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SJC-11537

COMMONWEALTH vs. JEREMY D. GOMES.

Berkshire. September 2, 2014. - January 12, 2015.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & 

Hines, JJ.

Identification. Evidence, Identification. Practice, Criminal, 

Request for jury instructions, Instructions to jury.

Indictments found and returned in the Superior Court 

Department on October 24, 2011.

The cases were tried before by John A. Agostini, J.

The Supreme Judicial Court granted an application for 

direct appellate review.

John Fennel, Committee for Public Counsel Services, for the 

defendant.

John Bossé, Assistant District Attorney, for the 

Commonwealth.

The following submitted briefs for amici curiae:

Daniel F. Conley, District Attorney, & Cailin M. Campbell, 

Assistant District Attorney, for District Attorney for the 

Suffolk District.

Lisa J. Steele for Massachusetts Association of Criminal 

Defense Lawyers.

David W. Ogden, Daniel S. Volchok, Francesco Valentini, &

Nathalie F.P. Gilfoyle, of the District of Columbia, & John C. 

Polley for American Psychological Association & another.
2

M. Chris Fabricant & Karen Newirth, of New York, Joshua D. 

Rogaczewski & Johnny H. Walker, of the District of Columbia, & 

Kevin M. Bolan for the Innocence Network.

GANTS, C.J. In the early morning of September 10, 2011, 

the defendant slashed the face of the victim, Zachary Sevigny, 

with a box cutter while the victim was sitting in the driver's 

seat of his vehicle. A Superior Court jury found the defendant 

guilty of mayhem, in violation of G. L. c. 265, § 14; assault 

and battery by means of a dangerous weapon, in violation of 

G. L. c. 265, § 15A (b); and breaking and entering a vehicle in 

the nighttime with the intent to commit a felony, in violation 

of G. L. c. 266, § 16.1 On appeal, the defendant claims that the 

judge erred by giving the model jury instruction regarding 

eyewitness identification that we adopted in Commonwealth v. 

Rodriguez, 378 Mass. 296, 310-311 (Appendix) (1979), rather than 

the instruction he requested, which would have informed the jury 

about various scientific principles regarding eyewitness 

identification. We conclude that the judge did not err by 

declining to instruct the jury about these principles where the 

defendant offered no expert testimony, scholarly articles, or 

treatises that established that these principles were "so 

 

1 The judge sentenced the defendant to concurrent State 

prison terms of from eight to twelve years on the mayhem 

conviction, from seven to ten years on the conviction of assault 

and battery by means of a dangerous weapon, and from three to 

five years for breaking and entering a vehicle in the nighttime 

with intent to commit a felony.
3

generally accepted that . . . a standard jury instruction 

stating [those principles] would be appropriate." Commonwealth

v. Santoli, 424 Mass. 837, 845 (1997), citing Commonwealth v. 

Hyatt, 419 Mass. 815, 818-819 (1995). Therefore, we affirm the 

convictions of mayhem and of breaking and entering.2

However, now that we have the benefit of the Report and 

Recommendations of the Supreme Judicial Court Study Group on 

Eyewitness Evidence (Study Group Report),

3 and the comments in 

 

2 We vacate the defendant's conviction and sentence on the 

charge of assault and battery by means of a dangerous weapon. 

The defendant contends on appeal that his convictions of mayhem 

and for assault and battery by means of a dangerous weapon were 

based on the same conduct, the defendant's slashing of the 

victim's face, and that the convictions are duplicative because 

assault and battery by means of a dangerous weapon is a lesser 

included offense of the theory of mayhem presented to the jury. 

The Commonwealth agrees that the convictions are duplicative, 

and so do we. "A crime is a lesser-included offense of another 

crime if each of its elements is also an element of the other

crime." Commonwealth v. Martin, 425 Mass. 718, 722 (1997), 

quoting Commonwealth v. Perry, 391 Mass. 808, 813 (1984). 

"Mayhem (second theory) is essentially an assault and battery by 

means of a dangerous weapon, with the additional aggravating 

factors of a specific intent to maim or disfigure, and certain 

forms of resultant physical injury. Therefore, the latter is a 

lesser included offense of the former." Martin, supra. See 

Commonwealth v. Ogden O., 448 Mass. 798, 808 (2007). "The 

appropriate remedy for the imposition of duplicative convictions 

is to vacate both the conviction and sentence on the lesser 

included offense, and to affirm the conviction on the more 

serious offense." Commonwealth v. Mello, 420 Mass. 375, 398 

(1995).

3 See Supreme Judicial Court Study Group on Eyewitness 

Evidence: Report and Recommendations to the Justices (July 25, 

2013) (Study Group Report), available at 

http://www.mass.gov/courts/docs/sjc/docs/eyewitness-evidence-
4

response to it,

4 we conclude that there are scientific principles 

regarding eyewitness identification that are "so generally 

accepted" that it is appropriate in the future to instruct 

juries regarding these principles so that they may apply the 

principles in their evaluation of eyewitness identification 

evidence. We include as an Appendix to this opinion a 

provisional jury instruction regarding eyewitness identification 

evidence, and we invite comments regarding its content and 

clarity before we declare it a model instruction.5 This 

provisional instruction should be given, where appropriate, in 

trials that commence after issuance of this opinion until a 

model instruction is issued.

Background. At approximately 1:30 A.M. on September 10, 

2011, the defendant, who appeared intoxicated, walked into a 

gasoline station convenience store in Pittsfield, bumped into a 

customer, Lindsay Holtzman, and asked the employee who was 

working the cash register, Jordan Wilson, for a box of matches. 

 

report-2013.pdf [http://perma.cc/WY4M-YNZN] (last visited Jan. 

8, 2015).

4 The comments in response to the Study Group Report can be 

found at http://www.mass.gov/courts/docs/sjc/docs/eyewitnessevidence-report-comments.pdf [http://perma.cc/UF62-STVZ] (last 

visited Jan. 8, 2015).

5 We acknowledge the amicus briefs submitted by the 

Innocence Network; the American Psychological Association and 

the Center for Law, Brain & Behavior; the District Attorney for 

the Suffolk District; and the Massachusetts Association of 

Criminal Defense Lawyers.
5

Wilson asked the defendant to apologize to Holtzman. In 

response, the defendant cursed and stared at Wilson, and 

challenged him to a fight. Wilson laughed and gave the 

defendant a box of matches. The defendant left the store, but 

continued to yell at Wilson to meet him outside to fight.

When the defendant left the store, the victim and his 

friend, Gerald Mortensen, were sitting in the victim's 

automobile, parked in a well-lit portion of the store's parking 

lot, approximately ten to fifteen feet from the front door of 

the store. The victim was in the driver's seat with the window 

down. After the victim and the defendant made eye contact, the

defendant approached the vehicle and said to the victim, "What 

the fuck are you looking at, tough guy?" The victim responded, 

"I'm not looking at anything." The defendant then pulled a box 

cutter from his back pocket, reached inside the vehicle with his

left arm, and slashed the victim with the blade behind the 

victim's ear and down his face.

Mortensen, who was sitting on the passenger's side, ran 

inside the store, said that his friend had been cut, and told a 

store clerk to call for help. Mortensen and Holtzman then left 

the store and watched as the defendant walked backwards toward a 

corner of the parking lot, still staring at the victim. The 

victim was taken to a hospital where he received approximately 

thirty stitches.
6

On September 15, Wilson went to the Pittsfield police 

station to meet with Detective Timothy Koenig. Wilson said that 

he had seen the person who injured the victim before and could 

identify him. Detective Koenig created a pool of 975 archived 

photographs that fit Wilson's description of the person. Wilson 

used a computer, which displayed twelve photographs per page, to 

look through the pool. He eventually selected the defendant's 

photograph. When he made the identification, he reported that 

he was "110 per cent positive."

Detective Koenig then created a simultaneous array 

containing eight photographs, one of which depicted the 

defendant, and presented the array that same day to Mortensen 

and the victim separately.

6 Mortensen stated that none of the 

 

6 Before presenting the array to both Gerald Mortensen and 

the victim, Detective Timothy Koenig read nine advisements to 

the witnesses: (1) "I am going to show you a group of photos 

that are in random order"; (2) "[t]he person who committed the 

crime may or may not be included, so you should not feel 

compelled to make an identification"; (3) "[i]t is just as 

important to clear innocent people as it is to identify possible 

perpetrators"; (4) "[w]hether or not you identify someone, the 

police will continue to investigate"; (5) "[a]fter you are done, 

I will not be able to provide you with any feedback or comments 

on the results of the process"; (6) "[p]lease do not discuss 

this identification procedure, or the results, with other 

witnesses in this case or with the media"; (7) "[p]eople may not 

appear exactly as they did at the time of the event, because 

features such as clothing or head/facial hair are subject to 

change"; (8) "[a]s you look at each photo, if you see someone 

that you recognize, please tell me how you know the person, and 

in your own words, how sure you are of the identification"; and 

(9) "[i]f you identify someone, I will ask you to place your 
7

photographs showed the assailant. The victim said that he did 

not think the assailant "[wa]s anyone in these photos," but 

added that if he had to choose somebody, it would be the man 

with a chin similar to that of the assailant; that man was the 

defendant. Holtzman did not view a photographic array, although 

Detective Koenig attempted to reach her by telephone more than 

once to do so.

On September 18, Holtzman, Mortensen, and the victim were 

driving together, and stopped for gasoline at a different 

service station in Pittsfield.7 Holtzman and the victim entered 

the convenience store while Mortensen stayed inside the victim's 

vehicle. The victim testified that he briefly left the store to 

retrieve exact change from his automobile to purchase drinks and 

cigarettes. When he reentered the store, he immediately saw the 

defendant and recognized him as the assailant. After he put 

down his change, the victim and Holtzman left the store 

together, and confirmed with each other that the man in the 

store was the assailant. The victim then told Mortensen that 

the defendant was inside the store. When the defendant left the 

store, Mortensen agreed that the defendant was the assailant and 

 

initials and the date on a form I will give you, clearly marking 

your selection."

7 Lindsay Holtzman did not know the victim or Mortensen 

before the incident on September 10.
8

the victim called the police on his cellular telephone.

8

As the victim spoke with the police, the defendant left the 

gasoline station in someone's automobile. The victim and 

Mortensen followed the defendant to an apartment complex in 

Pittsfield, with the victim communicating the defendant's 

location to the police as he was driving. Shortly thereafter, 

the police arrived at the apartment complex and asked the victim 

and Mortensen to perform a showup identification; they 

identified the defendant as the assailant. After the 

defendant's arrest, Detective Koenig interviewed Holtzman, who 

confirmed that the person in the convenience store on September 

18 had been the same person she saw at the other convenience 

store on September 10.

Before trial, the defendant filed motions to suppress 

Holtzman's and the victim's pretrial identification of the 

defendant.9 The trial judge denied the motions. At trial, the 

defendant argued that he had been mistakenly identified as the 

assailant, and offered the testimony of his father, Earl 

 

8 Holtzman's recollection of this event differed slightly 

from that of the victim. She testified that she recognized the 

defendant standing three or four feet behind her in the store. 

She said something to the victim and may have nudged his arm to 

alert him to the defendant's presence. The victim then left the 

store while she waited in line and finished making her 

purchases. After leaving the store, she walked over to the 

vehicle as the victim was telephoning the police.

9 No motion was filed with respect to Mortensen.
9

Kirchner, who said that he lived with the defendant and that the 

defendant did not leave his apartment on the evening of the 

attack.

Discussion. 1. The defendant's requested eyewitness 

identification instruction. The defendant requested that the 

judge provide a jury instruction regarding eyewitness 

identification that essentially mirrored a model instruction 

that had become effective in New Jersey approximately one week 

before the defendant's trial commenced.10 The proffered jury 

instruction was considerably longer and more detailed than the 

 

10 In State v. Henderson, 208 N.J. 208, 219, 228-229 (2011), 

the New Jersey Supreme Court, having earlier remanded the case 

to a special master who considered more than 200 published 

scientific studies on human memory and eyewitness identification 

during a ten-day hearing, rendered a landmark decision regarding 

eyewitness identification where it concluded that "the court 

system should develop enhanced jury charges on eyewitness 

identification for trial judges to use." The court delegated to 

its criminal practice committee and committee on model criminal 

jury charges the task of drafting the revised model jury 

instructions. Id. at 298-299. On July 19, 2012, the court 

released the model instructions, which became effective on 

September 4, 2012. See Press Release, Supreme Court Releases 

Eyewitness Identification Criteria for Criminal Cases (July 19, 

2012), available at 

http://www.judiciary.state.nj.us/pressrel/2012/pr120719a.htm

[http://perma.cc/VQF3-SXH4] (last visited Jan. 8, 2015). The 

New Jersey model instructions can be found at 

http://www.judiciary.state.nj.us/criminal/charges/idinout.pdf 

[http://perma.cc/4BE2-F79V] (last visited Jan. 8, 2015). 

