|
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. Jones, 423
Supreme Judicial Court of Massachusetts, Worcester.
Argued
Decided
Benjamin H. Keehn,
Committee for Public Counsel Services,
Patricia C. Smith, Assistant District Attorney, for
Commonwealth.
Before LIACOS, C.J., and WILKINS, ABRAMS, LYNCH and GREANEY,
JJ.
WILKINS, Justice.
We deal
with the question of the admissibility of an in‑court identification of
the defendant that (a) was [423
The
defendant's appeal is based solely on the denial of his motion to
suppress. The Commonwealth argues that
the witness's identification evidence was properly admitted for the reasons
that the judge stated. The Commonwealth
further asserts that the judge erred in concluding (1) that the in‑court
identification lacked a basis independent of the suggestive confrontations and
(2) that defense counsel was not responsible because he did not guard against
the suggestive encounters. The
Commonwealth also argues that any error in the admission of the challenged
identification evidence was harmless beyond a reasonable doubt.
The jury
could have found the following facts.
Late in the afternoon of
Three
hours after the incident, based on a tip, the police stopped a vehicle as it
was leaving the parking lot of a Super 8 Motel in
There was
evidence that on May 28, 1992, the two Vietnamese men who had committed the
crimes had stayed in room 216 at the Super 8 Motel in Leominster. Two teenage girls, runaways, had been in the
motel room occupied by the Vietnamese men.
They had seen two black men there in the company of the Vietnamese
men. At trial one of these girls
identified the defendant as one of the black men who had come to the motel
where the Vietnamese had stayed. The
other girl was unable to identify the defendant as a black man whom she had
seen at the motel but testified that the defendant was the same size as one of
them.
The issue
in this case arises from the Commonwealth's introduction of the identification
testimony of Krystal LeBlanc, who worked as an
assistant manager at the Super 8 Motel in Leominster. She testified that between 3:30 P.M. and 4:30
P.M. on May 28, she saw the defendant in the company of Vietnamese men at the
Leominster motel.
We now
summarize the judge's findings of fact that led to the denial of the
defendant's motion to suppress the testimony of Krystal
LeBlanc. In many places, we quote the
findings verbatim, making such corrections in the judge's dictated findings as
the record plainly permits. "On the
evening of May 28th, 1992, the witness, Krystal
LeBlanc, was on duty in the Super 8 Motel in [Leominster] where she customarily
worked as an assistant manager at the register.
At some point during the afternoon, she saw a black man come into the
lobby of that motel. He spent about a
minute in the lobby walking from the front door to the elevator, and he
disappeared into the elevator and reemerged about 10 minutes thereafter. He went back outside through the lobby and
got into a car and drove away. The total
time that Ms. LeBlanc [423 Mass. 102] observed that person was about three
minutes. At the time of her observation,
there was no event then transpiring at the motel to draw her attention to him
in any particularized way. The motel
lighting and other conditions were adequate, however, to give her an
opportunity to see him."
Three
months later, LeBlanc was summoned by counsel for a codefendant to attend a
probable cause hearing in the Fitchburg District Court. She arrived there, found defense counsel for
the codefendant, and spoke with him.
"She, for one reason or another, wound up sitting in a courtroom in
the [Fitchburg] District Court."
At some point, the defendant and a codefendant, Du
Le, were in the courtroom handcuffed and shackled together. LeBlanc had the opportunity to watch them for
more than an hour. There was no other
African‑American man in the courtroom who was in handcuffs or under any
visible restraints.
"At
no time while she was in the [Fitchburg] courthouse did Ms. LeBlanc have any
contact with the district attorney or police officials, and neither the
district attorney nor the police in any way, shape or form orchestrated,
planned, assisted in facilitating, or otherwise participated in the
observations that Ms. LeBlanc made of the defendant and Mr. Du
Le on [this] occasion."
In the
first week of February (the month of the trial), "LeBlanc was summoned [by
the Commonwealth] to this court in connection with a suppression hearing ... in
courtroom 18." The only means of
entry to courtroom 18 is to take a person in custody down a hallway past
anybody who happens to be sitting in the hall or waiting to testify in a
proceeding.
"LeBlanc
was seated in the hallway on two occasions when she saw the defendant, Mr.
