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Commonwealth v. Gomes

Supreme Judicial Court of Massachusetts, Berkshire

January 12, 2015

Commonwealth
v.
Jeremy D. Gomes

Argued: September 2, 2014.

Indictments found and returned in the Superior Court Department on October 24, 2011.

The cases were tried before by John A. Agostini, J.

The Supreme Judicial Court granted an application for direct appellate review.

John Fennel, Committee for Public Counsel Services, for the defendant.

John Bossé , Assistant District Attorney, for the Commonwealth.

The following submitted briefs for amici curiae.

Daniel F. Conley, District Attorney, & Cailin M. Campbell, Assistant District Attorney, for District Attorney for the Suffolk District.

Page 353

Lisa J. Steele for Massachusetts Association of Criminal Defense Lawyers.

David W. Ogden, Daniel S. Volchok, Francesco Valentini, & Nathalie F.P. Gilfoyle, of the District of Columbia, & John C. Polley for American Psychological Association & another.

M. Chris Fabricant & Karen Newirth, of New York, Joshua D. Rogaczewski & Johnny H. Walker, of the District of Columbia, & Kevin M. Bolan for the Innocence Network.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.

OPINION

[22 N.E.3d 899] Gants, C.J.

In the early morning of September 10, 2011, the defendant slashed the face of the victim, Zachary Sevigny, with a box cutter while the victim was sitting in the driver's seat of his vehicle. A Superior Court jury found the defendant guilty of mayhem, in violation of G. L. c. 265, § 14; assault and battery by means of a dangerous weapon, in violation of G. L. c. 265, § 15A ( b ); and breaking and entering a [22 N.E.3d 900] vehicle in the nighttime with the intent to commit a felony, in violation of G. L. c. 266, § 16.[1] On appeal, the defendant claims that the judge erred by giving the model jury instruction regarding eyewitness identification that we adopted in Commonwealth v. Rodriguez, 378 Mass. 296, 310-311, 391 N.E.2d 889 (Appendix) (1979), rather than the instruction he requested, which would have informed the jury about various scientific principles regarding eyewitness identification. We conclude that the judge did not err by declining to instruct the jury about these principles where the defendant offered no expert testimony, scholarly articles, or treatises that established that these principles were " so generally accepted that ... a standard jury instruction stating [those principles] would be appropriate." Commonwealth v. Santoli, 424 Mass. 837, 845, 680 N.E.2d 1116 (1997), citing Commonwealth v. Hyatt, 419 Mass. 815, 818-819, 647 N.E.2d 1168 (1995). Therefore, we affirm the convictions of mayhem and of breaking and entering.[2]

Page 354

However, now that we have the benefit of the Report and Recommendations of the Supreme Judicial Court Study Group on Eyewitness Evidence (Study Group Report),[3] and the comments in response to it,[4] we conclude that there are scientific principles regarding eyewitness identification that are " so generally accepted" that it is appropriate in the future to instruct juries regarding these principles so that they may apply the principles in their evaluation of eyewitness identification evidence. We include as an Appendix to this opinion a provisional jury instruction regarding eyewitness identification evidence, and we invite comments regarding its content and clarity before we declare it a model instruction.[5] [22 N.E.3d 901] This provisional instruction should be given, where appropriate, in trials that commence after issuance of this opinion until a model instruction is issued.

Background.

At approximately 1:30 a.m. on September 10, 2011, the defendant, who appeared intoxicated, walked into a gasoline station convenience store in Pittsfield, bumped into a customer, Lindsay Holtzman, and asked the employee who was working the cash register, Jordan Wilson, for a box of matches. Wilson asked the defendant to apologize to Holtzman. In response, the defendant cursed and stared at Wilson, and challenged him to a fight. Wilson laughed and gave the defendant a box of matches. The defendant left the store, but continued to yell at

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Wilson to meet him outside to fight.

When the defendant left the store, the victim and his friend, Gerald Mortensen, were sitting in the victim's automobile, which was parked in a well-lit portion of the store's parking lot, approximately ten to fifteen feet from the front door of the store. The victim was in the driver's seat with the window down. After the victim and the defendant made eye contact, the defendant approached the vehicle and said to the victim, " What the fuck are you looking at, tough guy?" The victim responded, " I'm not looking at anything." The defendant then pulled a box cutter from his back pocket, reached inside the vehicle with his left arm, and slashed the victim with the blade behind the victim's ear and down his face.

Mortensen, who was sitting on the passenger's side, ran inside the store, said that his friend had been cut, and told a store clerk to call for help. Mortensen and Holtzman then left the store and watched as the defendant walked backwards toward a corner of the parking lot, still staring at the victim. The victim was taken to a hospital where he received approximately thirty stitches.

On September 15, Wilson went to the Pittsfield police station to meet with Detective Timothy Koenig. Wilson said that he had seen the person who injured the victim before and could identify him. Detective Koenig created a pool of 975 archived photographs that fit Wilson's description of the person. Wilson used a computer, which displayed twelve photographs per page, to look through the pool. He eventually selected the defendant's photograph. When he made the identification, he reported that he was " 110 per cent positive."

Detective Koenig then created a simultaneous array containing eight photographs, one of which depicted the defendant, and presented the array that same day to Mortensen and the victim separately.[6] Mortensen [22 N.E.3d 902] stated that none of the photographs

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showed the assailant. The victim said that he did not think the assailant " [wa]s anyone in these photos," but added that if he had to choose somebody, it would be the man with a chin similar to that of the assailant; that man was the defendant. Holtzman did not view a photographic array, although Detective Koenig attempted to reach her by telephone more than once to do so.

