NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
SJC-11639
COMMONWEALTH vs. WALTER CRAYTON.
Middlesex. September 2, 2014. - December 17, 2014.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
& Hines, JJ.
Practice, Criminal, Identification of defendant in courtroom.
Constitutional Law, Identification. Due Process of Law,
Identification. Identification. Evidence, Identification,
Verbal completeness, Prior misconduct. Obscenity, Child
pornography.
Indictments found and returned in the Superior Court
Department on September 10, 2009.
The cases were tried before Maureen B. Hogan, J.
The Supreme Judicial Court granted an application for
direct appellate review.
David B. Hirsch for the defendant.
Robert J. Bender, Assistant District Attorney, for the
Commonwealth.
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, amicus curiae,
submitted a brief.
2
GANTS, C.J. The defendant was convicted by a Superior
Court jury on two indictments of possession of child
pornography, in violation of G. L. c. 272, § 29C.1 We granted
the defendant's application for direct appellate review. In his
appeal, the defendant claims that the trial judge made three
errors that warrant a new trial. First, he contends that the
judge erred in admitting in evidence the in-court
identifications of the defendant by two eyewitnesses who had not
previously participated in an out-of-court identification
procedure. Second, the defendant claims that, where the
defendant admitted to police that he had used library computers
on the day in question but denied having used them to view child
pornography, the judge erred in allowing in evidence the
admission but excluding from evidence the denial. Third, he
argues that the judge erred in admitting in evidence three
pornographic drawings of children that were found in the
defendant's possession ten months after he allegedly viewed the
child pornography charged in the indictments. We establish a
new standard for the admission of in-court identifications where
the eyewitness had not previously participated in an out-of-
1
At a subsequent bench trial, a judge found that the
defendant had previously been convicted of an offense in
violation of G. L. c. 272, § 29C, and sentenced the defendant to
a term of imprisonment in State prison of from five years to
five years and one day (later corrected to from four and one-
half years to five years), followed by a probationary term of
three years.
3
court identification procedure and conclude that the in-court
identifications in this case would not have been admissible
under that standard. We also conclude that the judge erred in
excluding from evidence the defendant's denial and in admitting
in evidence the drawings, and that the errors and the admission
of the in-court identifications, considered together, resulted
in unfair prejudice that requires that the convictions be
vacated and a new trial ordered.2,3
Background. We summarize the evidence at trial, reserving
discussion of the evidence that pertains to the issues on
appeal. On January 21, 2009, between approximately 3:30 P.M.
and 4 P.M., an eighth grade student, M.S., was doing homework at
a computer in the basement technology center of the Central
Square branch of the Cambridge Public Library.4 A man she
described as short, white, and bald, with a "little beard" and
eyeglasses was sitting at an adjacent computer to the right of
her.5 She went to the library "[m]ostly every day," but had
2
Because we vacate the convictions, we do not consider
whether the defendant may lawfully be convicted of two
indictments alleging possession of child pornography on the same
date. See Commonwealth v. Rollins, ante 66 (2014).
3
We acknowledge the amicus brief submitted by the Innocence
Network.
4
M.S. was not certain whether she was in the eighth or
ninth grade that day, but her best memory was that she was
"getting ready to graduate" from the eighth grade.
4
never seen the man before. When she looked at his computer
screen, she saw an image of "a girl about ten years old,
covering her chest." She could not tell whether the girl was
wearing any clothes, because she saw only a "top view" and the
man was "cover[ing] the computer screen" with the "umbrella-
type" cover that was on it.6 She "waved" at her friend, R.M., a
ninth grade student, who was also in the technology center of
the library, and urged him to look at the man's computer. R.M.
testified that he "just got a quick glimpse of the computer,"
and could only see "a small portion" of the screen, which
displayed a young child wearing no clothes. He saw only the
side of the man's face; he described the man as bald with a
goatee. He went to the library every day after school, but had
not seen the man before. During trial, both M.S. and R.M.
identified the defendant as the man that they had seen at the
computer on January 21.
M.S. and R.M. walked over to Ricardo Negron, a library
employee who was working at the staff desk in the technology
center that afternoon, and they told him that a person was
5
When asked how long she looked at the person, M.S.
answered, "I would say a quick glance."
6
M.S. testified that she could see only two or three inches
of the computer screen.
5
looking at children wearing no clothes on the computer.7 Before
M.S. and R.M. approached him, Negron had observed M.S. at
computer no. one and a white male, "perhaps" in his "early
thirties," bald, with eyeglasses, whom he had seen before at the
technology center, at computer no. two.8 The police later showed
Negron an array of photographs, but he was unable to identify
anyone from the array.9,10
7
There was confusion at trial as to which computer the man
was viewing, but the evidence strongly suggests it was computer
no. two, even though M.S. testified that she was sitting at
computer no. two, and that the man was sitting at computer no.
one. Both R.M. and Ricardo Negron testified that M.S. was
sitting at computer no. one, and the man was sitting at computer
no. two. There was no dispute in the evidence at trial that the
man's computer was a "look-down" computer, the screen of which
provided more privacy than a "look-up" computer, which has a
flat-screen monitor on a desk. Negron testified that computer
no. one was a "look-up" computer and computer no. two was a
"look-down" computer. Moreover, Negron testified that a person
using M.S.'s library card bar code had logged in to computer no.
one at 3:15 P.M. and logged out at 4:15 P.M.
8
Negron testified that the man earlier that afternoon had
been at computer no. four but logged off and asked to move to
computer no. two.
9
Defense counsel in her closing argument argued that the
defendant's photograph was in the array shown to Negron, but
there was no testimony at trial on this point, and the
photographic array was not offered in evidence. We infer that
the defendant's photograph was in the array, because the array
would otherwise be irrelevant, and the prosecutor did not object
to defense counsel's representations in closing argument.
10
Negron was not asked to make an in-court identification
of the defendant at trial.
6
Library users were required to log on to a computer by
entering their library bar code, so when the two teenagers
alerted Negron to what they had seen, Negron looked up the log-
in information for computer no. two. While he was doing so, the
man using computer no. two logged off and left the room. The
log inquiry revealed that a person using the library card of an
eighteen year old male, "perhaps of Asian descent," had logged
on to computer no. two at 3:08 P.M. and logged off at 3:55 P.M.11
At some time after 3:55 P.M., Negron went upstairs to speak to
the library manager, Esme Green. Green went downstairs to the
technology center, looked at two "video clips" saved on computer
no. two, saw that they depicted an approximately twelve year old
girl, "either naked or almost naked, masturbating," and
telephoned the police.
When Negron went upstairs, another library employee,
Ricardo Ricard, went downstairs to staff the technology center.
Having learned of the allegation, Ricard logged on to computer
no. two, saw a folder on the computer with the label "W," and
looked at a video file inside the folder, which showed a nude
11
The name of the person whose library card was used to log
on to computer no. two was not elicited at trial, but the
defense attorney in closing argument told the jury that the name
was "Fan Woo." Apart from the closing argument, because of the
age listed on the card and what we infer was an Asian name
(suggesting that the person was "perhaps of Asian descent"), a
reasonable jury would have inferred that the library card was
not in the name of the defendant.
7
female child. Because he was concerned that the library
computers deleted all files when they were shut down for the
night, Ricard transferred the folder containing the file to a
universal serial bus (USB) drive, which he later gave to Green.