Jones, again shackled to Mr. Du Le, brought into the courtroom. Once again the district attorney did not tell
her to sit there. The district attorney
did not point out to her anybody [whom] she should look at. The district attorney did not facilitate,
attempt to facilitate, aid or participate in assisting in any identification or
procedures or opportunities for observation that Ms. LeBlanc had under those
circumstances. Once again, however, the
defendant, Mr. Jones, was the only black person in shackles that she saw that
day, and once again, Mr. Jones was shackled to Mr. Le, a Vietnamese
person." When LeBlanc testified at
the suppression hearing, she saw Le and Jones sitting at counsel table, [423 Mass. 103] not in shackles, but clearly the object of the courtroom
proceeding.
Both the
confrontation at the Fitchburg District Court and the confrontation at the
Worcester courthouse in the first week of February "were accidental in the
sense that the Commonwealth played no part in arranging or assisting in
arranging those encounters. They were
not in sum and in essence confrontations at all as that term is used as a term
of art in decided cases."
The judge
then made the following rulings of law (which we have adjusted with minor
editing of his dictated rulings).
"The defendant has the initial burden of proving, by a
preponderance of the evidence, that a confrontation is unnecessarily suggestive
and thus violated his right to due process." [If] that occurs, then that particular
identification or confrontation ... is suppressed, and the Commonwealth, in
addition, is permitted to introduce at trial evidence of other identifications,
such as an in‑court identification, only if it proves by clear and
convincing evidence that the other identification has a basis.
"I
add, perhaps as a footnote, that the Commonwealth has not yet adopted the Biggers (FN2)
and Brathwaite
(FN3) test that permits introduction of a suggestive identification if that
identification was nonetheless reliable.
I put that consideration entirely to one side as it has played no role in
the decision I am about to make."
"[F]or
there to be a confrontation, the government must have played some role in
arranging it. If there is no government
participation in arranging an accidental or other encounter, then the entire
line of analysis flowing from Stovall
(FN4) does not apply. Cases standing for
that proposition include Commonwealth v. Otsuki, 411 Mass. 218, 234, 581 N.E.2d 999 (1991);
Commonwealth v. Paszko, 391 Mass. 164,
172, 461 N.E.2d 222 (1984); Commonwealth v. D'Ambra,
357 Mass. 260, 263, 258 N.E.2d 74 (1970); Commonwealth v. Calhoun, 28 Mass.App.Ct. 949, 951, 550 N.E.2d 896 (1990); [423
Mass. 104] Commonwealth v. Currier, 15 Mass.App.Ct.
929, 930, 445 N.E.2d 158 (1983)".
(FN5)
"Here, as I found, the Commonwealth did
not participate in any of the viewings that Ms. LeBlanc had of the
defendant. Consequently, the defendant's
motion must be denied."
"If,
however, I am wrong in that, if I have misread those cases or misapprehended
the doctrine or if the court deems it appropriate to reexamine that issue, and
if, therefore, a question arises as to whether or not the Commonwealth has
shown by clear and convincing evidence that there is an independent basis for
the in‑court identification by Ms. LeBlanc of this defendant, I find and
conclude that the Commonwealth has not satisfied its burden of showing by clear
and convincing evidence an independent basis for identification. My basis for [so] concluding is that the
initial opportunity she had to observe this man was brief; it was under circumstances where her
attention was not directed to him in any focus[ed] or meaningful fashion. It was at a time when she was simply going
about her routine duties in the motel.
We can infer, and I [423
Mass. 105] do infer, and therefore
find many people walk back and forth through that corridor on a daily
basis. Moreover, the opportunity she had
to observe the defendant and the observations she made of the defendant at the
[Fitchburg] courthouse, even though not arranged by the district attorney,
clearly was suggestive of the fact that this was an individual who had been
arrested for these offenses."
"All
of the circumstances that I have detailed above lead to that conclusion that it
was highly suggestive. That suggestion
was highly reinforced by the observation she made of the defendant when the
defendant was brought into the courtroom for the suppression hearing. Under those circumstances, I simply am unable
to find by clear and convincing evidence that the original observation of the
defendant is what carries Ms. LeBlanc through and enables her to make an
identification of the defendant in court today."
