Mass. R. Evid. 1112

As amended through October 3, 2024

Section 1112 - Eyewitness Identification

(a)Sources of Law. The admissibility of eyewitness identification evidence in the Commonwealth is governed by the United States Constitution, Article 12 of the Massachusetts Declaration of Rights, and common-law principles of fairness.

(1)Article 12 of the Massachusetts Declaration of Rights. Under Article 12 of the Massachusetts Declaration of Rights, an out-of-court identification resulting from an identification procedure arranged by the police may be admissible unless the defendant files a timely motion to suppress before trial and establishes by a preponderance of the evidence that the identification procedure was so unnecessarily suggestive and conducive to irreparable mistaken identification as to deny the defendant due process of law.

(2) Common-Law Principles of Fairness. Under common-law principles of fairness, an out-of-court identification, whether or not arranged by the police, may be excluded if the defendant files a timely motion to suppress before trial and establishes that the danger of unfair prejudice substantially outweighs the probative value of the identification. The judge must weigh the suggestiveness of the identification against the strength of its independent source to determine whether the identification is reliable.

(b)Out-of-Court Identifications, Including Showups and Photographic Arrays.

(1)Identification Procedures.

(A)Showups. To satisfy the burden set forth in Subsection (a)(1), the defendant must establish by a preponderance of the evidence (i) that the police lacked good reason to conduct the showup, or (ii) the police so needlessly added to the showup's suggestiveness that the identification was conducive to irreparable mistaken identification. In determining whether the police had good reason to conduct a showup, a judge may consider (i) the nature of the crime and concerns for public safety, (ii) the need for efficient investigation in the aftermath of a crime, and (iii) the usefulness of prompt confirmation of the accuracy of information. Prior to a showup identification, the person conducting the procedure must instruct the witness as follows: "You are going to be asked to view a person; the alleged wrongdoer may or may not be the person you are about to view; it is just as important to clear an innocent person from suspicion as it is to identify the wrongdoer; regardless of whether you identify someone, we will continue to investigate; if you identify someone, I will ask you to state, in your own words, how certain you are."

(B)Photographic Arrays. To determine whether the defendant has satisfied the burden set forth in Subsection (a)(1), the judge should consider the following:

(i) whether the police properly informed the person making the identification that (a) the wrongdoer may or may not be in the depicted photographs, (b) it is just as important to clear a person from suspicion as to identify a person as the wrongdoer, (c) the depicted individuals may not appear exactly as they did on the date of the incident because features such as weight and head and facial hair may change, and (d) the investigation will continue regardless of whether an identification is made;

(ii) whether the person making the identification was asked to state the degree of certainty of any identification;

(iii) whether the array was composed of persons who possess reasonably similar features and characteristics; and

(iv) whether the array contained at least five fillers for every photograph of the suspect.

(C) Lineups. Persons arranging a lineup should take precautions against directing undue attention to any participant. A participant may be required to make changes in appearance to conform with the description of the alleged perpetrator. During a voice procedure, the witness should not view the participants while listening to the words spoken by them. The participants should not repeat the words heard by the witness at the scene.

(2)Subsequent Out-of-Court Identifications. When an out-of-court identification resulting from an identification procedure arranged by the police is suppressed, a subsequent out-of-court identification of the defendant by the same witness may be admissible only if the Commonwealth establishes by clear and convincing evidence that the subsequent identification has an independent source. In determining whether the Commonwealth has met its burden, the judge must consider

(A) the extent of the witness's opportunity to observe the defendant at the time of the crime;

(B) prior errors, if any, (i) in description, (ii) in identifying another person, or (iii) in failing to identify the defendant;

(C) the receipt of other suggestions; and

(D) the lapse of time between the crime and the identification.

(3)Third-Party Testimony Regarding Out-of-Court Identifications. If a witness testifies at trial and is subject to cross-examination about having made an out-of-court statement of identification, a third party, including a police officer, may subsequently testify concerning the alleged statement, regardless of whether the witness admitted, denied, or claimed not to remember making the statement. The third party's testimony may be admitted for both substantive and impeachment purposes.

(c) In-Court Identifications.

(1) When There Has Been an Out-of-Court Identification.

(A) An in-court identification of the defendant by an eyewitness present during commission of the crime may be admissible if the eyewitness (i) participated before trial in an identification procedure and (ii) made an unequivocal positive identification of the defendant.

