by Hon. Robert L. Ullmann
Voice of the Judiciary
Advising the Commonwealth’s highest court about an institution older than the Massachusetts Constitution, and one that operates in secrecy, was the daunting mandate given to the 14 members of the Supreme Judicial Court Committee on Grand Jury Proceedings (“SJC Grand Jury Committee”).
The Supreme Judicial Court (“SJC”) appointed us last year to gather information about how prosecutors present evidence to and instruct grand juries, and to seek to identify “best practices” for grand jury presentments.
Not surprisingly, given the committee’s composition of prosecutors, defense attorneys, sitting and retired judges, and one law professor, the search for best practices involved extensive and at times passionate debate. Perhaps surprisingly, the committee was able to reach consensus on a significant number of best practices in six core areas of grand jury activity, with extensive input from the bar, in particular the Commonwealth’s prosecutors’ offices.
The committee’s Final Report, issued in June, is available on the Supreme Judicial Court website.
Grand juries hear and view evidence presented by prosecutors and decide whether probable cause exists to return indictments on felony charges. Like trial jurors, grand jurors are chosen from randomly selected groups of citizens (venires) summoned to courthouses in each county. Unlike trial court proceedings, however, judges and defense lawyers are not present for grand jury proceedings, and a grand jury witness’s lawyer may be present solely to advise the witness. The judicial branch oversees the grand jury, but prosecutors run the grand jury’s day-to-day activities.
In identifying best practices, the committee recognized that grand jury presentment is a prosecution function that the SJC has described as subject to “limited judicial review.” Commonwealth v. Noble, 429 Mass. 44, 48 (1999). However, committee members also recognized that the grand jury is “an integral part of the court,” and that judges have a “duty to prevent interference with [grand jurors] in the performance of their proper functions, to give them appropriate instructions, and to assist them in the performance of their duties.” In re Pappas, 358 Mass. 604, 613 (1971).
The best practices address issues such as what to do when grand jury subpoenas yield evidence that the prosecutor deems too inflammatory to present to the grand jury; when grand jurors should be instructed on defenses to the crime or on lesser included offenses or other less serious charges than the most serious potential charge; what warnings should be given to targets of investigations; and when and how grand jurors should be instructed on the law.
All of the recommended best practices are currently employed by one or more prosecutors’ offices, demonstrating that the state’s prosecutors were already taking the initiative in exploring practices to ensure that grand jurors are adequately instructed and that the integrity of grand jury presentments is not impaired. The recommended best practices were selected because they assist grand juries in performing their dual functions of determining probable cause to charge someone with a crime and protecting persons from unfounded criminal prosecution. All of the recommendations are fully consistent with existing SJC and Appeals Court law.
Creation of the committee and its work
The committee arose from the SJC’s opinion in Commonwealth v. Grassie, 476 Mass. 202 (2017), in which the Court stated that it would convene a committee on grand jury practices before considering an extension to adults of the rule adopted for juveniles in Commonwealth v. Walczak, 463 Mass. 808 (2012). In Walczak, the Court required prosecutors to provide certain legal instructions to grand jurors when prosecutors seek to indict a juvenile for murder and substantial evidence of mitigating circumstances or defenses exists.
Although the committee arose out of one court decision, the SJC did not limit the scope of the committee’s fact-gathering and asked the committee to recommend best practices in any area of grand jury practice it wished to consider. This broad mandate raised concerns among many of the Commonwealth’s elected prosecutors.
When the committee sought public comment on a draft of its proposed best practices in March, a considerable number of district attorneys criticized the proposals as an unconstitutional intrusion by the judiciary into the exclusive role of the executive branch in making charging decisions. A few district attorneys also saw the proposed best practices as an attempt to impose on them “one size fits all” practices similar to federal grand jury requirements. In addition to raising these broad concerns, the district attorneys offered detailed critiques of specific proposals. The committee also received comments from the Committee for Public Counsel Services, the Boston Bar Association, and several individuals. The committee carefully reviewed all and adopted many of these comments, resulting in an improved set of best practices and commentary which were submitted to the SJC in June.
