A blog of the Philadelphia Bar Association’s Criminal Justice Section

By Robert Barnes, Wednesday, November 2, 8:24 PM, Washington Post

The Supreme Court seemed reluctant Wednesday to create additional constitutional barriers to introducing some eyewitness testimony at criminal trials, despite a proliferation of studies showing that mistaken identity is the leading cause of wrongful convictions.

The court itself, in a 1967 decision, had worried that eyewitness testimony could be particularly problematic and result in a “high incidence of miscarriage of justice.”

But New Hampshire public defender Richard Guerriero appeared to have a hard time convincing the justices that courts should institute added protections against testimony induced by police, or that more safeguards are needed against eyewitness accounts than other kinds of testimony.

“You have very good empirical evidence which should lead us all to wonder about the reliability of eyewitness testimony,” Justice Elena Kagan told Guerriero. “I’m just suggesting that eyewitness testimony is not the only kind of testimony which people can do studies on and find that it’s more unreliable than you would think.”

Guerriero replied that questions about eyewitness testimony are “unique.”

“If somebody else came along and said, ‘We’ve done a study and we find . . . that in 75 percent of the wrongful convictions, this evidence contributed to the miscarriage of justice,’ then I would think the court should take a look at that,” Guerriero said.

“But I don’t think any other evidence matches that.”

The American Psychological Association, the Innocence Network and Criminal Defense Lawyers Association have similarly urged the court to recognize special rules for such testimony. They cite, for instance, a recent book by University of Virginia law professor Brandon Garrett that shows that 190 of the first 250 people exonerated by DNA evidence were convicted because of eyewitness testimony.

But the nuanced case before the court may be ill-suited for a fundamental reevaluation of the issue.

In 2008, Nashua police were called about a man trying to break into vehicles behind an apartment building. At the scene, an officer found Barion Perry carrying two radio amplifiers, which he said he found on the ground.

A resident of the building told police that his neighbor had seen the break-ins. Under questioning from an officer, the neighbor described the man she had seen only as tall and black. Then, without without prompting from the officer, she went to her window and identified Perry, who was standing next to a police officer, as the man.

The identification was used to convict Perry, despite objections from his lawyers that seeing him next to the police officer could have unfairly influenced the woman’s identification.

The Supreme Court has ruled in previous cases that a defendant’s right to due process can be violated when police create a “suggestive” situation to induce an eyewitness to identify a suspect.

Guerriero argued that because eyewitness testimony can be so unreliable, any “suggestive situation” can be a reason to exclude the testimony, even if police have no role in creating the circumstances.

His counterpart, New Hampshire Attorney General Michael A. Delaney, said constitutional questions are raised only when something improper has taken place.

“What the due process clause is concerned about is the role of the police in essentially stacking the deck, putting their thumb on the scale and skewing the fact-finding process,” he said.

Guerriero had the harder time, with hostile questioning led by Justice Antonin Scalia.

“If it’s not limited to suggestive circumstances created by the police, why is unreliable eyewitness identification any different from unreliable anything else?” Scalia asked. “So shouldn’t we look at every instance of evidence introduced in criminal cases to see if it was reliable or not?”

Justice Ruth Bader Ginsburg said defendants can challenge eyewitness testimony before the jury or ask the judge to instruct them about its unreliability. “What about all the other safeguards that you have?” she asked.

Justice Samuel A. Alito Jr., a former prosecutor, said Guerriero was asking for a “drastic change” in how trials are conducted, taking away reliability and credibility issues traditionally decided by the jury.

He wondered about a suggestive situation not created by police: whether a rape victim who sees her attacker’s photo in the newspaper in relation to another assault could be prohibited from testifying against him.

Guerriero said he was advocating only that such situations raise a “red flag” that requires the judge to make a decision about the testimony’s reliability before allowing it.

He said that the ability to cross-examine witnesses does not take care of the problem. In the vast majority of cases, he said, the witnesses are not lying, they are simply mistaken.

“The witness’s sincerity has a powerful effect on the jury,” he said.

The case is Perry v. New Hampshire.

The Free Student Research Center is now OPEN. It will be open on Mondays, Wednesdays and Fridays, from 9AM to 3PM. The Free Student Research Center is available for use by attorneys who are current members of the Philadelphia Bar Association’s Criminal Justice Section and who are court-appointed to the case for which they seek research (either state or CJA!).

The Free Student Research Center is located in the Jack Myers Memorial Lounge on the Third Floor of the CJC. You may make a research request in person or via the Criminal Justice Section website at http://www.philadelphiabar.org/page/CJResearch


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