On September 18, Holtzman, Mortensen, and the victim were driving together, and stopped for gasoline at a different service station in Pittsfield.[7] Holtzman and the victim entered the convenience store while Mortensen stayed inside the victim's vehicle. The victim testified that he briefly left the store to retrieve exact change from his automobile to purchase drinks and cigarettes. When he reentered the store, he immediately saw the defendant and recognized him as the assailant. After he put down his change, the victim and Holtzman left the store together, and confirmed with each other that the man in the store was the assailant. The victim then told Mortensen that the defendant was inside the store. When the defendant left the store, Mortensen agreed that the defendant was the assailant and the victim called the police on his cellular telephone.[8]

As the victim spoke with the police, the defendant left the gasoline station in someone's automobile. The victim and Mortensen followed the defendant to an apartment complex in Pittsfield, with the victim communicating the defendant's location to the police as he was driving. Shortly thereafter, the police arrived at the apartment complex and asked the victim and Mortensen to perform a showup identification; they identified the defendant as the assailant. After the defendant's arrest, Detective Koenig interviewed Holtzman, who confirmed that the person in the convenience store on September 18 had been the same person she saw at the other convenience store on September 10.

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Before trial, the defendant filed motions to suppress Holtzman's and the victim's pretrial identification of the defendant.[9] The trial judge denied the motions. At trial, the defendant argued that he had been mistakenly identified as the assailant, and offered the testimony of his father, Earl Kirchner, who said that he lived with the defendant and that the defendant did not leave his apartment on the evening of the attack.

Discussion.

1. The defendant's requested eyewitness identification instruction.

The defendant requested that the judge provide a jury instruction regarding eyewitness identification that essentially mirrored a model instruction that had become effective in New Jersey approximately one week before the defendant's trial commenced.[10] [22 N.E.3d 903] The proffered jury instruction was considerably longer and more detailed than the Rodriguez instruction. It would have instructed the jury on various principles regarding eyewitness identification and human memory, most importantly that (1) human memory does not operate like a video recording that a person can replay to recall what happened; [11] (2) a witness's level

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of confidence in an identification may not indicate its accuracy; [12] (3) high levels of stress can reduce the likelihood of making an accurate identification; [13] (4) information from other witnesses or outside sources can affect the reliability of an identification and inflate an eyewitness's confidence in the identification; [14] and (5) viewing the same person in multiple identification procedures may increase the risk of misidentification.[15]

[22 N.E.3d 904] The judge denied the request and gave an identification instruction consistent with the Rodriguez instruction. The judge reasoned that the principles included in the defendant's request were

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more appropriate for expert testimony or for closing argument.[16] Furthermore, the judge explained:

" [T]his [proposed instruction] adds facts in. The process of remembering consists of three stages. That may be true. That may not be true. I have no idea myself but there is no information given to the jury that that is in fact accurate. So I cannot instruct them as a matter of law that that's what the law is."

The defendant objected to the omission of that part of his requested instruction, which recited these five scientific principles, so we review for prejudicial error. See Commonwealth v. Cruz, 445 Mass. 589, 591, 839 N.E.2d 324 (2005).

The issue before us is not whether the judge had the discretion to give the proffered instruction, but whether he abused his discretion by refusing to do so. See Hyatt, 419 Mass. at 818-819 (no error in declining to instruct on cross-racial identification, but giving proposed instruction " may be appropriate in the judge's discretion" ). We conclude that, given the record before him, the judge did not abuse his discretion in denying the defendant's proposed jury instruction.

We have long recognized that " a principle concerning eyewitness identifications may become so generally accepted that, rather than have expert testimony on the point, a standard jury instruction stating that principle would be appropriate." Santoli, 424 Mass. at 845. See Hyatt, supra (" We recognize that, based on a trial record or on the published results of studies, or both, some new principle concerning the process of eyewitness identification may become sufficiently reliable so as to justify formulating a jury instruction that should be given in particular circumstances on request, in addition to those instructions that we identified in [ Rodriguez, 378 Mass. at 310-311,] and Commonwealth v. Pressley, 390 Mass. 617, 619-620, 457 N.E.2d 1119 [1983]" ). The defendant here did not provide the judge with any expert testimony, scholarly articles, or treatises that would reasonably have enabled the judge to determine whether the principles in the defendant's proposed instruction were " so generally accepted" that it would be appro-

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priate to instruct the jury regarding them.[17] Where the defendant failed to furnish such information, and where there was an instruction approved by this court that was not erroneous but, at worst, inadequate and incomplete, the [22 N.E.3d 905] judge did not abuse his discretion in denying the proffered instruction and charging the jury in accordance with the Rodriguez instruction. See Cruz, 445 Mass. at 595 n.4, 598, 600 (no error in judge's refusal to give jury instruction that " there is no proven relationship between a witness'[s] confidence in his identification and the accuracy of the witness'[s] identification" where defendant did not call expert witness and " there was no hearing or testimony regarding the reliability of these scientific studies or their general acceptance in scientific community" ); Hyatt, 419 Mass. at 818 (" The defendant points to no relevant empirical study that assessed the relative reliability of cross-racial and non-cross-racial identifications in confrontations of the sort involved here" ).