He then disabled the computer's "reboot" software so that the
computer would retain the files that were then on it.
Ricard had not seen the man who used computer no. two on
January 21, but he was aware of the man's physical description.
On January 22, when he saw a man who matched that description in
the library lobby, he told Green of the man's presence, and
Green notified the police.
Detectives Brian O'Connor and Pam Clair of the Cambridge
police department arrived at the library and saw the defendant
at a computer with another individual. The detectives observed
the defendant for approximately twenty to thirty minutes at a
computer that displayed a "MySpace" profile page, "looking at
MySpace." As the defendant was leaving the library, Detective
O'Connor asked to speak with him, and the defendant agreed. The
defendant admitted that he had been in the library's computer
room the previous day. He said he had used one of the computers
for five minutes and then switched to another computer, which he
identified as computer no. two, to check his electronic mail (e-
mail). The defendant said that his e-mail address was
8
cblizzard@yahoo.com. He also said that he did not have his own
MySpace profile, but used his friend's profile.
After this conversation, Detective O'Connor obtained the
USB drive that Ricard had given to Green, seized computer no.
two, and copied the folder labeled "W" onto a compact disc.
After obtaining a search warrant, Detective O'Connor conducted a
forensic search of the hard drive of computer no. two. That
search revealed twenty-seven "cookies," which O'Connor described
as "text file[s]" that store information on an Internet browser
regarding a Web site that a particular user has visited on the
Internet.12 The first of these cookies, entitled "magic-
Lolita(1).txt," was created at 3:14 P.M. on January 21; the
last, entitled "www.innocentgirls(1).txt," was created at 3:48
P.M. that day. Detective O'Connor also uncovered "Yahoo
searches" on computer no. two that had been conducted between
3:14 and 3:25 P.M. on January 21 using such search terms as "One
hundred percent Lolita" and "Top Lolita." Detective O'Connor
also located temporary Internet files on the computer's hard
drive in which images were automatically downloaded by the
Internet browser from a Web site that the user visited. In
those temporary files, he found approximately 210 photographs
where children were engaged in sexual acts, of which seven were
12
Detective Brian O'Connor described a "cookie" as a
"digital fingerprint."
9
printed out and admitted as exhibits at trial. These seven
images were created on the computer between 3:27 and 3:50 P.M.
on January 21. The detective also located six video files on
the hard drive of the computer, of which two video files were
located in a temporary Internet file folder and four video files
were located in a folder entitled "W." The four video files in
the "W" folder, which were played for the jury, were created on
the computer between 3:43 and 3:54 P.M. that day. Detective
O'Connor also located a MySpace page in the temporary Internet
files reflecting a log-in date and time of January 21 at 3:13
P.M. The MySpace page identifies the user as "Walter"; the e-
mail address associated with the MySpace page was
C-Blizzard69@MySpace.com.
Discussion. 1. In-court identifications of the defendant.
Before trial, neither the police nor the prosecutor asked M.S.
or R.M. to participate in an identification procedure to
determine whether they could identify the man they had seen at
the computer on January 21, 2009. They were never shown a
photographic array or asked to view a lineup. The first time
they were asked to identify the man was on April 7, 2011 -- more
than two years after the first and only time they had seen him -
- when they were asked by the prosecutor on the witness stand at
trial whether they saw the man in the court room, and each
identified the defendant.
10
The defendant moved before trial to preclude the
Commonwealth from eliciting an in-court identification of the
defendant from any witness that had not previously made an out-
of-court identification, including M.S. and R.M. The defendant
contended that, under such circumstances, an in-court
identification of the defendant would be inherently and
unnecessarily suggestive. At a pretrial hearing on the motion,
the defendant requested that a voir dire of the teenagers be
conducted before any in-court identification was elicited. On
the first day of trial, before either M.S. or R.M. had
testified, the judge denied the motion, and also denied the
request for a voir dire. The judge said that she might
reconsider her ruling if the prosecutor failed to lay an
adequate foundation through the eyewitnesses' trial testimony
before eliciting the in-court identifications. The judge noted
that the in-court identifications could not be tainted by a
suggestive pretrial identification procedure where there had
been none. The judge recognized that "an in-court
identification always has some suggestiveness to it," but said
that defense counsel "[could] highlight that suggestiveness" on
cross-examination. The judge noted defense counsel's objection
to her ruling. Although the defendant did not renew his
objection when the in-court identifications of M.S. and R.M.
were elicited, where the judge noted the earlier objection, we
11
shall treat the claim of error as preserved. See Commonwealth
v. Aviles, 461 Mass. 60, 66 (2011), and cases cited.
We look first to our existing case law on the admission of
eyewitness identification testimony. "Under art. 12 of the
Massachusetts Declaration of Rights, an out-of-court eyewitness
identification is not admissible where the defendant proves by a
preponderance of the evidence, considering the totality of the
circumstances, that the identification is so unnecessarily
suggestive and conducive to irreparable misidentification that
its admission would deprive the defendant of his right to due
process." Commonwealth v. Walker, 460 Mass. 590, 599 (2011),
citing Commonwealth v. Johnson, 420 Mass. 458, 463-464 (1995),
and Commonwealth v. Thornley, 406 Mass. 96, 98 (1989). In
contrast with the United States Supreme Court, which has ruled
under the Fourteenth Amendment to the United States Constitution
that an out-of-court identification that is unnecessarily
suggestive will be admissible if it is reliable under "the
totality of the circumstances," Manson v. Brathwaite, 432 U.S.
98, 110, 113 (1977), we have said that "the reliability test
does little or nothing to discourage police from using
suggestive identification procedures," and that "[o]nly a rule
of per se exclusion can ensure the continued protection against
the danger of mistaken identification and wrongful convictions"
12
arising from suggestive identification procedures. Johnson,
supra at 468, 472. See Walker, supra at 599 n.13.
In addition, where an unreliable identification arises from
"especially suggestive circumstances" other than an
unnecessarily suggestive identification procedure conducted by
the police, we have declared that "[c]ommon law principles of
fairness" dictate that the identification should not be
admitted. Commonwealth v. Jones, 423 Mass. 99, 109 (1996). Our
reliance on common-law principles of fairness to suppress an
identification made under "especially suggestive circumstances"
even where the circumstances did not result from improper police
activity is also in contrast with the United States Supreme
Court jurisprudence. Compare id. with Perry v. New Hampshire,
132 S. Ct. 716, 720-721 (2012).
We have applied the "unnecessarily suggestive" standard to
showup identifications, where the police show a suspect to an
eyewitness individually rather than as part of a lineup or
photographic array. See, e.g., Commonwealth v. Phillips, 452
Mass. 617, 628-629 (2008); Commonwealth v. Martin, 447 Mass.
274, 279-281 (2006). Such "[o]ne-on-one identifications are
generally disfavored because they are viewed as inherently
suggestive," Martin, supra at 279, but suggestiveness alone is
not sufficient to render a showup identification inadmissible in
evidence; the defendant must prove by a preponderance of the
13
evidence that it was "unnecessarily suggestive" (emphasis in
original). Commonwealth v. Figueroa, 468 Mass. 204, 217 (2014),
quoting Phillips, supra at 627.
