The Supreme Court and Eyewitness Testimony - Perry v. New Hampshire

Sidebar to the article To Err is Human: Using Science to Reduce Mistaken Eyewitness Identifications Through Police Lineups by Maureen McGough

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 suggestive.

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.

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Date Created: June 15, 2012