{"id":3939,"date":"2011-10-31T20:02:22","date_gmt":"2011-11-01T00:02:22","guid":{"rendered":"http:\/\/journals.law.harvard.edu\/crcl\/?p=3939"},"modified":"2016-11-16T20:20:35","modified_gmt":"2016-11-17T01:20:35","slug":"supreme-court-to-address-the-unreliability-of-eyewitness-testimony","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/crcl\/supreme-court-to-address-the-unreliability-of-eyewitness-testimony\/","title":{"rendered":"Supreme Court to Address the Unreliability of Eyewitness Testimony"},"content":{"rendered":"

Eyewitness identification is widely considered to be one of the most powerful pieces of evidence a prosecutor can offer at a criminal trial.\u00a0 But psychologists continue to debate whether witnesses to a crime can accurately relay what they saw.\u00a0 The Supreme Court has debated the due process implications of such unreliable evidence, and with oral arguments in Perry v. New Hampshire<\/a><\/em> scheduled for later this week, the Court will revisit the issue once again.<\/p>\n

In 2008, Joffre Ullon called police to report that his wife had seen a man breaking into cars outside their Nashua, New Hampshire apartment complex.\u00a0 When police arrived at the scene, they discovered Barion Perry carrying two car stereo amplifiers across the complex\u2019s parking lot.\u00a0 Perry told police that he had found the amplifiers on the ground and was simply moving them out of the way.<\/p>\n

While Perry was talking to police, Ullon and his wife were discussing what they had seen with another Nashua officer.\u00a0 Ullon\u2019s wife stated that the man she had seen breaking into the cars was \u201ctall\u201d and \u201cAfrican-American.\u201d When pressed for details, Ullon\u2019s wife looked out the window, pointed to Perry, and identified him as the culprit.\u00a0 At the time of the identification, Perry was standing next to a Nashua police officer.<\/p>\n

At trial, Perry moved to exclude the identification, claiming that the evidence\u2019s admission would violate his due process rights.\u00a0 Perry asserted that his proximity to police at the time of the identification colored the witness\u2019s memory by suggesting that he was a person of interest in the police\u2019s investigation.\u00a0 The trial court disagreed.\u00a0 Without ruling on whether the circumstances surrounding Perry\u2019s ID were suggestive of guilt, the court asserted that Perry could not mount a due process claim because the suggestive circumstances were not \u201cintentionally orchestrated by police.\u201d\u00a0 A defendant may challenge a witness\u2019s ID only if its reliability is called into question by \u201cimproper state action.\u201d\u00a0 Here, the circumstances of which Perry complained were a matter of happenstance, meriting the identification\u2019s admission.<\/p>\n

The issue before the Supreme Court is whether eyewitness identifications must be excluded whenever the identification was made under circumstances that make the ID unreliable.\u00a0 As it stands, exclusion is mandated only when police themselves are responsible for the suggestive circumstances.<\/p>\n

The question turns in large part on the ill the exclusionary rule is designed to cure.\u00a0 Perry argues<\/a> that the Court should be concerned with reliability.\u00a0 \u201cIt is the likelihood of misidentification which violates the defendant\u2019s right to due process,\u201d Perry declares.\u00a0 In contrast, the State claims<\/a> that the exclusion of unreliable eyewitness testimony is merited only to the extent that it deters police misconduct.\u00a0 Arguing on behalf of New Hampshire, the United States asserts<\/a>, \u201cPolice involvement is a necessary prerequisite for a due process analysis into the reliability of an identification.\u201d\u00a0 Only after a court has determined that police misconduct created circumstances \u201cunnecessarily suggestive\u201d of a defendant\u2019s guilt need the court engage in an inquiry into the reliability of the resulting identification.<\/p>\n

New Hampshire\u2019s rule is the easier one to administer.\u00a0 Assessing the reliability of an ID is a tricky task.\u00a0 Indeed, Perry does not propose a standard for answering \u201chow suggestive is too suggestive?\u201d\u00a0 By saving the reliability inquiry until after a court has assessed police misconduct, judges can screen out many complicated due process claims.<\/p>\n

Adopting such a rule, however, leaves the Court in an awkward position.\u00a0 In 1967, the Court conceded<\/a>: \u201cThe vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification.\u201d\u00a0 Modern psychology has only confirmed the Court\u2019s intuition.\u00a0 Study after study has substantiated<\/a> the inaccuracy of eyewitness testimony, such that tighter rules must be enacted before it can be admitted at criminal trials.\u00a0 Perry<\/em> presents an opportunity for relatively modest reformation: when a defendant can point to concrete facts undermining the reliability of an ID, the prosecution must turn to alternative evidence in order to prove its case.\u00a0 At least in this narrow class of cases, administrability must give way to accuracy.<\/p>\n","protected":false},"excerpt":{"rendered":"

Eyewitness identification is widely considered to be one of the most powerful pieces of evidence a prosecutor can offer at […]<\/p>\n","protected":false},"author":35,"featured_media":3940,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":true,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[3,44,45],"tags":[126,127,153,862,532],"coauthors":[],"class_list":["post-3939","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-amicus","category-courts","category-criminal-justice","tag-civil-liberties","tag-civil-rights","tag-courts","tag-criminal-justice","tag-supreme-court"],"jetpack_featured_media_url":"","jetpack_shortlink":"https:\/\/wp.me\/peZrWS-11x","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/posts\/3939","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/users\/35"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/comments?post=3939"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/posts\/3939\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/"}],"wp:attachment":[{"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/media?parent=3939"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/categories?post=3939"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/tags?post=3939"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/coauthors?post=3939"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}