Massachusetts Supreme Judicial Court Announces Important New In-Court Identification Rule

The Massachusetts Supreme Judicial Court today enacted a new rule related to the situation in which a witness identifies the defendant as the perpetrator of a crime for the first time in open court in front of the jury.  The name of the case is Commonwealth v. Crayton.

The Middlesex Grand Jury returned two indictments against the defendant charging him with possessing child pornography.  During the afternoon of January 21, 2009, an eighth grade student was doing homework in the basement of the Cambridge Public Library.  A short, white, bald man with a little beard and glasses was sitting at an adjacent computer and was looking at a picture of a girl who might have been naked.  The student asked her friend to look at the computer and he also saw an image f a young child wearing no clothes.  Library employees later examined the computer and found two video clips on the computer depicting a young girl naked and masturbating.  One of the library employees saw the defendant but was thereafter unable to identify him on a photo array given to him by the police.

The following day, a man meeting the description given by the student was in the Cambridge Public Library using a computer.  The man admitted he had used the computer but denied looking at child pornography.  A subsequent forensic examination of the computer’s hard drive revealed the presence of a large amount of child pornography.

Nobody identified the defendant before the trial began.  Neither of the students were asked, either by the Middlesex District Attorney’s Office or the Cambridge Police, to try to identify the defendant in a nonsuggestive way (by reviewing a photo array where the defendant’s picture was one of eight similar-looking men).  Instead, the Middlesex District Attorney’s Office decided to have the witnesses identify the defendant in court, in front of the jury.  The students had not seen this man for more than two years, but there was no worry that they wouldn’t be able to identify the defendant – he was the only non-lawyer sitting at the defense table.  Sure enough, to the surprise of nobody, both students were able to identify the defendant as the man they saw more than two years earlier in the Cambridge Library.

The defense lawyer asked the judge to preclude to Commonwealth from offering such an absurd suggestive identification procedure – one that really created a farce in the courtroom.  The trial judge admitted that an in-court identification always has some suggestiveness to it, but allowed the procedure to go forward anyway.

The Supreme Judicial Court noted that the Massachusetts Constitution prohibits introduction of an identification procedure where the identification is so unnecessarily suggestive and conducive to irreparable misidentification that its admission would deprive the defendant his due process rights.  The Court pointed out that where a witness at trial is asked to identify the defendant, it will be easy for the witness to infer who the defendant is based on where he is sitting in the courtroom.  The Court said an in-court identification procedure is particularly suggestive, because a witness will conclude that the prosecutor, following an investigation, concluded that the defendant was the suspect sought by the police.  Therefore, there is danger that a witness will identify the defendant out of loyalty to the prosecutor rather than because the witness remembers what the suspect looked like.

Ultimately, the Supreme Judicial Court ruled that in-court identification procedures will not be permissible when there was no prior out-of-court identification procedure unless there exists a “good reason” for the in-court identification procedure to take place.  Good cause may exist when the witness and the defendant previously knew each other, so it is obvious that the witness would be able to identify the defendant.  Good cause may also exist when the witness is a police officer who witnessed the defendant commit a crime and arrested the defendant, and would be able to easily confirm that the defendant at trial was the person he arrested.

This is an excellent decision from a Court that has recently issued a series of smart, commonsense decisions related to the rights of criminal defendants.  The bogus identification procedure that existed in this case, and has existed regularly in Middlesex County for years, should never sully a criminal case again.