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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. Weichell, 390
Supreme Judicial Court of Massachusetts,
Argued
Decided
Anthony M. Cardinale,
Charles J. Hely, Asst. Dist. Atty. (Sydney Hanlon,
Asst. Dist. Atty., with him), for the Commonwealth.
Before [390
LYNCH, Justice.
The defendant was convicted by a jury on
Weichell claims that the trial judge erred in (1) denying
his motions in limine to exclude certain evidence relating to motive; (2) granting the Commonwealth's motion in
limine to exclude evidence which tended to show that third parties had a motive
to commit the crime; (3) refusing to
exclude a "mugshot" photograph of the defendant's profile; (4) permitting the Commonwealth to introduce
in evidence a composite drawing; (5)
allowing the Commonwealth to introduce in evidence an enlarged copy of a
photograph of the defendant taken by the Braintree police at the time of his
arrest; and (6) excluding photographs of
the scene of the crime and the testimony of the photographer who took them. [390
1. Evidence.
We summarize the evidence presented to the jury.
a. Motive.
On
A heated argument developed between Shea's friends on one
side and Barrett and the defendant on the other side. Shea told Barrett that he would kill
him. The defendant then stepped up to
Shea and told him that if Shea killed Barrett, he himself would kill Shea and
that "they'll never find [your] body." With these words, the defendant and Barrett
turned away and left. Shea, LaMonica,
and other friends of Shea, Dennis King, and Chuckie Carr, retired to the house
of Shea's brother. Shea was later
treated at a hospital for lacerations on the right side of his head.
During the remainder of that day, LaMonica uttered to
others several threats relating to Barrett and the defendant. He told Shea that he wanted to retaliate and
said, "They picked on the wrong people this time. We are going to kill him." Dennis King heard him say that they should
"go after them. They messed with
the wrong people." LaMonica began
work late in the afternoon. He returned
to his apartment an hour and one-half after finishing work; he was "upset" and he had been
drinking. He told his paramour, Maureen
A. Connolly, that "[m]e and my friends, we're going to get him, and we're
going to kill him." Connolly
testified that LaMonica was referring to both Barrett and the defendant.
[390
The next day Francis Shea saw the defendant and LaMonica
arguing. He did not hear the words uttered,
but testified that the defendant was "pointing his finger in Robert
LaMonica's face and stepping up and
down the sidewalk." A couple of
days later, King, the Shea brothers, and Francis's two sons came upon the
defendant, Barrett, and a third man.
Richard Shea challenged Barrett to a fight. The defendant turned around and replied,
"No. Bring it down. We aren't going to let this go."
b. The shooting.
LaMonica worked for the Boston Water and Sewer Commission. He worked from
c. Identification. Shortly before
Foley described to the police the man he saw running as
being five feet, nine inches tall, 175 pounds, wearing jeans and a pullover
shirt. (FN2) He said that the man had dark curly hair,
bushy eyebrows, and sideburns. He also
stated that the man had a slightly crooked nose, "as if it had been
broken." At trial, he identified
the defendant as the man he saw running that night.
Later that morning, Foley assisted Detective Wilson of
the
The next day, Foley was shown an array of nine
photographs. He picked the defendant's
picture as "a pretty good likeness" of the man. Several months later, he again identified the
defendant's photograph out of the same array but which now included one
additional photograph.
On
Jean Castonquay also testified that she heard four shots
and saw a man running. At trial, she was
unable to say whether the defendant was the man she saw. Moments later, she tentatively identified
another person sitting in the back of the courtroom as the man. (FN3)
On three occasions Castonquay was shown the same array of photographs as
Foley, but was unable to pick out any one photograph. Instead, she picked out two or three
photographs each time, always including that of the defendant. Neither Laracy nor Krause made any
identification. (FN4)
d. The defendant's case. At trial, the defendant's counsel, through
cross-examination, attempted to bring out whatever discrepancies existed in
Foley's testimony. He emphasized that
Foley had indicated that the man he saw running had thick sideburns and bushy
eyebrows. Foley admitted, however, that
the defendant's eyebrows were different.
