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SJC-12055

COMMONWEALTH vs. MARCUS THOMAS.

Hampden. October 7, 2016. - February 13, 2017.

Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, &

Budd, JJ.

Constitutional Law, Identification. Due Process of Law, 

Identification, Identification of inanimate object.

Evidence, Identification, Identification of inanimate 

object. Identification. Practice, Criminal, Motion to 

suppress.

Indictments found and returned in the Superior Court 

Department on April 3, 2015.

Pretrial motions to suppress evidence were considered by 

Edward J. McDonough, Jr., J.

Applications for leave to prosecute interlocutory appeals 

were allowed by Spina, J., in the Supreme Judicial Court for the 

county of Suffolk, and the appeals were reported by him to the 

Appeals Court. The Supreme Judicial Court granted an 

application for direct appellate review.

Heidi M. Ohrt-Gaskill, Assistant District Attorney, for the 

Commonwealth.

Paul R. Rudof, Committee for Public Counsel Services, for 

the defendant.

The following submitted briefs for amici curiae:
2

David Zhang, of China, Karen A. Newirth, of New York, 

Joshua Asher, of Illinois, & Radha Natarajan & Kirsten Mayer for 

The Innocence Project, Inc. & another.

Anthony D. Mirenda, Michael J. Licker, Melissa A. Stewart,

& Chauncey Wood for Massachusetts Association of Criminal 

Defense Lawyers.

GANTS, C.J. These interlocutory appeals from two rulings 

on motions to suppress raise three substantial issues regarding 

eyewitness identification. First, we consider what consequence, 

if any, is appropriate where a police officer who is showing a 

photographic array to an eyewitness fails to use the protocol 

that we outlined in Commonwealth v. Silva-Santiago, 453 Mass. 

782, 797-798 (2009), despite our declaration in that opinion 

that we "expect" police to use the protocol in the future. 

Second, we examine whether, based on subsequent research, we 

should revisit the conclusion we reached in Silva-Santiago, 

supra at 798-799, and confirmed in Commonwealth v. Walker, 460 

Mass. 590, 602-603 (2011), that the choice of a simultaneous 

rather than a sequential display of photographs in an array may 

be relevant to the weight to be given to an identification but 

does not affect its admissibility. The third issue concerns the 

identification of an inanimate object -- a firearm. We

determine whether suggestive police questioning and subsequent 

police confirmation appropriately may result in suppression of 

the identification of a firearm as the firearm used by the 

defendant during the commission of the crime.
3

These issues arise in the context of cross interlocutory 

appeals: the defendant's appeal of the denial of his motion to 

suppress the identification of him by an eyewitness, Brianna 

Johnson, who was familiar with the defendant and knew his first 

name; and the Commonwealth's appeal of the allowance of the 

defendant's motion to suppress the identification of a firearm 

by Johnson as the one used by the defendant in the commission of 

the crime. We affirm the judge's ruling on both motions.1

Background. There was no evidentiary hearing conducted 

regarding the two motions to suppress. The Commonwealth and the 

defendant instead submitted to the motion judge various 

exhibits, including a joint stipulation of facts and videotaped 

recordings of two interviews with Johnson, the first conducted 

on the evening of the incident and the second conducted four 

days later, after the defendant had been arrested and a firearm 

that had allegedly been in his possession had been found. 

Because we are in the same position as the motion judge to make 

findings, we do not limit the facts recited below to the facts 

found by the motion judge. See Commonwealth v. Neves, 474 Mass. 

355, 360 (2016), quoting Commonwealth v. Novo, 442 Mass. 262, 

266 (2004) (where decision is based on recorded rather than live 

 

1 We acknowledge the amicus briefs submitted by The 

Innocence Project, Inc., and the New England Innocence Project;

and by the Massachusetts Association of Criminal Defense 

Lawyers.
4

testimony, "we will 'take an independent view' of recorded 

confessions and make judgments with respect to their contents 

without deference to the fact finder, who 'is in no better 

position to evaluate the[ir] content and significance'").

In Springfield early in the evening of September 21, 2014,

the defendant was in the rear passenger seat of a vehicle driven 

by Tavis Humphrey-Frazer; Johnson sat in the front passenger 

seat. According to Johnson, the defendant stated that he saw a 

particular individual among a crowd of people standing in front 

of a house on Smith Street. Humphrey-Frazer turned the vehicle 

onto Smith Street and drove towards the group of people. The 

defendant leaned out of the rear driver's side window and fired 

one or two shots at the group before his firearm jammed, and 

then was able to fire one or two more rounds in the direction of 

the group. The defendant's gunshots were met by return fire; a 

bullet penetrated a window of the vehicle and struck HumphreyFrazer in the head, killing him.

