Aaron Tang .

Posted Wed, October 19th, 2011 8:09 am

Perry v. New Hampshire

Up for discussion today in the Community is the pending case Perry v. New Hampshire, set for oral argument on November 2.  At issue in the case is whether the Due Process Clause forbids the use of all eyewitness identifications that are made under suggestive (and therefore perhaps unreliable) circumstances, or only identifications obtained as a result of suggestive circumstances orchestrated by the police.  The case takes on a degree of heightened interest insofar as (1) the Court has not addressed eyewitness identifications since 1977 (Manson v. Braithwaite); and (2) substantial evidence has mounted in recent years concerning potential problems with the reliability of eyewitness testimony.

We look forward to your discussion on the topics below.


  • Aaron Tang – 0 Promoted Comments

    In this thread, discuss whether you think there are particular aspects to this case or to eyewitness identification evidence generally that you believe warrant particular attention from the press or legal community?

    • Brandon Garrett – 1 Promoted Comment

      For the first time in 34 years, the U.S. Supreme Court has taken a case dealing with eyewitness identifications. The Court has not revisited the due process test set out in in 1977 in Manson v. Brathwaite, a test that three decades of socials science research has shown to be deeply flawed. There the Court held that even if police use suggestive procedures in a lineup, due process does not require exclusion of the eyewitness identification if it is nevertheless “reliable.” We now know how fragile and malleable eyewitness memory is. Lineups are experiments, and they can be replicated in the lab and in the field. A massive body of studies has shown how the “reliability” factors that the Court enumerated do not independently correspond with reliability at all, and instead are powerfully dependent on police suggestion. Take the well-known DNA exoneration of Ronald Cotton. The victim in the case, Jennifer-Thompson Cannino (who has signed an amicus brief in Perry) has spoken about how she came to misidentify Cotton – repeating him in a second lineup and comments that detectives made were suggestive but not intentionally so – and they also dramatically increased her confidence – even though she was wrong.
      Yet not only does the Court’s “reliability” test place undue value on eyewitness confidence, which may be false confidence that resulted from suggestion, but jurors also place great weight on the certainty of an eyewitness.

      Nothing has made the consequences of eyewitness misidentifications more salient than high-profile cases in which DNA exonerated an innocent person. Of the first 250 such DNA exonerations, 76 percent involved eyewitness misidentifications. When writing my book, “Convicting the Innocent,” I went back and read the criminal trials of those DNA exonerees. I found that in court, eyewitnesses were almost without exception certain that they had picked the right person. Yet they were wrong. Unsound and suggestive identification procedures most likely played a troubling role in generating their false confidence, including a series of show-up identifications where witnesses were shown single suspects or single photos.

      The case before the Court this term, Perry v. New Hampshire, however, may be the wrong case on the wrong issue. The question raised goes to a requirement of state action. The officers in the Perry case apparently did not mean to orchestrate a suggestive show-up identification, where the eyewitness saw only the suspect standing in the parking lot where a robbery took place. However, in my view, there was state action where the police told the suspect to stand there – next to an officer – while they went to speak with the eyewitness. Unintentionally suggestive circumstances, whatever their source, can powerfully affect an eyewitness. That is particular the case where, like here, the identification was made in a show-up, in which the eyewitness saw a single suspect – in such circumstances, “almost any apparent connection between the police and a suspect” may have a dramatic effect, as the American Psychological Association describes in their amicus brief. The due process question should be whether an eyewitness identification can be excluded on the ground that it is unreliable. It would be quite perverse if faulty evidence of so-called “reliability” could excuse police suggestion which can dramatically affect the memory of an eyewitness, but outright unreliable eyewitness identifications raised no due process problem at all. It would be still more troubling if show-up identifications, posing particular great risks of error, could be excluded from due process protection so long as police did not try to arrange it carefully. After all, the “primary evil to be avoided” is the heightened likelihood of a misidentification. Neil v. Biggers, 409 U.S. 188, 198 (1972).

