Commonwealth v. Gomes: The SJC’s New Jury Instruction on Eyewitness Identification Attempts to Protect Defendants While Recognizing the Ever-Changing Nature of Scientific Evidence

On January 12, 2015 the Supreme Judicial Court (“SJC”) issued an opinion in Commonwealth v. Gomes holding that from now on juries must be instructed on scientific principles regarding eyewitness identification, and drafted a provisional jury instruction for judges to give until an official model instruction is developed. The decision is not retroactive, and did not apply to Gomes’s case itself. The case followed closely after two other SJC cases highlighting the fallibility of eyewitness identification.

The provisional jury instruction requires jurors to be told of five “generally accepted” scientific principles about eyewitness identification, based on a report issued by the SJC’s Study Group on Eyewitness Evidence:

Human memory does not function like a recording, but is instead a complex, multi-stage process.
An eyewitness’s expressed certainty about the identification may not indicate the identification is accurate, particularly if the witness previously expressed less certainty
Stress can negatively impact a witness’s ability to make an accurate eyewitness identification
Information that witnesses receive before or after making an identification can influence the witness’s memory and recollection of the identification
Prior viewing of the same suspect in identification procedures may reduce the reliability of the later identification of that suspect

ZDB of-counsel attorney Elizabeth Lunt told the Boston Globe that jurors misunderstanding the accuracy of eyewitness identification has been a problem “for years and years,” and that this decision will help jurors understand the scientific principles at hand.

The case is interesting because it follows other state supreme courts in attempting to transform scientific evidence into principles of law by incorporating them into jury instructions. The SJC took the additional unusual step for an appellate court of making factual findings in its opinion as to what principles of eyewitness identification are so generally accepted as to form the basis of the jury instruction. The SJC had foreshadowed this possibility in previous cases, including Commonwealth v. Santoli, 424 Mass. 837 (1997). In Santoli the defendant argued that expert testimony on the reliability of eyewitness testimony should be admissible as of right, rather than at the discretion of the judge. The SJC disagreed, noting, in fact, that at the time “the weight of authority was against the admission of expert testimony of the sort involved here.” 424 Mass. at 841. The SJC nonetheless stated: “we recognize that a principle concerning eyewitness identifications may become so generally accepted that, rather than have expert testimony on the point, a standard jury instruction stating that principle would be appropriate.” 424 Mass. at 845. Apparently that time has arrived.

It is certainly a strange posture for the Commonwealth’s highest appellate court to make factual findings and then to incorporate scientific evidence into jury instructions – which are by definition instructions of law. Generally it is the province of juries to make determinations about fact, and until now juries had decided how much weight to give eyewitness testimony based on their own lay observations of the witnesses, since expert witnesses on this subject were rarely permitted to be used. The SJC has now provided to the jury by fiat a baseline of scientific conclusions about eyewitness testimony for the jury to use in assessing the witnesses in the case at hand, supplanting expert testimony with an even more authoritative vehicle for conveying the same factual information: “[W]here a principle is included in a jury instruction, it becomes part of a judge’s instructions of law, which the jury generally must accept.” Slip. Op. at 19-20. The court determined that it is so vital that juries know of the scientific conclusions regarding eyewitness testimony, that it could not be left to the defense and judges to decide whether to offer or accept expert testimony on the matter.

The SJC’s decision tries to strike a balance between requiring jurors to accept the scientific facts underlying the instruction, and recognizing that scientific principles are subject to refinement and even challenge as science develops. It does so by continuing to allow for expert testimony on the subject of eyewitness identification, even testimony that refutes the scientific principles the SJC has just found to be nearly conclusive. After explaining the necessity of having a jury instruction requiring the jury to accept as a matter of law the scientific principles regarding the flaws in eyewitness testimony, the Court goes on to say that parties may still offer expert testimony at trial “that properly may persuade a trial judge to depart from the model instruction.” Slip. Op. at 28.

By creating a default wherein juries are given the model instruction, the SJC protects those defendants who lack the funds to present expert evidence, whose attorneys fail to realize the necessity of such evidence, or whose presiding judges disallow such evidence. As it notes:

Jury instructions offer certain advantages over expert testimony: “they are focused and concise, authoritative (in that juries hear from the trial judge, not a witness called by one side), and cost-free; they avoid possible confusion to jurors created by dueling experts; and they eliminate the risk of an expert invading the jury’s role or opining on an eyewitness’[s] credibility.”

Slip. Op. at 43, quoting State v. Henderson, 208 N.J. 208, 298 (2011).

However, the Court recognizes that the existing scientific evidence might be displaced by newer evidence, and its continued allowance for expert testimony provides the flexibility that is necessary when dealing with this type of ever-evolving material. What the opinion does is provide an end-run around the long line of cases, noted in Santoli, holding that expert testimony on eyewitness identification is generally disfavored in most cases, now creating a default providing juries with such information, in the form of an authoritative jury instruction rather than expert evidence.

The SJC’s provisional jury instruction is not final. The Court has invited public comment on the provisional instruction before a final model instruction is promulgated. It remains to be seen how defaulting to providing juries with scientific information about eyewitness testimony will alter the course of trials, and how expert testimony on the topic will or will not continue to be used.