Although the defendant cited the Henderson opinion in his 

request for a jury instruction, the defendant did not inform the 

judge that the instruction he proffered was a model jury 

instruction in New Jersey; his attorney merely told the judge 

that the proffered instruction "seem[ed] to be an appropriate 

instruction in New Jersey."
10

Rodriguez instruction. It would have instructed the jury on 

various principles regarding eyewitness identification and human 

memory, most importantly that (1) human memory does not operate 

like a video recording that a person can replay to recall what 

happened;

11 (2) a witness's level of confidence in an 

identification may not indicate its accuracy;

12 (3) high levels 

of stress can reduce the likelihood of making an accurate 

identification;

13 (4) information from other witnesses or outside 

 

11 The defendant's proffered jury instruction provided:

"Human memory is not foolproof. Research has revealed 

that human memory is not like a video recording that a 

witness need only replay to remember what happened. Memory 

is far more complex. . . . The process of remembering 

consists of three stages: (1) acquisition -- the 

perception of the original event; (2) retention -- the 

period of time that passes between the event and the 

eventual recollection of a piece of information; and (3) 

retrieval -- the stage during which a person recalls stored 

information. At each of these stages, memory can be 

affected by a variety of factors." (Citation omitted.)

12 The proffered jury instruction provided:

"Although nothing may appear more convincing than a 

witness's categorical identification of a perpetrator, you 

must critically analyze such testimony. Such 

identifications, even if made in good faith, may be 

mistaken. Therefore, when analyzing such testimony, be 

advised that a witness's level of confidence, standing 

alone, may not be an indication of the reliability of the 

identification." 

13 The proffered jury instruction provided:

"Even under the best viewing conditions, high levels 

of stress can reduce an eyewitness's ability to recall and 

make an accurate identification."
11

sources can affect the reliability of an identification and 

inflate an eyewitness's confidence in the identification;

14 and 

(5) viewing the same person in multiple identification 

procedures may increase the risk of misidentification.15

The judge denied the request and gave an identification 

instruction consistent with the Rodriguez instruction. The 

judge reasoned that the principles included in the defendant's 

request were more appropriate for expert testimony or for 

closing argument.16 Furthermore, the judge explained:

 

14 The proffered jury instruction provided:

"You may consider whether the witness was exposed to 

opinions, descriptions, or identifications given by other 

witnesses, to photographs or newspaper accounts, or to any 

other information or influence, that may have affected the 

independence of his/her identification. Such information 

can affect the independent nature and reliability of a 

witness's identification and inflate the witness's 

confidence in the identification."

15 The proffered jury instruction provided:

"When a witness views the same person in more than one 

identification procedure, it can be difficult to know 

whether a later identification comes from the witness's 

memory of the actual, original event or of an earlier 

identification procedure. As a result, if a witness views 

an innocent suspect in multiple identification procedures, 

the risk of mistaken identification is increased. You may 

consider whether the witness viewed the suspect multiple 

times during the identification process and, if so, whether 

that affected the reliability of the identification."

16 Before trial, the judge allowed the defendant's motion 

for funds to obtain an expert on the reliability of eyewitness 

identification evidence. The judge denied the Commonwealth's 
12

"[T]his [proposed instruction] adds facts in. The process 

of remembering consists of three stages. That may be true. 

That may not be true. I have no idea myself but there is 

no information given to the jury that that is in fact 

accurate. So I cannot instruct them as a matter of law 

that that's what the law is."

The defendant objected to the omission of that part of his 

requested instruction, which recited these five scientific 

principles, so we review for prejudicial error. See 

Commonwealth v. Cruz, 445 Mass. 589, 591 (2005).

The issue before us is not whether the judge had the 

discretion to give the proffered instruction, but whether he 

abused his discretion by refusing to do so. See Hyatt, 419 

Mass. at 818-819 (no error in declining to instruct on crossracial identification, but giving proposed instruction "may be 

appropriate in the judge's discretion"). We conclude that, 

given the record before him, the judge did not abuse his 

discretion in denying the defendant's proposed jury instruction.

We have long recognized 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." 

Santoli, 424 Mass. at 845. See Hyatt, supra ("We recognize 

that, based on a trial record or on the published results of 

studies, or both, some new principle concerning the process of 

 

motion to exclude expert testimony, but the defendant never 

called an expert at trial.
13

eyewitness identification may become sufficiently reliable so as 

to justify formulating a jury instruction that should be given 

in particular circumstances on request, in addition to those 

instructions that we identified in [Rodriguez, 378 Mass. at 310-

311,] and Commonwealth v. Pressley, 390 Mass. 617, 619-620 

[1983]"). The defendant here did not provide the judge with any 

expert testimony, scholarly articles, or treatises that would 

reasonably have enabled the judge to determine whether the 

principles in the defendant's proposed instruction were "so 

generally accepted" that it would be appropriate to instruct the 

jury regarding them.17 Where the defendant failed to furnish 

such information, and where there was an instruction approved by 

this court that was not erroneous but, at worst, inadequate and 

incomplete, the judge did not abuse his discretion in denying 

the proffered instruction and charging the jury in accordance 

with the Rodriguez instruction. See Cruz, 445 Mass. at 595 n.4,

598, 600 (no error in judge's refusal to give jury instruction 

that "there is no proven relationship between a witness'[s]

confidence in his identification and the accuracy of the 

witness'[s] identification" where defendant did not call expert 

 

17 The only citations to scientific studies in the record 

are located in the disclosure of the defendant's proffered 

expert witness on eyewitness identification, regarding the 

subject matter of his proposed testimony. The defendant made no 

reference to this document in requesting his proposed jury 

instruction on identification testimony.
14

witness and "there was no hearing or testimony regarding the 

reliability of these scientific studies or their general 

acceptance in scientific community"); Hyatt, 419 Mass. at 818 

("The defendant points to no relevant empirical study that 

assessed the relative reliability of cross-racial and non-crossracial identifications in confrontations of the sort involved 

here").

Although we conclude that the judge in this case did not 

abuse his discretion, and therefore affirm the defendant's 

convictions of mayhem and of breaking and entering a vehicle in 

the nighttime with intent to commit a felony, we take this 

opportunity to revisit our jurisprudence regarding eyewitness 

identification jury instructions in general and the Rodriguez

instruction in particular. In Commonwealth v. Walker, 460 Mass. 

590, 604 n.16 (2011), we recognized that "eyewitness 

identification is the greatest source of wrongful convictions 

but also an invaluable law enforcement tool in obtaining 

accurate convictions," and declared our intention to convene the 

Study Group to consider, among other matters, "whether existing 

model jury instructions provide adequate guidance to juries in 

evaluating eyewitness testimony." We noted that our creation of 

the Study Group reflected "our willingness to revisit our 

jurisprudence" regarding eyewitness identification evidence. 

Id. at 606. With the Study Group Report completed and the 
15

comments to that report received, it is now time to do what we 

declared we were willing to do with respect to eyewitness 

identification jury instructions.18

2. Model jury instruction. The Rodriguez instruction 

derives from the model set forth in United States v. Telfaire, 

469 F.2d 552, 555 (D.C. Cir. 1972), which recognized the 

"special problems" with the reliability of eyewitness 

identifications and the need for an identification instruction

that "emphasizes to the jury the need for finding that the 

circumstances of the identification are convincing beyond a 

reasonable doubt." See Rodriguez, 378 Mass. at 302. We adopted 

the Telfaire model "to assist a jury in evaluating the 

reliability of a positive identification of the defendant as the 

perpetrator of the crime by a witness." Commonwealth v. 

Franklin, 465 Mass. 895, 910 (2013). Over time, we have 

modified and supplemented it. See Commonwealth v. Cuffie, 414 

Mass. 632, 640 (1993) (removing language that risked suggesting 

that witness's first sighting of offender was always accurate); 

Santoli, 424 Mass. at 845 (omitting language emphasizing

"strength of the identification"). See also Pressley, 390 Mass. 

at 620 (establishing supplemental instruction on "possibility of 

 

18 We thank the Study Group for its thorough review of the 

research regarding eyewitness identification and its thoughtful 

recommendations. We also thank those who submitted comments 

regarding the Study Group Report.
16

an honest but mistaken identification"); Franklin, 465 Mass. at 

912 (judge should provide, on request, identification 

instruction where eyewitness gave partial identification). At 

its core, though, the Rodriguez instruction delineates factors 

for the jury to consider when evaluating an eyewitness 

identification, such as (1) the opportunity the witness had to 

observe the offender; (2) the length of time between the crime 

and the identification; (3) the witness's prior familiarity with 

the offender; (4) the circumstances surrounding any 

identification procedure; (5) whether the identification 

procedure was a lineup or photographic array rather than a 

single-person showup; (7) whether the witness failed to make an 

identification or made an inconsistent identification before 

identifying the defendant; and (8) the credibility of the 

witness.

19 It focuses the jury on factors they "should consider"

 

19 The instruction, as set forth in Commonwealth v. 

Franklin, 465 Mass. 895, 910 n.24 (2013), states:

"One of the most important issues in this case is the 

identification of the defendant as the perpetrator of the 

crime. The Government has the burden of proving identity 

beyond a reasonable doubt. It is not essential that the 

witness himself be free from doubt as to the correctness of 

his statement. However, you, the jury, must be satisfied 

beyond a reasonable doubt of the accuracy of the 

identification of the defendant before you may convict him. 

If you are not convinced beyond a reasonable doubt that the 

defendant was the person who committed the crime, you must 

find the defendant not guilty.
17

 

"Identification testimony is an expression of belief 

or impression by the witness. Its value depends on the 

opportunity the witness had to observe the offender at the 

time of the offense and to make a reliable identification 

later.

"In appraising the identification testimony of a 

witness, you should consider the following:

"Are you convinced that the witness had the capacity 

and an adequate opportunity to observe the offender?

"Whether the witness had an adequate opportunity to 

observe the offender at the time of the offense will be 

affected by such matters as how long or short a time was 

available, how far or close the witness was, how good were 

lighting conditions, whether the witness had had occasion 

to see or know the person in the past.

"In general, a witness bases any identification he 

makes on his perception through the use of his senses.

Usually the witness identifies an offender by the sense of 

sight -- but this is not necessarily so, and he may use 

other senses.

"Are you satisfied that the identification made by the 

witness subsequent to the offense was the product of his 

own recollection? You may take into account the 

circumstances under which the identification was made.

"If the identification by the witness may have been 

influenced by the circumstances under which the defendant 

was presented to him for identification, you should 

scrutinize the identification with great care.

"You may also consider the length of time that lapsed 

between the occurrence of the crime and the opportunity of 

the witness, some time after the occurrence of the crime, 

to see and identify the defendant as the offender, as a 

factor bearing on the reliability of the identification.

"You may also take into account that an identification 

made by picking the defendant out of a group of similar 

individuals is generally more reliable than one which 

results from the presentation of the defendant alone to the 

witness.
18

that may affect the accuracy of an eyewitness's positive 

identification of the defendant, and poses questions the jury 

should ask themselves. It generally does not instruct the jury 

as to how those factors may affect the accuracy of the 

identification.

The New Jersey model instruction, as earlier noted, goes 

well beyond the Rodriguez instruction by telling the jury what 

principles have emerged from the research regarding eyewitness 

identification. We now consider, first, what it means for a 

principle of eyewitness identification to be "so generally 

 

"You may take into account any occasions in which the 

witness failed to make an identification of [the] 

defendant, or made an identification that was inconsistent 

with his identification at trial.

"Finally, you must consider the credibility of each 

identification witness in the same way as any other 

witness, consider whether he is truthful, and consider 

whether he had the capacity and opportunity to make a 

reliable observation on the matter covered in his 

testimony.

"I again emphasize that the burden of proof on the 

prosecutor extends to every element of the crime charged, 

and this specifically includes the burden of proving beyond 

a reasonable doubt the identity of the defendant as the 

perpetrator of the crime with which he stands charged. If 

after examining the testimony, you have a reasonable doubt 

as to the accuracy of the identification, you must find the 

defendant not guilty."