It also appears that the defendant did not have any sideburns. Despite some evidence to the contrary, the
jury could have concluded that the defendant had curly hair at the time of the
murder. The defendant also attempted to
show that the lighting in the area was poor (FN5) and that the [390
The defendant also sought to establish a defense of
alibi. Three witnesses testified on his
behalf. One witness's testimony placed
the defendant in downtown
In rebuttal, the Commonwealth introduced evidence that
the defendant could have left downtown
2. Admission of the composite drawing. The composite drawing was prepared by John
Foley and Detective Wilson at the
The defendant argues that the composite sketch was
inadmissible hearsay. We recently had
occasion to consider the admissibility of a composite sketch prepared with the
aid of a similar "Identikit," but did not reach the issue because in
that case the admission of the composite drawing could not [390 Mass. 69]
have prejudiced the defendant.
Commonwealth v. Blaney, 387
The defendant finds substantial support for his argument
in Commonwealth v. McKenna, 355 Mass. 313, 326-327, 244 N.E.2d 560
(1969). There the court found error in
the admission of a similarly made composite drawing. See id. at 327, 244 N.E.2d 560 (the
[390
There is no logical reason to permit the introduction of
a witness's out-of-court identification and to exclude statements identifying
the various physical characteristics of a person perceived by the witness, or
the composite of all those physical characteristics, which is no more than the
sum of the parts perceived. (FN8)
[1] As in the case
of other convictions based upon eyewitness identification at trial following a
pretrial identification, [390 Mass. 73] identification by
composite will be set aside if the pretrial identification process was so
impermissibly suggestive as to give rise to a substantial likelihood of
irreparable misidentification. Simmons
v.
[2] We therefore conclude that an "Identikit"
composite sketch not shown to be prepared under suggestive circumstances is
admissible as substantive evidence of identification.
[3][4][5][6][7] 3. Admission of evidence of motive. The defendant claims that the judge erred in
denying his motions in limine to exclude certain evidence of motive. (FN10)
As a general rule, the Commonwealth is entitled to introduce all
relevant evidence of motive.
Commonwealth v. Borodine, 371
[8] We consider first whether the evidence of the
victim's state of mind toward the defendant during the ten days prior to the
victim's death should be admitted in the absence of direct evidence that the
defendant was even aware of the victim's hostility toward him. Such evidence is admissible only if the jury
could have reasonably inferred that the defendant knew of the victim's state of
mind. Commonwealth v. Borodine,
supra. We conclude that the jury
could have so inferred.
[9] After the fight between Barrett and Shea, LaMonica
told at least three people that he wanted to retaliate. The jury could have found that these threats
were directed at both Barrett and the defendant. The events between the fight and the shooting
support an inference that the threats had been communicated to the
defendant. He played a prominent role at
the fight and at the confrontations which followed. He told Richard Shea that he would "act
first" and could appear to have anticipated an act of retaliation by Frank
Shea and his friends. There was
testimony that the defendant and the victim had engaged in a heated argument
during the week before the murder. This
evidence warranted an inference that the defendant and the victim had
communicated hostile intentions towards each other. Thus, the evidence concerning the victim's
state of mind was properly admitted as tending to show motive, and the jury
were entitled to determine its probative value.
[10] The defendant also challenges on another ground the
admission in evidence of the defendant's statement that he intended to act
first. The defendant argues that the
prejudicial effect of that portion of the statement where he said, "I have
a brother dead, I have a brother in jail," substantially outweighed its
probative value. We find no error.
[390 Mass. 75] [11] Certainly, the
prejudicial effect of the statement was far less than if the defendant had indicated
that he himself had been in jail.