A showup identification may be unnecessarily suggestive for
two reasons. First, it may be unnecessarily suggestive where
there was not "good reason . . . for the police to use a one-on-
one identification procedure." Martin, 447 Mass. at 279,
quoting Commonwealth v. Austin, 421 Mass. 357, 361 (1995). See
Commonwealth v. Meas, 467 Mass. 434, 441, cert. denied, 135 S.
Ct. 150 (2014). Although "good reason" for a showup
identification does not require exigent or special
circumstances, see Martin, supra, quoting Austin, supra, there
is generally "good reason" 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. See Figueroa, 468
Mass. at 217-218 ("good reason" existed for showup
identification occurring two and one-half hours after murder);
Phillips, 452 Mass. at 628-629 (good reason existed for showup
identification within one hour after murder and armed robbery).
Second, "[e]ven where there is 'good reason' for a showup
identification, it may still be suppressed if the identification
14
procedure so needlessly adds to the suggestiveness inherent in
such an identification that it is 'conducive to irreparable
mistaken identification.'" Figueroa, 468 Mass. at 217, quoting
Phillips, 452 Mass. at 628. See Commonwealth v. Leaster, 395
Mass. 96, 103 (1985) (even where showup occurs promptly after
crime, "if there are special elements of unfairness, indicating
a desire on the part of the police to 'stack the deck' against
the defendant, an identification resulting from such a
confrontation would be inadmissible"); Commonwealth v. Moon, 380
Mass. 751, 756-759 (1980) (identification procedure
unnecessarily suggestive where police suggested name of
defendant to victim and then showed him single photograph that
police removed from vehicle that eyewitness thought belonged to
assailant).13
13
Showups pose an additional risk of misidentification that
is not present with lineups or photographic arrays. As the
Supreme Judicial Court Study Group on Eyewitness Testimony
explained: "[U]nlike lineups, showups have no mechanism to
distinguish witnesses who are guessing from those who actually
recognize the suspect. In an unbiased lineup, an unreliable
witness will often be exposed by a 'false positive' response
identifying a known innocent subject. By contrast, because
showups involve a lone suspect, every witness who guesses will
positively identify the suspect, and every positive
identification is regarded as a 'hit.' For that reason,
misidentifications that occur in showups are less likely to be
discovered as mistakes." Supreme Judicial Court Study Group on
Eyewitness Evidence: Report and Recommendations to the Justices
76 (July 25, 2013) (SJC Study Group Report). See generally
Dysart & Lindsay, Show-Up Identifications: Suggestive Technique
or Reliable Method?, in 2 Handbook of Eyewitness Psychology 137
(2007). This increased risk of undetected false identification
15
Where, as here, a prosecutor asks a witness at trial
whether he or she can identify the perpetrator of the crime in
the court room, and the defendant is sitting at counsel's table,
the in-court identification is comparable in its suggestiveness
to a showup identification. See Commonwealth v. Carr, 464 Mass.
855, 877 (2013), quoting Commonwealth v. Bol Choeurn, 446 Mass.
510, 519-520 (2006) ("We have long recognized that 'a degree of
suggestiveness inheres in any identification of a suspect who is
isolated in a court room'"). See also Perry v. New Hampshire,
132 S. Ct. at 727 (all in-court identifications "involve some
element of suggestion"). Although the defendant is not alone in
the court room, even a witness who had never seen the defendant
will infer that the defendant is sitting with counsel at the
defense table, and can easily infer who is the defendant and who
is the attorney.14 See United States v. Archibald, 734 F.2d 938,
941, modified, 756 F.2d 223 (2d Cir. 1984) ("Any witness,
especially one who has watched trials on television, can
determine which of the individuals in the courtroom is the
defendant . . .").
is present in every showup identification, whether conducted out
of court or in court.
14
It was particularly simple here to figure out who was the
defendant and who was the defense attorney, where the defendant
is a man and the defense attorney is a woman.
16
In fact, in-court identifications may be more suggestive
than showups. See Mandery, Due Process Considerations of In-
Court Identifications, 60 Alb. L. Rev. 389, 415 (1996) ("If
anything, the evidence suggests that in-court identifications
merit greater protection" than pretrial identifications). At a
showup that occurs within hours of a crime, the eyewitness
likely knows that the police suspect the individual, but unless
the police say more than they should, the eyewitness is unlikely
to know how confident the police are in their suspicion.
However, where the prosecutor asks the eyewitness if the person
who committed the crime is in the court room, the eyewitness
knows that the defendant has been charged and is being tried for
that crime. The presence of the defendant in the court room is
likely to be understood by the eyewitness as confirmation that
the prosecutor, as a result of the criminal investigation,
believes that the defendant is the person whom the eyewitness
saw commit the crime. Under such circumstances, eyewitnesses
may identify the defendant out of reliance on the prosecutor and
in conformity with what is expected of them rather than because
their memory is reliable. See id. at 417-418 ("The pressure of
being asked to make an identification in the formal courtroom
setting and the lack of anonymity . . . create conditions under
which a witness is most likely to conform his or her
recollection to expectations, either by identifying the
17
particular person whom he or she knows the authorities desire
identified, or by acting in conformity with the behavior of
others they may have seen on television . . .").
Although we have adopted a "rule of per se exclusion" for
unnecessarily suggestive out-of-court identifications, we have
not adopted such a rule for in-court identifications, despite
their comparable suggestiveness. See Bol Choeurn, 446 Mass. at
519-520, quoting Commonwealth v. Napolitano, 378 Mass. 599, 604
(1979), S.C., Napolitano v. Attorney General, 432 Mass. 240
(2000) ("We have long recognized that 'a degree of
suggestiveness inheres in any identification of a suspect who is
isolated in a court room' . . . [, but that] 'does not, in
itself, render the identification impermissibly suggestive'").
Instead, we have excluded an in-court identification only where
"it is tainted by an out-of-court confrontation . . . that is
'so impermissibly suggestive as to give rise to a very
substantial likelihood of irreparable misidentification.'"
Carr, 464 Mass. at 877, quoting Bol Choeurn, supra at 520. In
essence, we have excluded in-court identifications only where
their inherent suggestiveness is magnified by the impermissible
suggestiveness of an out-of-court identification. Therefore,
here, where there had been no out-of-court identification to
taint the in-court identification, the judge's admission of the
in-court identification conformed to our case law. We now do
18
what a trial judge cannot do -- revisit the wisdom of our case
law regarding the admission of in-court identifications where
the eyewitness has not earlier been asked to make an out-of-
court identification.
There can be no doubt that, if the police, more than
twenty-six months after the incident, had brought M.S. or R.M.
to any room other than a court room on the day of trial,
identified one of the persons in the room as the defendant, and
asked whether the person they had seen looking at images of nude
children in the library that day was in the room, we would
conclude that the showup identification was unnecessarily
suggestive and therefore inadmissible in evidence, especially
where this had been the first identification procedure the
police had attempted. The question we must confront is whether
such an otherwise inadmissible showup identification becomes
admissible because the showup occurred in the court room.
