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

By Burt Rose
Click to read Opinion

The U.S. Supreme Court has ruled in the case of BARION PERRY, PETITIONER v. NEW HAMPSHIRE, No. 10–8974 (January 11, 2012). JUSTICE GINSBURG delivered the opinion of the Court. The vote was 8-1.

The Nashua, New Hampshire Police Department received a call reporting that an African-American male was trying to break into cars parked in the lot of the caller’s apart­ment building. A witness described the man and then pointed to her kitchen window and said the man she saw breaking into the car was standing in the parking lot, next to a police officer. Petitioner Perry’s arrest followed this identification.

Perry was charged in New Hampshire state court with one count of theft by unauthorized taking and one count of criminal mischief. Before trial, he moved to suppress this identification on the ground that admitting it at trial would violate due process because the witness saw what amounted to a one person show-up in a parking lot, which all but guaranteed that she would identify Perry as the culprit. However, the police had not arranged the identification opportunity.

The Court granted certiorari to resolve a division of opinion on the question whether the Due Process Clause requires a trial judge to conduct a preliminary assessment of the reliability of an eyewitness identification made under suggestive circum­stances which were not arranged by the police.

Justice Ginsburg wrote that the Court has not extended pretrial screening for reliability to cases in which the suggestive circumstances were not arranged by law enforcement officers. This Petitioner requested that the Court do so because of the risk that mistaken identification will yield a miscarriage of justice. The Court’s decisions, however, turn on the presence of state action and aim to deter police from rigging identification proce­dures, for example, at a lineup, show up, or photograph array. There is no case in which the Court has required pretrial screening absent a police ­arranged identification procedure. Therefore, the Court held that when no improper law enforcement activity is involved, it suffices to test reliability through the rights and opportunities generally designed for that pur­pose, notably, the presence of counsel at post indictment lineups, vigorous cross-examination, protective rules of evidence, and jury instructions on both the fallibility of eyewitness identification and the requirement that guilt be proved beyond a reasonable doubt. Thus the fallibility of eyewitness evidence does not, without the taint of improper state conduct, warrant a due process rule requiring a trial court to screen such evidence for reliability before allowing the jury to assess its creditworthiness.

Ed. Note: This case has a very lengthy and informative discussion of the law regarding the Supreme Court’s identification jurisprudence.

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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