on Sep 30, 2011 at 12:42 pm
Perry v. New Hampshire, scheduled for oral argument on November 2, asks whether due process prohibits the admission of all eyewitness identification testimony made under suggestive conditions, or whether it bars only eyewitness testimony in which the police were responsible for those conditions. The reliability of eyewitness identification has been the subject of close study by legal academics and social scientists alike€”scholarship that may have motivated the Supreme Court to hear this case.
In a recent article, New York Times reporter Adam Liptak estimated that more than 2000 studies on this question have been published since the Supreme Court last addressed the issue in 1977. Equally as important has been the scholarship surrounding the use of DNA evidence to exonerate the wrongfully convicted, which has further demonstrated the problems that can arise with eyewitness identifications.
In his recently published book, Convicting the Innocent, Professor Brandon Garrett examines the first 250 DNA-based exonerations, and discovered that 190 of them (76%) involved mistaken eyewitness identifications. Furthermore, he found that that almost all of the eyewitnesses in these cases “expressed complete confidence€ in their identification. Not surprisingly, Professor Garrett’s book is cited and discussed prominently in Perry’s brief. What use the Supreme Court will make of it remains to be seen.