In addition, "[f]airness to a defendant compels the trial 

judge to give an instruction on the possibility of an honest but 

mistaken identification when the facts permit it and when the 

defendant requests it." Id., quoting Commonwealth v. Pressley,

390 Mass. 617, 620 (1983).
19

accepted" that it is appropriate to include in a model 

instruction, and, second, whether the five principles at issue 

in this case are "so generally accepted" that it is appropriate 

that they now be included in a revised model jury instruction.

a. "So generally accepted." The phrase "so generally 

accepted" sounds like the test in Frye v. United States, 293 F. 

1013, 1014 (D.C. Cir. 1923), for the admissibility of expert 

testimony based on scientific knowledge, which asks "whether the 

community of scientists involved generally accepts the theory or 

process," Commonwealth v. Lanigan, 419 Mass. 15, 24 (1994), 

quoting Commonwealth v. Curnin, 409 Mass. 218, 222 (1991), and 

which was once the exclusive test governing the admissibility of 

expert testimony. See Lanigan, supra at 25-26 (adopting 

standard in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 

[1993], while maintaining Frye standard as alternative means to 

establish reliability of expert testimony). But satisfaction of

the Frye test meant only that expert testimony would be 

admissible in evidence. It did not mean that the jury were 

required to accept the scientific principles that had gained 

general acceptance in the relevant scientific community. See 

Commonwealth v. Hinds, 450 Mass. 1, 12 n.7 (2007) (model 

instruction on expert testimony, stating, "it is completely up 

to [the jury] to decide whether [they] accept the testimony of 

an expert witness, including the opinions that the witness 
20

gave"). In contrast, where a principle is included in a jury 

instruction, it becomes part of a judge's instructions of law, 

which the jury generally must accept. See Commonwealth v. 

Johnson, 441 Mass. 1, 7 (2004); Commonwealth v. Watkins, 425 

Mass. 830, 840 (1997) ("We presume that a jury follow all 

instructions given to [them] . . ."). Therefore, the Frye test 

cannot define "so generally accepted" in this context; the 

standard for including a principle of eyewitness identification

in a model jury instruction must be higher than a standard that 

would simply permit a judge to admit expert testimony.20

 

20 Nor can we look to the standard for judicial notice to 

define the meaning of "so generally accepted" in this context. 

A court may take judicial notice of adjudicative facts that are 

"not subject to reasonable dispute in that it is either (1) 

generally known within the territorial jurisdiction of the trial 

court or (2) capable of accurate and ready determination by 

resort to resources whose accuracy cannot reasonably be 

questioned." Mass. G. Evid. § 201(b) (2014). Matters of common 

knowledge may be judicially noticed, see Commonwealth v. Hartman

404 Mass. 306, 313 n.9 (1989), but "[f]acts which ordinarily are 

not known without the aid of expert testimony or other proof 

cannot be said to be matters of common knowledge." Id., quoting 

Mady v. Holy Trinity Roman Catholic Polish Church, 223 Mass. 23, 

26 (1916). The principles at issue in eyewitness identification 

are not matters of common knowledge. Nor can these principles 

be readily looked up in an authoritative source; rather, they 

require review of the considerable scientific literature and 

published research studies regarding eyewitness identification. 

Therefore, these principles, no matter how well accepted they 

may be in the relevant scientific community, are not the type of 

adjudicative facts of which a court generally may take judicial 

notice. Moreover, "[i]n a criminal case, the court shall 

instruct the jury that they may, but are not required to, accept 

as conclusive any fact which the court has judicially noticed." 

Mass. G. Evid. § 201(e) (2014). See Commonwealth v. Kingsbury,

378 Mass. 751, 755 (1979).
21

To determine when a principle of eyewitness identification 

is "so generally accepted" that it is appropriate to incorporate 

into a model instruction, we focus on the instruction's 

underlying purpose and the concerns it is intended to alleviate. 

The accuracy of an eyewitness identification is often the 

critical issue in a criminal case, the difference between a 

conviction and an acquittal. See State v. Cabagbag, 127 Haw. 

302, 313 (2012) ("Without appropriate instructions from the 

court, the jury may be left without sufficient guidance on how 

to assess critical testimony, sometimes the only testimony, that 

ties a defendant to an offense"). We have long recognized that 

the mistaken eyewitness identification of a defendant whom the 

witness had never seen before the crime "is the primary cause of 

erroneous convictions, outstripping all other causes combined." 

Commonwealth v. Martin, 447 Mass. 274, 293 (2006) (Cordy, J., 

dissenting).21 See Franklin, 465 Mass. at 909; Irwin v. 

 

21 According to the Innocence Project, "Eyewitness 

misidentification is the single greatest cause of wrongful 

convictions nationwide, playing a role in 72% of convictions 

overturned through [deoxyribonucleic acid] testing"). Innocence 

Project, Eyewitness Misidentification, 

http://www.innocenceproject.org/understand/EyewitnessMisidentification.php [http://perma.cc/XAQ2-4QJG] (last visited 

Jan. 8, 2015). The National Registry of Exonerations has 

recorded 522 known exonerations of persons whose cases involved 

at least one witness who mistakenly identified the exoneree as 

the perpetrator of the crime. See National Registry of 

Exonerations, Exoneration Detail List, 

http://www.law.umich.edu/special/exoneration/Pages/detaillist.as

px [http://perma.cc./DPD3-BJBB] (last visited Jan. 8, 2015). 
22

Commonwealth, 465 Mass. 834, 848-849 (2013); Commonwealth v. 

Francis, 390 Mass. 89, 100 (1983).

Our jury instructions are intended to provide the jury with 

the guidance they need to capably evaluate the accuracy of an 

eyewitness identification. See Francis, 390 Mass. at 101 ("We 

permit, indeed require, the judge to instruct the jury 

concerning factors that bear on the reliability of eyewitness 

identification"); Commonwealth v. Rodriguez, 6 Mass. App. Ct. 

738, 742 (1978), S.C., 378 Mass. 296 (1979). If we were to 

define "so generally accepted" so narrowly that none of the 

scientific principles regarding eyewitness identification could 

 

See also Connors, Lundregan, Miller, & McEwen, U.S. Department 

of Justice, Convicted by Juries, Exonerated by Science: Case 

Studies in the Use of DNA Evidence to Establish Innocence After 

Trial 15-17, 24 (1996), at 

https://www.ncjrs.gov/pdffiles/dnaevid.pdf 

[http://perma.cc/RUA3-8NKW] (last visited Jan. 8, 2015)

("[E]yewitness testimony was the most compelling evidence" in 

majority of twenty-four sexual assault cases reviewed where 

defendants were convicted and later exonerated); B.L. Garrett, 

Convicting the Innocent: Where Criminal Prosecutions Go Wrong 

48 (2011) (analyzing 250 wrongful convictions and finding 190 

involved eyewitness misidentification). There have been forty 

exonerations in Massachusetts since 1990, and twenty of those 

cases involved mistaken eyewitness identification. See National 

Registry of Exonerations, supra. See also Irwin v. 

Commonwealth, 465 Mass. 834, 849 n.25 (2013), citing Fisher, 

Convictions of Innocent Persons in Massachusetts: An Overview, 

12 B.U. Pub. Int. L.J. 1, 64 & n.278 (2002) ("A summary of 

several studies of erroneous convictions in Massachusetts 

concluded that, in over half of the cases where convicted 

defendants were later officially exonerated, the convictions 

involved mistaken identifications by eyewitnesses, including by 

multiple eyewitnesses who had had ample opportunity to observe 

the perpetrator").
23

survive the test, we would continue to use the Rodriguez

instruction, which generally identifies factors a jury may 

consider in applying their common sense, and would require the 

results of the relevant research to be communicated to the jury 

solely through expert testimony, where such testimony is 

offered. The problem with this approach is that the research 

makes clear that common sense is not enough to accurately 

discern the reliable eyewitness identification from the 

unreliable, because many of the results of the research are not 

commonly known, and some are counterintuitive. See State v. 

Guilbert, 306 Conn. 218, 234-235 (2012) (there is "near perfect 

scientific consensus" that "eyewitness identifications are 

potentially unreliable in a variety of ways unknown to the 

average juror"); Henderson, 208 N.J. at 274 (juror surveys and 

mock-jury studies "reveal generally that people do not 

intuitively understand all of the relevant scientific 

findings"). See also Perry v. New Hampshire, 132 S. Ct. 716, 

739 (2012) (Sotomayor, J., dissenting) ("Study after study 

demonstrates that eyewitness recollections are highly 

susceptible to distortion by postevent information or social 

cues; that jurors routinely overestimate the accuracy of 

eyewitness identifications; that jurors place the greatest 

weight on eyewitness confidence in assessing identifications 

even though confidence is a poor gauge of accuracy; and that 
24

suggestiveness can stem from sources beyond police-orchestrated 

procedures" [footnotes omitted]).22 If the research regarding 

eyewitness identification could be communicated to the jury only 

through expert testimony, very few juries would hear it, because 

expert testimony is not often proffered in cases where 

eyewitness identification is at issue, and because the admission 

of expert testimony is left to the sound discretion of the trial 

judge. See Commonwealth v. Watson, 455 Mass. 246, 257 (2009) 

("[E]xpert testimony concerning the reliability of eyewitness 

identification is not admissible as of right, but is left to the 

discretion of the trial judge").

Having balanced the importance of instructing juries about 

the generally accepted principles that can inform their 

understanding of eyewitness identification with the risks of 

requiring them to accept principles that may still be suspect or 

in flux, we conclude that a principle is "so generally accepted"

that it is appropriate to include in a model eyewitness 

 

22 See Benton, Ross, Bradshaw, Thomas, & Bradshaw, 

Eyewitness Memory Is Still Not Common Sense: Comparing Jurors, 

Judges and Law Enforcement to Eyewitness Experts, 20 Applied 

Cognitive Psychol. 115, 119 (2006) (survey found that jurors and 

experts differed on eighty-seven per cent of survey's statements 

about eyewitness identification); Schmechel, O’Toole, Easterly, 

& Loftus, Beyond the Ken? Testing Jurors' Understanding of 

Eyewitness Reliability Evidence, 46 Jurimetrics 177, 204 (2006) 

("a substantial number of jurors come to each trial with basic 

misunderstandings about the way memory works in general and 

about specific factors that can affect the reliability of 

eyewitness identifications").
25

identification instruction where there is a near consensus in 

the relevant scientific community adopting that principle.

After reviewing the scholarly research, analyses by other 

courts, amici submissions, and the Study Group Report and 

comments, we conclude that there are various principles 

regarding eyewitness identification for which there is a near 

consensus in the relevant scientific community and that it is 

appropriate to revise the Rodriguez instruction to include them. 

See Study Group Report, supra at 17 ("The scientific studies 

have produced a consensus among experts about the . . . 

variables that have been shown to affect the reliability of 

eyewitness identification"). See also Guilbert, 306 Conn. at 

234-236; Cabagbag, 127 Haw. at 310-311; State v. Lawson, 352 Or. 

724, 740 (2012); State v. Clopten, 223 P.3d 1103, 1108 (Utah 

2009); Report of the Special Master, State vs. Henderson, N.J. 

Supreme Ct., No. A-8-08, at 14 (June 18, 2010), available at 

http://www.judiciary.state.nj.us/pressrel/henderson%20final%20br

ief%20.pdf%20%2800621142%29.pdf [http://perma.cc/EA3S-453F]

(last visited Jan. 8, 2015) (Special Master's Report).

23,24

 

23 In a 2001 survey of experts in the field of psychology, 

researchers found that at least eighty-seven per cent of experts 

believed the following principles were reliable enough to be 

presented in court: "[a]n eyewitness's confidence can be 

influenced by factors that are unrelated to identification 

accuracy" (ninety-five per cent), "[e]xposure to mug shots of a 

suspect increases the likelihood that the witness will later 

choose that suspect in a lineup" (ninety-five per cent), 
26

We are not alone in concluding that certain scientific 

principles should be incorporated into a model jury instruction 

on eyewitness identification. New Jersey has done so most 

comprehensively, promulgating a ten-page model instruction after 

concluding that its previous model, which was similar to the 

Rodriguez instruction, see Henderson, 208 N.J. at 226-227, 

"overstate[d] the jury's inherent ability to evaluate evidence 

offered by eyewitnesses who honestly believe their testimony is 

accurate." Id. at 218, 298-299. See National Research Council 

 

"[e]yewitness testimony about an event often reflects not only 

what they actually saw but information they obtained later on" 

(ninety-four per cent), and "an eyewitness's confidence is not a 

good predictor of his or her identification accuracy" (eightyseven per cent). Kassin, Tubb, Hosch, & Memon, On the "General 

Acceptance" of Eyewitness Testimony Research: A New Survey of 

the Experts, 56 Am. Psychol. 405, 407-412 (2001). See Malpass,

Ross, Meissner, & Marcon, The Need for Expert Psychological 

Testimony on Eyewitness Identification, in Expert Testimony on 

the Psychology of Eyewitness Identification 15 (2009) ("[I]t 

would be very difficult to sustain the position that many of the 

findings in research on eyewitness memory lack general agreement 

within the scientific community").