Although we conclude that the judge in this case did not abuse his discretion, and therefore affirm the defendant's convictions of mayhem and of breaking and entering a vehicle in the nighttime with intent to commit a felony, we take this opportunity to revisit our jurisprudence regarding eyewitness identification jury instructions in general and the Rodriguez instruction in particular. In Commonwealth v. Walker, 460 Mass. 590, 604 n.16, 953 N.E.2d 195 (2011), we recognized that " eyewitness identification is the greatest source of wrongful convictions but also an invaluable law enforcement tool in obtaining accurate convictions," and declared our intention to convene the Study Group to consider, among other matters, " whether existing model jury instructions provide adequate guidance to juries in evaluating eyewitness testimony." We noted that our creation of the Study Group reflected " our willingness to revisit our jurisprudence" regarding eyewitness identification evidence. Id. at 606. With the Study Group Report completed and the comments to that report received, it is now time to do what we declared we were willing to do with respect to eyewitness iden-

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tification jury instructions.[18]

2. Model jury instruction.

The Rodriguez instruction derives from the model set forth in United States v. Telfaire, 469 F.2d 552, 555, 152 U.S.App.D.C. 146 (D.C. Cir. 1972), which recognized the " special problems" with the reliability of eyewitness identifications and the need for an identification instruction that " emphasizes to the jury the need for finding that the circumstances of the identification are convincing beyond a reasonable doubt." See Rodriguez, 378 Mass. at 302. We adopted the Telfaire model " to assist a jury in evaluating the reliability of a positive identification of the defendant as the perpetrator of the crime by a witness." Commonwealth v. Franklin, 465 Mass. 895, 910, 992 N.E.2d 319 (2013). Over time, we have modified and supplemented it. See Commonwealth v. Cuffie, 414 Mass. 632, 640, 609 N.E.2d 437 (1993) (removing language that risked suggesting that witness's first sighting of offender was always accurate); Santoli, 424 Mass. at 845 (omitting language emphasizing " strength of the identification" ). See also Pressley, 390 Mass. at 620 (establishing supplemental instruction on " possibility of an honest but mistaken identification" ); Franklin, 465 Mass. at 912 (judge should provide, on request, identification instruction where eyewitness gave partial identification). At its core, though, the Rodriguez instruction delineates factors for the jury to consider [22 N.E.3d 906] when evaluating an eyewitness identification, such as (1) the opportunity the witness had to observe the offender; (2) the length of time between the crime and the identification; (3) the witness's prior familiarity with the offender; (4) the circumstances surrounding any identification procedure; (5) whether the identification procedure was a lineup or photographic array rather than a single-person showup; (7) whether the witness failed to make an identification or made an inconsistent identification before identifying the defendant; and (8) the credibility of the witness.[19] It focuses the jury on factors they [22 N.E.3d 907] " should consider" that may affect

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the accuracy of an eyewitness's positive identification of the

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defendant, and poses questions the jury should ask themselves. It generally does not instruct the jury as to how those factors may affect the accuracy of the identification.

The New Jersey model instruction, as earlier noted, goes well beyond the Rodriguez instruction by telling the jury what principles have emerged from the research regarding eyewitness identification. We now consider, first, what it means for a principle of eyewitness identification to be " so generally accepted" that it is appropriate to include in a model instruction, and, second, whether the five principles at issue in this case are " so generally accepted" that it is appropriate that they now be included in a revised model jury instruction.

a. " So generally accepted.

" The phrase " so generally accepted" sounds like the test in Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923), for the admissibility of expert testimony based on scientific knowledge, which asks " whether the community of scientists involved generally accepts the theory or process," Commonwealth v. Lanigan, 419 Mass. 15, 24, 641 N.E.2d 1342 (1994), quoting Commonwealth v. Curnin, 409 Mass. 218, 222, 565 N.E.2d 440 (1991), and which was once the exclusive test governing the admissibility of expert testimony. See Lanigan, supra at 25-26 (adopting standard in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 [1993], while maintaining Frye standard as alternative means to establish reliability of expert testimony). But satisfaction of the Frye test meant only that expert testimony would be admissible in evidence. It did not mean that the jury were required to accept the scientific principles that had gained general acceptance in the relevant scientific community. See Commonwealth v. Hinds, 450 Mass. 1, 12 n.7, 875 N.E.2d 488 (2007) (model instruction on expert testimony, stating, " it is completely up to [the jury] to decide whether [they] accept the testimony of an expert witness, including the opinions that the witness gave" ). In contrast, where a principle is included

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in a jury instruction, it becomes part of a judge's instructions of law, which the jury generally must accept. See Commonwealth v. Johnson, 441 Mass. 1, 7, 802 N.E.2d 1025 (2004); Commonwealth v. Watkins, 425 Mass. 830, 840, 683 N.E.2d 653 (1997) ( " We presume that a jury follow all instructions given to [them] ..." ). Therefore, the Frye test cannot define " so generally accepted" in this context; the standard for including a principle of eyewitness identification in a model jury instruction must be higher than a standard that would simply permit a judge to admit expert testimony.[20]

[22 N.E.3d 908] To determine when a principle of eyewitness identification is " so generally accepted" that it is appropriate to incorporate into a model instruction, we focus on the instruction's underlying purpose and the concerns it is intended to alleviate. The accuracy of an eyewitness identification is often the critical issue in a criminal case, the difference between a conviction and an acquittal. See State v. Cabagbag, 127 Haw. 302, 313, 277 P.3d 1027 (2012) (" Without appropriate instructions from the court, the jury may be left without sufficient guidance on how to assess critical testimony, sometimes the only testimony, that ties a defendant to an offense" ). We have long recognized that the mistaken eyewitness identification of a defendant whom the witness had never seen before the crime " is the primary cause of erroneous convictions, outstripping all other causes combined." Commonwealth v. Martin, 447 Mass. 274, 293, 850 N.E.2d 555

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(2006) (Cordy, J., dissenting).[21] See Franklin, 465 Mass. at 909; Irwin v. Commonwealth, 465 Mass. 834, 848-849, 992 N.E.2d 275 (2013); Commonwealth v. Francis, 390 Mass. 89, 100, 453 N.E.2d 1204 (1983).