(B) If the out-of-court identification of the defendant was suppressed as unnecessarily suggestive, an in-court identification by the same witness is not admissible unless the Commonwealth establishes by clear and convincing evidence that the in-court identification has an independent source.

(C) If the out-of-court identification of the defendant was suppressed under common-law principles of fairness, an in-court identification by the same witness is inadmissible because the Commonwealth cannot establish that it would be reliable.

(2)When There Has Not Been an Out-of-Court Identification.

(A) If an eyewitness present during the commission of a crime did not participate before trial in an identification procedure, or did not make an unequivocal positive identification, an in-court identification by the same witness is inadmissible unless there is good reason for its admission.

(B) In cases subject to Subsection (c)(2)(A), the Commonwealth must move in limine to admit the in-court identification. Once the motion is filed, the defendant bears the burden of showing that the in-court identification would be unnecessarily suggestive and that there is no good reason for its admission.

(d)Expert Testimony. Expert testimony on the issue of eyewitness identification is admissible at the discretion of the judge.

(e) Inanimate Objects. The identification of an inanimate object is subject to common-law principles of fairness and may implicate due process principles.

(f)Composite Drawings and Sketches. Composite drawings and sketches may be admissible unless the defendant establishes a substantial likelihood of irreparable misidentification resulting from impermissible suggestiveness.

(g)Jury Instructions.

(1)Positive Eyewitness Identification. Where the jury heard eyewitness evidence that positively identified the defendant and the identification of the defendant as the person who committed or participated in the alleged crime is contested, the judge should give the Model Eyewitness Identification Instruction.

(2)Partial Eyewitness Identification. Upon request, where an eyewitness partially identified the defendant, the judge should give some variation of the Model Eyewitness Identification Instruction that includes information about the risk of an honest but mistaken observation.

(3) Cross-Racial Identification. The judge should omit the cross-racial component of the Model Eyewitness Identification Instruction only if all parties agree that there was no cross-racial identification. Where the instruction is given, the judge has discretion to add references to ethnicity.

(4)Failure to Identify or Inconsistent Identification. The judge should instruct the jury to consider whether a witness ever failed to identify the defendant or made an identification that was inconsistent with the identification that the witness made at the trial.

(5)Preliminary/Contemporaneous Instruction. Upon request, before opening statements or immediately before or after the testimony of an identifying witness, the judge must give the Preliminary/Contemporaneous Instruction.

Mass. Guid. Evid. 1112

Subsection (a). This subsection is derived from Commonwealth v. Johnson, 473 Mass. 594, 597-598 (2016); Commonwealth v. Walker, 460 Mass. 590, 599 n.13 (2011); and Commonwealth v. Jones, 423 Mass. 99, 109-110 (1996). Because Massachusetts law is more favorable to the defendant than Federal law on the issue of the admissibility of eyewitness evidence, there generally is no need to separately consider Federal law. See Commonwealth v. Ploude, 101 Mass. App. Ct. 845, 853 (2022), quoting Johnson, 473 Mass. at 598 (unlike under Federal law, "the reliability of an identification made as a result of an unnecessarily suggestive law enforcement identification procedure 'cannot save [its] admissibility' under art. 12"). However, an in-court identification will be suppressed where either the physical presence of the witness in court or the witness's basis of knowledge for the identification was procured in violation of the Fourth Amendment to the United States Constitution. Commonwealth v. Greenwood, 78 Mass. App. Ct. 611, 621 (2011).

Subsection (a)(2). This subsection is derived from Commonwealth v. Johnson, 473 Mass. 594, 599-600, 603-604 (2016); Commonwealth v. Jones, 423 Mass. 99, 108-109 (1996); and Commonwealth v. Galipeau, 93 Mass. App. Ct. 225, 232 n.11 (2018). See also Commonwealth v. McEvoy, 93 Mass. App. Ct. 308, 321 (2018) (rejecting argument that probative value of out-of-court identification was substantially outweighed by danger of unfair prejudice). A challenge to the admissibility of an identification not involving the police must be advanced under common-law principles of fairness. Commonwealth v. Sylvia, 456 Mass. 182, 190 (2010). To trigger a reliability analysis, i.e., weighing the danger of unfair prejudice against the probative value of the identification, "the circumstances surrounding the identification need only be so suggestive that there is a substantial risk that they influenced the witness's identification of the defendant, inflated his or her level of certainty in the identification, or altered his or her memory of the circumstances of the operative event." Johnson, 473 Mass. at 604. As the Johnson court stated,

"[w]here the independent source of an identification is slim, this level of suggestiveness may be sufficient to support a finding of inadmissibility; where the independent source is substantial, a greater level of suggestiveness would be needed to support a finding that the danger of unfair prejudice substantially outweighs the probative value of the identification."

