By Ken Wallentine
Commonwealth v. Thomas, 2017 WL 581933 (Mass. 2017)
Thomas was a backseat passenger in a car driven by Humphrey-Frazer. Johnson was the front seat passenger. Thomas saw a person in a crowd standing in front of a house and he fired his gun toward the person. Someone returned fire and struck Humphrey-Frazer in the head, killing him.
Detectives interviewed Johnson the night of the fatal shooting. They showed her a computer screen that simultaneously displayed photos of 11 people. The detectives asked Johnson to look at the photos and tell them whether she recognized anyone. The procedure was not recorded. Johnson pointed to Thomas, who was later arrested.
Thomas asked the court to suppress the photo lineup evidence, arguing that the detectives did not follow the eyewitness identification procedures outlined in Commonwealth v. Silva-Santiago (906 N.E.2d 299 (Mass. 2009)). In Silva-Santiago, the court prescribed sequential, rather than simultaneous, presentation of lineup photos and outlined the following witness instruction for photo lineups:
• The eyewitness will be asked to view a set of photographs
• The alleged wrongdoer may or may not be in the photographs depicted in the array
• It is just as important to clear a person from suspicion as to identify a person as the alleged wrongdoer
• The persons in the photographs may not appear exactly as they did on the date of the incident because features such as weight and head and facial hair are subject to change
• The investigation will continue regardless of whether an identification is made
• The lineup the administrator should ask the eyewitness for a statement of confidence of any identification
This was the first case asking the court to invalidate an eyewitness identification as the sanction for failure to follow the procedure prescribed in Silva-Santiago. The court allowed Johnson’s identification of Thomas from the simultaneous photo array. Despite the failure to administer the cautions outlined by the court in its prior rulings, the court held that the procedure in this case was not unduly suggestive.
The court also cited research studies published since its 2004 decision in Silva-Santiago. Those studies, the court said, cast doubt on the view that sequential presentation of photographs is superior to simultaneous presentation: “What is not clear from the studies is whether, and in what circumstances, the use of the protocol in a simultaneous photographic lineup diminishes the risk of false positive identification to a rate comparable to or less than that in a sequential lineup. We cannot determine whether a sequential display is superior to a simultaneous display and that the use of the latter is unnecessarily suggestive until we learn, at a minimum, whether the rate of false positive identification with the use of the protocol is significantly higher in simultaneous displays than in sequential displays.”
The court’s opinion concurs with the New Jersey Supreme Court, which held that, “for now, there is insufficient authoritative evidence accepted by scientific experts for a court to make a finding in favor of either [simultaneous or sequential lineup] procedure” (State v. Henderson, 27 A.3d 872 (N.J. 2011)). More recently, the National Academy of Sciences observed that “the relative superiority of competing [simultaneous versus sequential] identification procedures … is unresolved.”
Until the science is settled, Lexipol’s best practice policy prefers sequential over simultaneous to avoid arguments such as the ones made in this case. Lexipol also recommends blind administration; the person presenting the lineup should not be involved in the investigation of the case or know the identity of the suspect. In addition, the policy prescribes recording the eyewitness identification procedure and administering important instructions to the witness prior to beginning the procedure. These cautionary instructions include:
• An instruction to the witness that it is as important to exclude innocent persons as it is to identify a perpetrator.
• An instruction to the witness that the perpetrator may or may not be among those presented and that the witness is not obligated to make an identification.
• If the identification process is a photographic or live lineup, an instruction to the witness that the perpetrator may not appear exactly as he/she did on the date of the incident.
• An instruction to the witness that the investigation will continue regardless of whether an identification is made by the witness.
• A signature line where the witness acknowledges that he/she understands the identification procedures and instructions.
• A statement from the witness in the witness’s own words describing how certain he/she is of the identification or non-identification. This statement should be taken at the time of the identification procedure.
Although the court upheld the admission of the eyewitness identification in this case, it reminded officers of its authority to govern admission of evidence and reiterated that courts assessing the weight of the eyewitness identification evidence will still scrutinize the steps taken by officers to prevent a suggestive identification procedure.
CHIEF KEN WALLENTINE is a Special Agent who directs the Utah Attorney General Training Center, overseeing use of force training and investigation and cold case homicide investigations. He is also a consultant and Senior Legal Advisor for Lexipol. Ken formerly served as Chief of Law Enforcement for the Utah Attorney General, serving over three decades in public safety before a brief retirement. He also serves as the Chairman of the Peace Officer Merit Commission of Greater Salt Lake County.