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Argument preview: Can eyewitnesses be believed?

At 10 a.m. next Wednesday, the Supreme Court will hear one hour of oral argument on a case seeking clarification of when trial courts must exclude the testimony of an eyewitness to a crime because the testimony was unreliable.  In the case of Perry v. New Hampshire (10-8974), arguing for Barion Perry of Nashua, N.H., will be Richard Guerriero, a public defender in Concord, N.H.   Representing the state will be its Attorney General, Michael A. Delaney of Concord, with 20 minutes of time.  Supporting New Hampshire, for the federal government as an amicus, with ten minutes of time, will be Nicole A. Saharsky, an assistant to the U.S. Solicitor General.


For decades, prosecutors have been winning convictions of criminals in countless numbers of cases by relying on a kind of evidence that jurors almost always find very persuasive: an eyewitness claiming to have seen the crime as it occurred, and identifying the suspect.   But, for almost as long, psychologists have been debating whether those who insist they were at the scene can really be trusted with what their memory tells them.  The topic, as a constitutional matter, occupied the Supreme Court in a string of decisions that began with a trio in 1967 and continued for several years, but has been left largely unexamined for three decades since.  The Court has now agreed to reopen the issue.

In one of the Court’s trio of decisions in 1967, U.S. v. Wade, Justice William J. Brennan, Jr., wrote for the majority: “The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification,” going back at least to the influential work on criminal evidence by John Henry Wigmore in the early 1900s.  Even so, prosecutors have understood very well how valuable such testimony can be.  A scholar whose work the Supreme Court used to cite, University of Washington psychologist Elizabeth F. Loftus, wrote in 1979: “All the evidence points rather strikingly at the conclusion that there is almost nothing more convincing than a live human being who takes the stand, points a finger at the defendant, and says, ‘That’s the one!’ “

The topic, it seems, has been studied almost endlessly, but the volume of studies has actually increased vastly since the Justices last ruled on the issue.   The results, though, seem to be very consistent in questioning the reliability of eyewitnesses’ recollections.   The New Jersey Supreme Court, in a high-profile and precedent-setting decision in August (State v. Henderson, state court docket 062218), commented that “virtually all of the scientific evidence” that has emerged in recent decades “reveals that an array of variables can affect and dilute memory and lead to mis-identifications.”  That court, as a result, adopted new procedures, including new pre-trial hearings to examine those “variables” when there is some evidence that the circumstances under which the witness made his or her observation were “suggestive” — that is, the identification was in some ways induced either by police or by circumstances — and it also crafted more detailed forms of instructions to help jurors evaluate such testimony more carefully.

In the case of Perry v. New Hampshire, the U.S. Supreme Court returns to this evidence controversy, in a very specific way.  The Justices are not being asked to bar eyewitness testimony, and they are not being asked to impose specific new limits on the use of such evidence at criminal trials.   Rather, the issue before them is whether the Constitution requires courts to make a more searching inquiry into the reliability of such testimony only when it was police manipulation that made the eyewitness identification “suggestive,” or whether such an inquiry is required any time there is evidence suggesting that the witness made the observation amid circumstances that were “suggestive.”

This is an issue that arises under the Constitution’s guarantee of “due process.”   The Supreme Court has always evaluated eyewitness testimony from the perspective of whether the evidence was reliable, to assure that the evidence that the jury evaluates has integrity.   As the Court remarked in 1967, what is at stake when an eyewitness picks out a suspect as the perpetrator is whether that identification can “derogate from a fair trial.”  It stressed then that such a result can flow from a “suggestive” identification.  The Court commented that “suggestion can be created intentionally or unintentionally in many subtle ways.  And the dangers for the suspect are particularly grave when the witness’ opportunity for observation was insubstantial, and thus his susceptibility to suggestion the greatest.”

As the New Jersey Supreme Court’s August opinion in the Henderson case made clear, studies have shown that there are two main kinds of variables that can cause an identification to be the result of “suggestion.”  One, of course, is police conduct (such as the way they arrange for a “lineup” of suspects or an array of photos for the witness to observe).  Those are called “system variables,” because they are said to be within the control of the criminal justice system itself.  But the other has nothing directly to do with what the police did or did not do with the witness: instead, it depends upon facts about the witness, facts about the person who was supposedly seen doing the crime, or the circumstances of the observed event at the time it occurred, such as distance, lighting, or stress.  Those are called “estimator variables,” and are said to be outside the control of the legal system.