Id. See Commonwealth v. Santiago, 100 Mass. App. Ct. 700, 707-709 (2022) (close relationship between victim and two witnesses who watched Facebook video of shooting together, absent evidence that they discussed defendant's identify during or after viewing video, did not create highly suggestive circumstances warranting suppression of later identifications from photo arrays under common-law fairness principles).

Subsection (b)(1). This subsection is derived from Commonwealth v. German, 483 Mass. 553, 564 (2019) (showups); Commonwealth v. Johnson, 473 Mass. 594, 599 (2016); Commonwealth v. Crayton, 470 Mass. 228, 235-237 (2014); Commonwealth v. Walker, 460 Mass. 590, 600 (2011); Commonwealth v. Silva-Santiago, 453 Mass. 782, 797-798 (2009) (photographic arrays); Commonwealth v. Cinelli, 389 Mass. 197, 207 (1983); Commonwealth v. Martin, 447 Mass. 274, 278-284 (2006); Commonwealth v. Marini, 375 Mass. 510, 517 (1978); and Commonwealth v. Rivera, 91 Mass. App. Ct. 796, 801 (2017). See also Commonwealth v. Vasquez, 482 Mass. 850, 858-859 (2019) (witness's prior identification of defendant's voice from audio track did not cause identification of defendant from surveillance video to be unnecessarily suggestive where police employed reasonable procedures to separate audio from video recordings).

If a showup identification is determined to be inadmissible because there was "no good reason" for the police to conduct the showup, the judge need not consider the procedure's "actual suggestive impact on the witness." Commonwealth v. Carlson, 92 Mass. App. Ct. 710, 714 (2018). If a showup identification is admitted, the defendant may argue at trial that an alternative identification procedure would have been fairer. Commonwealth v. Gonzalez, 28 Mass. App. Ct. 906, 908 (1989). Cf. Commonwealth v. Dougan, 377 Mass. 303, 317-318 (1977) (trial judge may grant request for an "in-court lineup" or "photographic spread" and may "seat [the defendant] among the spectators at trial" to increase reliability of in-court identification).

With respect to photographic arrays, although not required, a "double-blind procedure where the identification procedure is conducted by a law enforcement officer who does not know the identity of the suspect . . . is the better practice to eliminate the risk of conscious or unconscious suggestion." Silva-Santiago, 453 Mass. at 797. However, the absence of such a procedure goes to the weight, not admissibility, of the identification evidence. Commonwealth v. Kirkland, 491 Mass. 339, 355 (2023); Silva-Santiago, 453 Mass. at 797, 798-799. Photographs used in a photographic array may be admitted if (1) the prosecution demonstrates some need for their introduction, (2) the photographs are offered in a form that does not imply a prior criminal record, and (3) the manner of their introduction does not call attention to their source. Commonwealth v. Cruz, 445 Mass. 589, 592 (2005). Generally, identification evidence resulting from a photographic array that distinguishes the defendant based on some physical characteristic from all other suspects is inadmissible. Nonetheless, such identification evidence has been admitted in two circumstances: (1) where the identification clearly was not made as a result of the distinctive feature, or (2) where the distinctive feature was not part of the original description of the suspect. See Commonwealth v. Ploude, 101 Mass. App. Ct. 845, 852 (2022) (identification of defendant from photographic array should have been suppressed where defendant was only suspect in array with a neck tattoo and identification did not fall into either permissible category). Although repeated arrays including a suspect's photograph are discouraged, "[d]uplication of a defendant's photograph in one or more arrays [is] not . . . sufficient by itself to compel the suppression of a resulting identification." Commonwealth v. Wallace, 417 Mass. 126, 129 (1994). See Commonwealth v. Santiago, 100 Mass. App. Ct. 700, 705-706 (2022) (no error in admitting witness's identification of defendant from second photo array where witness failed to identify defendant, who was only shirtless individual, in first array; police permitted to "refine the array" as new information is received, and second array was used to reduce suggestiveness).

