Appeals court considers whether prosecutor's courtroom question impermissibly suggested in-court ID in Commonwealth v. Corbit

The Appeals Court heard argument over whether a prosecutor's in-court follow-up question impermissibly guided a witness to identify the defendant, raising Creighton-line concerns about suggestive in-court identifications.

Defense counsel Adrianna Contrecci argued the prosecutor's exchange with the victim — asking whether the defendant "have a tie or another collar on him?" after the witness initially said the perpetrator was in a "white shirt" — amounted to a suggestive, prosecutorial identification that deprived the defense of meaningful cross-examination. Contrecci said the record showed the victim had previously described only one assailant and had, at times, identified a different sibling; defense counsel argued the in-court identification could have reinforced a mistaken or coerced identification.

The Commonwealth's lawyer, ADH Lee, responded that the prosecutor did not identify the defendant and that the follow-up question was a neutral request to clarify an earlier description; the victim volunteered "a blue tie." The prosecutor and three other witnesses had also identified the defendant at trial, Lee told the panel, and the record contained contemporaneous statements and messages corroborating identification.

The panel repeatedly probed the parties on whether the record showed a real risk of misidentification, how many people in the courtroom matched the victim's description, and whether defense counsel was able to cross-examine the witness adequately after the exchange. The court heard arguments about substantial risk of a miscarriage of justice for a waived claim and the standards for appellate review on claims of suggestive identification.

After extended colloquy the parties rested and the case was submitted.