Both, supposedly, are at issue in the case of Barion Perry of Nashua, N.H.   In the Supreme Court, and in the state courts, Perry’s lawyers argued that, whether or not police “orchestrated” an eyewitness identification, courts must examine all of the circumstances to determine if the identification was “suggestive” and then, if it was, whether the identification itself is unreliable and thus must be excluded from the trial in order to avoid a due process violation.

The New Hampshire Supreme Court, however, ruled that the due process inquiry “does not apply to a potentially suggestive out-of-court identification when there is a complete absence of improper state action” — that is, improper action by the police or the prosecutors.  The state court acknowledged that, on this point, it was disagreeing flatly with the First Circuit Court — the federal appeals court that includes the state of New Hampshire in its jurisdiction.   The state court noted that it and the Circuit Court had parallel authority to decide such issues under the federal Due Process Clause.

Barion Perry’s case goes back to the early morning of August 15, 2008.  It was still dark when someone broke into the trunk of a Honda Civic auto belonging to Alex Clavijo, in the parking lot of the Nashua apartment building where Clavijo lived.   In the building, Clavijo’s neighbors across the hall were Nubia Blandon and her husband, Joffre Ullon.  That morning, Ullon told his wife to call the police after seeing suspicious activity as a black male moved among the cars parked in the lot.

Blandon did so, and a Nashua officer, Nicole Clay, arrived to investigate.  She saw a black man — Barion Perry — standing in the parking lot, holding some stereo amplifiers.  He told her he had found them lying on the ground, and was moving them out of the way.   He told Officer Clay that, earlier, he had seen two individuals mingling among the parked cars.  He pointed to one of them, who apparently was nearby.  The officer interviewed that person, but did not detain him.

At that point, Clavijo came out of the building, and told the officer it was his car that had been entered.   He said he had not seen anything occurring but that his neighbor, Blandon, had.  They entered the building, and the policewoman talked to Blandon, who spoke Spanish but only halting English.  Clay asked Blandon to describe the man she had seen.  She said he was a tall black man.  Blandon then went to the window, looked out, and told the officer that the man she had seen was right then standing in the parking lot next to another police officer who had arrived.  Perry was the man she pointed out.

Blandon later went to a police station, and was shown a series of photos, including one of Perry, but she could not identify Perry from the array.  Her husband, Ullon, however, was also shown a photo array, and did pick out Perry, saying he “recognized his face.”  Perry was arrested in the lot, and was then charged with theft and criminal mischief.  Defense lawyers tried before trial to exclude Blandon’s out-of-court identification from the trial, on the theory that her identification of him was the product of suggestive circumstances.  That maneuver failed, and Blandon took the stand, testifying only that the man she had seen was a young black man and that he had a bicycle.  She could not identify Perry, sitting in the courtroom, as the perpetrator.   The jury convicted Perry of the theft charge, but found him not guilty of criminal mischief.  He was sentenced to three to ten years in prison.

On Perry’s appeal to the state Supreme Court, it ruled that there was no need to make a due process analysis of Blandon’s testimony, because, it concluded, the police had not set up the suggestive circumstances.  The absence of police involvement was decisive, the state tribunal concluded.  When Blandon identified Perry as she looked out of the apartment window, the state court concluded, she had done so without any inducement by police.

Perry’s lawyers then took his case to the Supreme Court.

Petition for Certiorari

The case, as appealed, raised the single issue of whether “the due process protections against unreliable identification evidence apply to all identifications made under suggestive circumstances.”  It relied explicitly upon the conflicting rulings on that point between the state Supreme Court and the First Circuit Court.  Other courts, too, are divided on the question, the petition said.

“Unreliable eyewitness evidence,” the petition argued, “is excluded not to address the violation of a constitutional right but rather because the admission of unreliable evidence would itself violate due process.”  The Due Process Clause, it stressed, “protects against unfair trials and wrongful convictions,” and either can result from an unreliable eyewitness identification.

Perry’s lawyers conceded, of course, that all of the Supreme Court’s precedents on this issue did involve instances of police conduct.  But, they went on, the Court “has never said that state action must be involved in the identification before a trial court may rely upon due process to bar an identification that is substantially likely to be wrong.”   In making that calculation, the petition argued, the Supreme Court has always mandated consideration of “the totality of the circumstances.”