      In one state, the much-needed complete overhaul has just happened. The Henderson decision in New Jersey has already provided a comprehensive social science framework for regulating eyewitness identifications. That decision provides a careful description of the social science and a list of factors corresponding to the research to guide judges in pre-trial reliability hearings and jurors in detailed instructions at trial. New Jersey has long had in place sound lineup practices, as well, including the most important reform – blind lineups where the administrator does not know which is the suspect and cannot, even unconsciously, distort the process. New Jersey now provides a national model for how to get eyewitness identifications right, in and out of the courtroom.

      It is incredibly important that police use sound lineup practices in the first instance – and that factors that actually correspond to reliability be used to evaluate identification evidence. Shoddy identification procedures let the guilty go free and can lead to convictions of the innocent. The current due process test is in need of a complete overhaul – but whether the Supreme Court will intervene remains doubtful given what we have seen over the past 34 years.

      • Bruce Hay – 1 Promoted Comment

        A couple of thoughts.

        1. The problems with eyewitness identification mostly revolve around faulty lineup (or showup) procedures, which are not at issue in this case. Here the eyewitness ID occurred in the streets. It’s not really clear what the police could, or should, have done differently here. You get mugged on the street; moments later, the cops grab someone and (holding the suspect in cuffs) ask you if this is the guy. Are we really going to say this is improper?

        2. This is not of course to deny the serious reliability concerns in this case. But what is the right remedy? Exclusion of the evidence? Instructing the jury on the hazards or eyewitness ID? Having an expert witness testify about those hazards?

        • Bruce Hay – 1 Promoted Comment

          One other thing: the “state action” issue seems to me to be a laughable canard. The state is putting someone in jail using this witness’s testimony. Tell me with a straight face there is no state action.

    • Sherry Colb – 1 Promoted Comment

      Here’s a question that deserves some consideration: is the right at issue one against the introduction of evidence, or one against police misbehavior?

      On the petitioner’s approach, the right at issue guards against the introduction of highly unreliable evidence, rather than against police misbehavior. As the petitioner explains in his brief in Perry, we keep out such evidence in order to protect the evidentiary integrity of the trial, not to deter police misconduct. Unlike the Fourth Amendment exclusionary rule, Perry argues, the due process right is a trial right, and the governmental conduct that triggers the Constitution’s application is thus the government’s introduction at trial of unreliable evidence arising from a suggestive identification procedure, not police use of a suggestive identification procedure.
      This argument is powerful in one sense, because the Court has specifically stated that “[i]t is the likelihood of misidentification that violates a defendant’s right to Due Process.” If that is so, then the police officers’ lack of culpability would seem immaterial to the violation. After all, if we want to avoid false convictions, our focus is appropriately on the conditions under which innocent people are likely to be convicted, rather than on whether the police conducted themselves in a culpable manner.
      The difficulty in making this argument successfully, however, is that a ruling for the defendant would call into question much of the evidence that is currently—and, it has been thought, legally—introduced at criminal trials. If the government violates the defendant’s due process rights simply by introducing unreliable evidence, then many government witnesses will be constitutionally barred from testifying.

      For more, check out: http://verdict.justia.com/2011/09/07/the-u-s-supreme-court-considers-the-constitutionality-of-unreliable-eyewitness-identifications

    • Kent Scheidegger – 6 Promoted Comments

      There is something odd about this case being the chosen vehicle for exploring the issue of suggestive identifications. This identification is not suggestive in a way that would warrant excluding it under any reasonable standard. The witness was being interviewed by a police officer in her upstairs apartment. When asked to describe the perpetrator, she spontaneously went over to the window and identified Perry, who was standing in the parking lot below with another officer. Perry was not handcuffed or otherwise visibly under arrest. (He was not, in fact, under arrest at that point.) Nothing in the scene suggested that Perry was the perpetrator rather than another witness. He was merely standing with a police officer, as the witness herself was.