[1] We too
reject the Commonwealth's argument that the evidence was clear and convincing
that LeBlanc's in‑court identification had a source independent of what
the Commonwealth implicitly concedes were two highly suggestive pretrial
encounters. The judge's conclusion that
there was no independent source was based on his findings that: LeBlanc's opportunity to see the defendant at
the Leominster motel was brief in circumstances that did not focus her
attention on him; the initial encounter
in the Fitchburg District Court occurred three months later, where LeBlanc saw
the defendant handcuffed and shackled to Du Le, a
Vietnamese codefendant; LeBlanc saw the
defendant, the only African‑American man in the courtroom who was under
restraint, for more than one hour; the
defendant's presence there was clearly suggestive of the fact that he had been
arrested for the offenses about which LeBlanc knew; in the second suggestive encounter, LeBlanc,
summoned to testify, saw the defendant again shackled to Du
Le and obviously an object of courtroom proceedings; and the second encounter highly reinforced
the suggestiveness of the first encounter.
We cannot fairly conclude that the judge's subsidiary findings of fact,
which are not clearly erroneous, require an ultimate conclusion that the
evidence is clear and convincing that LeBlanc's in‑court identification
of the defendant would be based on something other than the suggestive
confrontations. See Commonwealth v. Moon, 380 Mass. 751, 756, 405 N.E.2d 947 (1980).
[423 Mass. 106] The Commonwealth's claim that defense counsel should be held at
least partially responsible for the suggestive confrontations lacks merit. There is nothing to indicate that counsel
knew that a codefendant had summoned LeBlanc to the probable cause hearing in
the Fitchburg District Court. Contrast Commonwealth v. Cincotta,
379 Mass. 391, 395, 398 N.E.2d 478 (1979) (counsel aware of, or having reason
to anticipate, possible suggestive encounter has responsibility to act to
prevent it). The second encounter also occurred because of the physical layout
of the courthouse and a summons issued by the Commonwealth, circumstances that
should not be laid at the defendant's doorstep.
[2] There
is no basis for concluding that any error in the admission of LeBlanc's
testimony was harmless beyond a reasonable doubt (if the error was
constitutionally based) or not prejudicial (if the error was not
constitutionally based). The victim's
identification of the defendant was based on very brief opportunities to see
him after the blanket came off her head.
There was no other eyewitness to the crimes who identified the defendant
as a participant. (FN6) There was no physical evidence that tied the
defendant to the crimes. LeBlanc's
testimony provided a temporally significant link between the confessed
participants in the crime and the defendant.
The only other link was the testimony of the runaway teenage girls. LeBlanc's testimony, that of an impartial
witness disassociated from the activities of the occupants of the Leominster
motel room, could well have been a crucial element in the jury's deliberations. We cannot say with confidence that the
admission of LeBlanc's testimony did not contribute to the guilty verdicts.
We come
then to the question whether LeBlanc's identification of the defendant, based
solely on highly suggestive courthouse encounters with the defendant, was
properly presented to the jury for their consideration. As we noted earlier (see note 5 above), our
cases have stated or implied that where the Commonwealth did not arrange for a
suggestive encounter, an identification, even if based solely on such an
encounter, need not be excluded from evidence.
We accept the judge's conclusion that the Commonwealth did not [423 Mass. 107] orchestrate the encounters.
(FN7) We have not previously had
a case in which the question has been so squarely presented, based on a judge's
findings, that an in‑court identification was the product solely of a
highly suggestive confrontation.
In spite
of the constitutional right to a trial by jury, the law permits, sometimes
requires, a trial judge to keep evidence from a jury. Although some exclusions are based on
constitutional considerations, many are founded on the common law or
statute. A criminal defendant's
admissions or confession to the police are inadmissible if Miranda warnings
were not furnished (Miranda v. Arizona,
384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 [1966] )
or if the defendant's statements were not made voluntarily and knowingly (Commonwealth v. Luna, 418 Mass. 749,
751, 641 N.E.2d 1050 [1994] ). The
common law gives a trial judge discretion to exclude evidence that is more
prejudicial than probative (Nally v. Volkswagen of
Am., Inc., 405 Mass. 191, 197, 539 N.E.2d 1017 [1989] ), and to exclude an
expert's proffered opinion if the process or theory underlying the expert's
opinion lacks reliability (Commonwealth
v. Lanigan, 419 Mass. 15, 26, 641 N.E.2d 1342
[1994] ). We have held that testimony
enhanced by hypnosis lacks reliability and is inadmissible against a criminal
defendant. See Commonwealth v. Kater, 388 Mass. 519,
527 ‑528, 447 N.E.2d 1190 (1983), S.C., 394 Mass. 531, 476 N.E.2d 593
(1985), 409 Mass. 433, 567 N.E.2d 885 (1991), 412 Mass. 800, 592 N.E.2d 1328
(1992). There are numerous statutory
(see, e.g., G.L. c. 233, §§ 20, 20A, 20B, 20J, 21B
[1994 ed.] and G.L. c. 112, § 135A [1994 ed.] ) and
common law privileges (FN8) that, as a matter of policy, keep relevant and
sometimes important evidence from a trier of
fact. The Legislature has prescribed
standards for the competency of witnesses to testify. G.L. c. 233, § 20
(1994 ed.). See Commonwealth v. Brusgulis, 398 Mass.