[12] The defendant also claims error in the exclusion of
evidence which tended to show that other persons possessed a motive to commit
the crime. The evidence was that in 1974
LaMonica had participated in a murder, and that the associates of the victim
had threatened to even the score. The
victim's family and Connolly, his paramour, first told the police that they
believed that LaMonica was murdered in retaliation for the 1974 murder. The evidence was excluded by the allowance of
the Commonwealth's motion in limine.
It is open to the defendant to introduce evidence that
demonstrates that some other person committed the crime. Commonwealth v.
4. Admission of the mug shot. The day after the crime, and again several
months later, Foley picked the defendant's photograph from an array of mug
shots. During direct examination of
Foley, the Commonwealth moved [390 Mass. 76] to introduce a
sanitized set of the entire array to corroborate Foley's identification. The defendant objected, arguing that only the
front view of the defendant should be admitted.
The judge overruled the objection and allowed the photograph of the
defendant's profile to be introduced.
[13] The defendant's argument is that the profile view
lacked probative value in the circumstances of the case. He claims that Foley's identification was
based solely on a front view of the man running from the scene. It is clear from the record that Foley's
identification was based on both a front and profile view. The reliability of his profile identification
was relevant. Foley's description of the
man at trial focused on the man's "crooked" nose, a feature which was
best seen from the side. The reliability
of the profile identification was also important, given the duration of Foley's
opportunity to observe the man's face from the front and the defendant's claims
at trial that identification process was suggestive and unreliable. There was no error in allowing the profile
mug shot in evidence.
[14] The defendant also contends that the judge should
have severed the front and side
views. We considered this issue in
Commonwealth v. Blaney, 387 Mass. 628, 442 N.E.2d 389 (1982). In that case, we again noted the risk that
use of double view police photographs raises an inference of prior contact with
the criminal law and adhered to our view that the jury are "best left with
the impression that any photographs used to identify the defendant were taken
after his arrest on the charges for which he is being tried."
[390 Mass. 77] [15][16] 5. Admission of
the enlarged photograph. The
defendant's next claim of error is that the judge improperly admitted in
evidence an enlarged black and white reproduction of a color photograph of the
defendant taken at the time of his arrest.
(FN11) The judge correctly ruled
that the best evidence rule does not apply to photographs. See Commonwealth v. Balukonis, 357
Mass. 721, 725-726, 260 N.E.2d 167 (1970), denial of habeas corpus aff'd sub
nom. Allen v. Moore, 453 F.2d 970 (1st Cir.1972). Cf. Snow v.
6. Exclusion of night photographs and the testimony of
photographer. The defendant sought
to introduce in evidence six photographs of the parking lot at 196 Commercial
Street at night. They were taken from
various points in Faxon Park by a photographer retained by the defendant. One of the photographs was admitted over the
Commonwealth's objection after a Braintree police officer testified that it
fairly and accurately depicted the lighting in the parking lot area on May 31,
1980. The defendant also offered in
evidence the testimony of the photographer.
He was to testify to the conditions under which the photographs were
taken and that the photographs accurately reflected how the human eye would
perceive a human figure at a distance of 175 feet. This testimony was excluded.
[17] We believe that the judge could properly exclude the
photographs. No witness testified that
the five excluded photographs accurately represented the condition of lighting
at the time of the murder.
[18] We also think that the testimony of the photographer
was properly excluded. (FN12) His testimony went to the issue of a
witness's ability to perceive and identify a human figure. This testimony is of a nature that is
presumed to be within the common experience of a jury.
[19] 7. Review under G.L. c. 278, § 33E. The defendant asks that we set aside the
verdict in this case as being unsupported by the weight of the evidence and not
consonant with justice. The gunman who
was lying in wait for this victim fired four shots hitting him twice. Although Foley, the principal identifying
witness, had only a brief opportunity to view the killer, he did so while the
killer was under a street light and had turned to face him. He participated [390 Mass. 79]
in the preparation of a composite which bore a striking resemblance to the
defendant on the morning of the murder when neither he nor the police had any
prior knowledge of the defendant. Foley
selected the defendant from a group after viewing hundreds of people in
neighborhood parks and streets. The
defendant was known to have quarreled with the victim and made threats against
him. There was, therefore, sufficient
evidence to warrant a conclusion by the jury that the defendant was guilty of
murder in the first degree. We have
considered this case on the law and the evidence and see no reason to grant a
new trial or to direct the entry of a verdict of a lesser degree of guilt than
found by the jury.