The committee also considered the broader concerns raised by district attorneys but ultimately concluded that recommending best practices on the presentation of evidence and instructions to grand juries fell squarely within the SJC’s charge to the committee. Moreover, given the judiciary’s role in ensuring the integrity of grand jury proceedings, the committee believed that recommending best practices from existing prosecutors’ office practices did not violate the separation of powers, intrude upon prosecutorial discretion in charging decisions, or impose a “federalized” one-size-fits-all approach to grand jury practice.
Having served on criminal law reform committees for over three decades, I was deeply gratified to see experienced prosecutors and defense attorneys (and the rest of us) forcefully express opposing views, but carefully listen to each other and put aside parochial concerns to reach principled compromise. There is a nationwide trend toward prosecutor best practices, but the practices typically cover areas other than the grand jury, and non-prosecutors are rarely involved in the process. Because our committee had representation among a range of participants in the criminal justice process, the practices that we unanimously viewed as exemplary should have added credibility.
Our committee had no authority to require the implementation of best practices, and the Final Report explicitly states that it is “not intended to give substantive or procedural rights to people accused or convicted of crimes or to serve as the basis for motions to dismiss indictments.” Over time, courts may look to the best practices we identified to render legal decisions, but that was not the purpose of our work. I believe that I speak for the entire committee in expressing the hope that the Commonwealth’s prosecutors on their own initiative will recognize what is exemplary among practices already in use, broadly adopt those practices, and continue the process of developing new best practices in the future.
Robert L. Ullmann has been an Associate Justice of the Massachusetts Superior Court since 2013. He was chair of the Supreme Judicial Court Committee on Grand Jury Proceedings.
In addition to the author, the other committee members were Hon. Peter W. Agnes, Jr., Appeals Court; Janice Bassil, Esq; Berkshire District Attorney Paul J. Caccaviello ; Hon. Judd J. Carhart, Appeals Court (retired); Assistant Attorney General David E. Clayton; Middlesex Assistant District Attorney Kevin J. Curtin; Deputy Chief Counsel Randy Gioia, Esq., Committee for Public Counsel Services; Hon. Bertha Josephson, Superior Court (retired); Clinical Professor Diane S. Juliar, Suffolk University Law School; Bristol District Attorney Mary E. Lee, Kevin M. Mitchell, Esq.; and Suffolk Assistant District Attorney Donna Jalbert Patalano (prior to her departure from the district attorney’s office.) Maureen McGee, Esq. was counsel to the committee.
by Scott P. Lopez and Lauren J. Weitzen
Over the past year, the Supreme Judicial Court (“SJC”) has fundamentally changed the law on the admissibility of eyewitness identifications in criminal cases. Specifically, the SJC restricted the use of in-court identifications by eyewitnesses and adopted new jury instructions for assessing eyewitness testimony. This article summarizes these changes to Massachusetts law.
The Supreme Judicial Court has acknowledged that “research regarding eyewitness identification procedures is complex and evolving” and “eyewitness identification is the greatest source of wrongful convictions but also an invaluable law enforcement tool in obtaining accurate convictions.” Commonwealth v. Walker, 460 Mass. 590, 604 n.16 (2011). Following the Walker decision, the SJC convened a Study Group on Eyewitness Identifications (“Study Group”). The Study Group was tasked with determining how the Commonwealth could best deter unnecessarily suggestive identification procedures in criminal cases. In addition, the Study Group assessed whether existing model jury instructions provided adequate guidance to juries in evaluating eyewitness testimony. Three subcommittees of the Study Group focused on police protocols, pretrial evidentiary hearings on identification procedures, and improving jury instructions to better assist juries. See Executive Summary, Supreme Judicial Court Study Group on Eyewitness Evidence, Report and Recommendations to the Justices (July 25, 2013) (“Study Group Report”). The Study Group presented its Report in July 2013. By late 2014, the SJC began citing to the Study Group Report when issuing a trilogy of decisions that implemented many of the Study Group’s recommendations.
