Massachusetts Supreme Judicial Court Suppresses Defendant’s Identification, Even When Police Committed no Wrongdoing

The Massachusetts Supreme Judicial Court today agreed a superior court judge had properly suppressed the out-of-court identification of the defendant as unduly suggestive, even where the police were not involved in the identification procedure.  The name of the case is Commonwealth v. Johnson. 

In September of 2012, the victim returned to his Brockton apartment to find a man armed with a gun inside.  The victim confronted the intruder and the gun fired during the struggle (the bullet did not strike anybody).  The intruder then fled the scene and the victim called the police, providing a vague description of the suspect.  The victim was not able to identify the defendant as the intruder at that time.  However, he soon learned his cousin’s Roxbury apartment had been burglarized the day before the break-in at his apartment.  A security camera captured the Roxbury crime and the victim’s cousin believed the defendant “could possibly be” the person breaking into his apartment.  The defendant was dating a family member of the victim and his cousin.  The cousin provided a copy of the surveillance footage to the victim, who identified the defendant as being the man who had broken into his apartment.  The victim contacted the police, who assembled a photo array including the defendant for the victim to view.  The victim identified the defendant from the array.  The defendant was indicted and charged with several crimes including armed assault in a dwelling and breaking and entering.

The defendant filed a motion to suppress his out-of-court identification and a superior court judge held a hearing at which two of the investigating police officers testified.  The judge found the police did not violate the defendant’s constitutional rights in administering the photo array, but concluded the victim’s identification of the defendant must be suppressed under “common-law principles of fairness,” as the identification was impermissibly tainted by suggestive circumstances.  The Commonwealth appealed the judge’s allowance of the defendant’s motion to suppress and the Supreme Judicial Court affirmed.

When police officers are administering an identification procedure, they must ensure the process itself is not unnecessarily suggestive.  If a judge rules the police did employ an unnecessarily suggestive identification procedure, the out-of-court identification will not be admissible in court in Massachusetts (some states and the federal system allow the admission of the tainted identification if the government can still prove the identification was reliable under the totality of the circumstances, but Massachusetts has a per-se exclusion rule).  Suppression of such evidence is intended, in part, to discourage police officers from engaging in unnecessarily suggestive identification procedures.  Why, then, will tainted identifications be suppressed when the police had nothing to do with them?  After all, suppressing these identifications will not have a deterrent effect on rogue cops.  However, trial judges still have a gate-keeping role in determining that evidence admitted against a criminal defendant has probative value.  If the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, the judge has the authority to exclude the evidence from admission at trial.

In this case, the SJC agreed with the trial judge that the manner in which the victim identified the defendant was so unnecessarily suggestive that it outweighed any potential probative value.  Accordingly, the Commonwealth will be required to prove its case without the benefit of the victim’s out-of-court identification of the defendant.

The SJC has issued a number of recent decisions that limit the Commonwealth’s ability to admit identifications that resulted from suggestive identification procedures.  It’s important that any defendant facing criminal charges based on an identification procedure immediately meet with a defense attorney to determine whether it would be appropriate to file a motion to suppress.