October 8th, 2013

In late summer, the Massachusetts Supreme Judicial Court’s Study Group on Eyewitness Evidence released its report and recommendations to the justices. The long-awaited report includes five progressive recommendations to the SJC for improving eyewitness identification procedures and evidence. As recent research has indicated, eyewitness misidentification plays a role in approximately 79% of wrongful convictions, making this report a vital step forward as we work to prevent these convictions from occurring.

NEIP has contributed to the report over the last two years by collecting, collating, and analyzing every eyewitness identification policy from each city and town police department in Massachusetts that had one. NEIP gave this data to Norwood Police Chief Bill Brooks who sat on the Study Group and the Police Practices Subcommittee.

The mission of the Study Group and goal of the report was to “offer guidance as to how our courts can most effectively deter unnecessarily suggestive identification procedures and minimize the risk of wrongful conviction.” Made up of judges, prosecutors, defenders, law enforcement, and academics, the Study Group formed three subcommittees to examine police practices, pretrial hearings, and jury instructions.

The five recommendations provide an important way to minimize inaccurate identifications from investigative stages to trial proceedings:

Recommendation 1: Acknowledge Variables Affecting Identification Accuracy

The Study Group recommended that the SJC take judicial notice of legislative facts concerning the impact on accuracy of certain variables present in any identification. The report recommends that the SJC take notice of the important principles of modern psychology outlined in order to fully implement the other four recommendations. The study group argues that psychological research strongly indicates that stress, presence of a weapon, and certain poor police practices during investigation can, alongside other variables, contribute to misidentifications.

Recommendation 2: Develop a Model Policy and Implement Best Practices for Police Departments

The practices of police investigators in the early stages of eyewitness identification present the most easily controlled variables. The report recommends that all police departments across Massachusetts adopt a policy that is consistent with identified best practices and provides a model policy that departments can use. In addition, the study group stresses that police departments and the Commonwealth must commit to training officers in the new procedures. Finally, if there is a “substantial failure” to conduct the eyewitness identification procedure in accordance with the nine specific best practices laid out in the report, the group recommends that that failure trigger a pre-trial hearing to determine what, if any, remedy should be available to the defense up to and including suppression of the tainted identification.

Recommendation 3: Pre-Trial Hearings