SJC voids life sentence because of prosecutor’s use of probability analysis, Commonwealth v. Ferreira, SJC-10902
Issue: Whether the prosecutor’s mathematical analysis in his closing argument of the probability that the lone eyewitness’s identification of the defendant was accurate created a substantial risk of a miscarriage of justice, where the analysis was not supported by expert testimony, was fundamentally flawed, and equated proof beyond a reasonable doubt with a statistical probability.
Summary: The defendant was convicted by a jury of unarmed robbery of a person sixty years of age or older, in violation of M. G.L. c. 265 § 19, and was sentenced to life in prison. The victim was a 60 year old pizza deliverer, who while delivering a pizza, was attacked by two men who demanded that the victim give them his money. After reporting the crime, the victim was shown a photo line up resulting in him picking out the defendant and friend. At trial, the victim said he was 80% sure of the identification. When asked at trial to identify whether or not one of his attackers was there, the victim reported he was not sure.
During closing arguments the prosecutor created a statistical probability regarding the victim’s ability to choose the defendant and his assailant out of a photo lineup. The prosecutor argued that there was a one in forty-nine chance that the victim would have identified as his assailants two persons who knew each other well and therefore a ninety-eight percent probability that the victim had accurately identified the defendant as one of the assailants, which constituted proof beyond a reasonable doubt. The court found this probability analysis to be flawed, unsupported by expert testimony (which is required when introducing mathematical probability that an eyewitness identification is accurate), and ruled that you cannot equate proof beyond a reasonable doubt with a numerical percentage. Because the prosecution’s closing argument created a substantial risk of a miscarriage of justice, the judgment was reversed and the case is remanded to the Superior Court for a new trial. Full information on the case, including oral arguments, is available at: http://www.suffolk.edu/sjc/archive/2011/SJC_10902.html.
The statute the defendant was charged under is available at: http://www.malegislature.gov/Laws/GeneralLaws/PartIV/TitleI/Chapter265/Section19.
Implications: Although the court in this case found that there was a substantial risk of a miscarriage of justice and the defendant received a new trial, the objection should have been made by defense counsel at trial. The standard of proof beyond a reasonable doubt should not be minimized to being as simple as multiplying, as the prosecutor did here. Such an analysis may come from expert testimony.