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Argument recap: Eyewitnesses discredited? Hardly


A remarkable scene unfolded in the Supreme Court Wednesday morning: despite piles of studies indicating that eyewitnesses often cannot be believed, despite a string of Supreme Court precedents saying that flawed eyewitness accounts are a serious constitutional problem, and despite a lawyer’s repeated efforts to show that it is a truly unique problem, the Justices seemed content to accept that, if this is a constitutional problem, it is one that juries can be trusted to neutralize.  Such, it appears, is the consequence of precedents, most more than three decades old, no longer having devoted defenders on this bench.

To be sure, the Court very likely will decide this case, Perry v. New Hampshire (10-8947), without overruling any of the eyewitness case precedents going back to 1957, but the question from here on could well be whether the Court may diminish the significance of those prior holdings by distinguishing them, little by little, case by case.  There is a very simple way to end the Perry case, and most of the Justices seemed attracted to that.  But the entire tone and content of the Perry argument suggested that something more basic was going on — a casting aside of the Due Process Clause as a barrier to unreliable criminal evidence, a project that Justice Antonin Scalia seemed eager to lead.

The Perry case turns very much upon the reliability of a witness who looked out of her second-story apartment window in early-morning darkness, saw a black man standing beside a police officer in the parking lot, and said he was the one who had been breaking into cars and stealing items.   And the only issue that the Court had agreed to review was whether the absence of any police manipulation of that witness was sufficient to have allowed the identification to be put before the jury, leading to the conviction of Barion Perry on a charge of theft.

But from the time the Court agreed last May to review the case, it had aroused an excited interest in how the Court would react to a veritable mountain of new evidence, accumulating in recent years, demonstrating with obvious consistency the deep problem of flawed eyewitness memory.    Those studies, however, barely got mentioned during Wednesday’s argument and their constitutional significance was totally left out.

Public defender Richard Guerriero of Concord, N.H., came to the argument prepared to rely heavily upon the Court’s prior precedents, arguing that they stood for the proposition that the normal safeguards of a fair trial are insufficient to ferret out flawed eyewitness testimony.   The Court, he recalled, had declared that this was “probably the leading cause of injustice” in criminal trials.  But virtually every time he tried to make the point that there was something unique about the problem, something that justified treating it as special under the Due Process Clause, he met with sturdy resistance from most members of the Court.

It began — and continued — with Justice Scalia, who said that virtually any kind of evidence could be challenged as unreliable, so there was clearly no need to give special treatment to eyewitness identifications.  If the Court were to accept Guerriero’s argument that unreliable eyewitness evidence had to be excluded under due process analysis, that would apply also to “everything else,” Scalia contended.   When the lawyer tried to say that it was the Court itself that had singled out eyewitness evidence as unique, Scalia shot back: “I’m saying we don’t mean it.”

Justice Anthony M. Kennedy then suggested — with some exasperation — that, if the police had not done anything to try to manipulate the eyewitness into identifying Perry, “I don’t know what you want the police to do.”  And Justice Scalia, surging back into the argument, said that Guerriero was arguing for only a “one-way door” — that is, the trial “door” would be constitutionally closed to any evidence that pointed to guilt, but open only to evidence favorable to the defense.

Chief Justice John G. Roberts, Jr., soon commented that, if eyewitness evidence was a problem because it was induced by “suggestion,” every police investigation involves some “suggestiveness” about the way any evidence bears upon possible guilt.  Recalling criminal evidence lessons in law school, Roberts said that many types of evidence are “as unreliable as eyewitness testimony.”

Rejoining the exchange, Justice Kennedy suggested that Perry’s position was “invading the province of the jury.”   It is the task of the lawyers, Kennedy said, to “teach the jury” how to deal with the evidence.    Chiming in, Justice Stephen G. Breyer said that, at least in federal courts, the rules of evidence provide safeguards against the admission of unreliable evidence.  “What do you want done that’s not done now?” Breyer asked.   The public defender tried to counter these thrusts by saying that it was the Court itself, in its prior rulings, that had said that eyewitness evidence was a special problem and that had made clear that trial procedures were inadequate to keep it away from the jury and leading to unfair trials.

