively the circumstances
surrounding the original crime on a case‑by‑case basis, instead of objectively
examining the identification procedures employed by the police. Sherwood, The Erosion of Constitutional
Safeguards in the Area of Eyewitness Identification, 30 How.L.J.
439, 457 (1987). See Note, Twenty‑Years
of Diminishing Protection, 15 Hofstra L.Rev. 583, 592 (1987).
"By relying on the probable accuracy of a challenged
identification, instead of the necessity for its use, the Court seems to be
ascertaining whether the defendant was probably guilty."
Manson v. Brathwaite, supra 432 U.S. at
128, 97 S.Ct. at 2260 (Marshall, J., dissenting).
The
reliability test has been widely criticized by commentators, (FN10) primarily
because the test eliminates the protection essential to a fair trial. The reliability test hinders, rather than
aids, the fair and just administration of justice by permitting largely
unreliable evidence to be admitted directly on the issue of the defendant's
guilt or innocence.
This
case presents an example of why we should not abandon the per se rule of
exclusion and replace it with the reliability test. There is absolutely no
evidence that the in‑court identification of the defendant was the result
of anything independent of the unnecessarily suggestive showup. For example, Goncalves's
description of his assailant, given to police just after the incident, did not
match the defendant's appearance, in part because the defendant possessed the
unique feature of several missing teeth.
Regardless of this fact, following[420
Mass. 472] the showup Goncalves was able to "remember" that his
assailant had missing teeth. (FN11) Such flimsy evidence should not be permitted
at trial. Only a rule of per se exclusion
can ensure the continued protection against the danger of mistaken
identification and wrongful convictions.
Accordingly, we reject Brathwaite and affirm our confidence in the Botelho
approach.
The
verdict of guilty is vacated. The
judgment of conviction is reversed.
So ordered.
NOLAN,
Justice (dissenting, with whom LYNCH, Justice, joins).
For
approximately twenty years this court has left open the question whether to
follow the Brathwaite
reliability test. See Commonwealth v. Venios,
378 Mass. 24, 27, 389 N.E.2d 395 (1979); Manson v. Brathwaite,
432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140
(1977). At long last, the court has
reached the question, only to reject the reliability test, in favor of the per
se rule of exclusion. Massachusetts,
today, becomes one of only two States to adopt this rule. (FN1)
Virtually every other State which has considered the issue has adopted [420 Mass. 473] the reliability test.
(FN2) We should join the
overwhelming majority of States, as well as the Supreme Court of the United [420 Mass. 474] States, in adopting the reliability test for purposes of
determining the admissibility of out‑of‑court identifications
obtained through unnecessarily suggestive procedures.
The
court concludes, erroneously in my view, that article 12 of the Declaration of
Rights of the Massachusetts Constitution requires exclusion of out‑of‑court
identification evidence, without regard to reliability, whenever it has been
obtained through unnecessarily suggestive confrontation procedures. Ante
at 1262. Nothing in the Massachusetts
Constitution purports to protect a criminal defendant from the admission of
reliable identification testimony. Due
process is not violated merely because the State employs suggestive
identification procedures. Due process
is only violated when suggestive procedures create a substantial likelihood of
misidentification. See Neil v. Biggers,
409 U.S. 188, 198, 93 S.Ct. 375, 381‑382, 34
L.Ed.2d 401 (1972) ("It is the likelihood of misidentification which
violates a defendant's right to due process"). Thus, even if obtained through unnecessarily
suggestive procedures, identification evidence possessing a sufficient indicia
of reliability should not be excluded.
"Unlike a warrantless search, a
suggestive preindictment identification procedure
does not in itself intrude upon a constitutionally protected interest. Thus, considerations urging the exclusion of
evidence deriving from a constitutional violation do not bear on the instant
problem." Manson v. Brathwaite,
supra 432 U.S. at 113 n. 13, 97 S.Ct. at 2252 n.
13.
The
court further concludes that "the 'reliability test' is unacceptable
because it provides little or no protection from unnecessarily suggestive
identification procedures, from mistaken identifications, and, ultimately, from
wrongful convictions." Ante at 1262. However, under the reliability test, only
those identifications possessing a sufficient indicia of reliability will be
admitted. Further, imposing a framework
of shifting burdens as the Supreme Court of Maine did in State v. Cefalo, 396 A.2d 233, 238‑239
(Me.1979), will ensure that only those identifications which have a basis
independent of the suggestive procedures will be put before the jury. In
State v. Cefalo, the Supreme Court of Maine
formulated a framework of shifting burdens of proof for the suppression of [420 Mass. 475] identification testimony.
