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       Now the Law says when law enforcement is composing a photo array the size, age and appearance of persons shown in the array must not be unnecessarily suggestive.  The Supreme Judicial Court (SJC), the highest court for the Commonwealth of Massachusetts, has disapproved of "an array of photographs which distinguishes one suspect from all others on the basis of some physical characteristic." - Commonwealth v. Melvin, 399 Mass. 201 (1987).  State v. Lawson, 352 Ore. 724 (2012) states, "If for any reason a suspect disproportionately stands out from the lineup fillers surrounding him or her, then the identification procedure is suggestive - and the reliability of any resulting identification decreases correspondingly."


       There's also Commonwealth v. Thornley, 406 Mass. 96 (1989), which is just like Mr. Kirkland's.  Instead of braids, that witness told the police the assailant wore eyeglasses during that crime.  That witness was then shown a photo array with only one person (Thornley) wearing eyeglasses, and the Court found that photo array "unnecessarily suggestive".


           By Law, the prosecution is supposed to be barred from introducing evidence at trial, to the jury, of identifications that are unnecessarily suggestive and offensive to due process of law.  But of course the prosecutor was allowed to introduce their unnecessarily suggestive identification of Mr. Kirkland at his trial.


            State v. Henderson, 208 N.J. 208 (2011) states, "mistaken identifications are more likely to occur when the suspect stands out from other members of a photo lineup."  "When appropriate, jurors should be told that poorly constructed or biased lineups can affect the reliability of an identification and enhance a witness' confidence."


          At trial Mr. Kirkland made a request that the judge give the jury the new identification instructions to help the jurors understand and consider the effects and dangers of the poorly constructed photo array that was used in this case, as well as several other issues regarding his identification.  Mr. Kirkland's request was denied.  Then, seventeen months later, in Commonwealth v. Gomes, 470 Mass. 352 (2015), the SJC mandated that judges have to give the instructions to juries in all "future" cases [that has the type of identification issues that Mr. Kirkland had in his].  So even though Mr. Kirkland had the most appropriate reasons to have those instructions given to his jury, he was denied that right because he went to trial seventeen months too early.

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