Commonwealth v. Weichell

Liacos, J.

(dissenting). I find myself in agreement with most of the court’s able discussion of the issues raised by this case. I am compelled, however, to dissent from the court’s conclusion that a composite may be properly admitted as substantive evidence of identification. 1 In Commonwealth v. McKenna, 355 Mass. 313 (1969), this court found error in the admission of an Identikit composite drawing, stating that the composite “had no standing as evidence of the truth or accuracy of the matter contained in it.” Id. at 327 . In Commonwealth v. Blaney, 387 Mass. 628 (1982), we were asked to reconsider our holding in McKenna . The court found it unnecessary to do so, stating that the “admission of the composite drawing of the defendant could not have prejudiced him” in the circumstances of that case. Id. at 633. I cannot agree with the court’s conclusion that the admission of the composite in this case was proper and did not constitute prejudicial error. Unlike Blaney , in which I concurred in the result on the ground of harmless error, this case presents two distinguishing factors.

*80 First, the witness’s opportunity to observe the defendant at the time of the crime was slight. Looking at the evidence most favorable to the Commonwealth, it is clear that the jury had before them evidence of an eyewitness identification based on a limited period of observation over a substantial distance at night by a witness who was under the influence of alcohol. In contrast, the identification made in Blaney was based on repeated observations of the perpetrator’s profile at close quarters in a store. In the circumstances of the instant case, we cannot say that the jury would not have relied on the composite drawing to determine if the defendant was the man seen running from the scene.

Second, the closing argument of the Commonwealth invited the jury to convict the defendant on the basis of the composite. During her closing argument, the prosecutor asked the jury to compare the composite with the photograph of the defendant taken at the time of his arrest. See note 6, supra. The strong reliance on the composite ensured that the admission in evidence of the composite drawing, if error, would not constitute harmless error.

I turn now to the question whether the admission of the composite was error. Foley and Wilson compiled the composite drawing with the aid of an Identikit. This kit consists of several hundred transparent overlays that can be assembled into a “composite overlay ‘sandwich.’” A.A. Moenssens & F.E. Inbau, Scientific Evidence in Criminal Cases § 17.03, at 666 (1978). Each overlay depicts a facial characteristic. The theory is that “because of certain consistencies in the structure of human likenesses, only four factors are necessary to construct the basic composite: age, height, weight, and one of 49 different hairlines. Other characteristics which may be added simply expand the versatility.” Id. at 667. A trained operator selects each overlay based on the description given by the witness. An initial composite is produced, and the witness may suggest changes until he is satisfied.

*81 The degree to which composites are a reliable means of identifying the perpetrators of crimes has not been established. No evidence on this issue was put before the trial judge. The knowledge which presently exists on the subject suggest that composites may not be entirely reliable and may be less reliable than other means of identification. One study notes that the mental process involved in reconstructing a suspect’s face through the use of an Identikit is fundamentally different from the process of selecting a face from a photographic array. Cohen, Number of Features, and Alternatives per Feature, in Reconstructing Faces With the Identi-Kit, 1 J. Police Sci. & Ad. 349 (1973). The Identikit process which requires the witness to select a number of individual features introduces a critical element which is not present when a photographic array is used. Id. Witnesses may be incapable of accurately selecting the number of individual features required to assemble the composite. 2 There is also some indication that the process of constructing a composite may taint a subsequent identification. E.F. Loftus, Eyewitness Testimony 150-151 (1979).

The question of reliability is central to our inquiry. Without some evidence of reliability, we are left without any means of determining whether the admission of composites furthers or frustrates the truth-seeking process of criminal trial. Substantial reasons exist to question the reliability of composites. I would therefore hold that the proponent of a composite should be required to lay the foundation of ad *82 missibility by adducing evidence of the reliability of the composite process and also the reliability of the procedures used to produce the composite drawing being offered.

The admission of evidence which purportedly has some scientific basis of reliability can “create a substantial danger of undue prejudice and confusion because of its aura of special reliability and trustworthiness. ” United States v. Fosher, 590 F.2d 381, 383 (1st Cir. 1979). Evidence of a composite appears akin to various forms of newly developed scientific evidence and is subject to some of the same objections. See generally Commonwealth v. Vitello, 376 Mass. 426, 440-447 (1978) ; 3 Giannelli, The Admissibility of Novel Scientific Evidence: Frye v. United States, A Half-Century *83 Later, 80 Colum. L. Rev. 1197 (1980). In a sense, the process is based on scientific theories of physiognomy, perception, and memory. In my view, however, composites should not be subject to the rigors of the rule of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), for the reason that the process involved is not exclusively scientific in nature. This is so because the process includes the involvement of the percipient lay witness in the development of a particular composite.