Judgment affirmed.
LIACOS, Justice (dissenting).
I find myself in agreement with most of the court's able
discussion of the issues raised by this case.
I am compelled, however, to dissent from the court's conclusion that a
composite may be properly admitted as substantive evidence of
identification. (FN1) In Commonwealth v. McKenna, 355 Mass.
313, 244 N.E.2d 560 (1969), this court found error in the admission of an
Identikit composite drawing, stating that the composite "had no standing
as evidence of the truth or accuracy of the matter contained in it."
[390 Mass. 80] First, the witness's
opportunity to observe the defendant at the time of the crime was slight. Looking at the evidence most favorable to the
Commonwealth, it is clear that the jury had before them evidence of an
eyewitness identification based on a limited period of observation over a
substantial distance at night by a witness who was under the influence of
alcohol. In contrast, the identification
made in Blaney was based on repeated observations of the perpetrator's
profile at close quarters in a store. In
the circumstances of the instant case, we cannot say that the jury would not
have relied on the composite drawing to determine if the defendant was the man
seen running from the scene.
Second, the closing argument of the Commonwealth invited
the jury to convict the defendant on the basis of the composite. During her closing argument, the prosecutor
asked the jury to compare the composite with the photograph of the defendant
taken at the time of his arrest. See
note 6supra. The strong reliance
on the composite ensured that the admission in evidence of the composite
drawing, if error, would not constitute harmless error.
I turn now to the question whether the admission of the
composite was error. Foley and Wilson
compiled the composite drawing with the aid of an Identikit. This kit consists of several hundred
transparent overlays that can be assembled into a "composite overlay
'sandwich.' " A.A. Moenssens &
F.E. Inbau, Scientific Evidence in Criminal Cases § 17.03, at 666 (1978). Each overlay depicts a facial characteristic. The theory is that "because of certain
consistencies in the structure of human likenesses, only four factors are
necessary to construct the basic composite:
age, height, weight, and one of 49 different hairlines. Other characteristics which may be added
simply expand the versatility."
[390 Mass. 81] The degree to which
composites are a reliable means of identifying the perpetrators of crimes has
not been established. No evidence on
this issue was put before the trial judge.
The knowledge which presently exists on the subject suggests that
composites may not be entirely reliable and may be less reliable than other
means of identification. One study notes
that the mental process involved in reconstructing a suspect's face through the
use of an Identikit is fundamentally different from the process of selecting a
face from a photographic array. Cohen,
Number of Features, and Alternatives per Feature, in Reconstructing Faces With
the Identi-Kit, 1 J. Police Sci. & Admin. 349 (1973). The Identikit process which requires the
witness to select a number of individual features introduces a critical element
which is not present when a photographic array is used. Id. Witnesses may be incapable of accurately
selecting the number of individual features required to assemble the
composite. (FN2) There is also some indication that the
process of constructing a composite may taint a subsequent identification. E.F. Loftus, Eyewitness Testimony 150-151
(1979).
The question of reliability is central to our
inquiry. Without some evidence of
reliability, we are left without any means of determining whether the admission
of composites furthers or frustrates the truth-seeking process of a criminal
trial. Substantial reasons exist to
question the reliability of composites.
I would therefore hold that the proponent of a composite should be
required to lay the foundation of admissibility[390 Mass. 82] by adducing evidence of the reliability of
the composite process and also the reliability of the procedures used to
produce the composite drawing being offered.