Subsection (b)(2). This subsection is derived from Commonwealth v. Johnson, 420 Mass. 458, 463-464 (1995). An out-of-court single photograph identification is the equivalent of a showup identification. The burden is on the defendant to prove that the use of a single photograph display is so unnecessarily suggestive and conducive to irreparable mistaken identification as to deny the defendant due process. Commonwealth v. Chin, 97 Mass. App. Ct. 188, 198 (2020).

Subsection (b)(3). This subsection is derived from Commonwealth v. Herndon, 475 Mass. 324, 334 (2016); Commonwealth v. Adams, 458 Mass. 766, 770 (2011); Commonwealth v. Cong Duc Le, 444 Mass. 431, 441-442 (2005); and Commonwealth v. Raedy, 68 Mass. App. Ct. 440, 448-449 (2007). The third party's testimony may include context for the statement of identification, but there are limits. See Commonwealth v. Walker, 460 Mass. 590, 608 (2011) ("statement regarding the number of shots fired, the color of the firearm, and the defendant's behavior after the shooting goes beyond the context of the identification of the shooter"). See also Adams, 458 Mass. at 772 ("We emphasize that the rule [is] not intended to render a witness's entire statement admissible, but only so much as comprises relevant evidence on the issue of identification. Judges have broad discretion in this area, and parties who intend to offer pretrial statements of identification are well advised to bring the matter to the attention of the trial judge at the earliest practicable time, preferably in a motion in limine."). Under certain circumstances, the statement of identification need not have been "made from a photographic array, a showup, or other identification procedure." Id. at 770-772.

Subsection (c)(1)(A). This subsection is derived from Commonwealth v. Collins, 470 Mass. 255, 259-267 (2014). An unequivocal positive identification exists where the witness "identifies the defendant as the perpetrator, such that the statement of identification is clear and free from doubt." Commonwealth v. Dew, 478 Mass. 304, 315 (2017). Where the witness previously failed to make a unequivocal positive identification and the prosecution seeks to admit an in-court identification by the same witness, the prosecution usually must show "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." Collins, 470 Mass. at 265. A witness's initial failure to make an unequivocal positive identification from a photo array does not require exclusion of an in-court identification where the witness identified the defendant from a second array with certainty and testifies that initial reluctance to identify the defendant was based on fear of retaliation. Commonwealth v. Santiago, 100 Mass. App. Ct. 700, 709 (2022).

Subsection (c)(1)(B). This subsection is derived from Commonwealth v. Johnson, 473 Mass. 594, 602 (2016) ("[T]he Commonwealth may offer a subsequent out-of-court or in-court identification by the witness if the Commonwealth proves by clear and convincing evidence that the subsequent identification is reliable because it rests on a source independent of the unnecessarily suggestive confrontation"). See Commonwealth v. Ploude, 101 Mass. App. Ct. 845, 855 n.5 (2022) (refusing to permit Commonwealth on remand to introduce new evidence regarding whether in-court identification rested on independent source).

Subsection (c)(1)(C). This subsection is derived from Commonwealth v. Johnson, 473 Mass. 594, 603 (2016) ("[B]ecause a judge declares an out-of-court identification to be inadmissible under [common-law principles of fairness] only where it is unreliable, the Commonwealth cannot prevail in proving by clear and convincing evidence that the witness's in-court identification would be reliable").

Subsection (c)(2)(A). This subsection is derived from Commonwealth v. Crayton, 470 Mass. 228, 233-245 (2014). The necessary "good reason" for not conducting an out-of-court identification procedure may exist in the following two circumstances: first, "where the eyewitness was familiar with the defendant before the commission of the crime, such as where a victim testifies to a crime of domestic violence," and second, "where the witness is an arresting officer who was also an eyewitness to the commission of the crime, and the identification merely confirms that the defendant is the person who was arrested for the charged crime." Crayton, 470 Mass. at 242. The reason is that, "[i]n both of these circumstances, the in-court showup is understood by the jury as confirmation that the defendant sitting in the court room is the person whose conduct is at issue rather than as identification evidence." Id. Where the officer making the in-court identification participated in the investigation but not the arrest of the defendant, the "good reason" to admit the officer's in-court identification does not exist. See Commonwealth v. Ortiz, 487 Mass. 602, 609-610 (2021).