24 We note that the instruction we adopted in Commonwealth

v. Rodriguez, 378 Mass. 296, 310-311 (Appendix) (1979), already 

essentially includes two principles on which there is at least 

near consensus in the relevant scientific community, that is, 

"that an identification made by picking the defendant out of a 

group of similar individuals is generally more reliable than one 

which results from the presentation of the defendant alone to 

the witness," and that where the "identification by the witness 

may have been influenced by the circumstances under which the 

defendant was presented to him for identification, [the jury] 

should scrutinize the identification with great care." 

Therefore, it is more accurate to say that we are adding 

scientific principles to our eyewitness identification 

instruction rather than incorporating such principles into our 

instruction for the first time.
27

of the National Academies, Identifying the Culprit: Assessing 

Eyewitness Identification 28 (2014) (pending publication)

(National Academies) ("The New Jersey instructions adopted, 

following the Henderson decision, are by far the most detailed 

set of jury instructions regarding eyewitness identification 

evidence"). Other States have also incorporated scientific 

principles of eyewitness identification into model jury 

instructions. See, e.g., Cabagbag, 127 Haw. at 314; Connecticut 

Criminal Jury Instruction 2.6-4 Identification of Defendant 

(2013), available at

http://www.jud.ct.gov/ji/criminal/part2/2.6-4.htm 

[http://perma.cc/B9PS-DS8X] (last visited Jan. 8, 2015); 1-6 

Maine Jury Instruction Manual § 6-22A (4th ed. 2012); Model Utah 

Jury Instructions, Second Edition, CR404 Eyewitness 

Identification (2014), available at 

http://www.utcourts.gov/resources/muji/index.asp?page=crim&view=

all_crim [http://perma.cc/X9V3-2759] (last visited Jan. 8, 

2015).

We recognize that even a principle for which there is near 

consensus is subject to revision based on further research 

findings, and that no principle of eyewitness identification

should be treated as if set in stone. Therefore, we acknowledge

the possibility that, as the science evolves, we may need to 
28

revise our new model instruction's description of a principle.25 

We also recognize the possibility that a party may offer expert 

testimony at trial that properly may persuade a trial judge to 

depart from the model instruction. See Lawson, 352 Or. at 741 

("[A]cknowledgment of the existence of th[is] research . . . is 

not intended to preclude any party in a specific case from 

validating scientific acceptance of further research or from 

challenging particular aspects of the research described in this 

opinion").

b. Five generally accepted principles regarding eyewitness 

identification. We turn now to the five principles at issue in 

this case that we determine to have achieved a near consensus in 

the relevant scientific community and therefore are "so 

generally accepted" that it is appropriate that they now be 

included in a revised model jury instruction regarding 

eyewitness identification. We also summarize the research that 

informed our conclusions as to each generally accepted 

principle.26

 

25 We will look to our newly reconstituted Supreme Judicial 

Court Committee on Eyewitness Identification to assist us in 

recognizing the need for such revision.

26 This list of generally accepted principles is not 

intended to be exhaustive, as we only address the principles 

most relevant to the case before us. Therefore, the exclusion 

of a principle should not be construed to suggest that it is not 

so generally accepted as to be worthy of inclusion in a model 

jury instruction on eyewitness identification. In fact, the 
29

i. Human memory does not function like a video recording 

but is a complex process that consists of three stages: 

acquisition, retention, and retrieval. The central principle 

that has emerged from over 2,000 published studies over the past 

thirty years is that "memory does not function like a videotape, 

accurately and thoroughly capturing and reproducing a person, 

scene or event. . . . Memory is, rather[,] a constructive, 

dynamic and selective process." Study Group Report, supra at 

15, quoting Special Master's Report, supra at 9. See E.F. 

Loftus, J.M. Doyle, & J.E. Dysart, Eyewitness Testimony: Civil 

and Criminal § 2-2, at 14 (5th ed. 2013); Brigham, Wasserman, & 

Meissner, Disputed Eyewitness Identification Evidence:

Important Legal and Scientific Issues, 36 Ct. Rev., no. 2, 1999, 

at 13. Rather, memories are made through a three-stage process: 

"acquisition -- 'the perception of the original event';

retention [or storage] -- 'the period of time that passes 

between the event and the eventual recollection of a particular 

piece of information'; and retrieval -- the 'stage during which 

a person recalls stored information.'" Study Group Report, 

supra at 16, quoting Henderson, 208 N.J. at 245.

ii. An eyewitness's expressed certainty in an 

identification, standing alone, may not indicate the accuracy of 

 

provisional jury instruction we include in the Appendix to this 

decision incorporates principles beyond the five addressed here.
30

the identification, especially where the witness did not 

describe that level of certainty when the witness first made the 

identification. We have long questioned the reliability of a 

witness's certainty as a reflection of accuracy. See 

Commonwealth v. Jones, 423 Mass. 99, 110 n.9 (1996); Santoli, 

424 Mass. at 846 ("[T]here is significant doubt about whether 

there is any correlation between a witness's confidence in her 

identification and the accuracy of her recollection"); Cruz, 445 

Mass. at 597-600 (court stated it was prepared to consider in 

future whether weak confidence-accuracy relationship warrants 

instruction). Our doubts are now supported by the research. 

"[S]tudies show that, under most circumstances, witness 

confidence or certainty is not a good indicator of 

identification accuracy." Lawson, 352 Or. at 777 (Appendix). 

See Study Group Report, supra at 19.27

This does not mean that eyewitness certainty is never

correlated with accuracy; it means simply that the existence and 

strength of the correlation depends on the circumstances. After 

 

27 See Commonwealth v. Crayton, ante 228, 239 n.15 (2014), 

quoting Wells, Memon, & Penrod, Eyewitness Evidence: Improving 

Its Probative Value, 7 Psychol. Sci. in the Pub. Interest 45, 66 

(2006) ("Even among 'highly confident witnesses, [studies] 

indicate that 20 to 30% could be in error'"); Crayton, supra, 

quoting Wells & Quinlivan, Suggestive Eyewitness Identification 

Procedures and the Supreme Court's Reliability Test in Light of 

Eyewitness Science: 30 Years Later, 33 Law & Hum. Behav. 1, 11-

12 (2009) ("the less-than-perfect correlation between height and 

gender in humans is 'considerably greater' than the correlation 

between certainty and accuracy in eyewitness identifications").
31

viewing the crime but before the identification procedure, an 

eyewitness's expressed level of certainty does not correlate 

with accuracy. See Study Group Report, supra; Henderson, 208 

N.J. at 254 n.7.28 Where an eyewitness makes a positive 

identification and expresses a level of certainty immediately 

after the identification procedure, there is some correlation 

between certainty and accuracy, but there is not yet a near 

consensus regarding the strength of that correlation.29 There 

is, however, a near consensus in the research that, where an 

eyewitness during an identification procedure did not express 

certainty when first asked to make an identification, a 

subsequent claim of certainty by that witness deserves little 

weight in evaluating the accuracy of that identification. See 

 

28 See Cutler & Penrod, Forensically Relevant Moderators of 

the Relation Between Eyewitness Identification Accuracy and 

Confidence, 74 J. Applied Psychol. 650, 652 (1989) (metaanalysis showing that pre-lineup confidence "certainly should 

not be used in the evaluation of eyewitness identification 

accuracy").

29 Compare Study Group Report, supra at 19, quoting Report 

of the Special Master, State vs. Henderson, N.J. Supreme Ct., 

No. A-8-08, at 34 (Special Master's Report) ("confidence 

expressed immediately after making an identification has only a 

low correlation to the accuracy of the identification"), with 

Wells & Olson, Eyewitness Testimony, 54 Ann. Rev. Psychol. 277, 

283 (2003) (more recent studies "indicate that the

certainty-accuracy relation is stronger" if analysis is 

restricted to witnesses who actually made identifications, 

thereby excluding witnesses who did not identify anyone). See 

also Sporer, Read, Penrod, & Cutler, Choosing, Confidence, and 

Accuracy: A Meta–Analysis of the Confidence–Accuracy Relation 

in Eyewitness Identification Studies, 118 Psychol. Bull. 315, 

322 (1995).
32

Henderson, 208 N.J. at 254 ("Confirmatory feedback can distort 

memory. As a result, to the extent confidence may be relevant 

in certain circumstances, it must be recorded in the witness'[s] 

own words before any possible feedback"); Lawson, 352 Or. at 745 

("Retrospective self-reports of certainty are highly susceptible 

to suggestive procedures and confirming feedback, a factor that 

further limits the utility of the certainty variable").30,31

Although the research regarding the correlation (or lack of 

correlation) between eyewitness certainty and accuracy is 

complex and still evolving, it is necessary to inform a jury 

 

30 See Wells & Bradfield, Distortions in Eyewitnesses' 

Recollections: Can the Postidentification–Feedback Effect Be 

Moderated?, 10 Psychol. Sci. 138, 138 (1999) ("The idea that 

confirming feedback would lead to confidence inflation is not 

surprising. What is surprising, however, is that confirming 

feedback that is given after the identification leads 

eyewitnesses to misremember how confident they were at the time 

of the identification"). See also Commonwealth v. Collins, ante

255, 263 n.10 (2014), quoting National Research Council of the 

National Academies, Identifying the Culprit: Assessing 

Eyewitness Identification 75 (2014) (pending publication)

("[I]n-court confidence statements may . . . be less reliable 

than confidence judgments made at the time of an initial out-ofcourt identification . . . . The confidence of an eyewitness may 

increase by the time of the trial as a result of learning more 

information about the case, participating in trial preparation, 

and experiencing the pressures of being placed on the stand").

31 "Because 'a witness's confidence in the accuracy of his 

identification grows once he learns that the police believe he 

made the correct identification,' we have previously announced 

that we 'expect' police to use protocols for photographic arrays 

that include a 'procedure requir[ing] the administrator to ask 

the witness to state, in his or her own words, how certain he or 

she is of any identification.'" Collins, supra at 263 n.11, 

quoting Commonwealth v. Silva-Santiago, 453 Mass. 782, 791, 798 

(2009).
33

about this tenuous relationship because there is a near 

consensus that jurors tend to give more weight to a witness's 

certainty in evaluating the accuracy of an identification than 

is warranted by the research. See Commonwealth v. Collins, ante

255, 264 n.14 (2014), quoting Study Group Report, supra at 20

("Studies show that eyewitness confidence is the single most 

influential factor in juror determinations regarding the 

accuracy of an eyewitness identification"); Cabagbag, 127 Haw.

at 311; Clopten, 223 P.3d at 1108 ("Indeed, juries seemed to be 

swayed the most by the confidence of an eyewitness, even though 

such confidence correlates only weakly with accuracy").32

Therefore, it is necessary to inform the jury that an 

eyewitness's expressed certainty in an identification, standing 

alone, may not indicate the accuracy of an identification, and 

that this is especially true where the witness did not describe 

that level of certainty when the witness first made an 

identification.

 

32 See Cutler, Penrod, & Dexter, Juror Sensitivity to 

Eyewitness Identification Evidence, 14 Law & Hum. Behav. 185, 

190 (1990) (mock-jury experiment showed jurors "gave 

disproportionate weight to the confidence of the witness"); 

Wells, Lindsay, & Ferguson, Accuracy, Confidence, and Juror 

Perceptions in Eyewitness Identification, 64 J. Applied Psychol. 