A better standard to judge the admissibility of composites is found in traditional notions of relevancy. Evidence and expert testimony, which otherwise may be admissible under Frye or as an exception to the hearsay rule may still be objectionable if its “aura of special reliability and trustworthiness” is not commensurate with its actual reliability. City of New York v. Pullman Inc., 662 F.2d 910, 915 (2d Cir. 1981), cert. denied, 454 U.S. 1164 (1982), quoting United States v. Fosher, supra at 383 (even if hearsay report was admissible as a governmental record, trial judge could exclude report). United States v. Fosher, supra (expert testimony held properly excluded due to danger of undue prejudice and confusion). Marx & Co. v. Diners’ Club, Inc., 550 F.2d 505, 511 (2d Cir.), cert. denied, 434 U.S. 861 (1977) (statistical testimony held objectionable due to danger of “prejudicial overweight”). See generally 1 J. Weinstein & M. Berger, Evidence par. 403[04] (1982); Fed. R. Evid. 403; Proposed Mass. R. Evid. 403. 4 Composites *84 fall within this class of evidence. A jury are not in a position to examine critically the process of assembling a composite and may overestimate its reliability.

A related concern is the inherent suggestiveness of the method. A composite “represent[s] the effort of a trained police artist to transform a witness’s oral description into pictorial form.” Commonwealth v. Williams, 378 Mass. 217, 230 (1979). Commonwealth v. McKenna, 355 Mass. 313, 327 (1969) (composite is “a recording in graphic form” of witness’s statements). “The process is inherently susceptible to subtle and even unconscious suggestiveness by the police artist,” particularly when the witness is inarticulate or has “only an ill-defined image of the offender.” Commonwealth v. Blaney, 387 Mass. 628, 640, 642 (1982) (O’Connor, J., dissenting). To produce a composite, the witness’s mental image of the offender first must be matched with individual facial features. Only after a number of individual features have been selected and assembled is the witness able to determine whether his mental image of the offender comports with the composite. By that point, either the witness’s image may have been altered or the witness may be unable to decide which facial features are correct.

The problem of suggestiveness is particularly acute in two situations. First, in many cases the police may have identified a potential suspect. The danger then exists that the composite will be matched to the suspect rather than the suspect to the composite. Even the most conscientious police operator will have difficulty maintaining a neutral pose in such circumstances. While this concern is not present in the instant case, it may be present in other cases.

Second, any form of suggestiveness in the process of identification is problematic when the identification is based on an observation of limited duration. Clearly, the weaker the contemporaneous impression, the more likely the witness will be influenced by the identification process. Cf. Commonwealth v. Moon, 380 Mass. 751, 756-759 (1980) (period of observation lasted ten to twenty seconds in *85 poor lighting); Commonwealth v. Botelho, 369 Mass. 860, 869-870 (1976) (limited period of observation over a substantial distance in dim lighting by witness influenced by alcohol); State v. Commeau, 409 A.2d 247 (Me. 1979) (period of observation lasted a few seconds at night from a distance of sixty feet); N. Sobel, Eyewitness Identification § 6.3(a) (1981). Contrast Commonwealth v. Ross, 361 Mass. 665, 667-669, 672 (1972) (witness obtained firm contemporaneous impression), judgment vacated, 410 U.S. 901 , aff'd on remand, 363 Mass. 665 , cert. denied, 414 U.S. 1080 (1973) (with dissents), habeas corpus granted sub nom. Ross v. Ristaino, 388 F. Supp. 99 (D. Mass.), aff'd, 508 F.2d 754 (1st Cir. 1974), rev’d, 424 U.S. 589 (1976); United States v. Moskowitz, 581 F.2d 14, 20 (2d Cir.), cert. denied, 439 U.S. 871 (1978) (witness had excellent opportunity to observe perpetrator); People v. Bills, 53 Mich. App. 339, 349 (1974) (same), remanded on other grounds, 396 Mich. 819 (1976). It will be precisely in those case, like the instant one, where the reliability of any identification is weak that a jury are apt to place the greatest reliance on a composite drawing. Thus, before the judge reaches the issue of the competency of the composite evidence under the hearsay rule and the opinion rule, he must make a determination in terms of relevancy, i.e., probative worth weighed against probable risks of undue prejudice or misleading of the jury. This process of weighing reliability and probative worth was not engaged in here.