A first-time in-court identification differs from an out of
court showup in three ways, so we must evaluate whether these
differences justify the admission of an in-court identification
that would be inadmissible if it occurred out of court. The
first difference is that, with an in-court identification, the
jury see the identification procedure, whereas the jury do not
see a showup identification procedure unless the police
videotape the procedure. "[W]hen a first-time eyewitness
19
identification occurs in court and no suggestive pretrial
identification procedures were administered by the state, courts
generally have concluded that the factfinder is better able to
evaluate the reliability of the identification because he or she
can observe the witness's demeanor and hear the witness's
statements during the identification procedure" (emphasis in
original). State v. Hickman, 355 Or. 715, 735 (2014), citing
Byrd v. State, 25 A.3d 761, 766 (Del. 2011), and United States
v. Domina, 784 F.2d 1361, 1368 (9th Cir. 1986), cert. denied,
479 U.S. 1038 (1987). This conclusion appears to be premised on
the ability of the jury during an in-court identification to see
"indications of witness certainty or hesitation during the
identification process, including facial expression, voice
inflection, and body language," and to make "other observations
pertinent to assessing the reliability of a person's
statements." Hickman, supra.
We agree that a jury may be better able to assess a
witness's level of confidence during an in-court identification
than through evidence of a showup, but we do not agree that this
means that a jury are better able to evaluate the accuracy of an
in-court identification. 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
20
suggestiveness. See Supreme Judicial Court Study Group on
Eyewitness Evidence: Report and Recommendations to the Justices
19 (July 25, 2013) (SJC Study Group Report), citing State v.
Lawson, 352 Or. 724, 777 (2012), and State v. Guilbert, 306
Conn. 218, 253 (2012).15 Moreover, even if we were persuaded
that there were evaluative benefits arising from the jury's
ability to see the identification procedure, it would not
justify admission of an inherently suggestive identification.
Certainly, where there was not good reason to conduct an out-of-
court showup, an identification arising from such a showup would
not be admissible because the police have videotaped it.
15
Even among "highly confident witnesses, [studies]
indicate that 20 to 30% could be in error." Wells, Memon, &
Penrod, Eyewitness Evidence: Improving Its Probative Value, 7
Psychol. Sci. in the Pub. Interest 45, 66 (2006). More
generally, the less-than-perfect correlation between height and
gender in humans is "considerably greater" than the correlation
between certainty and accuracy in eyewitness identifications.
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). Although "psychological scientists have generally
concluded that eyewitness certainty . . . can have some
diagnostic value" (even if it is of "limited utility"), its
diagnostic value is substantially diminished where suggestive
identification procedures have been used. Id. at 12. Studies
have shown, for instance, that "confirmatory suggestive remarks
from the lineup administrator [like 'Good, you identified the
actual suspect'] consistently inflate eyewitness certainty for
eyewitnesses who are in fact mistaken." Id. "[T]his 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." Id.
21
The second difference between a first-time in-court
identification and a showup is that the former occurs in court,
and therefore "is subject to immediate challenge through cross-
examination." Hickman, 355 Or. at 735. Some other courts have
concluded that "[w]here a witness first identifies the defendant
at trial, defense counsel may test the perceptions, memory and
bias of the witness, contemporaneously exposing weaknesses and
adding perspective in order to lessen the hazards of undue
weight or mistake." Id., quoting People v. Rodriguez, 134 Ill.
App. 3d 582, 589 (1985), cert. denied, 475 U.S. 1089 (1986). We
are not persuaded that the immediacy of cross-examination
materially lessens "the hazards of undue weight or mistake"
arising from a suggestive identification. Eyewitnesses are
routinely subject to cross-examination regarding their showup
identifications, but that does not render such identifications
admissible where they are unnecessarily suggestive. Cf. Walker,
460 Mass. at 606-608. Moreover, we have previously recognized
how difficult it is for a defense attorney to convince a jury
that an eyewitness's confident identification might be
attributable to the suggestive influence of the circumstances
surrounding the identification. See Jones, 423 Mass. at 110
("This is not a case in which cross-examination and a judge's
jury instruction concerning eyewitness testimony can fairly
protect the defendant from the unreliability of [the
22
eyewitness's] identification"). See also Perry v. New
Hampshire, 132 S. Ct. at 737 (Sotomayor, J., dissenting),
quoting Kansas v. Ventris, 556 U.S. 586, 594 n.* (2009)
("[E]yewitness identifications upend the ordinary expectation
that it is 'the province of the jury to weigh the credibility of
competing witnesses.' . . . [J]urors find eyewitness evidence
unusually powerful and their ability to assess credibility is
hindered by a witness' false confidence in the accuracy of his
or her identification"). Nor is the immediacy of cross-
examination likely to make the cross-examination more effective
in revealing the risk of inaccuracy. In fact, such immediacy
means that defense counsel has little opportunity to prepare an
effective cross-examination regarding the identification,
because it occurred minutes earlier.
The third difference between a first-time in-court
identification and a showup is that, where defense counsel has
advance warning that the prosecutor intends to ask the
eyewitness at trial to identify the defendant, defense counsel
has the opportunity to propose alternative identification
procedures that are less suggestive, "such as an in-court line-
up, or having the defendant sit somewhere in the courtroom other
than the defense table." Domina, 784 F.2d at 1368-1369. See
United States v. Brown, 699 F.2d 585, 594 (2d Cir. 1983)
("[W]hen a defendant is sufficiently aware in advance that
23
identification testimony will be presented at trial and fears
irreparable suggestivity, as was the case here, his remedy is to
move for a line-up in order to assure that the identification
witness will first view the suspect with others of like
description rather than in the courtroom sitting alone at the
defense table").
We do not join those courts that have placed the burden on
the defendant to avoid a suggestive in-court identification by
proposing alternative, less suggestive identification
procedures. See Hickman, 355 Or. at 742-743, citing Brown, 699
F.2d at 594, and Domina, 784 F.2d at 1369 ("Courts considering
the admissibility of first-time in-court identifications
generally have placed the burden of seeking a prophylactic
remedy on the defendant"). Placing this burden on the defendant
suggests that the Commonwealth is entitled to an unnecessarily
suggestive in-court identification unless the defendant proposes
a less suggestive alternative that the trial judge in his or her
discretion adopts. See Domina, supra ("[P]articular methods of
lessening the suggestiveness of in-court identification . . .
are matters within the discretion of the court"). We decline to
grant the Commonwealth such an entitlement where, as here, the
Commonwealth failed earlier to conduct a less suggestive out-of-
court identification procedure, and the in-court identification
24
is therefore the only identification of the defendant made by an
eyewitness.
Where an eyewitness has not participated before trial in an
identification procedure, we shall treat the in-court
identification as an in-court showup, and shall admit it in
evidence only where there is "good reason" for its admission.16
The new rule we declare today shall apply prospectively to
trials that commence after issuance of this opinion, and shall
apply only to in-court identifications of the defendant by
eyewitnesses who were present during the commission of the
crime.17
We recognize that the "good reason" that generally
justifies most out-of-court showups -- i.e., "concerns for
public safety; the need for efficient police investigation in
the immediate aftermath of a crime; and the usefulness of prompt
16
We base our decision today on "[c]ommon law principles of
fairness." Commonwealth v. Jones, 423 Mass. 99, 109 (1996).
See Commonwealth v. Odware, 429 Mass. 231, 235 (1999)
(explaining that common law provides basis for excluding in-
court identifications). We do not address whether State
constitutional principles would also require "good reason"
before in-court identifications are admitted in evidence. Nor
do we address the admissibility of in-court identifications in
civil cases.
