Commonwealth v. Crayton

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revision and are superseded by the advance sheets and bound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.