Later that night, Springfield police Detectives Kevin Lee 

and Anthony Pioggia interviewed Johnson at the Springfield 

police station. Johnson said that her cousin, Humphrey-Frazer,

received a telephone call from "Marcus," who was a member of the 

same gang as was Humphrey-Frazer. Humphrey-Frazer asked Johnson 

if she wanted to join him while he drove to pick up Marcus, and 

she agreed. When asked to tell the detectives about Marcus, 
5

Johnson said, "I don't know that much about him." She explained 

that he was Humphrey-Frazer's friend, not her friend. She said 

she did not see Marcus that often "because . . . [they] don't 

associate with the same people." After saying that she had seen 

Marcus at a party, she added, "I just know it's him because he's 

known up here." She said that Marcus "look[s] like he's 

[nineteen] or something," and is "kind of chunky." She assured

the detectives that she would recognize him if she saw him.

The detectives then stopped the interview in order to 

perform an identification procedure.2 They presented Johnson 

with a computer screen that simultaneously displayed photographs 

of eleven individuals. No cautionary warnings were given to 

Johnson; the detectives simply asked her to sit down, "[l]ook at 

the pictures . . . [a]nd if [she saw] somebody [she]

recognize[d] in relation to [the] incident, to identify them if 

 

2 The identification procedure occurred in a separate room 

in the police station and was not recorded. Immediately 

afterward, the detectives asked Brianna Johnson to confirm the 

details and results of the procedure on the videotaped recording 

and to sign the photograph she had identified. This recording 

suggests that the same detectives who conducted the interview 

with Johnson also administered the identification procedure. 

The defendant does not argue that the failure to use a doubleblind identification procedure requires suppression of the 

identification. See Commonwealth v. Silva-Santiago, 453 Mass. 

782, 797-799 (2009) (absence of double-blind identification 

procedure, where administering officer does not know which 

photograph depicts suspect, is relevant to weight of 

identification, not admissibility).
6

[she] could."3 Johnson picked a photograph of the defendant and 

signed a copy of that photograph.

After the interview, an arrest warrant issued against the 

defendant. On September 23, Detectives Lee and Pioggia saw the 

defendant in Springfield riding a motorized scooter and pursued 

him, using their lights and sirens in an attempt to cause him to 

stop. The defendant drove the scooter to a grassy area and then 

drove back into the street, where he lost control of the scooter 

and was apprehended.4 The next morning, a canine unit from the 

State police searched the grassy area and found a nine

 

3 Later during the interview on September 21, 2014, the 

detectives asked Johnson to examine a separate photographic 

array in search of anyone whom she recognized to be among the 

group of persons on Smith Street in Springfield. Before showing 

her these photographs, Detective Anthony Pioggia told her, "I 

have to go through . . . what's called an identification 

protocol . . . . It's something that the courts ask that we ask 

people to read and hopefully understand before looking at pages 

of photographs like this."

4 After the defendant had been arrested, he agreed to be 

interviewed and confirmed that he had been in the vehicle with 

Tavis Humphrey-Frazer at the time of the shooting. The 

defendant argues that, because the arrest was based on Johnson's 

unconstitutional identification procedure, his statements should 

be excluded as "fruit of the poisonous tree."

4 After the defendant had been arrested, he agreed to be 

interviewed and confirmed that he had been in the vehicle with 

Tavis Humphrey-Frazer at the time of the shooting. The 

defendant argues that, because the arrest was based on Johnson's 

unconstitutional identification procedure, his statements should 

be excluded as "fruit of the poisonous tree."
7

millimeter handgun, loaded with a magazine containing twelve

rounds of ammunition.5

The next day, September 25, Detectives Lee and Pioggia

brought Johnson back to the police station for a second 

interview. At the first interview, Johnson had told the 

detectives that the firearm used by the defendant was "big" and

"black" and looked like the gun carried by the detectives. At 

the second interview, conducted by Detective Lee and Detective 

Timothy Kenney, Detective Lee started to question Johnson again 

about the gun when Detective Kenney interrupted and asked, "Can 

I go after something here at this juncture?" Detective Kenney

then placed a photograph of a gun onto the table in front of 

Johnson. "That's probably it, yup," Johnson responded.

Detective Kenney: "That's probably it?"

Detective Lee: "Brianna, did you see him with this type of 

gun before?"

Johnson: "Wow."

Detective Lee: "Brianna?"

Johnson: "Hold on. I'm thinking."

Detective Lee: "Okay. I mean, the picture is the picture, 

right? It's a photograph."

Johnson: "Yeah."

 

5 The record does not reflect whether this weapon was tested 

for the defendant's fingerprints or whether ballistics tests 

were conducted to determine if the gun fired any of the shots at 

the group on Smith Street.
8

. . .