17
We do not address whether this new rule should apply to
in-court identifications of the defendant by eyewitnesses who
were not present during the commission of the crime but who may
have observed the defendant before or after the commission of
the crime, such as where an eyewitness identifies the defendant
as the person he or she saw inside a store near the crime scene
a short time before or after the commission of the crime.
25
confirmation of the accuracy of investigatory information,"
Austin, 421 Mass. at 362 –- depends on the short duration of
time between the crime and the showup, and will never justify an
in-court showup. But there may be other grounds that constitute
"good reason" for an in-court showup where there has not been a
nonsuggestive out-of-court identification procedure. For
instance, there may be "good reason" for the first
identification procedure to be an in-court showup where the
eyewitness was familiar with the defendant before the commission
of the crime, such as where a victim testifies to a crime of
domestic violence. Cf. Carr, 464 Mass. at 858, 874, 877 (in-
court identifications not impermissibly suggestive where
eyewitnesses had known defendant from neighborhood prior to
murder); Commonwealth v. Cong Duc Le, 444 Mass. 431, 443 & n.9
(2005) (in-court identifications not impermissibly suggestive
where witness knew defendants and identification was not issue
at trial). "Good reason" might also exist where the witness is
an arresting officer who was also an eyewitness to the
commission of the crime, and the identification merely confirms
that the defendant is the person who was arrested for the
charged crime. In both of these circumstances, 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. See People
26
v. Rodriguez, 79 N.Y.2d 445, 449-450 & n.* (1992) ("confirmatory
identification" exception to requirement of pretrial hearing on
admissibility of suggestive pretrial identification applies
where eyewitness and defendant are "known to one another" or
where defendant's identity is not live issue at trial). And in
both of these circumstances, where the witness is not
identifying the defendant based solely on his or her memory of
witnessing the defendant at the time of the crime, there is
little risk of misidentification arising from the in-court
showup despite its suggestiveness.
Although we generally place the burden on the defendant to
move to suppress an identification, that makes little sense
where there is no out-of-court identification of the defendant
by a witness and only the prosecutor knows whether he or she
intends to elicit an in-court identification from the witness.
If the burden were on the defendant to move to suppress an
identification in these circumstances, a defendant would need to
file motions to suppress the in-court identification of
witnesses whom the prosecutor might not intend to ask to make
such an identification. To avoid the filing of needless
motions, we place the burden on the prosecutor to move in limine
to admit the in-court identification of the defendant by a
27
witness where there has been no out-of-court identification.18
Once the motion is filed, the defendant would continue to bear
the burden of showing that the in-court identification would be
unnecessarily suggestive and that there is not "good reason" for
it. See Martin, 447 Mass. at 279-280, 283 n.6, citing
Commonwealth v. Odware, 429 Mass. 231, 235 (1999). Although we
impose no restrictions on when such a motion must be filed, a
prosecutor would be wise to file it in advance of trial,
because, if the defendant were to prevail in suppressing the in-
court identification as unnecessarily suggestive, the
Commonwealth would still have time, if it chose, to conduct a
less suggestive out-of-court identification procedure.19
18
Under Mass. R. Crim. P. 14 (a) (1) (A) (viii), as
appearing in 442 Mass. 1518 (2004), a prosecutor is required to
disclose to defense counsel in automatic discovery "[a] summary
of identification procedures, and all statements made in the
presence of or by an identifying witness that are relevant to
the issue of identity or to the fairness or accuracy of the
identification procedures." This required disclosure applies
only to out-of-court identification procedures; there is no
comparable obligation on a prosecutor to disclose in automatic
discovery his or her intention to ask a witness at trial to make
an in-court identification.
19
We recognize that the Commonwealth may not always choose
this alternative because the passage of time increases the risk
that an eyewitness may be unable to identify the defendant or,
more damaging to the prosecution, may identify another person in
the lineup or photographic array. See SJC Study Group Report,
supra at 31-32, quoting State v. Lawson, 352 Or. 724, 778 (2012)
("The more time that elapses between an initial observation and
a later identification procedure . . . the less reliable the
later recollection will be . . ."). But it is in precisely
these circumstances that an in-court identification would be
28
Limiting in-court showups under the "good reason" standard
need not diminish the important evidentiary role of reliable
eyewitness identifications. See Walker, 460 Mass. at 604 n.16
("eyewitness identification is . . . an invaluable law
enforcement tool in obtaining accurate convictions"). Reliable
evidence of eyewitness identification will continue to be
admissible where it arises from a nonsuggestive out-of-court
identification procedure. Where a prosecutor recognizes during
trial preparation that no lineup or photographic array has been
shown to an eyewitness who may be able to identify the
defendant, nothing bars the prosecutor from causing such an
identification procedure to be conducted out-of-court before the
witness takes the stand. All that is lost by barring first-time
in-court showups where there is no "good reason" for such a
showup is the unfair evidentiary weight of a needlessly
suggestive showup identification that might be given more weight
by a jury than it deserves. See id. ("eyewitness identification
is the greatest source of wrongful convictions").20
most unfair to a defendant, because it would be only the
suggestiveness of the circumstances in the court room that would
inflate the witness's confidence in the identification.
20
The standard we declare regarding the admission of in-
court showup identifications differs from the recommendation on
in-court identifications offered by the Supreme Judicial Court
Study Group on Eyewitness Evidence, which recommended that "in-
court identification not be permitted except, in the judge's
discretion, on redirect examination, in rebuttal, or in other
29
In this case, there was no "good reason" for the highly
suggestive in-court identifications of M.S. and R.M., where the
Commonwealth had abundant opportunity to attempt to obtain a far
less suggestive out-of-court identification through a lineup or
photographic array. But we cannot conclude that the judge
abused her discretion in allowing the in-court identifications
in evidence where their admission was in accord with the case
law existing at the time of her decision, and where we only
circumstances where the defendant challenges the witness's
ability to make such [an] identification." SJC Study Group
Report, supra at 48, 113. The report does not explain the
reason for this recommendation, or discuss in detail the
problems specific to in-court identification. Where there has
been no out-of-court identification procedure, the "good reason"
standard we establish for in-court showups is more restrictive
than the Study Group's recommendation and, we think, more in
keeping with the serious concerns raised in the report about the
dangers of suggestive eyewitness identification and the
difficulty juries have in accurately evaluating the reliability
of a suggestive identification. We conclude that the Study
Group's recommendation is both overbroad and too narrow. It is
overbroad in that it might bar the admission of in-court showups
even where identification is not a contested issue at trial. It
is too narrow in that it might permit the admission of in-court
showups when they are the least reliable: when the defendant
has plausibly challenged the ability of an eyewitness to make a
reliable identification of the defendant.
A recently released report from the National Research
Council of the National Academies notes that "[t]he accepted
practice of in-court eyewitness identifications can influence
juries in ways that cross-examination, expert testimony, or jury
instructions are unable to counter effectively." Identifying
the Culprit: Assessing Eyewitness Identification 75 (2014)
(pending publication). The report recommends that eyewitness
identifications "typically should not occur for the first time
in the courtroom." Id.