Prior Legal Landscape
Massachusetts law permits the admission of an out-of-court eyewitness identification unless a defendant proves, by a preponderance of the evidence, that the identification procedures employed by the police were unnecessarily suggestive. Commonwealth v. Johnson, 420 Mass. 458, 463-64 (1995); Commonwealth v. Thornley, 406 Mass. 96, 98 (1989). The relevant inquiry is not whether the witness was mistaken. Rather, the question is whether the identification was the product of impermissibly suggestive police procedures. If the identification is admissible, a jury is free to weigh the reliability of the identification evidence. See Walker, 460 Mass. at 599; Johnson, 420 Mass. at 463-64.
While the SJC previously adopted a per se rule of exclusion for unnecessarily suggestive out-of-court identifications, the Court had never adopted such a rule for in-court identifications. Until recently, in-court identifications were excluded only if tainted by an out-of-court confrontation arranged by the Commonwealth that was ‘ “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.’ ” Commonwealth v. Carr, 464 Mass. 855, 877 (2013) (quoting Simmons v. United States, 390 U.S. 377, 384 (1968)); see also Commonwealth v. Choeurn, 446 Mass. 510, 520 (2006).
In-Court Eyewitness Identifications – New Crayton and Collins Rules
In Commonwealth v. Crayton, 470 Mass. 228 (2014), the Court addressed whether an in-court identification is admissible when there has been no prior out-of-court identification. Historically, a defendant’s only protection against admission was to seek alternative, less-suggestive, out-of-court identification procedures in advance of trial, or to challenge the reliability of the in-court identification through a cross-examination focusing on the witness’s demeanor and statements during the in-court identification. Using the Study Group Report as support, Crayton held that an in-court identification is admissible only when there is “good reason” for its admission. Id. at 241. Crayton reasoned that in-court identifications may be more suggestive than one-on-one show-up identifications conducted out of court. Id. at 237. Also, Crayton noted that a defendant’s presence in a courtroom acts “as confirmation that the prosecutor…believes the defendant is the [perpetrator].” Id. Therefore, the eyewitness is likely to conform to the behavior of others and identify the defendant. Id. (quoting Evan J. Mandery, Due Process Considerations of In-Court Identifications, 60 Alb. L. Rev. 389, 417-18 (1996)).
Crayton further reasoned that even though the jury can observe the witness during the in-court identification, jurors will not be “better able to evaluate the accuracy of the in-court identification” because statements attributed to “a witness’s level of confidence in an identification are not a reliable predictor of the accuracy of the identification.” Id. at 239. Moreover, it is very difficult to convince a jury through cross-examination that such statements are attributable to surrounding suggestive circumstances. Id. at 240.
Following Crayton, in-court identifications are admissible only where there is “good reason” for their admission. “Good reason” exists where the witness’s identification is not based solely on his memory of witnessing the incident; for example, if a witness was familiar with the defendant before the crime or if the witness was both an eyewitness and an arresting officer. Id. at 242. In practice, Crayton places the initial burden on prosecutors to move in limine for the admission of an in-court identification. Only then must the defendant demonstrate there is no “good reason” to permit such an in-court identification. Id. at 243. This new rule aims to avoid the “unfair evidentiary weight of a needlessly suggestive show-up identification that might be given more weight by a jury than it deserves.” Id. at 244.
In Commonwealth v. Collins, 470 Mass. 255 (2014), the Court addressed whether an in-court identification is admissible when a prior out-of-court identification resulted in “something less than an unequivocal positive identification of the defendant.” Id. at 262. Citing the Study Group Report, Collins noted that an eyewitness who is unable to make a positive identification before trial, or lacks confidence in his identification, is likely to regard the defendant’s prosecution as “confirmatory feedback” that the defendant is the “right” person. As a result, the witness may develop an “artificially inflated level of confidence” in any subsequent in-court identification. Id. at 262-63. This “enhancement of memory” makes assessing the accuracy of the in-court identification more difficult for juries. Id. at 263-64. Cross-examination will not always reveal prior, inaccurate in-court identifications because most jurors are unaware both of the weak correlation between confidence and accuracy and of a witness’s susceptibility to manipulation by suggestive procedures or confirming feedback. Id.