It was then Justice Samuel A. Alito, Jr., who took on Guerriero, telling him that his due process requirement would mean “a drastic change for many criminal trials.”  Even a rape victim’s identification, made from a newspaper photo, of her assailant, Alito said, would not be allowed in the trial because of its supposed unreliability.

Wondering how far Guerriero’s position would go, Justice Elena Kagan told him to suppose that some other category of testimony was shown to be more unreliable than eyewitness testimony, even “doubly as unreliable”:  would the same due process rule of exclusion apply?   The lawyer answered that such evidence could be excluded only if the defense lawyer “met a very high burden” of demonstrating its unreliability.   That, and other exchanges, appeared to leave the Court with the impression that, if it used due process analysis for one kind of unreliable evidence, Guerriero’s position meant that it would have to do it for every kind, thus turning all trial testimony into a constitutional due process inquiry.

New Hampshire’s Attorney General, Michael A. Delaney, made a concerted effort during his turn to narrow the Supreme Court’s prior precedents.   He suggested that, not only should eyewitness testimony not be excluded when there was no police inducement of the witness, it also should not be kept out even if police had somehow induced an identification — so long as they did not do so intentionally.   Promptly, Justice Sonia Sotomayor said that would “change the language” of the Court’s prior precedents on eyewitness evidence.

Sotomayor went on to make clear that she was leery of the Court adopting any rule that depended upon intentional police manipulation, saying that such an inquiry would inevitably require courts to probe into the mental processes (“mens rea”) of the officers.    Delaney did not seem to dissuade her of that concern.

In an exchange with Justice Alito, the state attorney general honed his narrowing argument even further, saying that the Constitution should require the exclusion of evidence only if the officers’ conduct in obtaining it was so irregular that it is “going to skew the fact-finding process.”

Delaney soon sought to shore up his argument by ticking off the kinds of non-constitutional methods that are available to assure that unreliable evidence does not get into a trial: the procedural rights guaranteed by the Sixth Amendment, and rules of evidence “to test relevance and reliability.”  If the Court were “to go beyond that, and add a due process” analysis, a criminal trial “is going to be a very different place,” he asserted.

The Court did little more to question the attorney general, leaving him to give a somewhat leisurely summing up, making it appear that it was quite satisfied with what it had heard, although retaining some skepticism about the need to go into the mental processes of police in determining what their intentions had been in dealing with potential witnesses.

The federal government’s lawyer, Nicole A. Saharsky, an assistant to the Solicitor General, seconded Delaney’s contention that there  would be a due process violation with criminal evidence only if police had a role in arranging it in order to suggest guilt, and thus, in effect, “put a thumb on the scale.”

When Justice Kagan wondered whether a due process inquiry would be allowed even if identification of a suspect had been obtained by torturing a witness, Saharsky at first said that prosecutors would never offer such evidence, but then added that the customary safeguards of a fair trial would prevent such testimony from reaching the jury.   As other Justices sought to test other examples of extremely unreliable evidence, Saharsky’s regular response was that non-constitutional safeguards would work to exclude that from trials.

What Perry’s lawyer was seeking, the federal attorney said, was to have the Supreme Court, after the fact, conduct its own inquiry into the admissibility of evidence, usurping the function of the jury.   The result, she said, would mean “a very big change in criminal procedure,” and would lead to a multitude of cases across the country, seeking routinely to invoke a constitutional due process inquiry in virtually every case.

In Guerriero’s brief rebuttal, he again encountered a resistant Justice Scalia.  If there are problems with unreliable evidence, and a defense lawyer makes that argument persuasively, Scalia told the public defender, “the more likely it is that the jury will take care of that.”   Guerriero, in closing, sought only to make the point that he was not seeking to “open the floodgates” for a new constitutional rule, but simply to have the Court reiterate — as it had done in prior precedents — that there is a reasonable due process rule that keeps unreliable eyewitness testimony from getting before juries.

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










Recommended Citation: Lyle Denniston, Argument recap: Eyewitnesses discredited? Hardly, SCOTUSblog (Nov. 2, 2011, 1:17 PM),