Commonwealth v. Gomes, 470 Mass. 352

Background

In September 2011 the defendant slashed the victim's face with a box cutter; victim required extensive stitches. Defendant was convicted by a Superior Court jury of mayhem, A&B by a dangerous weapon, and nighttime breaking and entering a vehicle. One conviction (A&B) was later vacated as duplicative of mayhem.
Several witnesses made pretrial and in-court identifications: a store employee (Wilson) selected the defendant’s photo from a large pool and then the defendant appeared in a simultaneous 8-photo array; victim and a passenger later made identifications (including a showup and in-store recognition). Defense offered an alibi (father’s testimony) but no expert on eyewitness reliability at trial.
Before trial the defendant requested a detailed jury instruction (modeled on New Jersey’s) describing scientific principles about memory and identification (e.g., memory is constructive; confidence ≠ accuracy; stress impairs identification; postevent information and repeated viewings can contaminate memory). The judge refused and gave the traditional Rodriguez instruction.
The defendant appealed, arguing the judge erred by refusing the requested, science-based instruction. The SJC reviewed whether the trial judge abused his discretion and whether certain scientific principles are now "so generally accepted" to warrant inclusion in a model jury instruction.
The SJC affirmed the trial court’s discretion to refuse the proffered instruction on this record (no expert or literature was offered), but concluded that some scientific principles have achieved near consensus and promulgated a provisional eyewitness-identification jury instruction (inviting comments) to be used in future trials.

Issues

Issue	Commonwealth's Argument	Gomes's Argument	Held
Whether the trial judge erred by refusing defendant’s requested, science-based eyewitness-identification instruction	The judge acted within discretion because the proffered instruction went beyond established law and there was no expert evidence or studies in the record to justify presenting those scientific principles as law to the jury	Requested instruction should have been given to educate jurors on well-accepted scientific principles affecting identification reliability	No abuse of discretion on these facts; refusal affirmed because defendant did not supply expert testimony or literature to show principles were "so generally accepted" as to be law instructable
Standard for when scientific principles may be incorporated into jury instructions	Jury instructions should be conservative; scientific principles require a high threshold of acceptance before becoming part of court’s instructions	The research demonstrates several principles are widely accepted and juries should be instructed accordingly	Court adopts a higher-than-Frye standard: principles may be included when there is a near consensus in the relevant scientific community
Which specific eyewitness-identification principles meet that standard	N/A (Commonwealth opposed elevating unsustained claims to law without record support)	Principles urged: memory is constructive (acquisition/retention/retrieval); confidence alone is unreliable; high stress impairs accuracy; postevent information/feedback can contaminate memory; repeated viewings/mugshots increase misidentification risk	Court holds these five principles have achieved near consensus and should be reflected in a revised (provisional) model instruction
Remedy and retroactivity	Trial court’s charge was authorized under precedent (Rodriguez); new instruction should apply prospectively	Defendant sought relief based on absent instruction	Court affirms convictions (vacates duplicate A&B conviction), issues provisional instruction for future trials and invites comment; no retroactive application

Key Cases Cited

Commonwealth v. Rodriguez, 378 Mass. 296 (1979) (original Massachusetts model eyewitness-identification instruction adopted from Telfaire)
Commonwealth v. Santoli, 424 Mass. 837 (1997) (discusses when a scientific principle may justify a standard jury instruction)
Commonwealth v. Hyatt, 419 Mass. 815 (1995) (trial judge has discretion to give or refuse specialized identification instructions absent sufficient record support)
Commonwealth v. Cruz, 445 Mass. 589 (2005) (refusal to give instruction on confidence-accuracy relation not error where no expert testimony presented)
Commonwealth v. Franklin, 465 Mass. 895 (2013) (describes Rodriguez instruction factors and the judge's role in tailoring identification instructions)
Commonwealth v. Walker, 460 Mass. 590 (2011) (announced formation of Study Group on eyewitness evidence and signaled willingness to revisit identification instructions)
State v. Henderson, 208 N.J. 208 (2011) (New Jersey seminal decision prompting comprehensive model instruction based on extensive review of eyewitness research; influenced Massachusetts’ decision to adopt provisional instruction)
State v. Lawson, 352 Or. 724 (2012) (Oregon opinion summarizing scientific consensus about stress, feedback, and other reliability factors)
Commonwealth v. Collins, 470 Mass. 255 (2014) (recognizes problems with confidence-accuracy relation and the impact of confirmatory feedback)