Under that formulation, the defendant must first establish by a
preponderance of the evidence that the identification procedure was suggestive. Id. If the defendant meets that burden, then the
burden shifts to the State to show by clear and convincing evidence that, in
the totality of the circumstances, the reliability of the identification
outweighs the suggestiveness of the procedure used. Id. We have in the past expressed approval of
this approach, see Commonwealth v. Venios, supra at 28, 389 N.E.2d 395, and, in my view,
it provides adequate protection against the evils associated with the admission
of suggestive identification evidence.
This
procedural framework of shifting burdens will also enhance the reliability
test's deterrent effect by placing the burden on the State to prove by clear
and convincing evidence that an unnecessarily suggestive identification is
sufficiently reliable. As the Cefalo court
stated, "if the police ignore the frequent warnings of this court and
continue to use defective confrontation procedures, the State will run the risk
of being unable to establish independently the reliability of the identification. This [burden shifting] approach assures that
reliable and probative identifications will be admissible, while deterring the
police from employing unfair procedures that violate norms of governmental fair
play and create the risk of misidentification." (Footnote omitted.) Id. at 238.
Implicit
in the court's opinion is a distrust of the ability of jurors to discount the
value of an identification obtained through suggestive procedures. However, jurors are faced with arguably
untrustworthy evidence at many junctures during a trial. Just as they are capable of sifting through a
myriad of issues, they are capable of determining the proper weight to be
accorded an identification. In fact,
after hearing all the evidence pertaining to pretrial identifications,
including any evidence of possible suggestiveness, jurors may be better
equipped to evaluate the accuracy of a witness's identification. It seems unduly artificial to me to allow
jurors to consider in‑court identifications without acquainting them [420 Mass. 476] with the origins of those identifications. (FN3)
Moreover, through effective cross‑examination and argument,
counsel can alert the jury to any factors which raise doubts as to the accuracy
of the witness's identification. (FN4)
Finally,
it defies logic to exclude a suggestive out‑of‑court identification
without considering its reliability while at the same time allowing an in‑court
identification which has a source independent of the tainted procedures. The reliability test serves the same purpose
as the independent source test, that is, to determine whether the
identification is based on something other than the suggestive procedures. (FN5)
See People v. Adams, 53 N.Y.2d
241, 252, 440 N.Y.S.2d 902, 423 N.E.2d 379 (1981) (Cooke, J., concurring)
(stating that, under the reliability test, "a suggestive [420 Mass. 477] out‑of‑court identification is admissible so long as
it is not unreliable‑‑i.e., if there was
an independent source for the out‑of‑court identification, it is
not constitutionally infirm").
In
conclusion, for essentially the reasons stated by the trial judge, I believe
that the reliability of the identification outweighed any corruptive effect of
the suggestive confrontation. Therefore,
I dissent.
GREANEY, Justice (dissenting, with whom Lynch, Justice
joins).
I
agree with much of what Justice Nolan has said, ante at 1265‑1267, but find it necessary to add a few
separate comments. The fact that art. 12
of the Declaration of Rights does not specifically address the issue is not
important. This court has the obligation
to construe art. 12, in accordance with accepted principles of constitutional interpretation,
to decide due process issues in light of evolving needs and concerns.
What
is important to me is the fact that forty‑seven States have adopted the
reliability test to govern the admissibility of identification evidence. The weight of this body of outside law should
not be lightly disregarded. The highest
court of each of these States was aware of its right to fashion a different
test under its State Constitution, but, significantly, each chose not to do so,
opting instead for the reliability test.
Underlying the choice made by the forty‑seven States is tacit
recognition of at least the following principles:
First,
a criminal trial is meant to be a search for the truth in which the people (as
represented by the prosecution) have the right to present reliable evidence
tending to prove a defendant's guilt.
Second,
since reliability is the linchpin governing the admission of all evidence,
identification evidence which is found reliable by a judge, after a careful
pretrial inquiry, should not be withheld from the jury.
Third,
the jury is capable of sorting out issues of suggestiveness and
reliability. It is not logical to
deprive them of the antecedents of an in‑court identification and to
allow [420 Mass. 478] speculation on how a victim or
identifying witness came to make his or her in‑court identification.
I
conclude that the reliability test sufficiently protects a defendant's rights
under art. 12, and allows the prosecution, in the protection of society's
interests, to present its case on a level playing field.
(FN1.) The judge referred to the victim in his
findings as Goncalves. However, the briefs before this court refer
to the victim as Gonsalves. To avoid confusion, we will use the same
spelling the judge used.
(FN2.) The record indicates that Goncalves looked at approximately 1,500 photographs while
he was at the police station.