440, 446 (1979) ("The data indicate that although jurors' 

decisions to believe the witness are highly related to their 

ratings of the witnesses' confidence, the confidence-accuracy 

relationship is very poor").
34

iii. High levels of stress can reduce an eyewitness's

ability to make an accurate identification. "[A]n eyewitness 

under high stress is less likely to make a reliable 

identification of the perpetrator." Special Master's Report, 

supra at 43. "[H]igh levels of stress significantly impair a 

witness's ability to recognize faces and encode details into

memory." Lawson, 352 Or. at 769 (Appendix). There is 

"considerable support for the hypothesis that high levels of 

stress negatively impact both accuracy of eyewitness 

identification as well as accuracy of recall of crime-related 

details." Deffenbacher, Bornstein, Penrod, & McGorty, A MetaAnalytic Review of the Effects of High Stress on Eyewitness 

Memory, 28 Law & Hum. Behav. 687, 699 (2004) (Deffenbacher et 

al.). See Study Group Report, supra at 29 n.27, citing 

Deffenbacher et al., supra at 695 (thirty-nine per cent of 

participants under high-stress conditions correctly identified 

suspect in target-present lineups compared to fifty-nine per 

cent of participants under low-stress conditions).33 This 

 

33 In another experiment, 509 active duty military personnel 

in military survival school training were subjected to high- or 

low-stress interrogations. See Morgan, Hazlett, Doran, Garrett, 

Hoyt, Thomas, Baranoski, & Southwick, Accuracy of Eyewitness 

Memory for Persons Encountered During Exposure to Highly Intense 

Stress, 27 Int'l J.L. & Psychiatry 265, 267-268 (2004). When 

subjects were asked to identify the interrogator in a lineup or 

photographic array, "the accuracy of eyewitness recognition 

. . . for the interrogator appeared to be greater for the low-, 

compared to the high-stress condition." Id. at 272. "These 
35

principle is counterintuitive to the "common misconception that 

faces seen in highly stressful situations can be 'burned into' a 

witness's memory." Lawson, 352 Or. at 770 (Appendix). See 

Morgan, Hazlett, Doran, Garrett, Hoyt, Thomas, Baranoski, & 

Southwick, Accuracy of Eyewitness Memory for Persons Encountered 

During Exposure to Highly Intense Stress, 27 Int'l J.L. & 

Psychiatry 265, 274 (2004) (rejecting "popular conception that 

most people would never forget the face of a clearly seen 

individual who had physically confronted them and threatened 

them"). Therefore, it is important to inform the jury of this 

principle lest they evaluate an identification made under high 

stress based on the "common misconception."

iv. Information that is unrelated to the initial viewing 

of the event, which an eyewitness receives before or after 

making an identification, can influence the witness's later 

recollection of the memory or of the identification. "An 

extensive body of studies demonstrates that the memories of 

 

data provide robust evidence that eyewitness memory for persons 

encountered during events that are personally relevant, highly 

stressful, and realistic in nature may be subject to substantial 

error." Id. at 274. See Morgan, Southwick, Steffian, Hazlett, 

& Loftus, Misinformation Can Influence Memory for Recently 

Experienced, Highly Stressful Events, 36 Int'l J.L. & Psychiatry 

11, 16 (2013) (similar study of military personnel at survival 

school found that "human memory for realistic, recently 

experienced stressful events is subject to substantial error. 

In addition, . . . memories for stressful events are also 

highly vulnerable to modification by exposure to 

misinformation").
36

witnesses for events and faces, and witnesses' confidence in 

their memories, are highly malleable and can readily be altered 

by information received by witnesses both before and after an 

identification procedure." Special Master's Report, supra at 

30-31. See B.L. Garrett, Convicting the Innocent: Where 

Criminal Prosecutions Go Wrong 48-49 (2011) (reviewing trial 

records for 161 wrongful convictions involving eyewitness 

misidentification and finding that seventy-eight per cent 

involved police contamination of identification). This outside 

information, known as "feedback," affects witnesses' memory 

differently depending on whether the witness receives feedback 

before or after making an identification. See Study Group 

Report, supra at 21-22; Henderson, 208 N.J. at 253. "Jurors, 

however, tend to be unaware of . . . how susceptible witness 

certainty is to manipulation by suggestive procedures or 

confirming feedback." Lawson, 352 Or. at 778 (Appendix).

Preidentification feedback may contaminate the witness's 

memory. For instance, suggestive wording and leading questions 

prior to participating in an identification procedure can 

influence the process of forming a memory. See Study Group 

Report, supra at 21; Lawson, 352 Or. at 786-788 (Appendix).

34 

 

34 See also Loftus & Zanni, Eyewitness Testimony: The 

Influence of the Wording of a Question, 5 Bull. Psychonomic 

Soc'y 86, 88 (1975) (changing wording of question from "[d]id 

you see a broken headlight" to "[d]id you see the broken 
37

Postidentification feedback is information unrelated to the 

witness's actual memory that suggests to the witness that he or

she correctly identified the suspect. See Study Group Report, 

supra at 22; Henderson, 208 N.J. at 255; Lawson, 352 Or. at 744. 

This confirmatory information may boost the witness's level of 

certainty without increasing the likelihood of an accurate 

identification. See Lawson, supra; Special Master's Report, 

supra at 33 ("A number of studies have demonstrated that 

witnesses' confidence in their identifications, and their 

memories of events and faces, are readily tainted by information 

that they receive after the identification procedure").35

 

headlight" led to more false recognitions [emphasis added]); 

Loftus, Leading Questions and the Eyewitness Report, 7 Cognitive 

Psychol. 560, 566 (1975) (after watching videotape of vehicle 

driving on road where there was no barn, 17.3 per cent of 

participants who were asked to estimate vehicle's speed "when it 

passed the barn" claimed to see barn, compared to 2.7 per cent 

of participants whose question did not mention barn).

35 In one experiment, witnesses who made false 

identifications at a target-absent lineup were given either 

confirming feedback ("Good. You identified the actual 

suspect"), disconfirming feedback ("Actually, the suspect was 

number _"), or no feedback. Wells & Bradfield, "Good, You 

Identified the Suspect": Feedback to Eyewitnesses Distorts 

Their Reports of the Witnessing Experience, 83 J. Applied 

Psychol. 360, 363 (1998). Not only did confirmatory feedback 

affect witness reports of how certain they were at the time of 

the identification, but it also distorted "their reports of the 

witnessing experience." Id. at 367. Witnesses receiving 

confirming feedback reported "a better view of the culprit, a 

greater ability to make out details of the face, greater 

attention to the event, [and] a stronger basis for making an 

identification," compared to witnesses receiving no feedback. 

Id. at 366. Additionally, a meta-analysis of ten published and 
38

Although police officers are common potential sources of 

feedback, feedback from cowitnesses and other private actors can 

also influence a witness's memory. "When a witness is permitted 

to discuss the event with other witnesses or views another 

witness's identification decision, the witness may alter his or 

her own memory or identification decision to conform to that of 

the cowitness." Lawson, 352 Or. at 788 (Appendix). See 

Henderson, 208 N.J. at 268-271.36

 

four unpublished studies, totaling approximately 2,400 

participants, showed that participants who received confirming 

feedback "expressed significantly more retrospective confidence 

in their decision compared with participants who received no 

feedback" and "significantly inflate[d] their reports to suggest 

better witnessing conditions at the time of the crime, stronger 

memory at the time of the lineup, and sharper memory abilities 

in general." Douglass & Steblay, Memory Distortion in 

Eyewitnesses: A Meta–Analysis of the Post-identification 

Feedback Effect, 20 Applied Cognitive Psychol. 859, 863–865 

(2006). See Crayton, supra at 239 n.15, quoting Wells & 

Quinlivan, Suggestive Eyewitness Identification Procedures and 

the Supreme Court's Reliability Test in Light of Eyewitness 

Science: 30 Years Later, 33 Law & Hum. Behav. 1, 12 (2009)

(suggestive confirmatory effect "is stronger for mistaken 

eyewitnesses than it is for accurate eyewitnesses, thereby 

making inaccurate eyewitnesses look more like accurate 

eyewitnesses and undermining the certainty-accuracy relation").

36 When pairs of subjects viewed a crime and discussed who 

they believed was the culprit, researchers concluded that "postidentification feedback does not have to be presented by the 

experimenter or an authoritative figure (e.g. police officer) in 

order to affect a witness'[s] subsequent crime-related 

judgments." Skagerberg, Co–Witness Feedback in LineUps, 21 Applied Cognitive Psychol. 489, 494 (2007). When the 

cowitnesses agreed with one another, they reported having better 

views of the culprit, higher certainty, and more willingness to 

testify compared to cowitnesses who disagreed on the culprit's 
39

v. A prior viewing of a suspect at an identification 

procedure may reduce the reliability of a subsequent 

identification procedure in which the same suspect is shown. A 

prior viewing of a suspect in an identification procedure raises 

doubts about the reliability of a subsequent identification 

procedure involving the same suspect. See Study Group Report, 

supra at 25, citing Special Master's Report, supra at 27-28. 

"[S]uccessive views of the same person can make it difficult to 

know whether the later identification stems from a memory of the 

original event or a memory of the earlier identification 

procedure." Henderson, 208 N.J. at 255. See Collins, supra at 

262 n.9, citing Study Group Report, supra at 78-79 ("An 

eyewitness may recall the defendant's face, but not recall that 

the source of the eyewitness's memory was the defendant's 

presence in a pretrial lineup or photographic array rather than 

the defendant's presence at the scene of the crime"); 

Commonwealth v. Scott, 408 Mass. 811, 826 (1990) ("danger of 

misidentification is increased if the photograph of the same 

individual is included in different arrays"); Lawson 352 Or. at 

784 (Appendix).

One form of this source memory problem is "mugshot 

exposure," where a witness's viewing of an innocent suspect's 

 

identity -- even though none of the photographic arrays showed 

the actual suspect. Id. at 493-495.
40

mugshot can heighten the chances of a later misidentification. 

See Study Group Report, supra at 25, citing Henderson, supra at 

256. A meta-analysis of eleven published articles showed that 

"prior mugshot exposure decreases accuracy at a subsequent 

lineup, both in terms of reductions in rates for hits and 

correct rejections as well as in terms of increases in the rate 

for false alarms." Deffenbacher, Bornstein, & Penrod, Mugshot 

Exposure Effects: Retroactive Interference, Mugshot Commitment, 

Source Confusion, and Unconscious Transference, 30 Law & Hum. 

Behav. 287, 306 (2006). See id. at 299 (fifteen per cent of 

subject witnesses misidentified innocent person in lineup when 

seeing person for first time, while thirty-seven per cent of 

witnesses with mugshot exposure misidentified innocent person).37

 

37 "Unconscious transference" is a similar phenomenon that 

occurs "when a witness confuses a person seen at or near the 

crime scene with the actual perpetrator." Study Group Report, 

supra at 31, quoting Special Master's Report, supra at 46. In 

one experiment, witnesses were asked to identify the assailant 

from a target-absent lineup containing an innocent bystander 

they had seen previously near the crime scene; witnesses "were 

nearly three times more likely to misidentify the bystander than 

were control subjects." Ross, Ceci, Dunning, & Toglia, 

Unconscious Transference and Mistaken Identity: When a Witness 

Misidentifies a Familiar but Innocent Person, 79 J. Applied

Psychol. 918, 923 (1994). "Regardless of the content of the 

lineup (bystander present or assailant present), a majority of 

the transference subjects thought the assailant and the 

bystander were the same person who was seen in two different 

places." Id. at 924. However, we recognize that there is less 

conclusive support for unconscious transference, and it is not 

clear still how or why it occurs. Id. at 919, 929-930.
41

c. Provisional model jury instruction. After evaluating 

the scientific evidence and concluding that the aforementioned 

principles are so generally accepted that they may be stated in 

a model jury instruction, we propose in the Appendix to this 

opinion a new provisional jury instruction regarding eyewitness 

identification. We have made the jury instruction provisional 

to allow for public comment and possible future revision before 

we declare it a model, but it should be given, where 

appropriate, in trials that commence after issuance of this 

opinion until a model instruction is issued. We intend the new 

instruction to have no retroactive application. See Santoli, 

424 Mass. at 845 (declining retroactively to apply new rule to 

omit "strength of the identification" language). See also

Commonwealth v. Ashley, 427 Mass. 620, 628 (1998) (declining 

retroactively to apply Santoli); Commonwealth v. Payne, 426

Mass. 692, 698 (1998) (same).