Our jury instructions are intended to provide the jury with the guidance they need to capably evaluate the accuracy of an eyewitness identification. See Francis, 390 Mass. at 101 (" We permit, indeed require, the judge to instruct the jury concerning factors that bear on the reliability of eyewitness identification" ); [22 N.E.3d 909] Commonwealth v. Rodriguez, 6 Mass.App.Ct. 738, 742, 383 N.E.2d 851 (1978), S. C., 378 Mass. 296, 391 N.E.2d 889 (1979). If we were to define " so generally accepted" so narrowly that none of the scientific principles regarding eyewitness identification could survive the test, we would continue to use the Rodriguez instruction, which generally identifies factors a jury may consider in applying their common sense, and would require the results of the relevant research to be communicated to the jury solely through expert testimony, where such testimony is offered. The problem with this approach is that

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the research makes clear that common sense is not enough to accurately discern the reliable eyewitness identification from the unreliable, because many of the results of the research are not commonly known, and some are counterintuitive. See State v. Guilbert, 306 Conn. 218, 234-235, 49 A.3d 705 (2012) (there is " near perfect scientific consensus" that " eyewitness identifications are potentially unreliable in a variety of ways unknown to the average juror" ); Henderson, 208 N.J. at 274 (juror surveys and mock-jury studies " reveal generally that people do not intuitively understand all of the relevant scientific findings" ). See also Perry v. New Hampshire, 132 S.Ct. 716, 739, 181 L.Ed.2d 694 (2012) (Sotomayor, J., dissenting) (" Study after study demonstrates that eyewitness recollections are highly susceptible to distortion by postevent information or social cues; that jurors routinely overestimate the accuracy of eyewitness identifications; that jurors place the greatest weight on eyewitness confidence in assessing identifications even though confidence is a poor gauge of accuracy; and that suggestiveness can stem from sources beyond police-orchestrated procedures" [footnotes omitted]).[22] If the research regarding eyewitness identification could be communicated to the jury only through expert testimony, very few juries would hear it, because expert testimony is not often proffered in cases where eyewitness identification is at issue, and because the admission of expert testimony is left to the sound discretion of the trial judge. See Commonwealth v. Watson, 455 Mass. 246, 257, 915 N.E.2d 1052 (2009) (" [E]xpert testimony concerning the reliability of eyewitness identification is not admissible as of right, but is left to the discretion of the trial judge" ).

Having balanced the importance of instructing juries about the generally accepted principles that can inform their understanding of eyewitness identification with the risks of requiring them to accept principles that may still be suspect or in flux, we conclude that a principle is " so generally accepted" that it is appropriate to

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include in a model eyewitness identification instruction where there is a near consensus in the relevant scientific community adopting that principle. After reviewing the scholarly research, analyses by other courts, amici submissions, and the Study Group Report and comments, we conclude that there are various principles regarding eyewitness identification for which there is a near consensus in the relevant scientific [22 N.E.3d 910] community and that it is appropriate to revise the Rodriguez instruction to include them. See Study Group Report, supra at 17 (" The scientific studies have produced a consensus among experts about the ... variables that have been shown to affect the reliability of eyewitness identification" ). See also Guilbert, 306 Conn. at 234-236; Cabagbag, 127 Haw. at 310-311; State v. Lawson, 352 Or. 724, 740, 291 P.3d 673 (2012); State v. Clopten, 2009 UT 84, 223 P.3d 1103, 1108 (Utah 2009); Report of the Special Master, State vs. Henderson, N.J. Supreme Ct., No. A-8-08, at 14 (June 18, 2010), available at http://www.judiciary.state.nj.us/pressrel/henderson%20final%20brief%20.pdf%20%2800621142%29.pdf [http://perma.cc/EA3S-453F] (last visited Jan. 8, 2015) (Special Master's Report).[23],[24]

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We are not alone in concluding that certain scientific principles should be incorporated into a model jury instruction on eyewitness identification. New Jersey has done so most comprehensively, promulgating a ten-page model instruction after concluding that its previous model, which was similar to the Rodriguez instruction, see Henderson, 208 N.J. at 226-227, " overstate[d] the jury's inherent ability to evaluate evidence offered by eyewitnesses who honestly believe their testimony is accurate." Id. at 218, 298-299. See National Research Council of the National Academies, Identifying the Culprit: Assessing Eyewitness Identification 28 (2014) (publication pending) (National Academies) (" The New Jersey instructions adopted, following the Henderson decision, are by far the most detailed set of jury instructions regarding eyewitness identification evidence" ). Other States have also incorporated scientific principles of eyewitness identification into model jury instructions. See, e.g., Cabagbag, 127 Haw. at 314; Connecticut Criminal Jury Instruction 2.6-4 Identification of Defendant (2013), available at http://www.jud.ct.gov/ji/criminal/part2/2.6-4.htm [http://perma.cc/B9PS-DS8X] [22 N.E.3d 911] (last visited Jan. 8, 2015); 1-6 Maine Jury Instruction Manual § 6-22A (4th ed. 2012); Model Utah Jury Instructions, Second Edition, CR404 Eyewitness Identification (2014), available at http://www.utcourts.gov/resources/muji/index.asp?page=crim& view=all_crim [http://perma.cc/X9V3-2759] (last visited Jan. 8, 2015).

We recognize 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. Therefore, we acknowledge the possibility that, as the science evolves, we may need to revise our new model instruction's description of a principle.[25] We also recognize the possibility that a party may offer expert testimony at trial that properly may persuade a trial judge to depart from the model instruction. See Lawson, 352 Or. at 741 (" [A]cknowledgment of the existence of th[is] research ... is not intended to preclude any

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party in a specific case from validating scientific acceptance of further research or from challenging particular aspects of the research described in this opinion" ).

b. Five generally accepted principles regarding eyewitness identification.