The admission of evidence which purportedly has some
scientific basis of reliability can "create a substantial danger of undue
prejudice and confusion because of its aura of special reliability and
trustworthiness."
A better standard to judge the admissibility of
composites is found in traditional notions of relevancy. Evidence and expert testimony, which
otherwise may be admissible under Frye or as an exception to the hearsay
rule may still be objectionable if its "aura of special reliability and
trustworthiness" is not commensurate with its actual reliability. City of New York v. Pullman Inc., 662
F.2d 910, 915 (2d Cir.1981), cert. denied, 454 U.S. 1164, 102 S.Ct. 1038, 71
L.Ed.2d 320 (1982), quoting United States v. Fosher, supra at 383 (even
if hearsay report was admissible as a governmental record, trial judge could
exclude report). United States v.
Fosher, supra (expert testimony held properly excluded due to danger of
undue prejudice and confusion). Marx
& Co. v. Diners' Club, Inc., 550 F.2d 505, 511 (2d Cir.), cert. denied,
434 U.S. 861, 98 S.Ct. 188, 54 L.Ed.2d 134 (1977) (statistical testimony held
objectionable due to danger of "prejudicial overweight"). See generally 1 J. Weinstein & M. Berger,
Evidence par. 403[04] (1982);
Fed.R.Evid. 403 (1982); Proposed
Mass.R.Evid. 403 (1980). (FN4)
Composites [390 Mass. 84] fall within this class of
evidence. A jury are not in a position to examine
critically the process of assembling a composite and may overestimate its
reliability.
A related concern is the inherent suggestiveness of the
method. A composite "represent[s]
the effort of a trained police artist to transform a witness's oral description
into pictorial form."
Commonwealth v. Williams, 378
The problem of suggestiveness is particularly acute in
two situations. First, in many cases the
police may have identified a potential suspect.
The danger then exists that the composite will be matched to the suspect
rather than the suspect to the composite.
Even the most conscientious police operator will have difficulty
maintaining a neutral pose in such circumstances. While this concern is not present in the
instant case, it may be present in other cases.
Second, any form of suggestiveness in the process of
identification is problematic when the identification is based on an observation
of limited duration. Clearly, the weaker
the contemporaneous impression, the more likely the witness will be influenced
by the identification process. Cf.
Commonwealth v. Moon, 380 Mass. 751, 756-759, 405 N.E.2d 947 (1980) (period
of observation lasted ten to twenty seconds in [390 Mass. 85]
poor lighting). Commonwealth v.
Botelho, 369
Assuming that the trial judge has determined the
composite evidence to be sufficiently probative to warrant admission, a third
concern is that the composite is hearsay evidence. The hearsay rule renders extrajudicial statements
inadmissible if they are offered to prove the truth of the matters asserted in
the statements. Some courts have
excluded composites, as has this court,
on the ground that they are a form of inadmissible hearsay. Commonwealth v. McKenna, supra. Commonwealth v. Rothlisberger, 197 Pa.Super.Ct.
451, 178 A.2d 853 (1962).
We have stated previously that "[a]n extrajudicial
identification made by a witness may be offered in evidence for [390
Evidence of an extrajudicial identification introduced
merely to corroborate an in-court identification has not been considered to be
hearsay evidence. Commonwealth v.
Repoza, 382 Mass. 119, --- - ---, Mass.Adv.Sh. (1980) 2499, 2509-2510, 414
N.E.2d 591. Our recent decisions on the
admissibility of extrajudicial identification, however, have abandoned the
distinction between substantive and corroborative evidence in the context of
identification evidence. (FN6) Commonwealth v. Vitello, supra 376
This exception to the hearsay rule is premised on a
practical assessment of the relative reliability of different methods of
identification. The inherent suggestiveness
of the courtroom setting and the passage of time serve to diminish the
reliability of an in-court identification.
