Aligning Science and Law in the Realm of Eyewitness Identification Evidence
by Eric A. Haskell*
Legal Analysis
This article represents the opinions and legal conclusions of its author and not necessarily those of the Office of the Attorney General. Opinions of the Attorney General are formal documents rendered pursuant to specific statutory authority.
On February 6, 2009, eight days after then-associate Justice Ralph Gants joined the Supreme Judicial Court, the court heard argument in Commonwealth v. Silva-Santiago, an appeal from a murder conviction in which the defendant challenged the reliability of photographic arrays that had led several eyewitnesses to identify him as the killer. Although not apparent at the time, Silva-Santiago marked the first step of an effort that would transform the relationship between scientific knowledge and the law of identification evidence in Massachusetts. That effort was the work of Chief Justice Gants, and it forms a remarkable part of his legacy.
The rudiments of that effort were visible in Justice Gants’s opinion for the court in Silva-Santiago, which was released later that spring.[1] That opinion rejected the defendant’s contention, for which there had been expert evidence at trial, that the identifications were unreliable and should not have been admitted into evidence because the photographs used in the arrays were shown to the eyewitnesses simultaneously rather than sequentially. Citing two law review articles and an article published by the American Psychological Association, Justice Gants acknowledged a “debate among scholars and practitioners [as to] whether the sequential showing of photographs leads to greater accuracy” over a simultaneous showing, and concluded that, “[w]hile that debate evolves,” identifications produced through either procedure would be admissible.
This rationale was both curious and significant. The legal issue in Silva-Santiago was whether the identifications were so “unnecessarily suggestive” as to offend due process. Why look to an academic debate to resolve that legal issue, especially when expert evidence bearing on the answer was present in the record? And why seek conclusiveness in that academic debate before declaring an answer as a matter of law? In retrospect, Justice Gants’s reasoning in Silva-Santiago hinted at his ambition to align the law with the science behind identification evidence.
Two years later, in Commonwealth v. Walker, Justice Gants wrote for the court to again reject the argument that the court had rejected in Silva-Santiago.[2] But Justice Gants’s opinion in Walker also took the next step: characterizing identification evidence as “the greatest source of wrongful convictions but also an invaluable law enforcement tool in obtaining accurate convictions,” it announced that a study group would be charged, among other things, with considering a new model jury instruction on “evaluating eyewitness testimony.
The SJC had adopted a model instruction on identification evidence in 1979,[3] and had periodically modified it thereafter.[4] That instruction exhorted the jury, when evaluating whether the government had proven the defendant’s identity as the perpetrator, to take into account certain abstract and neutral considerations such as the identifying eyewitness’s opportunity to observe the perpetrator, the circumstances surrounding the identification, and the eyewitness’s overall credibility.
The study group created after Walker returned its report in the summer of 2013.[5] The report urged the SJC to take “judicial notice” of certain “psychological principles” concerning the mechanisms of memory and recall, as well as of factors that were said to diminish the reliability of those mechanisms. It also proposed a new jury instruction that, beyond reciting abstract considerations, would instruct the jury as to many of the same scientific principles and factors of which judicial notice was urged.
It is important to appreciate the nature of the study group’s proposal. Juries, of course, deal with science all the time, in the form of expert evidence that the court has deemed likely to be helpful in determining the facts of the particular case.[6] But what the study group proposed was qualitatively different: its proposal was, in effect, to adopt certain scientific knowledge as legal precepts to be applied in all cases. That the scientific principles urged by the study group were well-established in the literature perhaps obscured a lurking tension: while scientific knowledge is factual in nature, iterative, and falsifiable, jury instructions are legal in nature, immutable, and to be accepted by the jury as true.
Justice Gants was promoted in the summer of 2014 and, on September 2 of that year, presided over his first arguments as Chief Justice. Featured on the calendar that day were four appeals concerning aspects of eyewitness identification. Chief Justice Gants wrote the opinion of the court in each of them.
Three of those opinions invoked and relied upon the science urged by the study group.[7] But it was the fourth opinion, in Commonwealth v. Gomes,[8] that transformed the relationship between the science and the law of eyewitness identification evidence, for Gomes presented the issue of what jury instruction ought to be given concerning such evidence.