Detective Lee: [Grabs photograph away] "Let me show the 

camera what we're showing you, okay? [Turning back to 

Johnson] Black, right? Black?"

Johnson: "Hold on."

Detective Lee: "All right."

Johnson: "I've got to look at it. Yeah. Is this the 

gun?"

Detective Lee: "You tell us. Does it look like the gun he 

had?"

Johnson: "I think so, yeah. Because I remember this 

part."

Detective Lee: "What do you remember? What are you 

pointing to?"

Johnson: "This, this, this whole right here [pointing]. 

It's like little scratches on it just like this."

Detective Lee: "And you remember those scratches?"

Johnson: "Yeah because I looked back when he was going 

like this, like that." [Simulating a person trying to 

unjam a gun]6

The conversation turned briefly to discuss the angle from which 

Johnson saw the defendant holding the weapon and struggling with 

it after it jammed. Detective Kenney then asked Johnson to sign 

the photograph, and the discussion continued.

Detective Lee: "That's what you described even the night 

of the murder."

Johnson: "Wow."

 

6 The record does not include a photograph of the firearm, 

and the so-called "scratches" cannot easily be identified or 

seen on the videotape.
9

Detective Lee: "You said a big black handgun."

Johnson: "Wow. This is crazy."

Detective Lee: "Looks just like it, huh?"

Johnson: "It looks just like it."

Detective Lee: "Good."

Johnson: "Wow. That's crazy."

Detective Lee: "We're smarter than you think, aren't we?"

Johnson: "Yeah."

After a Hampden County grand jury returned indictments 

against the defendant on various charges, including three counts 

of armed assault with intent to murder, illegal possession of a 

firearm, and murder in the second degree,7 the defendant moved to 

suppress Johnson's identification of him and her identification 

of the firearm. In denying the defendant's motion to suppress 

Johnson's identification of him, the judge concluded that it was 

"advisable" for the police to use the Silva-Santiago protocol 

before showing an eyewitness a photographic array because we had 

declared that we expected police to use the protocol. But the 

judge declared that "this expectation is not black letter law 

 

7 The Commonwealth does not allege that the defendant fired 

the bullet that killed Humphrey-Frazer. Rather, it alleges that 

he is legally responsible for Humphrey-Frazer's death because he 

initiated the gunfight, and the "natural and probable 

consequence" of that conduct was that someone would shoot back. 

We do not address whether this theory is a legally valid basis 

to support a conviction of murder in the second degree.
10

that requires mandatory adherence." He also concluded that the 

defendant did not show "that the absence of a protocol begets a 

finding of undue suggestiveness." The judge also found that the 

police use of a simultaneous rather than a sequential display of 

photographs was not unnecessarily suggestive. Where the 

defendant offered no evidence to suggest that the photographs in 

the array impermissibly distinguished the defendant or were 

otherwise suggestive, the judge concluded, based on the totality 

of the circumstances, that "the identification procedure 

employed by the police, though less than ideal, was not unduly 

suggestive."

In allowing the defendant's motion to suppress Johnson's 

identification of the firearm, the judge found that the use of a 

single photograph in the identification procedure was unduly 

suggestive in the absence of exigent circumstances, and that 

this was "an extreme case" that "rises to the level of a denial 

of due process," rendering the identification of the firearm 

inadmissible on that ground alone. The judge also found that 

the detectives made "repeated affirmative and confirmatory 

statements" that likely "hindered Johnson's ability to make an 

uninfluenced identification," and rendered the identification 

inadmissible under the common law of evidence as "unreliable, 

unfair, and prejudicial."
11

The defendant and the Commonwealth each applied for 

interlocutory review of the adverse ruling. The single justice 

allowed both applications, and we granted the defendant's 

application for direct appellate review.

Discussion. 1. Motion to suppress Johnson's 

identification of defendant. a. Failure to follow protocol. 

In Silva-Santiago, 453 Mass. at 797-798, we set forth a protocol 

to be used before a photographic array is provided to an 

eyewitness. Under the protocol, police must make clear to an 

eyewitness that "he [or she] 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." The protocol also "requires the 

administrator to ask the witness to state, in his or her own 

words, how certain he or she is of any identification." Id. at 

798. We declined to hold that the absence of such a protocol or 

comparable warnings in the identifications made in the SilvaSantiago case required that they be found inadmissible, but we 
12

declared that "we expect" such a protocol "to be used in the 

future." Id.

