Massachusetts Supreme Judicial Court Changes Rules for Showup Identification Procedures

In affirming a man’s armed robbery conviction, the Massachusetts Supreme Judicial Court announced a new rule related to showup identifications.  The name of the case is Commonwealth v. German.

On a June night in 2015, a Lawrence restaurant was closing.  The manager and three of her waitresses were leaving the building when a man, later identified as the defendant, appeared with a gun and demanded the women “give [him] everything.”  One woman, who was holding a cell phone, a laptop, and her purse, tossed the items toward the defendant, while her friend ran around the corner and called 911.  Meanwhile, a taxi arrived to pick up one of the other waitresses.  When a group of men began yelling at the defendant from a nearby rooftop, he fired his gun in their direction and fled the area.  The taxi driver circled back toward the restaurant and the defendant, who was walking on the street, shot at the witnesses twice.  The police arrived within minutes and began searching the area for the defendant.  The victims had provided the vague description of a Hispanic man wearing a black hooded jacket.  One of the responding officers found the defendant (who was the only person outside in the area of the restaurant) taking off his jacket.  The defendant tried to run away, but he was quickly apprehended and the cops found a .45 caliber bullet in his pants.  The defendant said, “it wasn’t me, it was the other guy.”  The cops decided to conduct a showup identification of the defendant, which involves bringing a witness to look at the person in custody to either confirm or deny he was the person who committed the crime.  In Massachusetts, showup identifications are constantly criticized by the appellate courts as being inherently suggestive, but those same appellate courts almost never throw out the identifications.  In this case, the cops told two of the restaurant workers they would be brought to the defendant one at a time for the identification procedure.  The women objected, saying they would be too afraid to go alone.  Therefore, the cops brought them together, in the same cruiser, to see the defendant (who was handcuffed and in the presence of several officers).  The women identified the defendant simultaneously and he was arrested and ultimately convicted by an Essex Superior Court jury of armed robbery; assault with a dangerous weapon; and carrying a firearm without a license.

The defendant appealed, arguing that his motion to suppress his identification, which was allowed by the trial court, should have been allowed.  The Supreme Judicial Court again pointed out that showup identifications are disfavored because they are inherently suggestive, but as usual declined to reverse the trial court.  Under Massachusetts law, an unnecessarily suggestive identification procedure that is conducive to a mistaken identification is per se excluded.  The Court found the showup ID was necessary here because of the seriousness of the crime and the need for prompt police investigation (which is the typical rationale of appellate courts that uphold showup IDs).  It was also improper to allow the two women to identify the defendant together, because there is a risk that an incorrect identification by one of the women could cause an incorrect identification by the second woman.  However, the SJC found this case presented “extraordinary circumstances” involving a “difficult investigative problem” because there were two reluctant witnesses who had been scared by a violent crime.  Therefore, allowing the two witnesses to identify the defendant at the same time was acceptable.

The Court did announce a rule that going forward, cops will be required to provide a set of instructions to a witness before she attempts to identify a suspect.  The witness will be told: the person being viewed may or may not be the person who committed the crime; it is equally important to clear an innocent person from suspicion as to identify the suspect; and the cops will continue to investigate the case whether an identification is made or not.  If the cops fail to provide this instruction, a judge will be more likely to suppress the identification.