The Supreme Court and Eyewitness Testimony - Perry v. New Hampshire
Eyewitness testimony plays a crucial role in the American criminal justice system. However, like any process relying on the
integrity of human memory, eyewitness testimony is imperfect. The American Judicature Society study found that even when lineups
were conducted using procedures shown to lead to fewer mistaken identifications, witnesses identified a "filler" 12.2 percent
of the time. The courts must therefore strike a balance between allowing the introduction of eyewitness testimony that can
be crucial to the prosecution's case and protecting defendants from unreasonably unreliable evidence.
The Supreme Court has long held that it is up to jurors to evaluate eyewitness testimony and make their own judgments as to
its credibility. However, the Court has also held that the Constitution's Due Process Clause requires preliminary judicial
inquiry into the reliability of eyewitness identification if law enforcement created unnecessarily suggestive circumstances
during the identification. In Perry v. New Hampshire, the petitioner asked the Court to apply the same principle — that identifications
made under suggestive conditions require preliminary judicial inquiry — when happenstance renders the identification setting
In Perry, a New Hampshire police officer responded to a call that an African American man was attempting to break into cars
in a nearby lot. When the officer asked an eyewitness to describe the man, she pointed to Perry — the only African American
man standing in the lot next to a police officer — and identified him as the man in question. Perry's arrest followed. The
out-of-court identification was introduced at trial and Perry was found guilty of theft.
In its October 2011 opinion, the Court held that the introduction of this out-of-court identification did not violate the
Due Process Clause. The Court said that the determination of the credibility of the testimony in question should be left to
the jurors and declined to put what it deemed new legal limits on the use of questionable eyewitness testimony at trial. The
Court also opined that Perry's argument would open the door to judicial preview of most — if not all — eyewitness identifications.
Justice Sonia Sotomayor was the lone dissenter. Although the majority held that the crucial, common factor in relevant Court
precedent was that police arranged a suggestive interview, Justice Sotomayor countered that the suggestive nature of the interview
itself — not the circumstances that led the suggestive nature — was the key. She believed that the majority opinion did not
adequately consider empirical evidence showing mistaken identifications as the single greatest cause of wrongful convictions
in this country. She also highlighted studies showing that eyewitness recollections are highly susceptible to distortion and
that jurors overestimate the accuracy of eyewitness identifications.
Back to: To Err is Human: Using Science to Reduce Mistaken Eyewitness Identifications Through Police Lineups.
Date Created: June 15, 2012