That expectation has largely been met. A joint survey 

conducted in 2013 by the Massachusetts Chiefs of Police 

Association and the New England Innocence Project identified 253 

police departments that had policies regarding identification 

procedures, and eighty-five per cent of these policies 

"incorporated reform protocols." Massachusetts Chiefs of Police 

Association & Massachusetts Major City Chiefs, A Response to the 

Final Report of the President's Task Force on 21st Century 

Policing 13 (Sept. 2015), available at http://www.masschiefs.

org/files-downloads/news-1/866-mcopa-mmcc-response-to-the-finalreport-of-the-president-s-task-force-on-21st-century-police/file

[https://perma.cc/D4K5-EALZ]. See Supreme Judicial Court Study 

Group on Eyewitness Evidence: Report and Recommendations to the 

Justices 103-104 (July 25, 2013), available at 

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

report–2013.pdf [https://perma.cc/WY4M-YNZN]. In fact, this is 

the first case where the identification procedure was conducted 

after we announced the protocol in Silva-Santiago in which we 

have been asked to consider what consequence, if any, should 

arise from the failure to follow the protocol. And, even here, 

the detectives followed the protocol where they showed Johnson 

photographs and asked her to identify anyone she recognized who 
13

was among the group of people that were the apparent target of 

the defendant's gunfire; they failed to follow the protocol only 

where they showed her the array that included the defendant.

The expectation we declared in Silva-Santiago was not 

intended as a prediction of future police conduct; it was meant 

as a warning that the failure to follow such a protocol may have 

consequence where the prosecution intends to offer an 

identification at trial that is procured without the benefit of 

such a protocol. See Silva-Santiago, 453 Mass. at 798, citing 

Commonwealth v. Diaz, 422 Mass. 269, 273 (1996) ("warning 'that 

the time may come when recording in places of detention . . . 

will be mandatory if a statement obtained during custodial 

interrogation is to be admissible'"). The superintendence 

authority of this court does not extend to law enforcement 

agencies; we cannot mandate what they must or must not do, but 

we can mandate what the consequence will be in a court of law 

where they fail to follow our guidance. See Commonwealth v. 

DiGiambattista, 442 Mass. 423, 444-445 (2004) ("The issue . . . 

is not what we 'require' of law enforcement, but how and on what 

conditions evidence will be admitted in our courts. We retain 

as part of our superintendence power the authority to regulate 

the presentation of evidence in court proceedings").

We have recognized "that the failure to provide warnings 

comparable to the protocol we adopted in Silva-Santiago . . . 
14

'substantially increases risk of misidentification.'" 

Commonwealth v. Walker, 460 Mass. 590, 602 (2011), quoting 

Report of Special Master at 22 (June 18, 2010), State vs. 

Henderson, N.J. Supreme Court, No. A-8-08. Moreover, as part of 

our model jury instructions on eyewitness identification, 473 

Mass. 1051, 1056-1057 (2015), we instruct juries to evaluate an 

identification "with particular care" where the police failed to 

follow the Silva-Santiago protocol during the identification 

procedure, which reflects our recognition that there is a near 

consensus in the relevant scientific community that the failure 

to follow such a protocol increases the risk of 

misidentification. See Commonwealth v. Gomes, 470 Mass. 352, 

366-367 (2015) ("a principle is 'so generally accepted' that it 

is appropriate to include in a model eyewitness identification 

instruction where there is a near consensus in the relevant 

scientific community adopting that principle"). See also id. at 

367 n.24.

Therefore, the consequence of a failure to follow the 

Silva-Santiago protocol is twofold: it affects a judge's 

evaluation of the admissibility of the identification; and, 

where it is found admissible, it affects the judge's 

instructions to the jury regarding their evaluation of the 

accuracy of the identification.
15

As to admissibility, under art. 12 of the Massachusetts 

Declaration of Rights, an identification of a defendant must be 

suppressed where the defendant proves by a preponderance of the 

evidence that "the witness was subjected by the State to a 

pretrial confrontation . . . 'so unnecessarily suggestive and 

conducive to irreparable mistaken identification' as to deny the 

defendant due process of law." Commonwealth v. Odware, 429 

Mass. 231, 235 (1999), quoting Commonwealth v. Otsuki, 411 Mass. 

218, 232 (1991). In making this determination, the judge must 

examine the totality of the circumstances regarding the 

interaction between the witness and the police. Odware, supra, 

quoting Otsuki, supra at 232-233. Because the failure to follow 

the protocol needlessly increases the risk of a 

misidentification, an identification procedure without such a 

protocol is unnecessarily suggestive. See Commonwealth v.

Figueroa, 468 Mass. 204, 217 (2014), quoting Commonwealth v. 