30
today apply the "good reason" standard to first-time in-court
showups.21 We therefore reserve discussion of what to do about
21
A number of Federal courts have addressed the
admissibility of in-court identifications that have not been
preceded by out-of-court identifications. But even where these
courts have found that the suggestiveness of first-time in-court
identifications raised Federal due process concerns, they have
generally held that the identifications were properly admitted
in evidence. See, e.g., United States v. Hill, 967 F.2d 226,
232 (6th Cir.), cert. denied, 506 U.S. 964 (1992) (admissibility
of first-time in-court identification should be evaluated by
same constitutional standard as pretrial identification, but
even if it were impermissibly suggestive, it was reliable under
totality of circumstances and therefore did not violate due
process); United States v. Rundell, 858 F.2d 425, 426-427 (8th
Cir. 1988) (same). See also United States v. Williams, 436 F.2d
1166, 1168-1169 (9th Cir. 1970), cert. denied, 402 U.S. 912
(1971) (defendant had no right to in-court lineup or other
nonsuggestive in-court identification procedure, and therefore,
denial of defendant's request for in-court procedure upheld
absent in-court identification so unnecessarily suggestive as to
deprive defendant of due process).
Several State courts have rejected challenges to first-time
in-court identifications, holding that "[t]he inherent
suggestiveness in the normal trial setting does not rise to the
level of constitutional concern . . . [and] the remedy for any
alleged suggestiveness of an in-court identification is cross-
examination and argument." Byrd v. State, 25 A.3d 761, 767
(Del. 2011). See State v. King, 156 N.H. 371, 373-76 (2007)
(same); State v. Lewis, 363 S.C. 37, 42-43 (2005) (same). And
recently, the Supreme Court of Oregon examined two in-court
identifications by applying the Oregon Evidence Code's parallel
provision to Rule 403 of the Federal Rules of Evidence, and
concluded that one of the in-court identifications, because of
its reliability, was more probative than unfairly prejudicial,
and that the second was harmless even if its admission were
error. See State v. Hickman, 355 Or. 715, 734-749 (2014).
Only a few courts have concluded that a first-time in-court
identification was impermissibly suggestive, but even in these
cases, the defendant's conviction either was not reversed, or
was reversed only because of the cumulative effect of other
trial errors. See United States v. Archibald, 734 F.2d 938,
31
the admission of the suggestive in-court showups until later in
this opinion, where we consider it in the context of the other
claimed prejudicial errors.
2. Exclusion of the defendant's statement of denial. When
Detectives O'Connor and Clair confronted the defendant in the
library on January 22 and asked to speak with him about an
"incident" that had occurred the previous day, the defendant
admitted that he had been in the library's computer room and had
used computer no. two to check his e-mail, but denied that he
had used the library's computers to view child pornography. The
jury, however, did not learn of his denial because the judge
before trial had allowed the Commonwealth's motion in limine to
exclude this denial as hearsay that was not otherwise admissible
under the doctrine of verbal completeness.22
941-943, modified, 756 F.2d 223 (2d Cir. 1984) (first-time in-
court identification was impermissibly suggestive where
defendant was only African-American in court room, but although
trial judge erred by rejecting defendant's request for in-court
lineup as inappropriate, error did not prejudice defendant);
United States v. Warf, 529 F.2d 1170, 1174 (5th Cir. 1976)
(reversing defendant's conviction where prosecutor
inappropriately pointed to defendant verbally and physically
when asking witness to make an in-court identification, where
prosecutor elicited evidence that defendant had earlier been
incarcerated in Federal prison, and where case without
identification rested on "thin" circumstantial evidence).
22
A statement by a defendant offered in evidence by the
prosecution is not hearsay because it is a statement of an
adverse party. See Mass. G. Evid. § 801(d)(2)(A) (2014). But
the same statement, if offered by the defendant, is hearsay
unless the truth of the statement is affirmed by the defendant
32
Under the doctrine of verbal completeness, "'[w]hen a party
introduces a portion of a statement or writing in evidence,' a
judge has the discretion to 'allow[] admission of other relevant
portions of the same statement or writing which serve to
"clarify the context" of the admitted portion.'" Commonwealth
v. Aviles, 461 Mass. 60, 75 (2011), quoting Commonwealth v.
Carmona, 428 Mass. 268, 272 (1998). The purpose of the doctrine
is "to ensure that a party does not present 'a fragmented and
misleading version of events' to the fact finder." Aviles,
supra, quoting Carmona, supra. "The doctrine of verbal
completeness does not open the door for everything in a
statement or document." Aviles, supra, citing Kobayashi v.
Orion Ventures, Inc., 42 Mass. App. Ct. 492, 498 (1997). "To be
admitted, 'the additional portions of the statement must be (1)
on the same subject as the admitted statement; (2) part of the
same conversation as the admitted statement; and (3) necessary
to the understanding of the admitted statement.'" Aviles,
supra, quoting Commonwealth v. Eugene, 438 Mass. 343, 350-351
(2003).
while testifying. See Mass. G. Evid. § 801(c) (2014);
Commonwealth v. Sanders, 451 Mass. 290, 302 n.8 (2008). In this
case, the defendant elected not to testify at trial. Therefore,
the defendant’s statement of denial, as hearsay, could have been
admissible in evidence only under a hearsay exception or, as
claimed here, under the doctrine of verbal completeness. See
Mass. G. Evid. § 106(a) (2014).
33
Here, the defendant's denial that he was using the
library's computers to view child pornography was on the same
general subject as the other admitted statements he made to
Detectives O'Connor and Clair, and was part of the same
conversation, so its admissibility rested on whether its
admission was necessary to a fair understanding of the admitted
statements. We conclude that it was necessary. A reasonable
jury would have understood from Detective O'Connor's testimony
that the "incident" he spoke to the defendant about was an
allegation that the defendant had been seen viewing child
pornography on a library computer. A reasonable jury might thus
have expected that if the defendant had not viewed the child
pornography, he would have denied it. But here, the defendant
admitted that he had used library computers the previous day
and, according to the detective, had specifically admitted to
having used computer no. two. By excluding the defendant's
denial, the judge might have left the jury with the false
impression that the defendant had not denied viewing the child
pornography where an innocent person would have denied it, and
therefore, there was a significant risk that a reasonable jury
might have understood the other statements the defendant made to
the detectives as an implied admission to having viewed the
child pornography. See Commonwealth v. O'Dell, 392 Mass. 445,
447-449 (1984) (omission of defendant's statements denying
34
awareness that passenger had just committed a robbery
"distort[ed] the meaning" of statements in which defendant
admitted to driving getaway vehicle).
Under these circumstances, the defendant's denial should
have been admitted under the doctrine of verbal completeness to
eliminate that risk.23 See Commonwealth v. Watson, 377 Mass.
814, 832 (1979), S.C., 409 Mass. 110 (1991) ("If the evidence
used to prove the admission consists of a part of a statement,
whether oral or written, by the defendant, he has the right
[under the verbal completeness doctrine] to offer any other part
23
In this context, the doctrine of verbal completeness is
related to our rule of adoptive admissions, where the silence of
a defendant in response to the statement of another may come in
evidence as an admission by the defendant. See Commonwealth v.
Babbitt, 430 Mass. 700, 705-706 (2000) (adoptive admissions
include statements to which defendant responds by silence). For
silence to be admissible as an adoptive admission, "it must be
apparent that the party has heard and understood the statement,
that he had an opportunity to respond, and that the context was
one in which he would have been expected to respond to an
accusation." Commonwealth v. Braley, 449 Mass. 316, 321 (2007),
quoting Commonwealth v. Olszewski, 416 Mass. 707, 719 (1993),
cert. denied, 513 U.S. 835 (1994). Because silence may mean
something other than assent, "adoption by silence can be imputed
to a defendant only for statements that 'clearly would have
produced a reply or denial on the part of an innocent person.'"