Following Collins, the prosecution must move in limine to admit an in-court identification where an eyewitness to a crime has not made an unequivocal positive identification of the defendant before trial but the prosecutor nonetheless intends to ask the eyewitness to make an in-court identification of the defendant. Once the prosecution makes this motion, the defendant then bears the burden of demonstrating that there is no “good reason” for the admission of the in-court identification. “Good reason” in this context “usually would require a showing that the in-court identification is more reliable than the witness’s earlier failure to make a positive identification and that it poses little risk of misidentification despite its suggestiveness.” Id. at 265 (emphasis added).
New Jury Instructions
The Study Group was also charged with determining whether existing model jury instructions provide adequate guidance to juries in evaluating witness testimony. The prior Massachusetts model jury instruction on eyewitness identifications, adopted in 1979, delineated factors for the jury to consider when evaluating an eyewitness identification; however, it did “not instruct the jury as to how those factors may affect the accuracy of the identification.” Commonwealth v. Gomes, 470 Mass. 352, 363 (2015) (emphasis added). Gomes held that there are five principles pertaining to eyewitness identifications that are “so generally accepted” that they must be included in a model jury instruction. Id. at 376. Those principles are: 1) human memory does not function like a video recording, but is a complex process that consists of the stages of acquisition, retention, and retrieval; 2) an eyewitness’s expressed level of certainty, by itself, may not indicate the accuracy of his or her identification; 3) high stress can reduce an eyewitness’s ability to make an accurate identification; 4) a witness’s recollection of the memory and the identification can be influenced by unrelated information that is received both before or after making that identification; and 5) a prior viewing of a suspect at an identification procedure may reduce the reliability of a subsequent identification procedure with the same suspect. Id. at 369-76. Gomes adopted a provisional jury instruction, and the SJC issued a new model jury instruction in November 2015. This new instruction incorporates many of the principles discussed in the Study Group Report and in Gomes and is designed to educate jurors, in plain language, on the science of memory so that jurors are better equipped to assess the credibility and reliability of eyewitness testimony. This new instruction will increase jurors’ understanding of the complexities surrounding eyewitness identifications. Id. at 376-77. However, as Gomes noted, the new jury instruction is not intended to preclude additional expert testimony at trial; rather, such expert testimony remains crucial to elaborate on the principles addressed within the jury instruction and to further explain how other relevant variables in each individual case may affect the accuracy of an identification. Id. at 378. With an eye to the future, Gomes acknowledged the potential need to revise eyewitness jury instructions “as science evolves.” Id. at 368.
Just as the science associated with eyewitness identifications will continue to evolve, so will the case law. The Crayton, Collins, and Gomes holdings are positive steps toward reforming case law to conform to science. In addition to issuing these three decisions, the SJC announced a new Standing Committee on Eyewitness Identification in 2015. This Committee is tasked with offering ongoing guidance to the courts regarding eyewitness identification procedures. The Massachusetts criminal justice system is now poised to more fairly address the issues raised when an individual is accused of committing a crime based on eyewitness testimony.
Massachusetts law also permits the exclusion of eyewitness identification under common-law principles of fairness when an eyewitness is exposed to such highly suggestive circumstances independent of police involvement that the eyewitness’s identification is deemed unreliable. Commonwealth v. Jones, 423 Mass. 99, 110 (1996).
 A show-up is an identification procedure wherein a witness to a crime is shown only one person. Usually, the person is someone the police believe is a suspect. The witness is usually shown the person at the scene of the crime or the witness is brought to where the suspect is detained.
Scott P. Lopez is a partner at Lawson & Weitzen, LLP and trial lawyer with more than 25 years of federal and state court experience representing clients in criminal and civil matters. He is a former co-chair and member of the Boston Bar Association’s Criminal Law Steering Committee.
Lauren J. Weitzen is an associate at Lawson & Weitzen, LLP who previously was a Supervising Attorney with the Committee for Public Counsel Services Public Defender Division. She represents clients in criminal and civil matters and is a member of the Boston Bar Association.