Phillips, 452 Mass. 617, 628 (2008) ("Even where there is 'good 

reason' for a showup identification, it may still be suppressed 

if the identification procedure so needlessly adds to the 

suggestiveness inherent in such an identification that it is 

'conducive to irreparable mistaken identification'"); Walker, 

460 Mass. at 604 ("all-suspect array significantly and 

needlessly increases the potentially unjust consequences that 

may arise from a false positive identification"). But that 
16

alone does not mandate its suppression, because the standard, to 

be judged based on the totality of the evidence of the police 

interaction with the witness, is whether the identification 

procedure was "'so unnecessarily suggestive and conducive to 

irreparable mistaken identification' as to deny the defendant 

due process of law" (emphasis added). Odware, supra, quoting 

Otsuki, supra at 232.

In considering the degree of suggestiveness arising from 

the failure to follow the protocol, a judge may consider the 

witness's familiarity with the alleged wrongdoer. The level of 

familiarity between a witness and the suspect is measured by 

factors such as the number of times the witness viewed the 

suspect previously; the duration, nature, and setting of those 

encounters; and the period of time over which the encounters 

occurred. People v. Rodriguez, 79 N.Y.2d 445, 450-451 (1992).

Where a witness saw the wrongdoer for the first time during the 

commission of the crime, the witness will examine a photographic 

array in search of the unknown person he or she saw during that 

incident. But where, as here, the witness was familiar with the 

alleged wrongdoer from prior interactions and knew his first 

name, the witness will look at a photographic array in search of 

that person. We cannot reasonably expect the witness to ignore 

her memory of what the person looked like based on prior 

interactions and focus only on what the person looked like 
17

during the commission of the crime. Cf. Commonwealth v. 

Crayton, 470 Mass. 228, 242 (2014) ("there may be 'good reason' 

for the first identification procedure to be an in-court showup 

where the eyewitness was familiar with the defendant before the 

commission of the crime"; in this circumstance, "the in-court 

showup is understood by the jury as confirmation that the 

defendant sitting in the court room is the person whose conduct 

is at issue rather than as identification evidence").

To be sure, the witness might have been mistaken in 

thinking that the person she saw committing the crime was the 

person she knew; research has shown that the perception of 

familiarity is often unreliable. See Model Jury Instructions on 

Eyewitness Identification, 473 Mass. at 1054 endnote h, citing 

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"). And we do not agree with the Commonwealth that the 

use of the protocol here "would not have provided any additional 

safeguards" because of Johnson's familiarity with "Marcus." The 

photographic array potentially could have revealed that the 

"Marcus" she knew was a different "Marcus" from the person the 

police included in the array, or that her actual familiarity 
18

with "Marcus" was less than the modest familiarity she 

described. But we conclude that, where a witness believes he or 

she knows the perpetrator from prior interactions and knows the 

perpetrator's name, the risk of misidentification arising from 

the failure to follow the protocol is less than where the 

witness looks at an array in search of an unknown person he or 

she saw only during the commission of the crime. Although the 

motion judge here did not do so, a judge properly may consider 

this familiarity in determining, based on the totality of the 

circumstances, whether the failure to follow the protocol was so 

unnecessarily suggestive as to deprive the defendant of due 

process. We conclude that, in these circumstances, the 

detectives' failure to follow the protocol, standing alone, did 

not warrant suppression of Johnson's identification of the 

defendant.

b. Simultaneous versus sequential photographic array. The 

defendant contends that the detectives' failure to adhere to the 

Silva-Santiago protocol was not the only source of needless 

suggestiveness, and that the identification procedure was 

unnecessarily suggestive because the eleven photographs in the 

array were shown to Johnson simultaneously rather than 

sequentially.

We have twice examined the scientific arguments in support 

of sequential arrays. In Silva-Santiago, 453 Mass. at 798-799, 
19

we acknowledged the debate among scholars and practitioners 

whether the sequential showing of photographs yields more 

accurate identification, and concluded that, "[w]hile that 

debate evolves, the choice of a simultaneous rather than a 

sequential display of photographs shall go solely to the weight 

of the identification, not to its admissibility." In Walker, 

460 Mass. at 601, we revisited that conclusion and noted that 

the empirical research suggests that the rate of both accurate 

and inaccurate (i.e., true and false positive) identification is 

higher where eyewitnesses are shown a simultaneous array rather 

than an sequential array. We declared:

"What is not clear from the studies is whether, and in what 

circumstances, the use of the protocol in a simultaneous 

photographic lineup diminishes the risk of false positive 

identification to a rate comparable to or less than that in 

a sequential lineup. We cannot determine whether a 

sequential display is superior to a simultaneous display 

and that the use of the latter is unnecessarily suggestive 

until we learn, at a minimum, whether the rate of false 

positive identification with the use of the protocol is 

significantly higher in simultaneous displays than in 

sequential displays."

