The issue presented in this case is whether the motion judge, applying the common-law principles of fairness in
Commonwealth
v.
Jones,
Background.
We summarize the facts found by the motion judge, supplemented where necessary with undisputed evidence that was implicitly credited by the judge. See
Commonwealth
v.
Jones-Pannell,
On September 21, 2012, Adebayo Talabi, the victim, received a telephone call from a neighbor that the door to his apartment was open. He returned to his home and encountered a stranger, who was armed with a firearm, inside his apartment. They struggled, and during the struggle the firearm went off, striking no one. The intruder fled. The victim reported the incident to the Brockton police department and described the assailant as a light-skinned black male wearing a gray hooded sweatshirt. Brock-ton police Detective Jacqueline Congdon asked the victim to come to the police station to review booking photographs to see if he could identify the intruder, but he did not do so.
On September 27, 2012, the victim telephoned Brockton police Officer Scott Besarick and told Besarick he now knew the identity of the intruder. Officer Besarick transferred the telephone call to Detective Congdon’s line, and the victim explained to her that he had recently spoken to his cousin, TJ. Hendricks, who lived in the Roxbury section of Boston and whose home had been broken into one day before the incident at the victim’s apartment. The victim then added Hendricks to the telephone call so that it was a three-way call. Hendricks said that the break-in at his Roxbury home had been captured in a video recording by a neighbor’s *596 surveillance system that showed the person who had broken into his home. By the “size and shape” of the person in the surveillance footage, Hendricks believed that the intruder “could possibly be” the defendant, who was the boy friend of a cousin of both Hendricks and the victim. Hendricks obtained a photograph of the defendant and his girl friend taken by Hendricks’s mother at a cookout, which he forwarded to the victim. The victim viewed the photograph and identified the defendant as the intruder he had discovered in his home.
Using this information, Detective Congdon assembled an eight-person photographic array containing the defendant’s photograph. Detective Thomas Hyland met with the victim to show him the photographic array. The victim positively identified the defendant’s photograph in the array as the man he discovered in his apartment.
The defendant was indicted on seven charges, including armed assault in a dwelling, in violation of G. L. c. 265, § 18A, and breaking and entering in the daytime, in violation of G. L. c. 266, §17. The defendant moved to suppress all out-of-court and in-court identifications of the defendant by the victim. The motion judge held an evidentiary hearing at which Detectives Cong-don and Hyland testified. The judge found that the police did not violate the defendant’s constitutional rights in administering the photographic array but allowed the motion to suppress the two out-of-court identifications under the common-law principles of fairness recognized in
Jones,
Discussion. Before we address whether the judge was correct to suppress the eyewitness identifications in this case, we set forth our law regarding the admissibility of eyewitness identifications.
1.
Law of eyewitness identifications,
a.
Out-of-court identifications made during a police identification procedure.
Where an
*597
out-of-court eyewitness identification arises from an identification procedure that was conducted by the police, the identification is not admissible under art. 12 of the Massachusetts Declaration of Rights if the defendant proves by a preponderance of the evidence that the identification was “so unnecessarily suggestive and conducive to irreparable misidentification that its admission would deprive the defendant of his right to due process.”
Commonwealth
v.
Walker,
Under our per se exclusion standard, a defendant must prove not only that the out-of-court identification procedure administered by the police was suggestive, but that it was
“'unnecessarily
suggestive” (emphasis in original).
Commonwealth
v.
Crayton,
By adopting a rule of per se exclusion under art. 12, we rejected the rule under the Fourteenth Amendment to the United States Constitution in which a motion judge must apply a two-step analysis to the question of admissibility.
Johnson,
We rejected the Federal reliability test regarding out-of-court identifications in part because it “does little or nothing to discourage police from using suggestive identification procedures.”
Johnson,
Under our per se standard, the reliability of an out-of-court identification cannot save the admissibility of an unnecessarily suggestive out-of-court identification. But we declared in Johnson, supra at 467, that “the per se approach does not keep relevant and reliable identification evidence from the jury” because the Commonwealth may admit a subsequent identification if it proves by clear and convincing evidence that the identification came from a source independent of the suggestive procedure.
b.
Out-of-court identifications made without police wrongdoing.
Where an out-of-court eyewitness identification is suggestive through no fault of the police, suppression cannot deter police misconduct because there is none. Yet, as we recognized in
Jones,
Among our “common law principles of fairness” is the eviden-tiary rule that a judge has discretion to exclude relevant evidence “if its probative value is substantially outweighed by the danger of unfair prejudice.”
Crayton,
A motion to suppress an identification under
Jones
is similar to a motion to suppress an identification under art. 12 in that the defendant must timely file the motion before trial, see Mass. R. Crim. P. 13 (d) (2), as appearing in
First, the standard of admissibility is different; admissibility is determined not by a rule of per se exclusion, because there is no police misconduct to deter through suppression, but by weighing the probative value of the identification against the danger of unfair prejudice, and determining whether the latter substantially outweighs the former.
The danger of unfair prejudice arises because the accuracy of an identification tainted by suggestive circumstances is more difficult for a jury to evaluate. “Jurors . . . tend to be unaware of . . . how susceptible witness certainty is to manipulation by suggestive procedures or confirming feedback.”
Commonwealth
v.