(FN3.) In concluding that the identification
of the defendant was reliable, the judge cited Goncalves's
good opportunity to view his assailants, his certainty in identifying the
defendant, and his rejection of hundreds of other photographs as well as
suspects presented to him prior to his identification of the defendant.
(FN4.) This test, developed in Neil v. Biggers,
409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972),
and Manson v. Brathwaite,
432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), is
sometimes also referred to as the "totality" test or the
"totality of the circumstances" test.
(FN5.) States may decline to follow Brathwaite
and its predecessor, Neil v. Biggers, supra, and adopt more stringent due process
requirements under their own Constitutions or through their own Legislatures.
Manson v. Brathwaite, supra, 432 U.S. at
118, 97 S.Ct. at 2254‑2255 (Stevens, J., concurring). Id.
at 128‑129, 97 S.Ct. at 2260‑2261
(Marshall, J., dissenting). See Commonwealth v. Henderson, 411 Mass.
309, 311, 582 N.E.2d 496 (1991); State v. Leclair,
118 N.H. 214, 218, 385 A.2d 831 (1978). See also Note, Twenty‑Years of
Diminishing Protection: A Proposal To
Return To the Wade Trilogy's
Standards, 15 Hofstra L.Rev.
583, 596 (1987); Brennan, State
Constitutions and the Protection of Individual Rights, 90 Harv.L.Rev.
489 (1977).
New
York, for example, has interpreted its State Constitution as requiring the use
of the pre‑Brathwaite
per se exclusion standard. People v. Adams, 53 N.Y.2d 241, 440
N.Y.S.2d 902, 423 N.E.2d 379 (1981). See People v. Edmonson, 75 N.Y.2d 672, 555
N.Y.S.2d 666, 554 N.E.2d 1254 cert. denied, 498 U.S. 1001, 111 S.Ct. 563, 112 L.Ed.2d 570 (1990); People v. Sapp, 98 A.D.2d
784, 469 N.Y.S.2d 803 (1983); People v. Tatum, 129 Misc.2d 196, 492
N.Y.S.2d 999 (1985). In addition, Utah,
while applying a "reliability" test, does not explicitly follow Brathwaite
and Biggers
because it has concluded that the Supreme Court's test does not provide
adequate protection against mistaken identifications. See
State v. Ramirez, 817 P.2d 774 (Utah 1991); State v. Long, 721 P.2d 483
(Utah 1986).
(FN6.)
See United States v. Wade, 388 U.S.
218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967);
Gilbert v. California, 388 U.S. 263, 87 S.Ct.
1951, 18 L.Ed.2d 1178 (1967); Stovall v. Denno,
388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199
(1967). See also Simmons v. United States, 390 U.S. 377, 88 S.Ct.
967, 19 L.Ed.2d 1247 (1968).
(FN7.) The rule of per se exclusion was also
followed in Massachusetts prior to
Commonwealth v. Botelho, 369 Mass. 860, 343
N.E.2d 876 (1976), in cases decided subsequent to the Supreme Court's Wade trilogy. See
Commonwealth v. Ferguson, 365 Mass. 1, 6‑7, 309 N.E.2d 182 (1974);
Commonwealth v. Ross, 361 Mass. 665, 670‑676, 282 N.E.2d 70
(1972), judgment vacated on other grounds, 410 U.S. 901 (1973);
Commonwealth v. McGrath, 361 Mass. 431, 434‑438, 280 N.E.2d
681 (1972).
(FN8.) "It would be open to the
defendant, however, if he chose, to attempt to attack and weaken the
prosecution's case at trial by introducing the suggestive confrontation and
arguing to the trier that it did corrupt any later
identifications including the in‑court identification."
Commonwealth v. Botelho, supra at 866, 343
N.E.2d 876.
(FN9.) See, e.g., State v. Long, 721 P.2d 483, 488‑491 (Utah 1986); Grossman,
supra at 70‑96; Gross, supra at 408‑432; N. Sobel,
Eyewitness Identification § 3.3(a) (Supp.1992);
L. Taylor, Eyewitness Identification (1982); Jonakait, Reliable
Identification: Could the Supreme Court
Tell in Manson v. Brathwaite
?, 52 U.Colo.L.Rev. 511 (1981); E.F. Loftus,
Eyewitness Testimony (1979); Wells &
E.F. Loftus, Eyewitness Testimony: Psychological Perspectives (1984); W.R. LaFave & J.H. Israel, Criminal Procedure §§ 7.1, 7.4 (1984 ed. &
1991 Supp.)
(FN10.) See, e.g., Sherwood, supra, 30 How.L.J.