Id. at 602. We therefore concluded that "it is still too soon 

to conclude that sequential display is so plainly superior that 

any identification arising from a simultaneous display is 

unnecessarily suggestive and therefore must be suppressed." Id. 

at 602-603. See State v. Henderson, 208 N.J. 208, 257-258

(2011) ("For now, there is insufficient, authoritative evidence 
20

accepted by scientific experts for a court to make a finding in 

favor of either [simultaneous or sequential lineup] procedure").

A recent study was the first of its kind to compare the 

accuracy of identifications arising from the display of 

simultaneous and sequential arrays during identification 

procedures conducted by police officers in the field where the 

witnesses received a warnings protocol and the administering 

officer did not know which photograph depicted the suspect. 

Wells, Steblay, & Dysart, Double-Blind Photo Lineups Using 

Actual Eyewitnesses: An Experimental Test of a Sequential 

Versus Simultaneous Lineup Procedure, 39 Law & Hum. Behav. 1, 10 

(2015).8 The study's findings were consistent with findings in 

comparable nonfield studies in that eyewitnesses were more 

likely to identify the suspect in a simultaneous array than in a 

sequential array, but they were also more likely to identify 

someone who was known to be innocent.9 Although this study 

 

8 The data set for this study consisted of 494 

identification procedures conducted in actual criminal cases by 

police departments in Charlotte-Mecklenburg, North Carolina; 

Tucson, Arizona; San Diego, California; and Austin, Texas. 

Wells, Steblay, & Dysart, Double-Blind Photo Lineups Using 

Actual Eyewitnesses: An Experimental Test of a Sequential 

Versus Simultaneous Lineup Procedure, 39 Law & Hum. Behav. 1, 4 

(2015) (Wells, Steblay, & Dysart). The witnesses were presented 

with six photographs, including one suspect and five "knowninnocent fillers," in either a simultaneous or sequential array. 

Id. at 2, 11.

9 Witnesses identified a suspect 1.5 per cent more often 

after viewing a simultaneous rather than a sequential array 
21

suggests the modest superiority of sequential arrays to 

simultaneous arrays, other researchers have argued in favor of 

the simultaneous array based on a form of statistical analysis 

traditionally used in medical diagnostics. See Amendola & 

Wixted, Comparing the Diagnostic Accuracy of Suspect 

Identifications Made by Actual Eyewitnesses from Simultaneous 

and Sequential Lineups in a Randomized Field Trial, 11 J. 

Experimental Criminology 263, 263 (2015); Carlson & Carlson, An 

Evaluation of Lineup Presentation, Weapon Presence, and a 

Distinctive Feature Using ROC Analysis, 3 J. Applied Res. in 

Memory & Cognition 45, 45 (2014); Mickes, Flowe, & Wixted, 

Receiver Operating Characteristic Analysis of Eyewitness Memory: 

Comparing the Diagnostic Accuracy of Simultaneous Versus 

Sequential Lineups, 18 J. Experimental Psychol.: Applied 361, 

361 (2012).

 

(27.5 per cent versus 26.0 per cent), a difference that is not 

statistically significant. Wells, Steblay, & Dysart, supra at 

8. Over-all, witnesses selected photographs of known-innocent 

fillers more often in simultaneous displays than in sequential 

displays (17.8 per cent to 12.3 per cent), but this difference 

was not statistically significant. Id. However, if we look 

only at those witnesses who made an identification, 42 per cent

chose a known-innocent filler with the simultaneous array 

procedure and 31 per cent chose a known-innocent filler with the 

sequential array procedure, and this difference is statistically 

significant. Id. at 10, 12. The authors noted the high error 

rate of identification in their study and "found the performance 

of these witnesses to be quite poor regardless of the procedure 

used." Id. at 12.
22

In 2014, the National Academy of Sciences, based on its 

review of the scientific research, speaking of sequential versus

simultaneous display, concluded that "the relative superiority 

of competing identification procedures . . . is unresolved," and

recommended that "caution and care be used when considering 

changes to any lineup procedure, until such time as there is 

clear evidence for the advantages of doing so." National 

Research Council of the National Academies, Identifying the 

Culprit: Assessing Eyewitness Identification 3, 104, 118

(2014). The Department of Justice, in a memorandum dated 

January 6, 2017, from Deputy Attorney General Sally Q. Yates,

entitled "Eyewitness Identification: Procedures for Conducting 

Photo Arrays," at 8, reviewed the relevant research and 

concluded that, until additional research is conducted, "it is 

not possible to say conclusively whether one identification 

method [simultaneous or sequential] is better than the other." 

We would not conclude that sequential display is the better 

procedure and that the use of a simultaneous display is

unnecessarily suggestive unless there were a near consensus in 

the relevant scientific community to support such a conclusion. 