A prior extrajudicial identification is therefore regarded as having
testimonial value equal to or greater than one made in court. Commonwealth v. Torres, supra 367 Mass. at 739, 327
N.E.2d 871. To view preceding link please click here Commonwealth v. Locke, 335 Mass. 106,
112, 138 N.E.2d 359 (1956).
Evidence of a pretrial composite identification is
distinguishable from the other types of pretrial identification evidence. Unlike extrajudicial photographic or
in-person identifications, composites have not as yet been shown to possess a
fair degree of reliability, let alone greater reliability than in-court
identification. It cannot be said that
they are significantly more reliable than an in-court identification. "Translating a mental image to a
composite drawing provides opportunities for communication failure, error in
reproduction, and extraneous influence that are not present when a witness can
compare his mental image directly with either a photographic image or a
person." Commonwealth v. [390
O'CONNOR, Justice (dissenting).
I do not agree with the court's holding that the
composite was properly admitted in evidence.
My views on the admissibility of composites in criminal trials were
fully expressed in my dissenting opinion in Commonwealth v. Blaney, 387
Mass. 628, 640-643, 442 N.E.2d 389 (1982).
Because I believe that admission of the composite was prejudicial error,
I would reverse the conviction and remand for a new trial.
(FN1.) Before hearing evidence in
the case, the jury viewed Faxon Park and the surrounding area during the
day. The judge, however, denied the
defendant's motion for a view at night.
(FN2.) At the time of his arrest, the
defendant was five feet, seven inches tall, and weighed 155 pounds.
(FN3.) The person she picked out was a brother
of the victim.
(FN4.) Other evidence offered by the
Commonwealth was admitted to create an inference that the defendant was
conscious of his guilt. After the
shooting, but before his arrest, the defendant asked Francis Shea and Dennis
King if the police were looking for him.
He said, "Why would I want to kill Bobby? He was the only one that gave my brother any
money in jail."
(FN5.) The quality of the lighting along Faxon
Street was a matter of dispute during the trial. Both the Commonwealth and the defendant
introduced evidence concerning the lighting and whether certain street lights
were functioning on the night of the crime.
From the testimony, the jury could have concluded that the area was well
lighted.
(FN6.) The Commonwealth's closing argument on
this point is as follows:
THE
PROSECUTOR: "He saw him that
night. He did a picture of him, and I
ask you to look at the picture of Fred Weichell that Mr. Foley did, and compare
it with the camera's picture taken two months later. Now, I ask you to look at the hair in this
picture. Wouldn't you describe it as
bushy and curly? And look at the
eyebrows. Aren't they thick? Look, particularly, at the nose and see how
good the match is between the nose in Mr. Foley's picture of Mr. Weichell, and
the camera's picture of Mr. Weichell.
Look at the mouth. Look, if you
would, at the little marks under his lip here in the camera picture and see if
that isn't here in Mr. Foley's picture.
Look at the shape of the chin."
DEFENSE
COUNSEL: "Objection."
THE
JUDGE: "Your objection is
overruled, sir."
THE
PROSECUTOR: "The shape of the chin
here, ladies and gentlemen, in Mr. Foley's picture, and the shape of the chin
in the camera's picture. John Foley told
you he tried to match the plastic foils to the picture he had in his mind. I ask you to take some time to see how good
that picture matches with the camera's picture."
(FN7.) The traditional view that a
prior statement of a witness is hearsay if offered to prove the happening of
matters asserted therein has increasingly come under attack in recent years on
both logical and practical grounds.
McCormick, Evidence § 251, at 601 (2d ed. 1972).
(FN8.) Although sufficient evidence of
reliability exists to permit the introduction of the composite in this case, we
would not, at this time, sustain a conviction where such a composite
constituted the only evidence of identification, absent a more general
acceptance of such evidence or a greater demonstration of its reliability.
(FN9.) The issue of suggestiveness
was not specifically raised by the defendants motion to suppress, but was at
the very least alluded to in the course of the hearing on the motion.