We turn now to the five principles at issue in this case that we determine to have achieved a near consensus in the relevant scientific community and therefore are " so generally accepted" that it is appropriate that they now be included in a revised model jury instruction regarding eyewitness identification. We also summarize the research that informed our conclusions as to each generally accepted principle.[26]

i. Human memory does not function like a video recording but is a complex process that consists of three stages: acquisition, retention, and retrieval.

The central principle that has emerged from over 2,000 published studies over the past thirty years is that " memory does not function like a videotape, accurately and thoroughly capturing and reproducing a person, scene or event. ... Memory is, rather[,] a constructive, dynamic and selective process." Study Group Report, supra at 15, quoting Special Master's Report, supra at 9. See E.F. Loftus, J.M. Doyle, & J.E. Dysart, Eyewitness Testimony: Civil and Criminal § 2-2, at 14 (5th ed. 2013); Brigham, Wasserman, & Meissner, Disputed Eyewitness Identification Evidence: Important Legal and Scientific Issues, 36 Ct. Rev., no. 2, 1999, at 13. Rather, memories are made through a three-stage process: " acquisition -- 'the perception of the original event'; retention [or storage] -- 'the period of time that passes between the event and the eventual recollection of a particular piece of information'; and retrieval -- the 'stage during which a person recalls stored information.'" Study Group Report, supra at 16, quoting Henderson, 208 N.J. at 245.

ii. An eyewitness's expressed certainty in an identification, standing alone, may not indicate the accuracy of the identification, especially where the witness did not describe that level of certainty [22 N.E.3d 912] when the witness first made the identification.

We have long questioned the reliability of a witness's certainty as a

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reflection of accuracy. See Commonwealth v. Jones, 423 Mass. 99, 110 n.9, 666 N.E.2d 994 (1996); Santoli, 424 Mass. at 846 (" [T]here is significant doubt about whether there is any correlation between a witness's confidence in her identification and the accuracy of her recollection" ); Cruz, 445 Mass. at 597-600 (court stated it was prepared to consider in future whether weak confidence-accuracy relationship warrants instruction). Our doubts are now supported by the research. " [S]tudies show that, under most circumstances, witness confidence or certainty is not a good indicator of identification accuracy." Lawson, 352 Or. at 777 (Appendix). See Study Group Report, supra at 19.[27]

This does not mean that eyewitness certainty is never correlated with accuracy; it means simply that the existence and strength of the correlation depends on the circumstances. After viewing the crime but before the identification procedure, an eyewitness's expressed level of certainty does not correlate with accuracy. See Study Group Report, supra ; Henderson, 208 N.J. at 254 n.7.[28] Where an eyewitness makes a positive identification and expresses a level of certainty immediately after the identification procedure, there is some correlation between certainty and accuracy, but there is not yet a near consensus regarding the strength of that correlation.[29] There is, however, a near consensus in the research that, where an eyewitness during an identification

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procedure did not express certainty when first asked to make an identification, a subsequent claim of certainty by that witness deserves little weight in evaluating the accuracy of that identification. See Henderson, 208 N.J. at 254 (" Confirmatory feedback can distort memory. As a result, to the extent confidence may be relevant in certain circumstances, it must be recorded in the witness'[s] own words before any possible feedback" ); Lawson, 352 Or. at 745 (" Retrospective self-reports of certainty are highly susceptible to suggestive procedures [22 N.E.3d 913] and confirming feedback, a factor that further limits the utility of the certainty variable" ).[30], [31]

Although the research regarding the correlation (or lack of correlation) between eyewitness certainty and accuracy is complex and still evolving, it is necessary to inform a jury about this tenuous relationship because there is a near consensus that jurors tend to give more weight to a witness's certainty in evaluating the accuracy of an identification than is warranted by the research. See Commonwealth v. Collins, ante 255, 264 n.14 (2014), quoting Study Group Report, supra at 20 (" Studies show that eyewitness confidence is the single most influential factor in juror determinations regarding the accuracy of an eyewitness identification" ); Cabagbag, 127 Haw. at 311; Clopten, 223 P.3d at 1108

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(" Indeed, juries seemed to be swayed the most by the confidence of an eyewitness, even though such confidence correlates only weakly with accuracy" ).[32] Therefore, it is necessary to inform the jury that an eyewitness's expressed certainty in an identification, standing alone, may not indicate the accuracy of an identification, and that this is especially true where the witness did not describe that level of certainty when the witness first made an identification.

iii. High levels of stress can reduce an eyewitness's ability to make an accurate identification.

" [A]n eyewitness under high stress is less likely to make a reliable identification of the perpetrator." Special Master's Report, supra at 43. " [H]igh levels of stress significantly impair a witness's ability to recognize faces and encode details into memory." Lawson, 352 Or. at 769 (Appendix). There is " considerable support for the hypothesis that high levels of stress negatively impact both accuracy of eyewitness identification as well as accuracy of recall of crime-related details." Deffenbacher, [22 N.E.3d 914] Bornstein, Penrod, & McGorty, A Meta-Analytic Review of the Effects of High Stress on Eyewitness Memory, 28 Law & Hum. Behav. 687, 699 (2004) (Deffenbacher et al.). See Study Group Report, supra at 29 n.27, citing Deffenbacher et al., supra at 695 (thirty-nine per cent of participants under high-stress conditions correctly identified suspect in target-present lineups compared to fifty-nine per cent of participants under low-stress conditions).[33] This principle is counterintuitive to the " common misconception that faces seen in highly

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stressful situations can be 'burned into' a witness's memory." Lawson, 352 Or. at 770 (Appendix). See Morgan, Hazlett, Doran, Garrett, Hoyt, Thomas, Baranoski, & Southwick, Accuracy of Eyewitness Memory for Persons Encountered During Exposure to Highly Intense Stress, 27 Int'l J.L. & Psychiatry 265, 274 (2004) (rejecting " popular conception that most people would never forget the face of a clearly seen individual who had physically confronted them and threatened them" ). Therefore, it is important to inform the jury of this principle lest they evaluate an identification made under high stress based on the " common misconception."

iv. Information that is unrelated to the initial viewing of the event, which an eyewitness receives before or after making an identification, can influence the witness's later recollection of the memory or of the identification.