Gomes,
Suggestive identification procedures may also affect a witness’s memory regarding the quality of his or her observation that led to the identification. See
Gomes,
In short, suggestiveness is likely to inflate an eyewitness’s certainty regarding an identification and to alter the eyewitness’s memory regarding the quality of his or her observation of the offender to conform to the eyewitness’s inflated level of confidence in the identification. We recognized this danger, and the effect it could have on a jury’s ability accurately to evaluate identification evidence, in
Jones,
where we declared that “cross-examination and a judge’s jury instruction concerning eyewitness identification testimony” could not “fairly protect the defendant from the unreliability” of the identification in that case.
Jones,
The probative value of the identification depends on the strength of its source independent of the suggestive circumstances of the identification. See
Allen
v.
Moore,
Second, the standard of appellate review under art. 12 differs from the standard of review under the common-law principles of fairness articulated in
Jones.
Where an identification arises from a police procedure, we apply the standard appropriate for review of a decision implicating constitutional rights: we review a judge’s findings of fact to determine whether they are clearly erroneous but review without deference the judge’s application of the law to the facts as found. See
Commonwealth
v.
Watson,
c.
In-court identifications.
Where a judge excludes an out-of-court identification arising from a suggestive police procedure under our art. 12 standard of per se exclusion, the judge must still consider whether to admit a subsequent out-of-court or in-court identification by the witness. Where a witness’s out-of-court identification is excluded, the Commonwealth may offer a subsequent out-of-court or in-court identification by the witness if the Commonwealth proves by clear and convincing evidence that the subsequent identification is reliable because it rests on a source independent of the unnecessarily suggestive confrontation.
Johnson,
But this is an appropriate case to consider whether the independent source doctrine applies to an in-court identification where both out-of-court identifications were declared inadmissible under common-law principles of fairness. We conclude that it does not apply. Where the suggestiveness does not arise from police conduct, a suggestive identification may be found inadmissible only where the judge concludes that it is so unreliable that it should not be considered by the jury. In such a case, a subsequent in-court identification cannot be more reliable than the earlier out-of-court identification, given the inherent suggestiveness of in-court identifications and the passage of time. See Model Jury Instructions on Eyewitness Identification,
2.
Application of law to the facts of this case.
We turn now to the Commonwealth’s arguments that the judge abused his discretion in declining to admit in evidence the victim’s out-of-court and anticipated in-court identifications of the defendant. The Commonwealth contends that the identifications may be excluded under
Jones
only if they were made under “highly” or “especially” suggestive circumstances and that the judge abused his discretion in finding that the circumstances here met that standard. In
Jones,
we characterized the witness’s confrontation with the defendant as both “highly suggestive” and “especially suggestive,” but we did not define either term or clarify whether they were two different characterizations of the same standard. See
Jones,
*604
The Commonwealth contends that the “degree of suggestiveness required for exclusion” under
Jones’s
common-law rule “is higher than that required for exclusion based on improper law enforcement procedures, since no possible deterrent effect is involved.” We disagree. Where an identification is obtained by law enforcement, our rule of per se exclusion means that the out-of-court identification must be suppressed where it derived from an unnecessarily suggestive procedure even if the identification was reliable because of the strength of its independent source. Accordingly, we have set a high standard: the identification must be “so unnecessarily suggestive and conducive to irreparable misidentification that its admission would deprive the defendant of his right to due process.” Walker,
We recognize that the victim’s identification of the defendant in this case was less suggestive than the identification in Jones. 5 But the judge did not err in concluding that it was sufficiently sug *605 gestive to trigger a reliability analysis. The judge reasonably found that Hendricks suggested to the victim that the man who invaded the victim’s home on September 21, 2012, might have been the same man he suspected broke into his own home the previous day — a man who was connected to both of them because he was the boy friend of their cousin. The judge reasonably could have found a substantial risk that these suggestive circumstances influenced the victim when he examined the cookout photograph of the defendant and identified the defendant as the intruder from that photograph and from the subsequent photographic array. The judge also reasonably could have found a substantial risk that this suggestion affected the witness’s level of certainty in the identification and his recollection of his observations of the intruder during the incident.
The judge also did not err in giving little probative weight to the independent source of the identification. The judge noted that the victim’s encounter with the intruder was brief and his description meager: a light-skinned black male wearing a gray hooded sweatshirt, with no information regarding the intruder’s height, weight, or facial hair, or the lighting conditions in the apartment. The judge also noted from his own observation that the defendant was not light-skinned. In view of the substantial deference given to the motion judge under the abuse of discretion standard, we conclude that the judge did not abuse his discretion in allowing the motion to suppress the identifications. We therefore affirm the allowance of the defendant’s motion to suppress the out-of-court and in-court identifications of the defendant by the victim.
So ordered.
Notes
We acknowledge the amicus brief submitted by the Committee for Public Counsel Services and the Massachusetts Association of Criminal Defense Lawyers and the amicus brief submitted by the Innocence Project and the Innocence Network.
In
Commonwealth
v.
Jones,
In
Perry
v.
New Hampshire,
We need not address here whether a judge may exclude an identification where there was no suggestiveness in the identification but where the identification might be unreliable because of the circumstances surrounding the witness’s perception of the event, such as the distance between the witness and the perpetrator, the poor quality of the lighting, or the brevity of the observation.
In
Jones,