High Court Outlines New Showup Procedures

The John Adams Courthouse in Downtown Boston houses the Supreme Judicial Court.

Police officers are required to give specific instructions to witnesses before they attempt to identify a suspect during the immediate aftermath of an alleged crime, according to a high court decision outlining the new protocol.

The Supreme Judicial Court, siding with an argument made by Committee for Public Counsel Services attorneys, expanded a prior ruling that required officers to provide instructions to witnesses prior to using photographic arrays.

“We conclude that it is prudent, going forward, to require that police provide witnesses with an instruction prior to a showup identification,” wrote Justice Frank Gaziano, in the Nov. 13 unanimous decision.

The SJC now mandates that, before having a witness participate in a showup identification, police officers will now be required to give the following instructions:

You are going to be asked to view a person; the alleged wrongdoer may or may not be the person you are about to view; it is just as important to clear an innocent person from suspicion as it is to identify the wrongdoer; regardless of whether you identify someone, we will continue to investigate; if you identify someone, I will ask you to state, in your own words, how certain you are.

If an officer fails to give a witness the instructions prior to the showup identification, judges can render the identification inadmissible. If it is found to be admissible, if can affect what instructions the judge can give the jury about how they should evaluate the accuracy of the identification.

The reason for the instruction is that one-on-one showup identifications have been shown to be inherently suggestive. Patrick Levin, a staff attorney for CPCS, cited empirical research and precedent in his brief to the SJC.

“This Court has held that one-on-one showups, though suggestive, are not unnecessarily suggestive if police had good reason to use that procedure,” Levin wrote. “However, because of their inherent suggestiveness and unreliability, it is vital for police to follow best practices in conducting them.”

The New England Innocence Project, the Innocence Project and the Massachusetts Association of Criminal Defense Lawyers supported CPCS’s position in an amicus brief and argued against the issues with showup identifications.

“While the utility of showups is often described in terms of their immediacy – allowing police to obtain an identification while an event is still fresh in the mind of the witness – research shows
that identifications from showups typically are less reliable than lineups even when showups are conducted in the immediate aftermath of a crime and the lineup is conducted after a delay,” the amicus brief states.

While the SJC announced a new protocol, it declined to reverse the motion judge’s denial of a motion to dismiss based on the procedure used in the showup identification in this case.