Babbitt, supra at 705-706, quoting Commonwealth v. Brown, 394
Mass. 510, 515 (1985). Because the doctrine of verbal
completeness is intended to "'clarify the context' of the
admitted portion" of a statement or writing, Commonwealth v.
Aviles, 461 Mass. 60, 75 (2011), quoting Commonwealth v.
Carmona, 428 Mass. 268, 272 (1998), we allow a defendant to
admit in evidence his denial of wrongdoing where there is a
significant risk that his silence may be viewed as assent, even
if the circumstances are not so clear as to permit the
prosecution to admit in evidence his silence as an adoptive
admission.
35
of the same statement which tends to explain or disprove the
claimed admission . . ."). The defendant's statement that he
was not using computer no. two to view child pornography
contradicts the meaning that a reasonable jury could have
attributed to the defendant's statement that he used computer
no. two on a day when other library users had seen someone who
matched his description looking at child pornography on computer
no. two (where child pornography was later found). As a matter
of fairness to the defendant, his statement of denial should
have been admitted in evidence, because it is an essential part
of what the defendant meant to convey to the detectives, and
because it contradicts the meaning that a reasonable jury might
otherwise give to the defendant's admitted statements. We
therefore conclude that it was an abuse of discretion to grant
the Commonwealth's motion in limine to exclude the denial from
evidence.
3. Admission of "other bad acts" evidence. Over the
defendant's objection, the judge allowed in part the
Commonwealth's motion in limine to admit in evidence three hand-
drawn sketches of young girls that were found on October 29,
2009, "tucked away" with the defendant's mail and other
belongings in his cell at the Suffolk County house of correction
36
during a "routine random cell search."24 All three drawings
depicted very young girls who were nude or partially nude with
their breasts and genital areas exposed. Two of the drawings
depicted girls engaged in sexual acts; one depicted a girl
performing oral sex on a penis-shaped sex toy,25 and the other
depicted a girl masturbating with a sex toy.
In her final instructions to the jury, the judge said that
the evidence was admitted only for the limited purpose "to show
the defendant's state of mind, his knowledge and intent," and
not to show "bad character or propensity."26 The defendant
contends that the judge abused her discretion by admitting these
drawings in evidence.
24
The judge denied that part of the Commonwealth's motion
that sought to admit in evidence nonpornographic photographs
depicting young girls and a hand-drawn sketch of a young girl
posing nude that were found in the defendant's cell at the
Suffolk County house of correction on April 3, 2009. The judge
also denied the Commonwealth's motion to admit in evidence the
testimony of a correction officer who, earlier on April 3, saw
the defendant masturbating while holding a photograph of a girl
who appeared to be four or five years of age.
25
This drawing bore the handwritten caption, "Daddy's
little girl, 'A Kiddie Pornstar,'. . . 8 yrs. old."
26
The judge also instructed the jury that "[t]he defendant
is not charged with any crime because of" the possession of the
hand-drawn sketches, and that the jury "shall not draw any
inference" against the defendant from his having been in custody
on October 29, 2009, and "shall not consider [that fact] in any
way."
37
The standard for evaluating the admissibility of "other bad
acts" evidence is well established. Evidence of a defendant's
prior or subsequent bad acts is inadmissible for the purpose of
demonstrating the defendant's bad character or propensity to
commit the crimes charged. See Commonwealth v. Anestal, 463
Mass. 655, 665 (2012); Commonwealth v. Butler, 445 Mass. 568,
574 (2005). However, such evidence may be admissible for some
other purpose, for instance, "to establish motive, opportunity,
intent, preparation, plan, knowledge, identity, or pattern of
operation." Walker, 460 Mass. at 613, quoting Commonwealth v.
Horton, 434 Mass. 823, 827 (2001). Even if the evidence is
relevant to one of these other purposes, the evidence will not
be admitted if its probative value is outweighed by the risk of
unfair prejudice to the defendant. See Anestal, supra; Butler,
supra, quoting Commonwealth v. Barrett, 418 Mass. 788, 794
(1994).27
27
Our case law has not always been consistent regarding the
standard for excluding "other bad acts" evidence. We have
frequently said that such evidence should be excluded where the
risk of unfair prejudice outweighs its probative value, but we
have sometimes said that it should be excluded where the risk of
prejudice substantially outweighs its probative value. Compare,
e.g., Commonwealth v. Gonzalez, 469 Mass. 410, 420-421 (2014)
("outweighs"), with Commonwealth v. Forte, 469 Mass. 469, 479
(2014) ("substantially outweighed"). Of course, all "[r]elevant
evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice." Mass. G. Evid.
§ 403 (2014). However, because "other bad acts" evidence is
"inherently prejudicial," Commonwealth v. Johnson, 35 Mass. App.
Ct. 211, 218 (1993), S.C., 43 Mass. App. Ct. 509 (1997), it
38
As the judge correctly explained to the jury when this
evidence was admitted, the questions the jury needed to decide
regarding state of mind and intent were "whether the defendant
knowingly and intentionally possessed visual material on January
21st, 2009, whether the defendant knew or reasonably should have
known the person depicted in such visual material was under the
age of eighteen, and whether the defendant had knowledge of the
nature and content of such visual material." If there were any
claim that the defendant might have viewed the child pornography
on January 21 by mistake or accident, without realizing their
content, or any reasonable possibility that a juror might have a
reasonable doubt as to whether he did, the evidence that he
possessed these hand-drawn sketches in his cell more than ten
months later would have been probative regarding his state of
mind or intent. But the defendant's attorney told the judge
that the defendant was not claiming a defense of mistake, and
the search inquiries found on computer no. two left no doubt
that the person using that computer between 3:08 P.M. and 3:55
P.M. on January 21 was looking for child pornography.
makes sense to impose a more exacting standard on its
admissibility than the standard applicable to other evidence.
We therefore clarify that "other bad acts" evidence is
inadmissible where its probative value is outweighed by the risk
of unfair prejudice to the defendant, even if not substantially
outweighed by that risk.
39
The main factual issues in dispute during trial were the
identity of the person using computer no. two during that
timeframe, whether a person has "possession" of visual materials
that he accesses on a public computer, and whether the visual
materials offered in evidence depicted real children or had
instead been digitally altered to look like children. The only
disputed issue for which the drawings might have been probative
was the issue of identity, but the jury were not permitted to
consider the drawings as to this issue. Nor could the jury have
been permitted to consider the drawings on the issue of
identity, because "evidence of [other] bad acts is not
admissible to prove identity unless there is a special mark or
distinctiveness in the way the acts were committed (i.e., in the
modus operandi)." Commonwealth v. Jackson, 417 Mass. 830, 836
(1994), quoting Commonwealth v. Brusgulis, 406 Mass. 501, 505
(1990). "It is not enough that there is some 'general, although
less than unique or distinct, similarity between the
incidents.'" Jackson, supra, quoting Brusgulis, supra at 507.
Where there is only a general similarity, the risk is great that
a jury will view the similar act as evidence of bad character or
propensity rather than of identity. See United States v.