439 (1987); Rosenberg, Rethinking the
Right to Due Process in Connection with Pretrial Identification
Procedures: An Analysis and a Proposal,
79 Ky.L.J. 259 (1990); Note, Twenty‑Years of Diminishing
Protection, 15 Hofstra L.Rev.
583 (1987); Grossman, supra at 53. See also N. Sobel,
Eyewitness Identification § 3.3(b) (Supp.1992).
(FN11.) As noted earlier, Goncalves's
original description of the male assailant, given to police on the night of the
incident, differed in several respects from the defendant's actual
appearance. The defendant weighed 220
pounds, while Goncalves described his assailant as
weighing 170 pounds with a medium build.
The defendant was thirty‑seven years of age while Goncalves described his assailant as between twenty‑seven
and thirty years old. Finally, the
defendant was missing several teeth and had a moustache but Goncalves
mentioned neither of these characteristics in his original description.
At
the hearing on the motion to suppress, when asked to describe what he
remembered about his assailant's appearance, Goncalves
testified that he was in his late thirties, weighed about 200 pounds
("maybe more"), and had a large build. Goncalves also
"remembered" while testifying that his assailant was missing some of
his teeth.
(FN1.) Only New York has adopted the per se
exclusionary rule. See People v. Adams, 53 N.Y.2d 241, 250‑252,
440 N.Y.S.2d 902, 423 N.E.2d 379 (1981) (rejecting reliability test and holding
that State Constitution requires per se exclusion of unnecessarily suggestive
identifications).
(FN2.) See
Proctor v. State, 424 So.2d 705, 708‑709 (Ala.Crim.App.1982);
Holden v. State, 602 P.2d 452, 455‑456 (Alaska 1979);
State v. Bracy, 145 Ariz. 520, 530‑531,
703 P.2d 464, 474‑475 (1985), cert. denied, 474 U.S. 1110, 106 S.Ct. 898, 88 L.Ed.2d 932 (1986); Chism
v. State, 312 Ark. 559, 570‑571, 853 S.W.2d 255 (1993);
People v. Clark, 3 Cal.4th 41, 135‑136, 10 Cal.Rptr.2d 554,
833 P.2d 561 (1992), cert. denied, 507 U.S. 993, 113 S.Ct.
1604, 123 L.Ed.2d 166 (1993); People v. Weller, 679 P.2d 1077, 1083
(Colo.1984); State v. Miller, 202 Conn. 463, 470, 522
A.2d 249 (1987); Younger v. State, 496 A.2d 546, 550
(Del.1985); Turner v. United States, 622 A.2d 667,
672 (D.C.1993); Collins v. State, 626 So.2d 991, 992
(Fla.Dist.Ct.App.1993); Rivers v. State, 250 Ga. 303, 306‑307,
298 S.E.2d 1 (1982); State v. Masaniai,
63 Haw. 354, 362‑365, 628 P.2d 1018 (1981); State v. Hoisington, 104
Idaho 153, 161‑162, 657 P.2d 17 (1989); People v. Miller, 254
Ill.App.3d 997, 1003‑1004, 193 Ill.Dec. 799,
626 N.E.2d 1350 (1993); Hamlet v. State, 490 N.E.2d 715, 720
(Ind.1986); State v. Thornton, 506 N.W.2d 777, 779‑780
(Iowa 1993); State v. Holloman, 17 Kan.App.2d 279, 286‑287,
837 P.2d 826 (1992); Wilson v. Commonwealth, 695 S.W.2d 854,
857 (Ky.1985); State v. Robinson, 386 So.2d 1374, 1377
(La.1980); State v. Rolls, 599 A.2d 421, 423
(Me.1991); Green v. State, 79 Md.App.
506, 513, 558 A.2d 441 (1989); People v. Kurylczyk,
443 Mich. 289, 306‑309, 505 N.W.2d 528 (1993), cert. denied, 510 U.S.
1058, 114 S.Ct. 725, 126 L.Ed.2d 689 (1994);
State v. Lambert, 278 N.W.2d 57, 57 (Minn.1979) (per curiam); McNeal v. State, 405 So.2d 90, 92‑93