Gomes, 470 Mass. at 366-367. Where there is not, the decision 

whether to use a simultaneous or a sequential procedure is best 
23

left to law enforcement, and the choice will continue to bear on 

the weight of the identification, but not on its admissibility.10

Because the failure to follow the Silva-Santiago protocol 

in these circumstances was not sufficient alone to warrant a 

finding that the identification procedure was so unnecessarily

suggestive and conducive to irreparable mistaken identification 

as to deny the defendant due process of law, and because the use 

of the simultaneous display was not unnecessarily suggestive, we 

affirm the judge's denial of the defendant's motion to suppress 

Johnson's identification of the defendant.

2. Motion to suppress Johnson's identification of firearm. 

The Commonwealth contends that the judge erred in suppressing 

Johnson's identification of the firearm after finding that the 

showing of a single photograph of a firearm to Johnson in the 

absence of exigent circumstances constituted a denial of due 

process. Before evaluating this claim of error, we offer some 

perspective regarding the judge's decision.

The judge suppressed Johnson's identification of the 

firearm as the firearm the defendant used to fire at the 

 

10 Our model jury instructions on eyewitness identification 

direct juries to "evaluate the identification with particular 

care" where the police fail to follow a protocol that is 

established or recommended by the law enforcement agency 

conducting the identification procedure. 473 Mass. 1051, 1056-

1057 (2015). A defendant may request such an instruction where 

a police department that has chosen the sequential method fails 

to employ it in an identification procedure.
24

bystanders from the back seat of the vehicle where Johnson was a 

front seat passenger. We do not understand the judge's decision 

to bar her from testifying at trial to the description of the 

firearm she provided to the detectives before they showed her 

the photograph: that the firearm was big and black and looked 

like the firearm carried by the detectives. Moreover, the judge 

provided an alternative ground for finding Johnson's 

identification to be inadmissible based on our common law of 

evidence: that the probative value of her identification was 

substantially outweighed by the unfair prejudice arising from 

the detectives' questioning, which suggested that the firearm in 

the photograph was the firearm she had seen, and their 

subsequent statements, which confirmed her belief that it was 

the same firearm after she responded to their suggestions. See 

Commonwealth v. Simmons, 383 Mass. 46, 51-52 (1981), S.C., 392 

Mass. 45, cert. denied, 469 U.S. 861 (1984) ("Even if 

constitutional considerations did not apply, an appropriate rule 

of evidence might require that an identification of an inanimate 

object not be admitted in evidence where the government used a 

highly suggestive identification procedure because the unfair, 

prejudicial, and unreliable quality of the identification would 

outweigh its probative value"). See also Commonwealth v. 

Carter, 475 Mass. 512, 518 (2016), quoting Commonwealth v. 

Johnson, 473 Mass. 594, 599 (2016) ("Even if otherwise 
25

admissible, a judge may suppress identification evidence if 'its 

probative value is substantially outweighed by the danger of 

unfair prejudice'"). The judge's evidentiary decision is 

reviewed under an abuse of discretion standard, where we ask 

"whether the judge's decision resulted from 'a clear error of 

judgment in weighing the factors relevant to the decision . . . 

such that the decision falls outside the range of reasonable 

alternatives.'" Commonwealth v. Kolenovic, 471 Mass. 664, 672 

(2015), quoting L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 

(2014).

The judge did not abuse his discretion in ruling the 

identification inadmissible under the common law of evidence. 

During the first interview, Johnson told the detectives that she 

did not see the firearm until the defendant leaned out the rear 

driver's side window and began firing, that she ducked when the 

shooting started, and that she did not know whether the gun was 

in the defendant's hand when he left the vehicle immediately 

after the shooting. As noted, her description of the firearm 

provided no detail that would suggest that she could identify 

anything more than its type. During the second interview, she 

was shown the photograph of the firearm immediately after she 

was again asked to describe the gun. She initially said, 

"That's probably it," but moments later asked, "Is this the 

gun?" The only identifying detail she noted on the firearm were 
26

"little scratches," but she had said nothing earlier about 

seeing any scratches and the judge reasonably could have doubted 

that she could have seen them while the defendant was firing the 

weapon or clearing its jam.11 Where the identification of the 

firearm was unreliable, and where the witness's confidence in 

the identification was inflated by the detectives' confirmatory 

statements, the judge acted well within the bounds of discretion 

in ruling the identification inadmissible. See Johnson, 473 

Mass. at 600 ("The danger of unfair prejudice arises because the 

accuracy of an identification tainted by suggestive 

circumstances is more difficult for a jury to evaluate"); 

Simmons, 383 Mass. at 51-52.