Assuming that the trial judge has determined the composite evidence to be sufficiently probative to warrant admission, a third concern is that the composite is hearsay evidence. The hearsay rule renders extrajudicial statements inadmissible if they are offered to prove the truth of the matters asserted in the statements. Some courts have excluded composites, as has this court, on the ground that they are a form of inadmissible hearsay. Commonwealth v. McKenna, supra. Commonwealth v. Rothlisberger, 197 Pa. Super. 451 (1962).

We have stated previously that “[a]n extrajudicial identification made by a witness may be offered in evidence for *86 three possible purposes: (1) for corroboration; (2) for impeachment; or (3) as substantive evidence of an identification, having.probative value.” Commonwealth v. Vitello, 376 Mass. 426, 458 (1978). When the extrajudicial identification is being offered to impeach a witness, or to rebut a claim of recent fabrication, the identification is not hearsay since it is not being offered to prove the truth of the matter asserted. Commonwealth v. Lacy, 371 Mass. 363, 370-371 (1976). Commonwealth v. Swenson, 368 Mass. 268, 274 (1975). 5

Evidence of an extrajudicial identification introduced merely to corroborate an in-court identification has not been considered to be hearsay evidence. Commonwealth v. Repoza, 382 Mass. 119, 129-130 (1980). Our recent decisions on the admissibility of extrajudicial identification, however, have abandoned the distinction between substantive and corroborative evidence in the context of identification evidence. 6 Commonwealth v. Vitello, supra at 458-459 . Commonwealth v. Fitzgerald, 376 Mass. 402, 407-410 (1978). Commonwealth v. Torres, 367 Mass. 737, 738-739 (1975). These decisions reflect skepticism that *87 a jury are able to maintain the distinction between an extrajudicial identification introduced for the purpose of corroboration and one introduced as probative evidence. 7 Thus, the extrajudicial identification is as probative of the defendant’s guilt as an in-court identification, in both practical and legal effect. Commonwealth v. Blaney, supra at 641 (O’Connor, J., dissenting), and cases cited. As such, “[t]he evidence is admitted to prove the truth of the matter asserted outside of court, and is, therefore, hearsay. It is admitted despite the hearsay rule and as an exception to it.” Id.

This exception to the hearsay rule is premised on a practical assessment of the relative reliability of different methods of identification. The inherent suggestiveness of the courtroom setting and the passage of time serve to diminish the reliability of an in-court identification. A prior extrajudicial identification is therefore regarded as having testimonial value equal to or greater than one made in court. Commonwealth v. Torres, supra at 739 . Commonwealth v. Locke, 335 Mass. 106, 112 (1956).

Evidence of a pretrial composite identification is distinguishable from the other types of pretrial identification evidence. Unlike extrajudicial photographic or in-person identifications, composites have not as yet been shown to possess a fair degree of reliability, let alone greater reliability than in-court identification. It cannot be said that they are significantly more reliable than an in-court identification. “Translating a mental image to a composite drawing provides opportunities for communication failure, error in reproduction, and extraneous influence that are not present when a witness can compare his mental image directly with either a photographic image or a person.” Commonwealth v. *88 Blaney, supra at 642 (O’Connor, J., dissenting). See Eyewitness Identification, 18 Am. Jur. 2d, Proof of Facts 361, § 9, at 379-380 (1979). In the absence of evidence demonstrating their reliability, 8 we should hold that composite drawings are inadmissible as probative evidence of guilt or as corroborative evidence 9 and reverse the conviction.

The trial judge, however, admitted the composite photograph as corroborative evidence only.

A photographic array presents the witness “with Gestalt-like stimuli: he must consider each photograph in its entirety.” Cohen, Number of Features, and Alternatives per Feature, in Reconstructing Faces With the Identi-Kit, 1 J. Police Sci. & Ad. 349 (1973). A composite requires that the witness review “sets of facial features . . . and he must select from each set the one he believes most closely resembles that of the suspect. . . . Thus, the information processing in the Identi-Kit technique is different from the mug shot technique; the witness must consider each of the features separately in an orderly manner.” Id. The Identikit process begins to break down when the number of features the witness must select increases. Id. at 352.