325, 329 ‑330, 496 N.E.2d 652
(1986) (judge has wide discretion in determining competency). It is apparent that neither [423 Mass. 108] constitutional considerations nor the presence of State action
(besides the use of the evidence itself) are essential preconditions for a
determination that certain relevant evidence should be kept from the trier of fact.
Some
courts have held that, if the police were not responsible for a suggestive
confrontation between a witness and a defendant, no State action was involved,
and hence there could be no violation of Federal constitutional rights and need
be no suppression. See, e.g., Reese v. Fulcomer,
946 F.2d 247, 259 (3d Cir.1991), cert. denied, 503 U.S. 988, 112 S.Ct. 1679, 118 L.Ed.2d 396 (1992); Kimble v. State, 539 P.2d
73, 77 (Alaska 1975); Hill v. United States, 367 A.2d 110, 115
(D.C.1976); State v. Pailon,
590 A.2d 858, 863 (R.I.1991). There are,
however, cases in which, although a State actor did not cause a highly
suggestive confrontation, the court considered the witness's testimony to be so
unreliable as to require exclusion of identification testimony as a matter of
fairness on due process grounds. See United States v. Bouthot,
878 F.2d 1506, 1516 (1st Cir.1989) ("federal courts should scrutinize all
suggestive identification procedures, not just those orchestrated by the
police, to determine if they would sufficiently taint the trial so as to
deprive the defendant of due process"); Thigpen v. Cory, 804 F.2d 893, 895 (6th
Cir.1986), cert. denied sub nom. Foltz v.
Thigpen, 482 U.S. 918, 107 S.Ct. 3196, 96 L.Ed.2d
683 (1987) ("only the effects of, rather than the causes for, preidentification encounters should be determinative of
whether the confrontations were unduly suggestive"); State v. McCord, 259 N.J.Super. 217, 224, 611 A.2d 1160 (1992). Cf.
Kirby v. Illinois, 406 U.S. 682, 690‑691, 92 S.Ct.
1877, 1882‑1883, 32 L.Ed.2d 411 (1972) ("it is always necessary to
'scrutinize any pretrial
confrontation' " for undue suggestiveness conducive to irreparable
mistaken identification); People v. Blackman, 110 A.D.2d 596, 488
N.Y.S.2d 395 (1985) (based on People v.
Adams, 53 N.Y.2d 241, 440 N.Y.S.2d 902, 423 N.E.2d 379 [1981], approving
the holding of a hearing on reliability where confrontation was caused by
private citizen). In State v. Holliman, 214 Conn. 38, 46, 570 A.2d 680 (1990), the
court concluded that, even if no constitutional underpinning existed for
exclusion of an identification based on an unnecessary, suggestive confrontation,
the same considerations that are relevant in a constitutionally based challenge
to admission of an identification should be involved in deciding the
admissibility of an identification arguably tainted by a civilian‑conducted
suggestive confrontation.
[423 Mass. 109] If a witness is involved in a highly suggestive confrontation
with a defendant and that witness's in‑court identification of the
defendant is not shown to have a basis independent of that confrontation, the
admissibility of the witness's proposed testimony identifying the defendant
should not turn on whether government agents had a hand in causing the
confrontation. The evidence would be
equally unreliable in each instance.
Although this court was divided in
Commonwealth v. Johnson, 420 Mass. 458, 650 N.E.2d 1257 (1995), involving
the admissibility of identification testimony, all the Justices regarded as
critical to the suppression question the reliability of the witness's
identification testimony offered after an unnecessarily suggestive showup. See id. at 464‑469, 650 N.E.2d 1257; id.
at 474‑477, 650 N.E.2d 1257 (Nolan, J., dissenting). This case presents no public safety
consideration making necessary a form of one‑to‑one confrontation
such as occurred in Commonwealth v.