      The witness did not get a good enough look at Perry to identify him by facial features. She could not pick him out of a lineup later. So she apparently identified him by his overall height and build as well as his color and likely his clothing. Later she could not identify the clothing, but later memory is not the same as fresh identification.

      There is nothing wrong with this identification that would justify excluding it from evidence. It was not suggestive in the way that prior cases in the identification line were, where some artificial suggestion that the suspect is the perpetrator is introduced. This is not a case where suggestion is introduced by a third party, such as another witness, rather than the police. This is a case of no suggestion at all.

      The weaknesses in the identification go to weight, not admissibility, and are proper subjects for argument to the jury.

      Another odd thing about the choice of this case as the vehicle is that it is not the kind of case the defense so often complains about, where the challenged identification is the only evidence linking the defendant to the crime. Quite the contrary, the other evidence in this case would be sufficient to convince most jurors beyond a reasonable doubt without the challenged identification.

      Perry was caught loot-handed by a police officer in the parking lot right after the auto burglary. He was identified by another, unchallenged witness as the person walking around the parking lot testing door handles shortly before. Along with other evidence, described in part IV of CJLF’s brief, most jurors would likely have voted to convict without the challenged identification. (The prosecution cannot rest on what most people would decide, of course. In high profile cases both recently and remotely, we have seen defendants acquitted when most observers were convinced they were guilty.) This is not a case where the Court will be bothered by the possibility an innocent man was convicted.

      • Bruce Hay – 1 Promoted Comment

        I agree, bad vehicle. The problem is the NH SCt expressly disagreed with the 1st Circuit on the applicable standard.

  • Aaron Tang – 0 Promoted Comments

    In this thread, discuss what you think the Court should do in Perry, and why? (That is, do you think the Due Process Clause forbids all eyewitness identifications made under suggestive circumstances, or only those where the suggestive circumstances were orchestrated by police?)

    • Tom McCarthy and Samuel Gedge – 1 Promoted Comment

      The Supreme Court should reject Petitioner’s effort to create a new substantive due process right to the exclusion of unreliable eyewitness identification evidence. There simply is no reason for the Court to fashion a new rule of constitutional law that would
      eliminate the “improper state action” requirement from a due process challenge to the admission of eyewitness identification evidence. To do so would transform every routine question of reliability into an issue of constitutional magnitude. This is wholly unnecessary given the ample safeguards in federal and state law that protect against the admission of unreliable eyewitness identification evidence. The Constitution establishes an adversarial system that affords criminal defendants the right to counsel and the right to trial by jury and, through the Confrontation Clause, ensures that all testimony will be subject to testing “in the crucible of cross-examination.” Crawford v. Washington. Federal and state evidentiary rules provide further protection; indeed the Court has emphasized that reliability “is a matter to be governed by the evidentiary laws of the forum … and not by the Due Process Clause.” Connelly v. Colorado.

      Ultimately, questions of reliability are best left to the collective wisdom and common sense of the jury, “for evidence with some element of untrustworthiness is customary grist for the jury mill.” Manson v. Brathwaite. There is no reason to assume that a well-instructed jury cannot properly and intelligently evaluate eyewitness identification testimony. Especially not in this case. The trial court gave the jury a Telfaire-type instruction, and the jury gave some of the State’s proffered evidence more weight and some less—finding Petitioner guilty on one court and acquitting him on the other.

  • Aaron Tang – 0 Promoted Comments

    What do you think the Court actually will do in Perry, and why?