Our provisional instruction updates the Rodriguez

instruction with principles relevant to the evaluation of 

eyewitness testimony for which there is at least a near 

consensus in the relevant scientific community. It will provide 

juries with more comprehensive guidance to evaluate and weigh 

eyewitness identifications, but we recognize that not every 

principle regarding eyewitness identification that has attained 

a near consensus in the relevant scientific community is 
42

included; nor are the included principles set forth in great 

detail. We aspired in drafting the instruction for clarity,

brevity, and balance, recognizing that an eyewitness 

identification instruction is only one of many instructions in a 

jury charge. We also understand that the longer the jury 

instruction, the greater the risk that it will implicitly 

communicate the message that all eyewitness identifications 

should be viewed as unreliable rather than simply evaluated with 

caution and care, so we have balanced this risk with the need to 

educate jurors.

38 See National Academies, supra at 29 (noting 

concern that "jury instructions cause jurors to become more 

suspicious of all eyewitness identification evidence"). The 

provisional instruction is longer than the Rodriguez

 

38 A recent experimental study of the New Jersey model jury 

instructions revealed that they did not improve jurors' ability 

to distinguish between "weak" and "strong" eyewitness testimony; 

rather, the enhanced instructions "caused jurors to 

indiscriminately discount testimony." Papailiou, Yokum, & 

Robertson, The Novel New Jersey Eyewitness Instruction Induces 

Skepticism But Not Sensitivity, Arizona Legal Studies Discussion 

Paper No. 14-17, at 22 (Aug. 2014). "[U]se of the novel New 

Jersey instruction substantially reduced the likelihood that the 

defendant would be found guilty, but its reducing effect was the 

same regardless of whether the eyewitness identification 

testimony was weak or strong." Id. at 12-13. See also Vermont 

Model Criminal Jury Instructions, Reporter's Note (Aug. 2012), 

available at http://vtjuryinstructions.org/?page_id=662

[http://perma.cc/8WFD-42AF] (last visited Jan. 8, 2015)

(drafters of Vermont model instructions recognized that "the 

general approach to eyewitness identification may be evolving" 

but cautioned "against using a longer instruction on eyewitness 

identification"). Our provisional jury instruction is 

approximately 1,000 words shorter than the comparable New Jersey 

model jury instruction.
43

instruction, but it will be the rare case where the entirety of 

the instruction need be given, because a judge need only give 

the portions of the provisional instruction that are relevant to 

the eyewitness identification evidence involved in the case.

We expect the new model instruction will provide at least 

one source of reliable information in cases where expert 

testimony is not offered. Jury instructions offer certain 

advantages over expert testimony: "they are focused and 

concise, authoritative (in that juries hear them 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." Henderson, 

208 N.J. at 298. See United States v. Jones, 689 F.3d 12, 19 

(1st Cir. 2012). But see Clopten, 223 P.3d at 1110 (research 

"has shown that a cautionary instruction does little to help a 

jury spot a mistaken identification").

Nevertheless, our provisional instruction is not intended 

in any way to preclude expert testimony regarding eyewitness 

identification or to discourage judges from exercising their 

discretion to permit such expert testimony. Cf. Clopten, supra

at 1107 ("It was never the intent of this court to establish 

cautionary instructions as the sole means for educating juries 

about eyewitness fallibility"). Expert testimony may be 
44

important to elaborate on the generally accepted principles in a 

model instruction and to explain how other variables relevant to 

the particular case can affect the accuracy of the 

identification. A judge may also allow an expert to challenge 

the generally accepted principles we incorporated, and, where 

the judge finds the expert's challenge to be persuasive, the 

judge may modify the model instruction accordingly. See part 

2.a, supra.

Conclusion. In the circumstances of this case, based on 

the record before him, the judge did not abuse his discretion in 

declining to give the New Jersey model jury instruction 

regarding eyewitness identification and instead giving the 

Rodriguez instruction. Therefore, we affirm the defendant's

judgments of conviction of mayhem and breaking and entering a 

motor vehicle in the nighttime with intent to commit a felony. 

We remand the case to the Superior Court to vacate the 

defendant's judgment of conviction and sentence for assault and 

battery by means of a dangerous weapon as duplicative of the 

mayhem conviction. Because the sentence to be vacated was less 

than the sentence of mayhem, and was ordered to be served 

concurrent with that sentence, we do not order resentencing of 

the defendant.

So ordered.
Appendix.

1

One of the most important issues in this case is whether 

the defendant is the person who committed [or participated in 

the commission of] the crime[s]. The Commonwealth has the 

burden of proving beyond a reasonable doubt that this defendant 

was in fact the perpetrator of the crime[s] alleged in the 

indictment[s].

The identification of the defendant as the person who 

committed [or participated in the commission of] the crime[s] 

may be proved by direct evidence or circumstantial evidence, or 

by some combination of direct and circumstantial evidence, but 

it must be proved beyond a reasonable doubt. If you are not 

convinced beyond a reasonable doubt that the defendant is the 

person who committed [or participated in the commission of] the 

crime[s], you must find the defendant not guilty.

In evaluating eyewitness identification testimony, it is 

not essential that a witness be free from doubt as to the 

correctness of his or her identification of the defendant. 

However, you, the jury, must be satisfied beyond a reasonable 

doubt, based on all of the credible evidence, that this 

 

1 The following jury instruction has not been adopted as an 

official model. Rather, it is a provisional instruction that 

trial courts should use until we adopt a model instruction after 

soliciting comments from the public.
2

defendant is the person who committed [or participated in the 

commission of] the crime[s] before you may convict him/her.

As with any witness, you must determine the credibility of 

a witness identifying the defendant as the offender. If you 

conclude that the witness is not telling the truth regarding the 

person's identification, you shall disregard that testimony. If 

you conclude that the witness intended to tell the truth, you 

must also consider the possibility that the witness made a good 

faith error in identification. That is, you should consider 

whether the witness could be honestly mistaken in his or her 

identification of the defendant.

Human beings have the ability to recognize other people 

from past experiences and to identify them at a later time, but 

research has shown that people sometimes make mistakes in 

identification. That research has focused on the factors that 

may affect the accuracy of an identification, including the 

nature of human memory.

Research has shown that human memory is not like a video 

recording that a witness need only replay to remember what 

happened.2 Memory is far more complex. The process of 

 

2 See Supreme Judicial Court Study Group on Eyewitness 

Evidence: Report and Recommendations to the Justices 15 (July 

25, 2013), available at 

http://www.mass.gov/courts/docs/sjc/docs/eyewitness-evidencereport-2013.pdf [http://perma.cc/WY4M-YNZN] (last visited Jan. 

8, 2015) (Study Group Report), quoting Report of the Special 
3

remembering consists of three stages: first, a person sees or 

otherwise acquires information about the original event; second, 

the person stores in the brain the information about the event 

for a period of time until, third, the person attempts to recall 

that stored information.3 At each of these stages, memory can be 

affected by a variety of factors.4

 

Master, State vs. Henderson, N.J. Supreme Ct., Docket No. A-8-08 

(June 10, 2010), at 9 (Special Master's Report) ("The central 

precept is that memory does not function like a videotape, 

accurately and thoroughly capturing and reproducing a person, 

scene or event. . . . Memory is, rather[,] a constructive, 

dynamic and selective process"); State v. Henderson, 208 N.J. 

208, 245 (2011); State v. Lawson, 352 Or. 724, 771 (2012)

(Appendix). See also E.F. Loftus, J.M. Doyle, & J.E. Dysart,

Eyewitness Testimony: Civil and Criminal § 2-2, at 14 (5th ed. 

2013) (Loftus et al.); Brigham, Wasserman, & Meissner, Disputed 

Eyewitness Identification Evidence: Important Legal and 

Scientific Issues, 36 Ct. Rev., no. 2, 1999, at 13.

3 See Study Group Report, supra at 16, quoting Henderson, 

208 N.J. at 245 ("Three stages are involved in forming a memory:

stages: 'acquisition -- "the perception of the original event"; 

retention -- "the period of time that passes between the event 

and the eventual recollection of a particular piece of 

information"; and retrieval -- the "stage during which a person 

recalls stored information"'").

4 For a detailed discussion of the three stages of memory 

and how those stages may be affected, see Study Group Report, 

supra at 16; National Research Council of the National 

Academies, Identifying the Culprit: Assessing Eyewitness 

Identification 40-46 (2014) (pending publication) (National 

Academies) ("Encoding, storage, and remembering are not passive, 

static processes that record, retain, and divulge their contents 

in an informational vacuum, unaffected by outside influences"). 

See also State v. Guilbert, 306 Conn. 218, 235-236 (2012); 

Henderson, 208 N.J. at 247; Loftus et al., supra at § 2-2, at 15 

("Numerous factors at each stage affect the accuracy and 

completeness of an eyewitness account").
4

Relying on some of the research that has been done in this 

area, I am going to list some specific factors you should 

consider in determining whether the identification testimony is 

accurate. By instructing you on the factors to consider, I am 

not expressing any opinion about the accuracy of any specific 

memory of any particular witness. You, the jury, must decide 

whether the witness's identification is accurate.

(1) The witness's opportunity to view the event. You 

should consider the opportunity the witness had to observe the 

offender at the time of the offense, how good a look the witness 

had of the offender, the degree of attention the witness was 

paying to the offender at that time, the distance between the 

witness and the offender, how good the lighting conditions were, 

and the length of time the witness had to observe the offender;

ADD ONLY IF RELEVANT TO THE EVIDENCE IN THE CASE:

[IF DISGUISE WAS INVOLVED OR FACE WAS OBSCURED] whether the 

offender was disguised or had his/her features obscured in some 

way;

5

 

5 See Study Group Report, supra at 30, quoting Lawson, 352 

Or. at 775 (Appendix) ("[S]tudies confirm that the use of a 

disguise negatively affects later identification accuracy. In 

addition to accoutrements like masks and sunglasses, studies 

show that hats, hoods, and other items that conceal a 

perpetrator’s hair or hairline also impair a witness’s ability 

to make an accurate identification"); Henderson, 208 N.J. at 266 

("Disguises and changes in facial features can affect a 

witness'[s] ability to remember and identify a perpetrator"); 

State v. Clopten, 223 P.3d 1103, 1108 (Utah 2009) ("[A]ccuracy 
5

[IF PERPETRATOR HAD DISTINCTIVE FACE OR FEATURE] whether 

the perpetrator had a distinctive face or feature;6

[IF A WEAPON WAS INVOLVED] and whether the witness saw a 

weapon during the event -- the visible presence of a weapon may 

reduce the reliability of an identification if the crime is of 

short duration, but the longer the event, the more time the 

witness has to adapt to the presence of the weapon.7

 

is significantly affected by factors such as the amount of time 

the culprit was in view, lighting conditions, use of a disguise, 

distinctiveness of the culprit's appearance, and the presence of 

a weapon or other distractions"); Wells & Olson, Eyewitness 

Testimony, 54 Ann. Rev. Psychol. 277, 281 (2003) (Wells & Olson)

("Simple disguises, even those as minor as covering the hair, 

result in significant impairment of eyewitness identification"). 

See also Cutler, A Sample of Witness, Crime, and Perpetrator 

Characteristics Affecting Eyewitness Identification Accuracy, 4 

Cardozo Pub. L. Pol'y & Ethics J. 327, 332 (2006) ("In data from 

over 1300 eyewitnesses, the percentage of correct judgments on 

identification tests was lower among eyewitnesses who viewed 

perpetrators wearing hats [44%] than among eyewitnesses who 

viewed perpetrators whose hair and hairlines were visible 

[57%]"); Patterson & Baddeley, When Face Recognition Fails, 3 J. 

Experimental Psychol. 406, 410 (1977).

6 See Study Group Report, supra at 30-31, quoting Lawson, 

352 Or. at 774 ("Witnesses are better at remembering and 

identifying individuals with distinctive features than they are 

those possessing average features"); Clopten, 223 P.3d at 1108; 

Wells & Olson, supra at 281 ("Distinctive faces are much more 

likely to be accurately recognized than nondistinctive faces"); 

Shapiro & Penrod, Meta–Analysis of Facial Identification 

Studies, 100 Psychol. Bull. 139, 140, 145 (1986) (meta-analysis 

finding that distinctive targets were "easier to recognize than 

ordinary looking targets").

7 See Study Group Report, supra at 29, quoting Henderson, 

208 N.J. at 262-263 ("'Weapon focus' can . . . impair a

witness's ability to make a reliable identification and describe 

what the culprit looks like if the crime is of short duration"); 
6

(2) Characteristics of the witness. You should also 

consider characteristics of the witness when the observation was 

made, such as the quality of the witness's eyesight, whether the 

witness knew the offender, and, if so, how well,8 and whether the 

 

Guilbert, 306 Conn. at 253; Lawson, 352 Or. at 771-772

(Appendix). See also Kassin, Hosch, & Memon, On the "General 

Acceptance" of Eyewitness Testimony Research: A New Survey of 

the Experts, 56 Am. Psychol. 405, 407-412 (2001) (Kassin et al.)