(Miss.1981); State v. Carter, 572 S.W.2d 430, 435
(Mo.1978); State v. Johnson, 207 Mont. 214, 217‑219,
674 P.2d 1077 (1983), cert. denied, 467 U.S. 1215, 104 S.Ct.
2693, 81 L.Ed.2d 365 (1984); State v. Richard, 228 Neb. 872, 877‑878,
424 N.W.2d 859 (1988); Gehrke v. State,
96 Nev. 581, 583‑584, 613 P.2d 1028 (1980); State v. Whittey,
134 N.H. 310, 312‑314, 591 A.2d 1326 (1991);
State v. Clausell, 121 N.J. 298, 325‑326,
580 A.2d 221 (1990); State v. Maes,
100 N.M. 78, 82, 665 P.2d 1169 (1983); State v. Richardson, 328 N.C. 505, 510‑511,
402 S.E.2d 401 (1991); State v. Packineau,
423 N.W.2d 148, 149‑150 (N.D.1988); State v. Parker, 53 Ohio St.3d 82, 87,
558 N.E.2d 1164 (1990); Sherman v. State, 675 P.2d 458, 459
(Okla.Crim.App.1984); State v. Classen,
285 Or. 221, 232‑233, 590 P.2d 1198 (1979); Commonwealth v. Baker, 531
Pa. 541, 552, 614 A.2d 663 (1992); State v. Gomes, 604 A.2d 1249, 1253
(R.I.1992); State v. Stewart, 275 S.C. 447, 450, 272
S.E.2d 628 (1980); State v. Phinney,
348 N.W.2d 466, 468‑469 (S.D.1984); State v. Short, 698 S.W.2d 81, 83
(Tenn.Crim.App.1985); Jackson v. State, 657 S.W.2d 123, 130
(Tex.Crim.App.1983); State v. Kasper, 137 Vt. 184, 192‑193,
404 A.2d 85 (1979); Satcher v.
Commonwealth, 244 Va. 220, 252‑254, 421 S.E.2d 821 (1992), cert.
denied, 507 U.S. 933, 113 S.Ct. 1319, 122 L.Ed.2d 705
(1993);
State v. Maupin, 63 Wash.App.
887, 896‑897, 822 P.2d 355 (1992); State v. Woodall, 182 W.Va. 15, 24, 385
S.E.2d 253 (1989); State v. Mosley, 102 Wis.2d 636, 652, 307
N.W.2d 200 (1981); Alberts v. State,
642 P.2d 447, 450 (Wyo.1982).
The
Supreme Court of Utah, relying on its State Constitution, has developed its own
"reliability" test which differs somewhat from the Brathwaite
test. See State v. Ramirez, 817 P.2d 774, 778‑781 (Utah 1991). The ultimate question to be determined is
still, whether, under the totality of the circumstances, the identification is
reliable, however the factors by which reliability is determined vary slightly
from the Federal standard. Id. at 781.
(FN3.)
"We are content to rely upon the good sense and judgment of American
juries, for evidence with some element of untrustworthiness is customary grist
for the jury mill. Juries are not so
susceptible that they cannot measure intelligently the weight of identification
testimony that has some questionable feature." Manson v. Brathwaite,
432 U.S. 98, 116, 97 S.Ct. 2243, 2253‑2254, 53
L.Ed.2d 140 (1977).
(FN4.) "It is part of our adversary
system that we accept at trial much evidence that has strong elements of
untrustworthiness‑‑an obvious example being the testimony of
witnesses with a bias.... Counsel can
both cross‑examine the identification witnesses and argue in summation as
to factors causing doubts as to the accuracy of the identification‑‑including
reference to both any suggestibility in the identification procedure and any
countervailing testimony such as alibi." Manson v. Brathwaite,
supra at 113 n. 14, 97 S.Ct. at 2252 n. 14,
quoting Clemons v. United States, 408
F.2d 1230, 1251 (D.C.Cir.1968) (Leventhal, J.,
concurring), cert. denied, 394 U.S. 964, 89 S.Ct.
1318, 22 L.Ed.2d 567 (1969).
(FN5.) The reliability factors under the Brathwaite
test include: (1) the opportunity of the
witness to view the criminal at the time of the crime; (2) the witness' degree of attention; (3) the accuracy of the witness' prior
description of the criminal; (4) the
level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime
and the confrontation. Manson v. Brathwaite,
supra 432 U.S. at 114‑115, 97 S.Ct. at
2253. The reliability of the
identification must then be weighed against the corruptive effects of the
suggestive procedures.
The
factors to be considered under the independent source test are remarkably
similar: (1) the extent of the witness's
opportunity to view the criminal at the time of the crime; (2) the accuracy of the witness's
description, and any errors in failing to identify the defendant or identifying
some other person; (3) whether
suggestions were given to the witness regarding identification of the
defendant; (4) the level of certainty of
the witness; and (5) the length of time
between the crime and the identification. Commonwealth v. Holland, 410 Mass. 248,
256, 571 N.E.2d 625 (1991).