Subsection (c)(2)(B). This subsection is derived from Commonwealth v. Crayton, 470 Mass. 228, 243 (2014) ("[W]e place the burden on the prosecutor to move in limine to admit the in-court identification of the defendant by a witness where there has been no out-of-court identification. Once the motion is filed, the defendant would continue to bear the burden of showing that the in-court identification would be unnecessarily suggestive and that there is not 'good reason' for it."). The motion in limine should filed before trial. Id. To meet this burden, the defendant is not required to "propos[e] alternative, less suggestive identification procedures." Id. at 241.

Subsection (d). This subsection is derived from Commonwealth v. Watson, 455 Mass. 246, 257 (2009); Commonwealth v. Bly, 448 Mass. 473, 495 (2007); and Commonwealth v. Hyatt, 419 Mass. 815, 818 (1995). Before allowing expert testimony, the judge must conclude that the subject of the testimony is one on which the jurors need assistance, that the jurors will not be confused or misled by the testimony, that the tests and circumstances on which the testimony rests provide a basis for determining it is reliable, and that the testimony is sufficiently tied to the facts of the case so that it will aid the jury. Commonwealth v. Santoli, 424 Mass. 837, 844 (1997). See also Commonwealth v. Snyder, 475 Mass. 445, 451 (2016) ("As has become increasingly clear, 'common sense is not enough to accurately discern the reliable eyewitness identification from the unreliable.' Expert testimony may be an important means of explaining counterintuitive principles regarding the reliability of eyewitness identifications, or of challenging such principles. Eyewitness identification expert testimony also may be an important means of explaining how other variables relevant in a particular case can affect the reliability of the identification at issue." [Citations and footnote omitted.]); Commonwealth v. Silva-Santiago, 453 Mass. 782, 799 (2009) (explaining that expert testimony allowed jury "reasonably to assess the weight of the eyewitness evidence"). There is no presumption that expert testimony on the inaccuracy of eyewitness identification should be admitted. Commonwealth v. Denson, 489 Mass. 138, 146 (2022).

Subsection (e). This subsection is derived from Commonwealth v. Thomas, 476 Mass. 451, 466-467 (2017) (upholding exclusion of identification of firearm because identification was "unreliable" and "the witness's confidence in the identification was inflated by the detectives' confirmatory statements"). In Thomas, the court stated as follows:

"Due process may be denied by admitting in evidence an identification of an inanimate object where, first, the police knew or reasonably should have known that identification of the object effectively would identify the defendant as the perpetrator of the crime and where, second, the police needlessly and strongly suggested to the witness that the object was the object at issue."

Id. The Supreme Judicial Court has urged police departments to devise a protocol for identification of inanimate objects and suggested elements for such a protocol. Id.

The identification of an object is not "subject to the same precautions given the identification of a person." Commonwealth v. Browning, 99 Mass. App. Ct. 735, 744-745 (2021), quoting Commonwealth v. Simmons, 383 Mass. 46, 51 (1981). In Commonwealth v. Browning, a witness testified that she did not see the suspect's face when she was robbed and thus was unable to pick him out of a photo array; however, during her initial description of the suspect, she described that he wore a multicolored shirt. The court found there was no error when the police showed the witness the shirt that the defendant was wearing at the time of the arrest and she was able to positively identify the shirt as what the suspect was wearing at the time of the robbery.

Subsection (f). This subsection is derived from Commonwealth v. Weichell, 390 Mass. 62, 68-73 (1983), cert. denied, 465 U.S. 1032 (1984).

Subsection (g). This subsection is derived from the Model Jury Instructions on Eyewitness Identification set forth at 473 Mass. 1051 (2015). The instructions include the Model Eyewitness Identification Instruction and the Preliminary/Contemporaneous Instruction. The Model Eyewitness Identification Instruction should be given "unless a judge determines that different language would more accurately or clearly provide comparable guidance to a jury or better promote the fairness of the trial." Model Jury Instructions on Eyewitness Identification, 473 Mass. at 1051. For the entire statement of the justices, see https://perma.cc/KH5B-J9YQ.