(in 2001 survey, eighty-seven per cent of experts agree that

principle that "[t]he presence of a weapon impairs an 

eyewitness's ability to accurately identify the perpetrator's 

face" is reliable enough to be presented in court); Maass & 

Köhnken, Eyewitness Identification: Simulating the "Weapon 

Effect," 13 Law & Hum. Behav. 397, 405-406 (1989); Steblay, A 

Meta–Analytic Review of the Weapon Focus Effect, 16 Law & Hum. 

Behav. 413, 415–417 (1992) (meta-analysis finding "weapon-absent 

condition[s] generated significantly more accurate descriptions 

of the perpetrator than did the weapon-present condition"); id.

at 421 ("To not consider a weapon's effect on eyewitness 

performance is to ignore relevant information. The weapon 

effect does reliably occur, particularly in crimes of short 

duration in which a threatening weapon is visible"); Wells & 

Quinlivan, Suggestive Eyewitness Identification Procedures and 

the Supreme Court's Reliability Test in Light of Eyewitness 

Science: 30 Years Later, 33 Law & Hum. Behav. 1, 11 (2009). 

But see National Academies, supra at 64 (recent meta-analysis 

"shows that the effect of a weapon on accuracy is slight in 

actual crimes, slightly larger in laboratory studies, and 

largest for simulations").

8 See Study Group Report, supra at 135 (recommending 

instruction stating, "If the witness had seen the defendant 

before the incident, you should consider how many times the 

witness had seen the defendant and under what circumstances"); 

Commonwealth v. Adams, 458 Mass. 766, 770-771 (2011) 

("Traditional identification procedures such as photographic 

arrays, showups, and lineups were designed primarily for 

witnesses who had never before seen a particular individual, or 

who may have seen the individual previously but on a limited 

basis. They are not normally used, and are not required, for 

witnesses who know an individual well"). See also Commonwealth

v. Pressley, 390 Mass. 617, 619 (1983) ("There may be cases in 
7

witness was under a high degree of stress -- high levels of 

stress, compared to low to medium levels, can reduce an 

eyewitness's ability to accurately perceive an event;9

ADD ONLY IF RELEVANT TO THE EVIDENCE IN THE CASE:

 

which the parties are so well known to each other or so closely 

related that under sufficient lighting and with appropriate 

physical proximity, the identification by the victim is either 

true or the victim is lying"); Commonwealth v. Stoddard, 38 

Mass. App. Ct. 45, 48 (1995) (no error in omitting "honest but 

mistaken" language where "victim knew the defendant as a regular 

customer of the [gasoline] station and had encountered him 

numerous times over a year and one-half"). But see Pezdek & 

Stolzenberg, Are Individuals' Familiarity Judgments Diagnostic 

of Prior Contact?, 20 Psychol. Crime & L. 302, 306 (2014) 

(twenty-three per cent of study participants misidentified 

subjects with unfamiliar faces as familiar, and only forty-two 

per cent correctly identified familiar face as familiar).

9 See Study Group Report, supra at 29, quoting Special 

Master's Report, supra at 43 ("The scientific literature reports 

that, while moderate levels of stress improve cognitive 

processing and might improve accuracy . . . , an eyewitness 

under high stress is less likely to make a reliable 

identification of the perpetrator"); Lawson, 352 Or. at 769

(Appendix). See also Deffenbacher, Bornstein, Penrod, & 

McGorty, A Meta-Analytic Review of the Effects of High Stress on 

Eyewitness Memory, 28 Law & Hum. Behav. 687, 699 (2004) (finding 

"considerable support for the hypothesis that high levels of 

stress negatively impact both accuracy of eyewitness 

identification as well as accuracy of recall of crime-related 

details"); Morgan, Hazlett, Doran, Garrett, Hoyt, Thomas, 

Baranoski, & Southwick, Accuracy of Eyewitness Memory for 

Persons Encountered During Exposure to Highly Intense Stress, 27 

Int'l J. L. & Psychiatry 265, 272-274 (2004). But see Study 

Group Report, supra, quoting Henderson, 208 N.J. at 262 ("There 

is no precise measure for what constitutes 'high' stress, which 

must be assessed based on the facts presented in individual 

cases").
8

[IF DRUGS OR ALCOHOL WERE INVOLVED] whether the witness at 

the time of the observation was under the influence of alcohol 

or drugs, and if so, to what degree;

[IF WITNESS AND OFFENDER ARE OF DIFFERENT RACES] and 

whether the witness and the offender are of different races --

research has shown that people of all races may have greater 

difficulty in accurately identifying members of a different race 

than they do in identifying members of their own race.10

(3) The time elapsed. You should consider how much time 

elapsed between the event observed and the identification. 

 

10 See Study Group Report, supra at 31 ("A witness may have 

more difficulty identifying a person of a different race or 

ethnicity"); Kassin et al., supra at 407-412 (in 2001 survey, 

ninety per cent of experts agree that principle that 

"[e]yewitnesses are more accurate when identifying members of 

their own race than members of other races" is reliable enough 

to be presented in court); Meissner & Brigham, Thirty Years of 

Investigating the Own-Race Bias in Memory for Faces: A MetaAnalytic Review, 7 Psychol., Pub. Pol'y, & L. 3, 15 (2001) 

(meta-analysis of thirty-nine research articles concluding that 

participants were "1.4 times more likely to correctly identify a 

previously viewed own-race face when compared with performance 

on other-race faces" and "1.56 times more likely to falsely 

identify a novel other-race face when compared with performance 

on own-race faces"); Wells & Olson, supra at 280-281. See also 

Commonwealth v. Zimmerman, 441 Mass. 146, 154-155 (2004) (Cordy, 

J., concurring); State v. Cabagbag, 127 Haw. 302, 310-311 

(2012); Lawson, 352 Or. at 775 (Appendix); National Academies, 

supra at 66, citing Grimsley, Innocence Project, What Wrongful 

Convictions Teach Us About Racial Inequality, Innocence Blog 

(Sept. 26, 2012, 2:30 P.M.), at 

http://www.innocenceproject.org/Content/What_Wrongful_Conviction

s_Teach_Us_About_Racial_Inequality.php [http://perma.cc/KX2JXECN] (last visited Jan. 9, 2015) ("Recent analyses revealed 

that cross-racial [mis]identification was present in 42 percent 

of the cases in which an erroneous eyewitness identification was 

made").
9

Generally, memory is most accurate right after the event and 

begins to fade thereafter.11

(4) Witness's expressed certainty. Research shows that a 

witness's expressed certainty in an identification, standing 

alone, may not be a reliable indicator of the accuracy of the 

identification,

12 especially where the witness did not describe 

that level of certainty when the witness first made the

identification.13

 

11 See Study Group Report, supra at 31-32, quoting Lawson, 

352 Or. at 778 (Appendix) ("The more time that elapses between 

an initial observation and a later identification procedure [a 

period referred to in eyewitness identification research as a 

'retention interval'] . . . the less reliable the later 

recollection will be. . . . [D]ecay rates are exponential rather 

than linear, with the greatest proportion of memory loss 

occurring shortly after an initial observation, then leveling 

off over time"); National Academies, supra at 11 ("For 

eyewitness identification to take place, perceived information 

must be encoded in memory, stored, and subsequently retrieved. 

As time passes, memories become less stable").

12 See Study Group Report, supra at 19 ("Social science 

research demonstrates that little correlation exists between 

witness confidence and the accuracy of the identification"); 

Lawson, 352 Or. at 777 (Appendix) ("Despite widespread reliance 

by judges and juries on the certainty of an eyewitness's 

identification, studies show that, under most circumstances, 

witness confidence or certainty is not a good indicator of 

identification accuracy"); Clopten, 223 P.3d at 1108. See also 

Commonwealth v. Cruz, 445 Mass. 589, 597-600 (2005); 

Commonwealth v. Santoli, 424 Mass. 837, 845-846 (1997); 

Commonwealth v. Jones, 423 Mass. 99, 110 n.9 (1996).

13 See Commonwealth v. Crayton, 470 Mass. 228, 239 (2014)

("Social science research has shown that a witness's level of 

confidence in an identification is not a reliable predictor of 

the accuracy of the identification, especially where the level 

of confidence is inflated by its suggestiveness"); Henderson, 
10

(5) Exposure to identification information from others. A 

person's memory may be affected by information the person 

received between the incident and the identification,14 as well 

as after the identification,15 and the person may not realize 

 

208 N.J. at 254 ("Confirmatory feedback can distort memory. As 

a result, to the extent confidence may be relevant in certain 

circumstances, it must be recorded in the witness'[s] own words 

before any possible feedback"); Lawson, 352 Or. at 745 

("Retrospective self-reports of certainty are highly susceptible 

to suggestive procedures and confirming feedback, a factor that 

further limits the utility of the certainty variable"); Wells & 

Bradfield, Distortions in Eyewitnesses' Recollections: Can the 

Postidentification–Feedback Effect Be Moderated?, 10 Psychol. 

Sci. 138, 138 (1999) ("The idea that confirming feedback would 

lead to confidence inflation is not surprising. What is 

surprising, however, is that confirming feedback that is given 

after the identification leads eyewitnesses to misremember how 

confident they were at the time of the identification").

14 See Study Group Report, supra at 21-22; Special Master’s 

Report, supra at 30-31 ("An extensive body of studies 

demonstrates that the memories of witnesses for events and 

faces, and witnesses' confidence in their memories, are highly 

malleable and can readily be altered by information received by 

witnesses both before and after an identification procedure"); 

Lawson, 352 Or. at 786 (Appendix) ("The way in which 

eyewitnesses are questioned or converse about an event can alter 

their memory of the event").

15 See Study Group Report, supra at 22, quoting Henderson, 

208 N.J. at 255 (postidentification feedback "affects the 

reliability of an identification in that it can distort memory, 

create a false sense of confidence, and alter a witness'[s]

report of how he or she viewed an event"); Special Master's 

report, supra at 33 ("A number of studies have demonstrated that 

witnesses' confidence in their identifications, and their 

memories of events and faces, are readily tainted by information 

that they receive after the identification procedure"). See 

also Commonwealth v. Collins, 470 Mass. 255, 263 (2014) ("Where 

confirmatory feedback artificially inflates an eyewitness’s 

level of confidence in his or her identification, there is also 
11

that his or her memory has been affected.16 You may consider 

whether the witness was exposed to identifications made by other 

witnesses, to opinions or descriptions given by others, 

including police officers, or to any other information or 

influence.17 Such exposure may affect the independence and 

reliability of a witness's identification, and may inflate the 

witness's confidence in the identification.18

 

a substantial risk that the eyewitness's memory of the crime at 

trial will 'improve'").

16 See Study Group Report, supra at 117, 136 n.4, citing 

Principles of Neural Science, Box 62-1, at 1239 (Kandel, 

Schwartz, & Jessell eds., 2000); Clark, Marshall, & Rosenthal, 

Lineup Administrator Influences on Eyewitness Identification 

Decisions, 15 J. Experimental Psychol.: Applied 63, 72 (2009) 

("Most witnesses appeared to be unaware of the influence" of 

lineup administrator in staged experiment).

17 See Henderson, 208 N.J. at 253 ("Confirmatory or postidentification feedback presents the same risks. It occurs when 

police signal to eyewitnesses that they correctly identified the 

suspect"); Lawson, 352 Or. at 777-778 (Appendix); Hope, Ost, 

Gabbert, Healey, & Lenton, "With a Little Help from My Friends 

. . .": The Role of Co–Witness Relationship in Susceptibility 

to Misinformation, 127 Acta Psychologica 476, 481 (2008); 

Skagerberg, Co–Witness Feedback in Line-ups, 21 Applied 

Cognitive Psychol. 489, 494 (2007) ("post-identification 

feedback does not have to be presented by the experimenter or an 

authoritative figure [e.g. police officer] in order to affect a 

witness' subsequent crime-related judgments").

