I offer the case of Massachusetts v. Cowans for your consideration. I have shamelessly stolen the summary from an adverse appellate decision. Please read the summary carefully. It will be followed by a single-question, binary-answer pop quiz.
A jury convicted the defendant, Stephan Cowans, of armed assault with intent to murder, home invasion, assault and battery by means of a dangerous weapon, armed robbery, assault and battery on a police officer, assault by means of a dangerous weapon, and unlawful possession of a firearm. The defendant asks us to hold that witnesses may not testify on direct examination to their degree of certainty in an identification. ...
The jury could have found the following facts. After pursuing a male, later identified as the defendant, on foot, Boston police Officer Gregory Gallagher caught up to him in a backyard in the Jamaica Plain section of Boston. The defendant grabbed Gallagher and the two struggled until the defendant managed to remove Gallagher's gun from its holster. As Gallagher scaled a fence, the defendant shot him twice. Gallagher survived and heard additional shots. The defendant had shot at a neighborhood resident, Benjamin Pitre, but missed.
At the same time, while in the kitchen of her home, Bonnie Lacy and her daughter heard gun shots. Lacy's son came downstairs and opened the side door of the house. The defendant, whom Bonnie Lacy had never seen before, was standing in the doorway with a gun. She testified that the man "just came on in ... [h]e just walked, just like normal walking, with a gun." The gun's barrel was pointing up. The defendant appeared frightened and nervous. Lacy was very frightened.
Lacy asked him what the problem was and he replied, "[T]hose punks are after me." She asked who and he told her "those white policemen." Lacy asked the defendant to put down the gun. He complied. He kneeled on the floor and took off his sweatshirt. The defendant used his sweatshirt to wipe the gun and rested the gun on top of the sweatshirt on the floor.
The defendant asked for some water and Lacy provided him with a glass mug of water. He drank the water and placed the mug on her kitchen table. Lacy went to the door and asked him if he was ready to go. The defendant told her he did not want to go to jail. Lacy told him that if he had done anything wrong he should just go and turn himself in. Lacy opened the door and the defendant went out.
The defendant left behind the gun and the sweatshirt. Lacy testified that after the defendant left, she and her children "hugged each other real, real tight; and we praised God that we didn't get killed." Lacy testified that the defendant never pointed the gun at her or her children and he never threatened them with the gun.
Tennille Davis, a friend of the defendant's, testified that she saw him before and after the shooting. The defendant repeatedly suggested to Davis that he had been with her the entire day of the shooting. She testified that she corrected him and said she had seen him early that day and then again after the officer was shot, but that she had not been with him the entire day.
Several weeks later, Gallagher selected the defendant's photograph from an array and then identified the defendant in a lineup. At trial, Gallagher identified the defendant as the man who shot him. Pitre viewed a photographic array, but did not identify anyone, even though the defendant's photograph was in the array. Pitre subsequently selected the defendant from a lineup and identified him at trial. Bonnie Lacy viewed a photographic array and the lineup but did not positively identify anyone. A fingerprint left on the glass mug was matched to the defendant.
The theory of the defense was misidentification. A woman in the neighborhood had seen a black male being chased by a police officer, but she testified that it was not the defendant. Defense counsel also introduced evidence that the Lacy children had not selected anyone from the photographic array and challenged the eyewitness and fingerprint evidence.