(FN10.) The defendant could have framed the
issue in terms of the hearsay rule. If
he had done so, our analysis would not differ.
(FN11.) There is nothing in the record to
support the defendant's claim, which was not raised below, that the enlargement
was the product of some form of trick photography or that it was altered in
some unspecified way. The defendant
demanded the original color photograph, which was produced immediately by the
prosecutor.
(FN12.) To the extent that the photographs
constituted a photographic experiment, the judge properly could have excluded
them on the ground that the conditions under which they were taken were not
sufficiently similar to aid the jury.
Commonwealth v. Rodriguez, 6 Mass.App.Ct. 738, 749, 383 N.E.2d 851
(1978),
(FN1.) The trial judge, however, admitted the
composite photograph as corroborative evidence only.
(FN2.) A photographic array presents the
witness "with Gestalt-like stimuli:
he must consider each photograph in its entirety." Cohen, Number of Features, and Alternatives
per Feature, in Reconstructing Faces With the Identi-Kit, 1 J. Police Sci.
& Admin. 349 (1973). A composite
requires that the witness review "sets of facial features ... and he must select
from each set the one he believes most closely resembles that of the
suspect.... Thus, the information
processing in the Identi-Kit technique is different from the mug shot
technique; the witness must consider
each of the features separately in an orderly manner." Id.
The Identikit process begins to break down when the number of features
the witness must select increases.
(FN3.) The state of the law as to the
admissibility of composites is unsettled.
Our holding in Commonwealth v. McKenna, 355 Mass. 313, 327, 244
N.E.2d 560 (1969), is in accord with the traditional rule that composites are
inadmissible hearsay. People v.
No court
has admitted a composite where the identification is based on so limited an
opportunity of observation as that which Foley had in this case. E.g., People v. Bills, supra 53
Mich.App. at 344, 220 N.W.2d 101 (court framed issue as to whether "trial
court err[ed] in admitting into evidence the sketch or composite picture of a
person described by a witness who saw that person in close proximity of the
crime and on two different occasions the morning of the crime"); State v. Ginardi, supra 111 N.J.Super. at
449, 268 A.2d 534 (victims had ample opportunity during a period of one and
one-half hours in an automobile).
Arguably, an excellent opportunity to observe the perpetrator may impart
some indicia of reliability to the composite.
(FN4.) Rule 403 of the Federal
Rules of Evidence provides:
"Although relevant, evidence may be excluded if its probative value
is substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay, waste of
time, or needless presentation of cumulative evidence." Professor Giannelli has suggested that novel
scientific evidence should not be admitted in a criminal case until its
reliability is established beyond a reasonable doubt if the State is its
proponent, or a preponderance of the evidence if the defendant is its
proponent. Giannelli, The Admissibility
of Novel Scientific Evidence: Frye v.
(FN5.) Under the Proposed Massachusetts Rules
of Evidence, a statement is not hearsay if the declarant testifies at trial and
the statement is one of identification of a person made after the declarant
perceived him. Proposed Mass.R.Evid.
801(d)(1)(C). Fed.R.Evid. 801(d)(1)(C)
(same).
(FN6.) The question whether a prior
extrajudicial identification is admissible as substantive evidence has arisen
generally in cases where the witness is either unwilling or unable to make an
in-court identification.
(FN7.) The court's suggestion that we would
not sustain a conviction where the only evidence of identification is a
composite makes practical sense. But the
same practical considerations which dictate this result should lead the court
to the conclusion that composites should be excluded entirely until there is a
demonstration of their reliability. The
court cites no evidence that composites possess a fair degree of reliability.
(FN8.) Of course, any doubts which I express
concerning composites may be eliminated by new developments in the field or by
submission of evidence demonstrating that composites possess a fair degree of
reliability.
(FN9.) I would not rule here that a composite
may not be utilized for other evidentiary purposes, e.g., to refresh
recollection, or to impeach or to rehabilitate an identification witness.