āThere is almost nothing more convincingā¦than a live human being who takes the stand, points a finger at the defendant, and says āThatās the one!āā So says Justice Brennan in his Watkins v. Souder dissent.
Heās absolutely right. And itās a point that I emphasize to any client who is considering trial.
I tell the client that his chance of being acquitted may vanish if the alleged victim takes the stand, convincingly tells the court that she witnessed the crime firsthand, and then points him out as the culprit.
Thankfully, there are procedural safeguards in place to ensure that a defendant is not completely caught off guard by such an identification.
First, if an out-of-court identification took placeāwhether it was a line-up, a show-up, a photo array, etc.āprosecutors must provide the defendant with
a summary of identification procedures, and all statements made in the presence of or by an identifying witness that are relevant to the issue of identity or to the fairness or accuracy of the identification procedures.
Mass. R. Crim. P. 14 (a) (1) (A) (viii)
This is part of the mandatory pretrial discovery that prosecutors must provide to the defendant or his counsel.
When there was no out-of-court identification, a witness can identify the defendant in court only for āgood reason.ā
According to the Supreme Judicial Court
Where an eyewitness has not participated before trial in an identification procedure, we shall treat the in-court identification as an in-court showup, and shall admit it in evidence only where there is “good reason” for its admission.
Commonwealth v. Crayton, 470 Mass. 228, 241 (2014).
This rule applies
Only to in-court identifications of the defendant by eyewitnesses who were present during the commission of the crime.
Id. at 242.
So what, in the courtās opinions, constitutes āgood reasonā?
there may be “good reason”for the first identification procedure to be an in-court showup where the eyewitness was familiar with the defendant before the commission of the crime, such as where a victim testifies to a crime of domestic violence.
Id.
Additionally,
“Good reason” might also exist where the witness is an arresting officer who was also an eyewitness to the commission of the crime, and the identification merely confirms that the defendant is the person who was arrested for the charged crime.
Id.
These examples suggest that āgood reasonā for a first-time, in-court identification exists when the witness is simply confirming the identity of someone (i.e., the defendant) who is already known to the witness.
The burden is on the prosecutor to notify both the court and the defendant of the likelihood of such an in-court identification.
we place the burden on the prosecutor to move in limine to admit the in-court identification of the defendant by a witness where there has been no out-of-court identification. Once the motion is filed, the defendant would continue to bear the burden of showing that the in-court identification would be unnecessarily suggestive and that there is not “good reason” for it.