In Perry’s case, the petition contended, the identification testimony of Nubia Blandon would have been excluded had the lower courts applied due process analysis, as Supreme Court precedents have mandated.  It ticked off some reasons: Blandon had not had an opportunity to observe the perpetrator before police arrived, the officer at the scene could not say how Blandon came to observe the perpetrator or how long she had observed him, the period of observation could have been as little as a couple of minutes, the officer could not say what Blandon had observed while she was calling police and whether she may have been diverted, she made her identification when it was still dark outside and she was looking from a vantage two or three stories above the parking lot, the officer had not followed up by looking out the window herself to see what could be observed, there was no evidence of how closely Blandon had paid attention, the identification Blandon gave before looking out the window was the skimpy description of a tall black man, there was no evidence on how strongly Blandon believed in her identification, and she could not pick out Perry from the photo array shown to her.

That, at least, should have been enough to trigger a due process analysis, the petition asserted.   It did not ask the Justices themselves to weigh the evidence, but only to declare that the due process analysis must be applied, whether or not there had been police orchestration of any identification, and then let the state court make that analysis itself.

Perry’s petition was filed as a pauper document, and, as is often the case, the state chose not to respond to it.   However, on March 24, the Court asked New Hampshire officials to file a response.   They did so, laying out a version of the facts that suggested that the identification of Perry had actually more support than Perry’s petition had acknowledged, but laying its heaviest stress on the absence of any police manipulation of the identification.

It canvassed at some length the Supreme Court’s precedents on eyewitness reliability, and noted that each of them had involved facts showing that “the police had caused or orchestrated the suggestive procedure at issue.”  The state also contended that Perry’s lawyers had exaggerated the split in the lower courts, and interpreted some of the precedents that Perry’s lawyers had claimed in his favor as failing to do just that.

Finally, the state reviewed again the identification by Blandon, and said that the actual circumstances at the time did not show that it was the result of an “unnecessarily suggestive procedure.”  Its details about Officer Clay’s actions at the scene suggested that she merely asked routine police questions, and did nothing to point Blandon toward Perry as the suspect.  But, the response went on, even if it were assumed that there had been suggestive circumstances, the evidence of the reliability of Blandon’s identification was sufficient to justify its use against Perry.

The Court granted review on May 31.

Merits Briefs

Barion Perry’s brief on the merits, besides relying upon the asserted conflict among court rulings on the issue, put a very strong focus on the Supreme Court’s need to keep two branches of its criminal law jurisprudence separate as they decided this case.  One branch involves the so-called “exclusionary rule,” which the Court has adopted to bar criminal evidence that was obtained illegally by police — a rule that, the brief noted, is designed to deter police from further violations of an individual’s rights.  The other branch, according to the brief, involves the due process analysis that the Court has mandated when eyewitness identification is challenged as unreliable — a process that has nothing to do with any violation by police of anyone’s rights, but has everything to do with the integrity of the criminal trial process.  Since there is no deterrence rationale for this kind of due process review, the brief insisted, there should be no need for any showing of “improper state action.”

By requiring Perry to show that there was police action in inducing the identification, his brief asserted, the New Hampshire Supreme Court was actually relying upon the analytical approach that is reserved for “exclusionary rule” cases in order to deter police misconduct.

And, again, as in the petition, the Perry merits brief argued that there was at least enough question about Blandon’s identification of him as the suspect to have, at a minimum, triggered a due process analysis by the state courts.

The state of New Hampshire’s brief on the merits sought to stress how narrow it found the Supreme Court’s precedents on the due process analysis to be.   While the Due Process Clause has “broad goals,” the state said, the Justices have always relied more heavily upon the explicit protections laid out in the Bill of Rights in order to assure that the procedures of the criminal justice system operate fairly.  Such guarantees as the right to confront accusers, the right to cross-examine witnesses, the right to counsel, the right to call witnesses, the beyond-a-reasonable-doubt standard for finding guilt, and the right to a jury trial — “all serve to guarantee a just verdict.”

“There is no specific constitutional right,” the state’s brief said, “that requires evidence to be deemed reliable before it is admissible in a criminal trial.”   The Court, it added, has generally relied upon rules of evidence in each judicial system, rather than some constitutional guarantee, to determine whether evidence was reliable enough to be put before a jury.