Austin, 421 Mass. 357, 657 N.E.2d 458 (1995). Cf.
State v. Holliman, supra at 48, 570 A.2d 680 (prompt one‑to‑one
confrontation arranged by private citizen was "necessary and
permissible").
Eyewitness
identification of a person whom the witness had never seen before the crime or
other incident presents a substantial risk of misidentification and increases
the chance of a conviction of an innocent defendant. In
Commonwealth v. Johnson, supra, we noted that, "the vagaries of
eyewitness identification are well‑known; the annals of criminal law are rife with
instances of mistaken identification." Id. at 466, 650 N.E.2d 1257, quoting United States v. Wade, 388 U.S. 218, 228, 87 S.Ct.
1926, 1933, 18 L.Ed.2d 1149 (1967), and citing numerous authorities. Id.
at 467 & n. 9, 650 N.E.2d 1257. The
Supreme Court has deemphasized the role of deterring police misconduct in the
analysis of suggestive confrontations to focus more on nonreliability
as the justification for the exclusion of an identification that may have been
influenced by a suggestive confrontation.
See Neil v. Biggers,
409 U.S. 188, 198, 93 S.Ct. 375, 381, 34 L.Ed.2d 401
(1972) ("[i]t is the likelihood of
misidentification which violates a defendant's right to due process, and it is
this which was the basis of the exclusion of evidence");
Manson v. Brathwaite, 432 U.S. 98, 111‑112,
97 S.Ct. 2243, 2251‑2252, 53 L.Ed.2d 140
(1977).
We need
not base our decision on constitutional grounds. Common law principles of fairness dictate
that an unreliable identification arising from the especially suggestive
circumstances of this case should not be admitted. This encounter was not a casual confrontation
in neutral surroundings, such [423
Mass. 110] as occur through the
media. See, e.g., Commonwealth v. Colon‑Cruz, 408 Mass. 533, 542, 562 N.E.2d
797 (1990). LeBlanc saw the defendant in
custody in a courtroom in connection with charges that she knew were related to
a robbery committed by Vietnamese men and two African‑Americans. The defendant was shackled to one Vietnamese
man whom she had seen at the Leominster motel.
Implicitly, the circumstances indicated that the prosecution thought the
defendant had been involved in the crimes.
This is
not a case in which cross‑examination and a judge's jury instruction
concerning eyewitness identification testimony can fairly protect the defendant
from the unreliability of LeBlanc's identification. We have indicated that, on request, specific
instructions concerning eyewitness identification are often necessary. See
Commonwealth v. Rodriguez, 378 Mass. 296, 302, 391 N.E.2d 889 (1979),
endorsing the model instructions from
United States v. Telfaire, 469 F.2d 552, 558‑559
(D.C.Cir.1972), modified as indicated in
Commonwealth v. Cuffie, 414 Mass. 632, 640, 609
N.E.2d 437 (1993). (FN9) Subsequently, we have indicated that, in
certain instances, on request, a jury should be instructed that a witness may
have been mistaken and that it was possible that the witness may have made an
honest but mistaken identification. Commonwealth v. Pressley, 390 Mass. 617,
620, 457 N.E.2d 1119 (1983). It does not
appear that the defendant requested a modified Rodriguez instruction, and the judge's charge did not include one
adapted to the facts of this case. Such
an instruction would have been relevant to the victim's identification[423 Mass. 111] testimony as well as to
that of LeBlanc. Even a modified Rodriguez charge would not, however,
have mitigated the effect of the admission of an eyewitness identification that
the judge had concluded was based on highly suggestive confrontations and was
not shown to have a reliable basis independent of these confrontations. LeBlanc's identification of the defendant had
the potential of leading the jury to a different conclusion than they would
have reached without it. No instruction
from a judge could have confidently guarded against that risk.
The
judgments are reversed and the verdicts set aside; the order denying the motion to suppress is
vacated and an order shall be entered allowing the motion to suppress LeBlanc's identification testimony; and the case is remanded for a new trial.
So ordered.
(FN1.) Each of these men pleaded guilty to
offenses committed in the break‑in.
(FN2.) Neil v. Biggers,
409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).
(FN3.) Manson v. Brathwaite,
432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977).