" An extensive body of studies demonstrates that the memories of witnesses for events and faces, and witnesses' confidence in their memories, are highly malleable and can readily be altered by information received by witnesses both before and after an identification procedure." Special Master's Report, supra at 30-31. See B.L. Garrett, Convicting the Innocent: Where Criminal Prosecutions Go Wrong 48-49 (2011) (reviewing trial records for 161 wrongful convictions involving eyewitness misidentification and finding that seventy-eight per cent involved police contamination of identification). This outside information, known as " feedback," affects witnesses' memory differently depending on whether the witness receives feedback before or after making an identification. See Study Group Report, supra at 21-22; Henderson, 208 N.J. at 253. " Jurors, however, tend to be unaware of ... how susceptible witness certainty is to manipulation by suggestive procedures or confirming feedback." Lawson, 352 Or. at 778 (Appendix).

Preidentification feedback may contaminate the witness's memory. For instance, suggestive wording and leading questions prior to participating in an identification procedure can influence the process of [22 N.E.3d 915] forming a memory. See Study Group Report, supra

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at 21; Lawson, 352 Or. at 786-788 (Appendix).[34] Postidentification feedback is information unrelated to the witness's actual memory that suggests to the witness that he or she correctly identified the suspect. See Study Group Report, supra at 22; Henderson, 208 N.J. at 255; Lawson, 352 Or. at 744. This confirmatory information may boost the witness's level of certainty without increasing the likelihood of an accurate identification. See Lawson, supra ; Special Master's Report, supra at 33 (" A number of studies have demonstrated that witnesses' confidence in their identifications, and their memories of events and faces, are readily tainted by information that they receive after the identification procedure" ).[35]

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Although police officers are common potential sources of feedback, feedback from cowitnesses and other private actors also can influence a witness's memory. " When a witness is permitted to discuss the event with other witnesses or views another witness's identification decision, the witness may alter his or her own memory or identification decision to conform to that of the cowitness." Lawson, 352 Or. at 788 (Appendix). See Henderson, 208 N.J. at 268-271.[36]

[22 N.E.3d 916] v. A prior viewing of a suspect at an identification procedure may reduce the reliability of a subsequent identification procedure in which the same suspect is shown.

A prior viewing of a suspect in an identification procedure raises doubts about the reliability of a subsequent identification procedure involving the same suspect. See Study Group Report, supra at 25, citing Special Master's Report, supra at 27-28. " [S]uccessive views of the same person can make it difficult to know whether the later identification stems from a memory of the original event or a memory of the earlier identification procedure." Henderson, 208 N.J. at 255. See Collins, supra at 262 n.9, citing Study Group Report, supra at 78-79 (" An eyewitness may recall the defendant's face, but not recall that the source of the eyewitness's memory was the defendant's presence in a pretrial lineup or photographic array rather than the defendant's presence at the scene of the crime" ); Commonwealth v. Scott, 408 Mass. 811, 826, 564 N.E.2d 370 (1990) (" danger of misidentification is increased if the photograph of the same individual is included in different arrays" ); Lawson 352 Or. at 784 (Appendix).

One form of this source memory problem is " mugshot exposure," where a witness's viewing of an innocent suspect's mugshot can heighten the chances of a later misidentification. See Study Group Report, supra at 25, citing Henderson, supra at 256. A meta-analysis of eleven published articles showed that " prior mugshot exposure decreases accuracy at a subsequent lineup,

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both in terms of reductions in rates for hits and correct rejections as well as in terms of increases in the rate for false alarms." Deffenbacher, Bornstein, & Penrod, Mugshot Exposure Effects: Retroactive Interference, Mugshot Commitment, Source Confusion, and Unconscious Transference, 30 Law & Hum. Behav. 287, 306 (2006). See id. at 299 (fifteen per cent of subject witnesses misidentified innocent person in lineup when seeing person for first time, while thirty-seven per cent of witnesses with mugshot exposure misidentified innocent person).[37]

c. Provisional model jury instruction.

After evaluating the scientific evidence and concluding that the aforementioned principles are so generally accepted that they may be stated in a model jury instruction, we propose in the Appendix to this opinion a new provisional jury instruction regarding eyewitness identification. We have made the jury instruction [22 N.E.3d 917] provisional to allow for public comment and possible future revision before we declare it a model, but it should be given, where appropriate, in trials that commence after issuance of this opinion until a model instruction is issued. We intend the new instruction to have no retroactive application. See Santoli, 424 Mass. at 845 (declining retroactively to apply new rule to omit " strength of the identification" language). See also Commonwealth v. Ashley, 427 Mass. 620, 628, 694 N.E.2d 862 (1998) (declining retroactively to apply Santoli ); Commonwealth v. Payne, 426 Mass. 692, 698, 690 N.E.2d 443 (1998) (same).