Canvassing past Court precedents in this field, the state’s brief said that together they stand for the proposition that the Due Process Clause “does not require courts to make a preliminary reliability determination before a witness may testify at trial.”  Those precedents, it added, rested upon the Court’s concern that the government may have been “seeking to use manipulated identification evidence.”  Thus, government action is a necessary predicate for a finding of a due process violation, the state summed up.

The Justice Department has entered the case on New Hampshire’s side, and will take part in the oral argument to support the New Hampshire Supreme Court’s conclusion that the due process test is confined to evaluating eyewitness evidence onlywhen the “unnecessary suggestive circumstances” were “orchestrated by law enforcement.”   Its amicus brief ran through all of the Court’s significant precedents in this field, and noted that each involved such law enforcement involvement.  It also noted that, when the Court cited specific examples of “suggestive” identification, each was the direct result of something the police did.

Like the state, the federal government brief contended that the Due Process Clause “does not impose a general threshold of evidentiary reliability in criminal cases” and, in any event, the best safeguard against unreliable identification evidence entering a case are the specific guarantees to criminal suspects under the Bill of Rights.

Perry’s side of the case has drawn the support as amici of the National Association of Criminal Defense Lawyers, the American Psychological Association (discussing scientific evidence of how memory is often shown to be flawed),  the Innocence Network, and — perhaps the most unusual filing — a brief from individuals who had been “wrongfully convicted and imprisoned for several years as a result of mistaken eyewitness identifications,” along with “crime victims whose sincere but mistaken identifications helped convict and imprison innocent persons.”   That brief focused heavily upon studies of flawed identifications, like one done in 2011 that concluded that “190 of the first 250 DNA-based exonerations” in the U.S. involved mis-identification by eyewitnesses.

The state of New Hampshire has the support as amici of 29 states and the territory of Guam, opposing what it called an attempt to “constitutionalize a rule of evidence”; the Criminal Justice Legal Foundation, arguing that exclusion of questionable eyewitness testimony is a more drastic remedy than necessary to assure fair trials, and the National District Attorneys Association, contending that what Perry was actually seeking was to turn a procedural question about evidence into a “new substantive due process right” by divorcing the due process analysis on eyewitness evidence from “improper state action.”    The DAs’ brief, in fact, urged the Supreme Court to reconsider its entire line of cases on the eyewitness issue, back to those issued in 1967, because the holdings in those cases  “lack constitutional foundation.”


The Court’s most recent ruling in the series on eyewitness identification as a constitutional problem went against the procedural claim, an indication that the Court even then was less committed than it had been to curtailing the use of evidence that it often had found troublesome.  In that 1981 ruling, Watkins v. Sowders, the Court decided by a 7-2 vote, that the Constitution’s due process clause does not require a hearing, outside of the jury’s presence, to examine a claim that an eyewitness had made a mistake.   Writing for the two dissenters was Justice Brennan, who had been the author of one of the initial 1967 decisions (U.S. v. Wade) setting up a due process regime to limit such evidence.

The membership of the Court has changed entirely in the 30 years since that ruling.  And, on criminal law matters, the current Court is decidedly more skeptical of claims of criminal suspects and convicted persons to new rights.   So, if this Court were to interpret Barion Perry’s claim to be a plea for a newly-crafted due process right, to be applied universally to arguably suggestive identifications, the chances are strong that it would not oblige.   If, however, the Court were to take seriously the recent heavy flow of scientific data — relied upon, for example, by the New Jersey Supreme Court in its path-breaking ruling last summer in the Henderson case — it may well give more credence to Perry’s insistence that something more must be done if the rash of mistaken identifications is to be curbed.

The Court probably will not accept the amici District Attorneys’ suggestion to cast aside all of its precedents on the due process issue; the Court has more respect than that for its precedents.  But it need not overrule those precedents even if it is inclined to rule for New Hampshire and for the federal government, since it would only have to write an opinion making it certain that none of those precedents applies unless there is evidence of police or prosecutor manipulation of eyewitnesses.  Perry’s lawyers, though, may have complicated the Court’s taking that tack, by the clever differences their brief has drawn between the police deterrence rationale of the “exclusionary rule” and the fair evidence rationale of the due process approach to eyewitnesses.

The Court is expected to decide the case sometime next year.









Recommended Citation: Lyle Denniston, Argument preview: Can eyewitnesses be believed?, SCOTUSblog (Oct. 29, 2011, 6:17 AM),