    • David Siegel – 1 Promoted Comment

      Perry raises two different types of questions: (1) Does due process require consideration of a fact-finding procedure’s quality at trial regardless of its source and (2) Should the Court re-examine its “reliability” jurisprudence for due process challenges to unnecessarily suggestive identifications in light of three decades of social science research that contradicts it? While the answer to the second question may well be an emphatic “yes” (argued in amicus briefs of the American Psychological Association and the National Innocence Network inviting the Court to consider the shortcomings of the Biggers factors adopted in Manson v. Brathwaite, 432 U.S. 98 (1976)), the Court will very likely will not reach it as it seems unlikely a majority will answer “yes” to the first question. The Court’s holdings that certain limits on the fact finding procedure violate due process, such as inflexible hearsay prohibitions on exculpatory third party confessions in Chambers v. Mississippi, 410 U.S. 284 (1973) or blanket exclusions of hypnotically-refreshed testimony by a defendant in Rock v. Arkansas, 483 U.S. 44 (1987), stand out from more common rejections of fundamental fairness challenges to the operation of the trial process unless it impairs some other constitutional right. It’s especially unfortunate that this case reaches the Court now – just when state supreme courts are repudiating the Manson factors in favor of hearings whenever an identification is suggestive, State v. Henderson, 2011 WL 3715028, 208 N.J. 208 (N.J., 8/24/2011) – even when there was no police involvement. State v. Chen, 2011 WL 4406321, 208 N.J. 307 (N.J., 8/24/2011) (if identification is “highly suggestive”).

    • Sandra Guerra Thompson – 1 Promoted Comment

      The exoneration of hundreds of wrongly convicted people—most of whom were misidentified by eyewitnesses–cries out for improved regulation of eyewitness identification procedures. Decades ago, the Supreme Court announced rules that have made it almost impossible for any defendant to get even patently unreliable identifications excluded, as I have shown in an empirical study (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1515974) . The Court has since ignored this area of law for over 30 years. The Court’s recent decision to revisit the issue of suggestiveness in identification evidence has inspired a groundswell of hope that the Court is prepared to take reliability seriously and toss the scientifically flawed and toothless test it had previously adopted.
      Unfortunately, Perry is not likely to bring about critical changes itself, but it has the potential to be a watershed case anyway. The question is whether due process protections of unreliable identification evidence apply to all identifications made under suggestive circumstances, or only when the suggestive circumstances were orchestrated by the police. The problem of private party suggestiveness in Perry applies in a very limited a field of cases as most of suggestiveness involves police suggestiveness. If the Court holds that due process is not implicated absent a preliminary finding of police suggestion, then the decision will simply foreclose federal due process claims in this small set of cases. (I have previously criticized Brathwaite for seeming to apply only to cases involving police suggestion. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1531259 .) Fortunately, even if the Supreme Court does limit federal due process to cases involving police suggestion, state courts are still free to invoke state constitutional law, state evidence law, and their supervisory authority for the administration of justice so as to extend due process protections to all unreliable identifications. Nonetheless, if the petitioner in Perry loses, the case will be a huge disappointment for those advocating for the use of state-of-the-art identification procedures.
      On the other hand, if the Supreme Court in Perry holds that due process turns solely on reliability, regardless of its source, this may represent an important turning point. It might indicate the Court’s willingness to reconsider its due process reliability test for identification evidence. Its five-factor reliability test has been subject to sustained criticism from social scientists and legal scholars since the time it was adopted. Several state high courts have revised it for purposes of their state due process analysis. The current flawed test is clearly in need of revision, so it is reasonable to think the Court might be prepared to tackle this task. In a broader sense, it might also mean that the Court is taking more seriously a wider set of reliability concerns about criminal trials that have caused wrongful convictions. Ideally, this would lead to better decisions on such things as confessions, jailhouse informants, and forensic science as well.

  • Harrison Latto – 0 Promoted Comments

    The Supreme Court will affirm, because it won’t be interested in making a federal case out of every “weight vs. admissibility” question.

  • Appellate Squawk – 0 Promoted Comments

    This comment was removed because the author did not post using their real name.

  • Harrison Latto – 0 Promoted Comments

    In US v. Wade (1967) the defendant had already been indicted and arrested at the time the suggestive line-up was conducted, during which his lawyer wasn’t present. That right-to-counsel violation possibly infected the witness’s in-court ID. Obviously counsel can’t be present when a cop is investigating a crime.

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