(FN4.) Stovall v. Denno,
388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199
(1967). We note that, in its Stovall opinion, the Supreme Court
recognized that a particular confrontation might be "so unnecessarily
suggestive and conducive to irreparable mistaken identification [of the
defendant] that he was denied due process of law." Id. at 302, 87 S.Ct. at 1972.
(FN5.)
In Commonwealth v. Otsuki,
411 Mass. 218, 234, 581 N.E.2d 999 (1991), citing Commonwealth v. D'Ambra, 357 Mass. 260,
263, 258 N.E.2d 74 (1970), the court said that "[a]n accidental
confrontation, when the police make no attempt to elicit an improper
identification [and '[t]here being no evidence of any improper police
activity'], is permissible." In Commonwealth v. Calhoun, 28 Mass.App.Ct. 949, 550 N.E.2d 896 (1990), the court said
that "[a]ccidental encounters between a witness
and a suspect, thus, are tolerated because of the absence of deliberate
government machinations in bringing about the face‑to‑face
meeting." Id. at 951, 550 N.E.2d 896. The court also said that "the ultimate
question is whether the one‑on‑one identification was impermissibly
suggestive" and that "police contrivance or bungling" in producing
a confrontation or identification may be a factor. Id. at 950, 550 N.E.2d
896. The court concluded that the
encounter was not unduly suggestive. Id. at 951, 550 N.E.2d 896. The court held in Commonwealth v. Currier, 15 Mass.App.Ct.
929, 929‑930, 445 N.E.2d 158 (1983), that due process does not require
suppression when the encounter was arranged by a friend of the victim and hence
there was no improper action by the State.
It is
generally believed that the word confrontation in the context of an unduly or
unnecessarily suggestive encounter between witness and suspect involves a
calculated move by the police to bring about the encounter. See
Commonwealth v. Walker, 370 Mass. 548, 564‑565, 350 N.E.2d 678, cert.
denied, 429 U.S. 943, 97 S.Ct. 363, 50 L.Ed.2d 314
(1976). Thus accidental encounters not
brought about by police conduct have been held not to raise due process
considerations even if the encounter occurs in a suggestive setting.
Commonwealth v. Leaster, 362 Mass. 407,
410, 287 N.E.2d 122 (1972). Commonwealth v. Smith, 12 Mass.App.Ct. 667, 673, 428 N.E.2d 348 (1981). K.B. Smith,
Criminal Practice and Procedure § 451 (2d ed. 1983 & Supp.1996).
(FN6.) The two Vietnamese men who confessed to
the crimes denied that the defendant was a participant in any part of the
crimes.
(FN7.) The Commonwealth had no demonstrated
knowledge that LeBlanc would be summoned to the District Court where the first
encounter occurred. The Commonwealth is
not wholly free from responsibility for the second encounter. The Commonwealth did not orchestrate it, but
it provided the opportunity for such an encounter by summoning LeBlanc to
appear to testify in circumstances in which she could be expected to see the
defendant in handcuffs, shackled to a Vietnamese codefendant, as he was taken
through the courthouse corridor to the courtroom.
(FN8.) See, e.g., Commonwealth v. Snyder, 413 Mass. 521, 533, 597 N.E.2d 1363 (1992)
(limited privilege not to disclose identity of an informant);
Commonwealth v. O'Brien, 377 Mass. 772, 775, 388 N.E.2d 658 (1979)
(attorney‑client privilege).
(FN9.) One factor in determining the
reliability of an identification may be the accuracy of the witness's prior
description of the criminal. See Commonwealth v. Cuffie,
414 Mass. 632, 641, 609 N.E.2d 437 (1993) ("You may take into account any
occasions in which the witness ... made an identification that was inconsistent
with his identification at trial").
See also Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct.
375, 382, 34 L.Ed.2d 401 (1972). In this
case, the police never obtained a pretrial statement from LeBlanc describing
the black man who passed through the motel lobby. Thus, the jury had no evidence that permitted
them to compare the defendant's appearance against what LeBlanc told the
police.
The
instruction approved in Commonwealth v. Cuffie, supra, indicates that the jury should be told
that they could "take into account ... the strength of the
identification." We would not
object to the omission of that provision from a jury charge because it may
suggest that the confidence with which a person makes an identification is a
valid indicator of the accuracy of the recollection. There is doubt as to the soundness of that
assumption. See State v. Long, 721 P.2d 483, 490 (Utah 1986). See also
State v. Ramirez, 817 P.2d 774, 781 (Utah 1991).