The state of the law as to the admissibility of composites is unsettled. Our holding in Commonwealth v. McKenna, 355 Mass. 313, 327 (1969), is in accord with the traditional rule that composites are inadmissible hearsay. People v. Jennings, 23 A.D.2d 621 (N.Y. 1965). Commonwealth v. Rothlisberger, 197 Pa. Super. 451 (1962). Another line of cases permits the introduction of composites solely to corroborate the testimony of the identifying witness at trial. People v. Rogers, 81 Ill. 2d 571, 580-581 (1980). State v. Lancaster, 25 Ohio St. 2d 83, 91-92 (1971). One court has held that a composite may be admissible if it falls within the res gestae exception to the hearsay rule. People v. Bills, 53 Mich. App. 339, 349 (1974), remanded on other grounds, 396 Mich. 819 (1976). Three courts have held that composites are admissible generally. In State v. Ginardi, 111 N.J. Super. 435, 450-456 , affd without opinion, 57 N.J. 438 (1970), it was held over a vigorous dissent that composites are admissible under the general rule that admission of prior extrajudicial identifications is proper. In United States v. Moskowitz, 581 F.2d 14, 21 (2d Cir.), cert. denied, 439 U.S. 871 (1978), and State v. Packard, 184 Conn. 258, 272-275 (1981), it was held that composites were not a “statement” and therefore were not hearsay statements. This latter analysis is inconsistent with the view that we expressed in McKenna , and should be rejected.

No court has admitted a composite where the identification is based on so limited an opportunity of observation as that which Foley had in this case. E.g., People v. Bills, supra at 344 (court framed issue as to whether “trial court err[ed] in admitting into evidence the sketch or composite picture of a person described by a witness who saw that person in close proximity of the crime and on two different occasions the morning of the crime”); State v. Ginardi, supra at 449 (victims had ample opportunity during a period of one and one-half hours in an automobile). Arguably, an excellent opportunity to observe the perpetrator may impart some indicia of reliability to the composite.

Rule 403 of the Federal Rules of Evidence provides: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waster of time, or needless presentation of cumulative evidence.” Professor Giannelli has suggested that novel scientific evidence should not be admitted in a criminal case until its reliability is established beyond a reasonable doubt if the State is its proponent, or a preponderance of the evidence if the defendant is its proponent. Giannelli, The Admissibility of Novel Scientific Evidence: Frye v. United States, A Half-Century Later, 80 Colum. L. Rev. 1197 , 1248 (1980). Professor McCormick suggests that the admissibility of scientific evidence be determined by adhering to relevancy standards, such as those set forth in Fed. R. Evid. 403. McCormick, Evidence 491 (2d ed. 1972).

Under the Proposed Massachusetts Rules of Evidence, a statement is not hearsay if the declarant testifies at trial and the statement is one of identification of a person made after the declarant perceived him. Proposed Mass. R. Evid. 801(d)(1)(C) (1980). Fed. R. Evid. 801(d)(1)(C) (same).

The question whether a prior extrajudicial identification is admissible as substantive evidence has arisen generally in cases where the witness is either unwilling or unable to make an in-court identification. See Commonwealth v. Vitello, 376 Mass. 426, 458 (1978); Commonwealth v. Torres, 367 Mass. 737, 738-739 (1975). These cases do not hold that a prior extajudicial identification could not be offered as substantive evidence in cases where the witness also made an in-court identification. Such a distinction would be anomalous. Commonwealth v. Fitzgerald, 376 Mass. 402, 406-408 (1978) (in-court identification contradicted by witness’s own testimony). See Commonwealth v. Vitello, supra (“extrajudicial identification may be used substantively even when the witness is unable or unwilling to make an in-court identification” [emphasis supplied]). To the extent that the reasoning of Commonwealth v. Repoza, 382 Mass. 119 (1980), suggests that a distinction exists between substantive and corroborative evidence in the context of identification evidence, we should not follow it here.

The court’s suggestion that we would not sustain a conviction where the only evidence of identification is a composite makes practical sense. But the same practical considerations which dictate this result should lead the court to the conclusion that composites should be excluded entirely until there is a demonstration of their reliability. The court cites no evidence that composites possess a fair degree of reliability.

Of course, any doubts which I express concerning composites may be eliminated by new developments in the field or by submission of evidence demonstrating that composites posséss a fair degree of reliability.

I would not rule here that a composite may not be utilitized for other evidentiary purposes, e.g., to refresh recollection, or to impeach or to rehabilitate an identification witness. See Commonwealth v. McKenna, 355 Mass. 313, 327 (1969); Annot., 42 A.L.R. 3d 1217 , 1222 (1972 & Supp. 1982).