Our provisional instruction updates the Rodriguez instruction with principles relevant to the evaluation of eyewitness testimony for which there is at least a near consensus in the relevant scientific community. It will provide juries with more comprehensive guidance to evaluate and weigh eyewitness identifica-

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tions, but we recognize that not every principle regarding eyewitness identification that has attained a near consensus in the relevant scientific community is included; nor are the included principles set forth in great detail. We aspired in drafting the instruction for clarity, brevity, and balance, recognizing that an eyewitness identification instruction is only one of many instructions in a jury charge. We also understand that the longer the jury instruction, the greater the risk that it will implicitly communicate the message that all eyewitness identifications should be viewed as unreliable rather than simply evaluated with caution and care, so we have balanced this risk with the need to educate jurors.[38] See National Academies, supra at 29 (noting concern that " jury instructions cause jurors to become more suspicious of all eyewitness identification evidence" ). The provisional instruction is longer than the Rodriguez instruction, but it will be the rare case where the entirety of the instruction need be given, because a judge need only give the portions of the provisional instruction that are relevant to the eyewitness identification evidence involved in the case.

We expect that the new model instruction will provide at least one source of reliable information in cases where expert testimony is not offered. Jury instructions offer certain advantages over expert testimony: " they are focused and concise, authoritative (in that juries hear them from the trial judge, not a witness called by one side), and cost-free; they avoid possible confusion to jurors created by dueling experts; and they eliminate the risk of an expert invading the jury's role or opining on an eyewitness'[s]

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credibility." Henderson, 208 N.J. at 298. See United States v. Jones, 689 F.3d 12, 19 [22 N.E.3d 918] (1st Cir. 2012). But see Clopten, 223 P.3d at 1110 (research " has shown that a cautionary instruction does little to help a jury spot a mistaken identification" ).

Nevertheless, our provisional instruction is not intended in any way to preclude expert testimony regarding eyewitness identification or to discourage judges from exercising their discretion to permit such expert testimony. Cf. Clopten, supra at 1107 (" It was never the intent of this court to establish cautionary instructions as the sole means for educating juries about eyewitness fallibility" ). Expert testimony may be important to elaborate on the generally accepted principles in a model instruction and to explain how other variables relevant to the particular case can affect the accuracy of the identification. A judge also may allow an expert to challenge the generally accepted principles we incorporated, and, where the judge finds the expert's challenge to be persuasive, the judge may modify the model instruction accordingly. See part 2.a, supra.

Conclusion.

In the circumstances of this case, based on the record before him, the judge did not abuse his discretion in declining to give the New Jersey model jury instruction regarding eyewitness identification and instead giving the Rodriguez instruction. Therefore, we affirm the defendant's judgments of conviction of mayhem and breaking and entering a motor vehicle in the nighttime with intent to commit a felony. We remand the case to the Superior Court to vacate the defendant's judgment of conviction and sentence for assault and battery by means of a dangerous weapon as duplicative of the mayhem conviction. Because the sentence to be vacated was less than the sentence of mayhem, and was ordered to be served concurrent with that sentence, we do not order resentencing of the defendant.

So ordered.

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Appendix.[1]

One of the most important issues in this case is whether the defendant is the person who committed [or participated in the commission of] the crime[s]. The Commonwealth has the burden of proving beyond a reasonable doubt that this defendant was in fact the perpetrator of the crime[s] alleged in the indictment[s].

The identification of the defendant as the person who committed [or participated in the commission of] the crime[s] may be proved by direct evidence or circumstantial evidence, or by some combination of direct and circumstantial evidence, but it must be proved beyond a reasonable doubt. If you are not convinced beyond a reasonable doubt that the defendant is the person who committed [or participated in the commission of] the crime[s], you must find the defendant not guilty.

In evaluating eyewitness identification testimony, it is not essential that a witness be free from doubt as to the correctness of his or her identification of the defendant. However, you, the jury, must be satisfied beyond a reasonable doubt, based on all of the credible evidence, that this defendant is the person who committed [or participated in the commission of] the crime[s] before you may convict him/her.

As with any witness, you must determine the credibility of a witness identifying the defendant as the offender. If you conclude that the witness is not telling the truth regarding the person's identification, you shall disregard that testimony. If you conclude that the witness intended to tell [22 N.E.3d 919] the truth, you must also consider the possibility that the witness made a good faith error in identification. That is, you should consider whether the witness could be honestly mistaken in his or her identification of the defendant.

Human beings have the ability to recognize other people from past experiences and to identify them at a later time, but research has shown that people sometimes make mistakes in identification. That research has focused on the factors that may affect the accuracy of an identification, including the nature of human memory.

Research has shown that human memory is not like a video recording that a witness need only replay to remember what happened.[2] Memory is far more complex. The process of remembering consists of three stages: first, a person sees or otherwise acquires information about the original event; second, the person stores in the brain the information about the event for a period of time

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until, third, the person attempts to recall that stored information.[3] At each of these stages, memory can be affected by a variety of factors.[4]

Relying on some of the research that has been done in this area, I am going to list some specific factors you should consider in determining whether the identification testimony is accurate. By instructing you on the factors to consider, I am not expressing any opinion about the accuracy of any specific memory of any particular witness. You, the jury, must decide whether the witness's identification is accurate.