In Gomes, Chief Justice Gants adopted a highly modified version of the study group’s proposal. The resulting jury instruction, which was appended to the Gomes opinion, continued to exhort the jury to consider things such as the witness’s opportunity to view the perpetrator and the quality of the witness’s perception. But it additionally limned a three-stage scientific “process of remembering,” and identified situation-specific factors—such as “the visible presence of a weapon . . . if the crime is of short duration,” “high levels of stress [felt by the eyewitness], compared to low to medium levels,” and “information the [eyewitness] received between the incident and the identification, as well as after the identification”—that, juries were to be instructed, would diminish the reliability of the identification. Chief Justice Gants explained that it was appropriate to incorporate these precepts into the “judge’s instructions of law, which the jury generally must accept,” because “there is a near consensus in the relevant scientific community . . . .”
The Gomes instruction represented an unprecedented infusion of scientific principles into the judge’s instructions of law. But it could not be said to perfectly align the science with the law because, as noted, science is dynamic and is susceptible of being disproven. Chief Justice Gants was mindful of these limitations, acknowledging that “even a principle for which there is near consensus is subject to revision based on further research findings, and that no principle of eyewitness identification should be treated as if set in stone.” Anticipating the possibility that the principles embodied in the Gomes instruction might be disputed or overtaken by later research, his opinion authorized litigants to offer expert evidence to challenge, and potentially supersede, the instruction. And, acknowledging that, “as the science evolves, we may need to revise our new model instruction[],” his opinion reconstituted a committee on eyewitness identification to monitor the development of the science and recommend updates.
The influence of Chief Justice Gants’s efforts to align the law with the science of identification evidence is visible in later SJC decisions that:
- Presumptively required an instruction that “people may have greater difficulty in accurately identifying someone of a different race than someone of their own race,” unless all parties agreed that no such instruction is appropriate;[9]
- Going beyond identification evidence, deemed advances in scientific understanding of the “shaken baby syndrome” as potential grounds for granting a new trial;[10] and
- Looked to “the latest advances in scientific research on adolescent brain development and its impact on behavior” to inform the definition of cruel and unusual punishment vis-à-vis late-teenaged offenders.[11]
Chief Justice Gants’s efforts on this score not only changed the law, they changed the relationship between science and the law in the Commonwealth. As the influence of these changes continues to reverberate, they showcase Justice Gants’s wisdom in recognizing both the promise and the limitations of science in helping to improve justice.
Eric A. Haskell is an Assistant Attorney General whose practice encompasses both civil and criminal matters. He recalls fondly his argument before Chief Justice Gants in Boston Globe Media Partners LLC v. Chief Justice of the Trial Court, No. SJC-12681. That argument lasted approximately forty minutes, despite having been scheduled for fifteen—and it was not the longest argument presented in that case that morning!
*This article represents the opinions and legal conclusions of its author and not necessarily those of the Office of the Attorney General. Opinions of the Attorney General are formal documents rendered pursuant to specific statutory authority.
[1] 453 Mass. 782 (2009).
[2] 460 Mass. 590 (2011) (“[I]t is still too soon to conclude that sequential display is so plainly superior that any identification arising from a simultaneous display is unnecessarily suggestive and therefore must be suppressed.”).
[3] Commonwealth v. Rodriguez, 378 Mass. 296 (1979).
[4] Commonwealth v. Cuffie, 414 Mass. 632 (1993); Commonwealth v. Santoli, 424 Mass. 837 (1997); see also Commonwealth v. Pressley, 390 Mass. 617 (1983).
[5] https://www.mass.gov/files/documents/2016/08/ql/eyewitness-evidence-report-2013.pdf.
[6] See generally Mass. G. Evid. § 702.
[7] Commonwealth v. Crayton, 470 Mass. 228 (2014); Commonwealth v. Collins, 470 Mass. 255 (2014); Commonwealth v. Johnson, 470 Mass. 389 (2015).
[8] 470 Mass. 352 (2015).
[9] Commonwealth v. Bastaldo, 472 Mass. 16 (2015).
[10] Commonwealth v. Epps, 474 Mass. 743 (2016).
[11] Commonwealth v. Watt, 484 Mass. 742 (2020).