Miller, 673 F.3d 688, 699-700 (7th Cir. 2012) ("Pattern evidence
is propensity evidence, and it is inadmissible unless the
pattern shows some meaningful specificity or other feature that
40
suggests identity or some other fact at issue" [emphasis in
original]); Brusgulis, supra at 503, 505-507 (defendant's prior
sexual assaults admitted in evidence to prove "common scheme,
modus operandi, pattern of conduct and identification" were
inadmissible "other bad acts" evidence, which "obviously could
have an improper influence on the jury's fact-finding function,"
because similarities were "common to numerous assaults on women:
a secluded site; an attempt to drag or force the victim to a
more secluded area; words of threat having no unique content,
spoken to obtain compliance; and abandonment of the effort
because of the assailant's concern over being discovered").
Here, where the jury were limited to consider the hand-drawn
sketches only as to issues that were not in dispute, and where
the drawings had only a general similarity to the child
pornography found on the computer, the risk was enormous that
the jury would use the drawings for the forbidden purpose of
identifying the defendant as the person who viewed the child
pornography on computer no. two based on his bad character and
propensity to possess child pornography.
We generally "presume that a jury understand and follow
limiting instructions, . . . and that the application of such
instructions ordinarily renders any potentially prejudicial
evidence harmless" (citations omitted). Commonwealth v.
Donahue, 430 Mass. 710, 718 (2000). See Commonwealth v.
41
Jackson, 384 Mass. 572, 579 (1981) ("We presume, as we must,
that a jury understand[] and follow[] limiting instructions
. . ."). But we cannot so easily presume this to be true where
the limiting instruction regarding the "bad acts" evidence
effectively told the jury not to consider the evidence with
respect to issues in dispute and to consider it only with
respect to issues not in dispute. Faced with such an
instruction, the danger is great that a jury would make the
powerful natural (and forbidden) inference that the defendant's
possession of pornographic drawings of children shows that he
has an interest in child pornography, so he must have been the
person viewing child pornography in the library. See
Commonwealth v. Vasquez, 462 Mass. 827, 841-842 (2012), citing
Bruton v. United States, 391 U.S. 123, 135-137 (1968) (where
judge instructs jury to disregard "powerfully incriminating"
evidence, "presumption that jurors could follow a judge's
limiting instruction fail[s] to inspire confidence that such an
instruction could cure any prejudice or avert the risk that
jurors nevertheless would consider the [evidence] against the
defendant"); Greer v. Miller, 483 U.S. 756, 766 n.8 (1987),
quoting Richardson v. Marsh, 481 U.S. 200, 208 (1987), and
Bruton, supra at 136 ("We normally presume that a jury will
follow an instruction . . . unless there is an 'overwhelming
probability' that the jury will be unable to follow the court's
42
instructions . . . and a strong likelihood that the effect of
the evidence would be 'devastating' to the defendant . . .").
Because the probative value of the drawings was so minimal
with regard to the state of mind, knowledge, or intent of the
defendant, and because the risk of unfair prejudice was so
great, this is the unusual case where we conclude that it was an
abuse of discretion to admit the "bad act," even with a limiting
instruction. See Anestal, 463 Mass. at 671-672 (palpable error
to admit defendant's prior act of child abuse in evidence at
murder trial); Brusgulis, 406 Mass. at 507 (error to admit
defendant's prior unrelated acts of assault and attempted rape
at trial for assault with intent to rape).
4. Review of the defendant's convictions for prejudicial
error. Having concluded that the in-court identifications of
the defendant by M.S. and R.M. in these circumstances in the
future should be suppressed as unnecessarily suggestive showup
identifications without "good reason," and that the judge erred,
over objection, in excluding from evidence the defendant's
denial that he had viewed child pornography at the library, and
in admitting in evidence the unfairly prejudicial hand-drawn
sketches found in his cell, we turn now to the question whether
the defendant's convictions should be vacated and a new trial
ordered. Where the defendant preserved his objections to each
of these rulings, we review for prejudicial error. Commonwealth
43
v. Cruz, 445 Mass. 589, 591 (2005). See Commonwealth v. Alphas,
430 Mass. 8, 23 (1999) (Greaney, J., concurring). In the
unusual circumstances of this case, we include the unreliability
of the in-court identifications in that calculus. Cf.
Commonwealth v. Pring-Wilson, 448 Mass. 718, 736-737 (2007)
(judge did not abuse discretion in applying new rule that
applied prospectively to order new trial where judge concluded
that integrity of verdict was suspect because jury did not have
benefit of relevant evidence critical to issue of whether
defendant acted in self-defense).
We recognize the question to be a close one. If the in-
court identifications and the bad acts evidence had not been
admitted in evidence, and the defendant's denial not been
excluded, there would still be powerful evidence that the
defendant was the person at computer no. two who viewed child
pornography on the afternoon of January 21, 2009. The forensic
examination of computer no. two leaves no doubt that the person
who used that computer between 3:08 P.M. and 3:55 P.M. on
January 21 searched for and viewed child pornography. The
defendant is strongly tied to that computer by his admissions to
Detective O'Connor on January 22 that he had used computer no.
two the previous day to check his e-mail.28 In addition, the e-
28
Detective O'Connor's testimony that the defendant
specifically admitted that he had used computer no. two on
44
mail address he gave to the detective was cblizzard@yahoo.com,
which is very similar to the MySpace e-mail address used on
computer no. two shortly before the child pornography was
accessed from that computer.
But we do not determine whether there was prejudicial error
by examining what a reasonable jury might have done if the
errors had never happened. Instead, we determine whether there
is a "reasonable possibility that the error[s] might have
contributed to the jury's verdict." Alphas, 430 Mass. at 23.
See Cruz, 445 Mass. at 591, quoting Commonwealth v. Flebotte,
417 Mass. 348, 353 (1994) ("[I]f we cannot find 'with fair
assurance, after pondering all that happened without stripping
the erroneous action from the whole, that the judgment was not
substantially swayed by the error,' then it is prejudicial").
We cannot exclude that reasonable possibility here. The
exclusion of the defendant's denial that he had viewed child
January 21 was somewhat equivocal. In response to the
prosecutor's question, "And then where did he say he went?"
Detective O'Connor stated, "He said that he switched to -- I
believe it was computer number 2." However, defense counsel on
cross-examination did not question the detective regarding the
reliability of his memory that the defendant had specifically
identified computer no. two. Nor did she argue that the
defendant was unlikely to have identified the number of the
computer where the teenagers, who routinely went to the computer
laboratory after school, had not seen him before, and where
Negron, who worked in the computer laboratory, had apparently
not seen him so often as to be able to identify him from the
photographic array.
45
pornography at the library might have been understood by the
jury as an implicit admission that he had viewed it. The
defendant's hand-drawn sketches showed that he had a propensity
to view child pornography. The unnecessarily suggestive in-
court identifications by M.S. and R.M. were the only
identifications of the defendant. Considered together, this
evidence was so powerfully prejudicial that a reasonable jury
might not have thought it necessary to look closely at the
circumstantial evidence, and there remains the possibility that
a jury who took a close look at that evidence might have
concluded that it fell short of eliminating a reasonable doubt
that the defendant just happened to be in the wrong place at the
wrong time. In short, given the magnitude of the prejudice, we
shall err in favor of the grant of a new trial.
Conclusion. For these reasons, we vacate the defendant's
judgments of conviction and remand this case to the Superior
Court for a new trial.
So ordered.