18 See Study Group Report, supra at 21-22; Henderson, 208 

N.J. at 255; Lawson, 352 Or. at 744. See also Douglass & 

Steblay, Memory Distortion in Eyewitnesses: A Meta–Analysis of 

the Post-Identification Feedback Effect, 20 Applied Cognitive 

Psychol. 859, 863–65 (2006) (participants who received 

confirming feedback "expressed significantly more retrospective 

confidence in their decision compared with participants who 

received no feedback"); Wells & Bradfield, "Good, You Identified 
12

An identification that is the product of some suggestive 

conduct by the police or others should be scrutinized with 

special caution and care. The risk that suggestion will affect 

the identification is greater where the witness did not get so 

good a look at the offender, because a witness who got a good 

look is less likely to be influenced by suggestion.19

 

the Suspect": Feedback to Eyewitnesses Distorts Their Reports 

of the Witnessing Experience, 83 J. Applied Psychol. 360, 366-

367 (1998) (witnesses receiving confirming feedback reported "a 

better view of the culprit, a greater ability to make out 

details of the face, greater attention to the event, [and] a 

stronger basis for making an identification" compared to 

witnesses receiving no feedback); Wells & Bradfield, Distortions 

in Eyewitnesses' Recollections: Can the Postidentification–

Feedback Effect Be Moderated?, 10 Psychol. Sci. 138, 138 (1999); 

National Academies, supra at 64 ("Research has . . . shown that 

. . . if an eyewitness hears information or misinformation from 

another person before law enforcement involvement, his or her 

recollection of the event and confidence in the identification 

can be altered . . .").

19 See Steblay, Wells, & Douglass, The Eyewitness Post 

Identification Feedback Effect 15 Years Later: Theoretical and 

Policy Implications, 20 Psychol. Pub. Pol. & L. 1, 10 (2014) 

(significant but smaller postidentification feedback effect on 

accurate eyewitnesses compared to inaccurate eyewitnesses). See 

also Allan, Midjord, Martin, & Gabbert, Memory Conformity and 

the Perceived Accuracy of Self Versus Other, 40 Memory & 

Cognition 280, 285 (2011) (study participants with least amount 

of time to view initial event, and who were told that their 

partner had twice as long to view same event, were most likely 

to conform their memory to their partner's recollection); 

Deffenbacher, Bornstein, & Penrod, Mugshot Exposure Effects: 

Retroactive Interference, Mugshot Commitment, Source Confusion, 

and Unconscious Transference, 30 Law & Hum. Behav. 287, 288

(2006) (bias from mugshot exposure "is all the more problematic 

when viewing of the perpetrator has occurred under less than 

optimal viewing conditions"). Cf. Wells & Olson, supra at 283 

(when accuracy is low due to poor witnessing conditions, 

certainty-accuracy relationship is less correlated).
13

ADD ONLY IF RELEVANT TO THE EVIDENCE IN THE CASE:

[IF THERE WAS A PHOTOGRAPHIC ARRAY OR LINEUP] An

identification may occur as part of the police investigation 

through the showing of an array of photographs or through a 

lineup of individuals. You may take into account that any 

identification that was made by picking the defendant out of a 

group of similar individuals is generally more reliable than one 

which results from the presentation of the defendant alone to a 

witness.

You should consider whether the police in conducting the 

photographic array or lineup followed established or recommended 

procedures that are designed to diminish the risk of 

suggestiveness.20 If there was evidence that any of those 

procedures were not followed, you should evaluate the 

identification with particular care and consider whether the 

 

20 See Commonwealth v. Silva-Santiago, 453 Mass. 782, 797-

798 (2009) ("What is practicable in nearly all circumstances is 

a protocol to be employed before a photographic array is 

provided to an eyewitness, making clear to the eyewitness, at a 

minimum that he will be asked to view a set of photographs; the 

alleged wrongdoer may or may not be in the photographs depicted 

in the array; it is just as important to clear a person from 

suspicion as to identify a person as the wrongdoer; individuals 

depicted in the photographs may not appear exactly as they did 

on the date of the incident because features such as weight and 

head and facial hair are subject to change; regardless of 

whether an identification is made, the investigation will 

continue; and the procedure requires the administrator to ask 

the witness to state, in his or her own words, how certain he or 

she is of any identification").
14

failure to follow the procedure affected the reliability of the 

identification.

Where a witness identified the defendant in a photographic 

array [or in a lineup], you should consider the number of 

photographs in the array [or individuals in the lineup],21

whether there was anything about the defendant's photograph [or 

the defendant's appearance in the lineup] that made him/her 

stand out from the others,22 whether the person administering the 

photographic array [or lineup] did not know who was the suspect 

and therefore could not influence the witness's identification,23

 

21 See Commonwealth v. Walker, 460 Mass. 590, 604 (2011) 

("Unless there are exigent or extraordinary circumstances," 

photographic array should not contain fewer than five fillers 

for every suspect). See also Henderson, 208 N.J. at 251 (live 

lineups should also employ minimum of five fillers).

22 See Wells & Olson, supra at 287 ("Ideally, lineup fillers 

would be chosen so that an innocent suspect is not mistakenly 

identified merely from 'standing out,' and so that a culprit 

does not escape identification merely from blending in"); SilvaSantiago, 453 Mass. at 795, quoting Commonwealth v. Melvin, 399 

Mass. 201, 207 n.10 (1987) ("we 'disapprove of an array of 

photographs which distinguishes one suspect from all the others 

on the basis of some physical characteristic'"). See also 

Henderson, 208 N.J. at 251; Lawson, 352 Or. at 781; Malpass,

Tredoux, & McQuiston-Surrett, Lineup Construction and Lineup 

Fairness, in 2 Handbook of Eyewitness Psychology 156 (2007) 

("Decades of empirical research suggest that mistaken eyewitness 

identifications are more likely to occur when the suspect stands 

out in a lineup").

23 See Silva-Santiago, 453 Mass. at 797 ("we acknowledge 

that [a double-blind procedure] is the better practice because 

it eliminates the risk of conscious or unconscious suggestion"); 

Guilbert, 306 Conn. at 237-238 (courts across country accept 

that "identifications are likely to be less reliable in the 
15

and whether anything was said to the witness that would suggest 

that the suspect was among the persons shown in the photographic 

array [or lineup], or that would suggest that the witness should 

identify the suspect.24

[IF THERE WAS A SHOWUP] An identification may occur as 

part of the police investigation through what is known as a 

showup, where a suspect is shown alone to a witness. An

identification procedure in which a witness selects a person 

 

absence of a double-blind, sequential identification 

procedure"); Henderson, 208 N.J. at 249 ("The consequences are 

clear: a non-blind lineup procedure can affect the reliability 

of a lineup because even the best-intentioned, non-blind 

administrator can act in a way that inadvertently sways an 

eyewitness trying to identify a suspect"). See also National 

Academies, supra at 18 ("As an alternative to a 'double-blind' 

array, some departments use 'blinded' procedures. A blinded 

procedure prevents an officer from knowing when the witness is 

viewing a photo of the suspect, but can be conducted by the 

investigating officer"); id. at 73 ("The committee recommends

blind [double-blind or blinded] administration of both photo 

arrays and live lineups and the adoption of clear, written 

policies and training on photo array and live lineup 

administration. Police should use blind procedures to avoid the 

unintentional or intentional exchange of information that might 

bias an eyewitness").

24 See Clark, Marshall, & Rosenthal, Lineup Administrator 

Influences on Eyewitness Identification Decisions, 15 J. 

Experimental Psychol. Applied 63, 74 (2009) (subtle, 

nondirective statements by lineup administrator "can lead a 

witness to make an identification, particularly when the 

perpetrator was not present"); Malpass & Devine, Eyewitness 

Identification: Lineup Instructions and the Absence of the 

Offender, 66 J. Applied Psychol. 482, 486-487 (1981) (where 

subject witnesses were asked to identify assailant in staged 

experiment, "[c]hanging the instruction from biased [suspect is 

present in lineup] to unbiased [suspect may or may not be 

present] resulted in fewer choices and fewer false 

identifications without a decrease in correct identifications").
16

from a group of similar individuals in a photographic array or a 

lineup is generally less suggestive than a showup, which is to 

some degree inherently suggestive.25 You should consider how 

long after the initial event the showup took place, as a fresh 

memory of an event that occurred only a few hours earlier may 

reduce the risks arising from the inherently suggestive nature 

of a showup.26

 

25 See Study Group Report, supra at 26, citing Special 

Master's Report, supra at 29 (showups carry their own risks of 

misidentification "due to the fact that only one person is 

presented to the witness"); Lawson, 352 Or. at 742-743 ("A 

'showup' is a procedure in which police officers present an 

eyewitness with a single suspect for identification, often [but 

not necessarily] conducted in the field shortly after a crime 

has taken place. Police showups are generally regarded as 

inherently suggestive -- and therefore less reliable than 

properly administered lineup identifications -- because the 

witness is always aware of whom police officers have targeted as 

a suspect"); Dysart & Lindsay, Show-up Identifications: 

Suggestive Technique or Reliable Method?, in 2 Handbook of 

Eyewitness Psychology 141 (2007) ("Overall, show-ups [fare]

poorly when compared with line-ups. Correct identification 

rates are equal and false identification rates are about two to 

three times as high with show-ups compared with line-ups"). See 

also Silva-Santiago, 453 Mass. at 797; Commonwealth v. Martin, 

447 Mass. 274, 279 (2006) ("One-on-one identifications are 

generally disfavored because they are viewed as inherently 

suggestive").

26 See Crayton, 470 Mass. at 235-236 ("there is generally 

'good reason' [to conduct showup] where the showup 

identification occurs within a few hours of the crime, because 

it is important to learn whether the police have captured the 

perpetrator or whether the perpetrator is still at large, and 

because a prompt identification is more likely to be accurate 

when the witness's recollection of the event is still fresh"); 

Study Group Report, supra at 141 n.30, quoting Special Master's 

Report, supra at 29 ("The research shows, in fact, that the risk 

of misidentification is not heightened if a showup is conducted 
17

You should consider whether the police, in conducting the 

showup, followed established or recommended procedures that are 

designed to diminish the risk of suggestiveness. If any of 

those procedures were not followed, you should evaluate the 

identification with particular care and consider whether the 

failure to follow the procedure affected the reliability of the 

identification.

ADD ONLY IF RELEVANT TO THE EVIDENCE IN THE CASE:

[IF THERE WERE MULTIPLE VIEWINGS BY THE SAME WITNESS] You 

should consider whether the witness viewed the defendant in 

multiple identification procedures or events. When a witness 

views the same person in more than one identification procedure 

or event, it may be difficult to know whether a later 

identification comes from the witness's memory of the actual, 

original event, or from the witness's observation of the person 

at an earlier identification procedure or event.27

 

immediately after the witnessed event, ideally within two hours:

the benefits of a fresh memory seem to balance the risks of 

undue suggestion"). See also Dysart & Lindsay, The Effects of 

Delay on Eyewitness Identification Accuracy: Should We Be 

Concerned?, in 2 Handbook of Eyewitness Psychology 370 (2007) 

(showups become particularly unreliable after twenty-four hours, 

rather than two hours).

27 See Study Group Report, supra at 25, quoting Special 

Master's Report, supra at 27-28 ("The problem is that successive 

views of the same person create uncertainty as to whether an 

ultimate identification is based on memory of the original 

observation or memory from an earlier identification 

procedure"); Henderson, 208 N.J. at 255; Deffenbacher,
18

(6) Failure to identify or inconsistent identification. 

You may take into account whether a witness ever tried and 

failed to make an identification of the defendant, or made an 

identification that was inconsistent with the identification 

that such witness made at trial.

(7) Totality of the evidence. You should consider all the 

relevant factors that I have discussed, viewed in the context of 

the totality of the evidence in this case, in evaluating the 

accuracy of a witness's identification testimony. Specifically, 

you should consider whether there was other evidence in the 

case, direct or circumstantial, that tends to support or not to 

support the accuracy of an identification. If you are not 

convinced beyond a reasonable doubt that the defendant was the 

person who committed [or participated in the commission of] the 

crime[s], you must find the defendant not guilty.

 

Bornstein, & Penrod, Mugshot Exposure Effects: Retroactive 

Interference, Mugshot Commitment, Source Confusion, and 

Unconscious Transference, 30 Law & Hum. Behav. 287, 306 (2006) 

("prior mugshot exposure decreases accuracy at a subsequent 

lineup, both in terms of reductions in rates for hits and 

correct rejections as well as in terms of increases in the rate 

for false alarms"). See also Simmons v. United States, 390 U.S. 

377, 383-384 (1968); Commonwealth v. Scott, 408 Mass. 811, 826 

(1990).