Having affirmed the judge's ruling on evidentiary grounds, 

we now address the judge's due process analysis. In Simmons, 

383 Mass. at 51, we recognized that, "in an extreme case, the 

degree of suggestiveness of an identification procedure 

concerning an inanimate object might rise to the level of a 

denial of due process." We also recognized that there are three 

differences between the out-of-court identification of a 

defendant and an out-of-court identification of an inanimate 

object. Id. at 52. First, the "chances of fundamental 

 

11 The photograph was briefly displayed for the video camera 

but we were unable to discern "little scratches" on the firearm 

from the videotaped recording, and the Commonwealth did not 

offer the photograph in evidence or include it in the record on 

appeal.
27

unfairness" are greater where a defendant is identified because 

that "directly tends to prove the case against him," but

"[i]dentification of tangible property is only indirect proof of 

the defendant's guilt, even though its force may be most 

persuasive in certain instances." Id. Second, most tangible 

objects "are not unique," but "[t]here is only one person with 

the physical characteristics of the defendant." Id. Third, 

"[a] lineup of people is practical," but "[a] lineup of property 

may not be." Id. We therefore rejected "the notion that a 

lineup of inanimate objects is required in circumstances where a 

lineup of people would be required." Id. See Commonwealth v. 

Bresilla, 470 Mass. 422, 427, 431 (2015) (although 

identification of jacket worn by shooter was strong evidence 

that defendant was shooter, "Commonwealth was not required to 

create a photographic array of jackets").

Due process may be denied by admitting in evidence an 

identification of an inanimate object where, first, the police 

knew or reasonably should have known that identification of the 

object effectively identifies the defendant as the perpetrator 

of the crime and where, second, the police needlessly and 

strongly suggested to the witness that the object is the object 

at issue. See Simmons, 383 Mass. at 51-52. Cf. Commonwealth v. 

Spann, 383 Mass. 142, 148 (1981) ("Barring an extreme case of 

suggestiveness, perhaps involving improper statements by the 
28

police in the course of such a procedure, a motion to suppress 

the photographic identification of a victim need not be 

allowed"). By recognizing that the identification procedure 

used to identify an inanimate object may implicate due process, 

we do not suggest that the identification procedure need be the 

same as the procedure used to identify a suspect; we have 

already made clear that a lineup of similar objects is not

required even in the absence of a showing of exigency, and the 

judge erred in ruling otherwise. See Bresilla, 470 Mass. at 

431; Simmons, supra at 52. Where the judge rested his finding 

of a denial of due process solely on the failure of the police 

to use a photographic array of similar firearms, that finding 

cannot be sustained.

However, because the identification of an inanimate object 

potentially may implicate due process, and because under our 

common law of evidence the probative value of any such 

identification must not be substantially outweighed by unfair 

prejudice, the police should take reasonable steps to avoid 

unnecessary suggestiveness in what will generally be a showup 

procedure, that is, the showing of the object alone or a single 

photograph of the object. A police protocol would be valuable 

in guarding against needless suggestiveness in identification 

procedures involving an inanimate object and in ensuring that 

the fact finder learns with precision the nature of any 
29

identification by the witness. We urge police departments to 

devise such a protocol for the identification of inanimate 

objects where such an identification would persuasively 

inculpate a defendant.

The identification protocol we adopted in our opinion in 

Silva-Santiago had been recommended to law enforcement 

authorities by the United States Department of Justice. 453 

Mass. at 798, citing United States Department of Justice, 

Eyewitness Evidence: A Guide for Law Enforcement 19, 31-32, 33-

34 (1999). But that protocol was created for the identification 

of a suspect in a lineup or a photographic array; it was not 

designed for a showup identification of an inanimate object. To 

our knowledge, no protocol for the identification of inanimate 

objects has yet been devised by the Department of Justice or by 

any Federal, State, or local law enforcement agency, so it is 

prudent for us to tread carefully here. We invite police 

departments to consider, in devising such a protocol, whether it 

should include the following elements: (1) the witness should 

be asked to provide a verbal description of the object before 

the object or a photograph of the object is shown to the 

witness; (2) the officer should tell the witness that the object 

that will be shown to the witness may or may not be the object 

the witness described; (3) where any identification is made, the 

officer should ask the witness to state, in his or her own 
30

words, how certain he or she is of the identification; and (4) 

the officer should obtain clarification from the witness as to 

whether the object is the actual object he or she saw, or 

whether it simply looks like the object he or she saw. The 

identification procedure should be memorialized, preferably by a 

contemporaneous videotape or audio recording but alternatively 

by an interview report timely prepared.

Conclusion. For the reasons stated above, we affirm the 

denial of the defendant's motion to suppress Johnson's 

identification of him, and the allowance of the defendant's 

motion to suppress Johnson's identification of the firearm.

So ordered.