(1) The witness's opportunity to view the event. You should consider the opportunity the witness had to observe the offender at the time of the offense, how good a look the witness had of the offender, the [22 N.E.3d 920] degree of attention the witness was paying to the offender at that time, the distance between the witness and the offender, how good the lighting conditions were, and the length of time the witness had to observe the offender;

ADD ONLY IF RELEVANT TO THE EVIDENCE IN THE CASE:

[IF DISGUISE WAS INVOLVED OR FACE WAS OBSCURED] whether the offender was disguised or had his/her features obscured in some way; [5]

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[IF PERPETRATOR HAD DISTINCTIVE FACE OR FEATURE] whether the perpetrator had a distinctive face or feature; [6]

[IF A WEAPON WAS INVOLVED] and whether the witness saw a weapon during the event -- the visible presence of a weapon may reduce the reliability of an identification if the crime is of short duration, but the longer the event, the more time the witness has to adapt to the presence of the weapon.[7]

[22 N.E.3d 921] (2) Characteristics of the witness. You should also consider characteristics of the witness when the observation was made, such as the quality of the witness's eyesight, whether the witness knew the offender, and, if so, how well,[8] and whether the witness was under a high degree of stress -- high levels of stress,

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compared to low to medium levels, can reduce an eyewitness's ability to accurately perceive an event; [9]

ADD ONLY IF RELEVANT TO THE EVIDENCE IN THE CASE:

[IF DRUGS OR ALCOHOL WERE INVOLVED] whether the witness at the time of the observation was under the influence of alcohol or drugs, and if so, to what degree;

[IF WITNESS AND OFFENDER ARE OF DIFFERENT RACES] and whether the witness and the offender are of different races -- research has shown [22 N.E.3d 922] that people of all races may have greater difficulty in accurately identifying members of a different race than they do in identifying members of their own race.[10]

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(3) The time elapsed. You should consider how much time elapsed between the event observed and the identification. Generally, memory is most accurate right after the event and begins to fade thereafter.[11]

(4) Witness's expressed certainty. Research shows that a witness's expressed certainty in an identification, standing alone, may not be a reliable indicator of the accuracy of the identification,[12] especially where the witness did not describe that level of certainty when the witness first made the identification.[13]

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(5) Exposure to identification information from others. A person's memory may [22 N.E.3d 923] be affected by information the person received between the incident and the identification,[14] as well as after the identification,[15] and the person may not realize that his or her memory has been affected.[16] You may consider whether the witness was exposed to identifications made by other witnesses, to opinions or descriptions given by others, including police officers, or to any other information or influence.[17] Such exposure may affect the independence and reliability of a witness's identification, and may inflate the witness's confidence in the identification.[18]

[22 N.E.3d 924] An identification that is the product of some suggestive conduct by the police

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or others should be scrutinized with special caution and care. The risk that suggestion will affect the identification is greater where the witness did not get so good a look at the offender, because a witness who got a good look is less likely to be influenced by suggestion.[19]

ADD ONLY IF RELEVANT TO THE EVIDENCE IN THE CASE:

[IF THERE WAS A PHOTOGRAPHIC ARRAY OR LINEUP] An identification may occur as part of the police investigation through the showing of an array of photographs or through a lineup of individuals. You may take into account that any identification that was made by picking the defendant out of a group of similar individuals is generally more reliable than one which results from the presentation of the defendant alone to a witness.

You should consider whether the police in conducting the photographic array or lineup followed established or recommended procedures that are designed to diminish the risk of suggestiveness.[20] If there was evidence that any of those

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procedures were not followed, you should evaluate the identification with particular care and consider whether the failure to follow the procedure affected the reliability of the identification.

Where a witness identified the defendant in a photographic array [or in a lineup], you should consider the number of [22 N.E.3d 925] photographs in the array [or individuals in the lineup],[21] whether there was anything about the defendant's photograph [or the defendant's appearance in the lineup] that made him/her stand out from the others,[22] whether the person administering the photographic array [or lineup] did not know who was the suspect and therefore could not influence the witness's identification,[23] and whether anything was said to the witness that would suggest that the suspect was among the persons shown in the photographic array [or lineup], or that would suggest that the witness should identify the suspect.[24]

[IF THERE WAS A SHOWUP] An identification may occur as part of the

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police investigation through what is known as a showup, where a suspect is shown alone to a witness. An identification procedure in which a witness selects a person from a group of similar individuals in a [22 N.E.3d 926] photographic array or a lineup is generally less suggestive than a showup, which is to some degree inherently suggestive.[25] You should consider how long after the initial event the showup took place, as a fresh memory of an event that occurred only a few hours earlier may reduce the risks arising from the inherently suggestive nature of a showup.[26]

You should consider whether the police, in conducting the showup, followed established or recommended procedures that are designed to diminish the risk of suggestiveness. If any of those procedures were not followed, you should evaluate the identification with particular care and consider whether the failure to follow the procedure affected the reliability of the identification.

ADD ONLY IF RELEVANT TO THE EVIDENCE IN THE CASE:

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[IF THERE WERE MULTIPLE VIEWINGS BY THE SAME WITNESS] You should consider whether the witness viewed the defendant in multiple identification procedures or events. When a witness views the same person in more than one identification procedure or event, it may be difficult to know whether a later identification comes from the witness's memory of the actual, original event, or from the witness's observation of the person at an earlier identification procedure or event.[27]

[22 N.E.3d 927] (6) Failure to identify or inconsistent identification. You may take into account whether a witness ever tried and failed to make an identification of the defendant, or made an identification that was inconsistent with the identification that such witness made at trial.

(7) Totality of the evidence. You should consider all the relevant factors that I have discussed, viewed in the context of the totality of the evidence in this case, in evaluating the accuracy of a witness's identification testimony. Specifically, you should consider whether there was other evidence in the case, direct or circumstantial, that tends to support or not to support the accuracy of an identification. If you are not convinced beyond a reasonable doubt that the defendant was the person who committed [or participated in the commission of] the crime[s], you must find the defendant not guilty.


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