The Supremes issued an opinion today in Perry v. New Hampshire, the eyewitness case.

SCOTUSBlog live blog summarizes:  “The Court holds that the due process clause does not require a preliminary judicial inquiry into the reliability of eyewitness id when the identification was not procured under unnecessarily suggestive circumstances arranged by the police.”

Ginsburg writes for the court, with Thomas concurring, and Sotomayor dissenting.

An identification infected by improper police influence, our case law holds, is not automatically excluded.  Instead, the trial judge must screen the evidence for reliability pretrial. If there is “a very substantial likelihood of irreparable misidentification,”  Simmons v.  United States, 390 U. S. 377, 384 (1968)[n.1], the judge must disallow presentation of the evidence at trial.  But if the indicia of reliability are strong enough to outweigh the corrupting effect of the police-arranged suggestive circumstances, the identification evidence ordinarily will be admitted, and the jury will ultimately determine its worth.  We have not extended pretrial screening for reliability to cases in which the suggestive circumstances were not arranged by law enforcement officers.  Petitioner requests that we do so because of the grave risk that mistaken identification will yield a miscarriage of justice.

Our  decisions, however, turn on the presence of state action and aim to deter police from rigging identification procedures, for example, at a lineup, showup, or photograph array.  When no improper law enforcement activity is involved, we hold, 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.

Justice Sotomayor begins:

This Court has long recognized that eyewitness identifications’ unique confluence of features—their unreliability, susceptibility to suggestion, powerful impact on the jury, and resistance to the ordinary tests of the adversarial process—can undermine the fairness of a trial.  Our cases thus establish a clear rule: The admission at trial of out-of-court eyewitness identifications derived from impermissibly suggestive circumstances that pose a very substantial likelihood of misidentification violates due process.

The Court today announces that that rule does not even “com[e] into play” unless the suggestive circumstances are improperly “police-arranged.”  Ante, at 2, 11.  Our due process concern, however, arises not from the act of suggestion, but rather from the corrosive effects of suggestion on the reliability of the resulting identification. By rendering protection contingent on improper police arrangement of the suggestive circumstances, the Court effectively grafts a mens rea  inquiry onto our rule.  The Court’s holding enshrines a murky distinction—between suggestive confrontations intentionally orchestrated by the police and, as here, those inadvertently caused by police actions—that will sow confusion.

Accordingly, it appears Neil v. Biggers, 409 U. S. 188 (1972), and Manson v. Brathwaite, 432 U. S. 98 (1977), contain the primary “totality of the circumstances” analysis on this issue, limited only to law enforcement’s supposedly deliberate actions.

Here is a link to Lyle Denniston’s cut on the case.  He mentions this case:  State v. Henderson, a New Jersey Supreme Court case, decided 24 August 2011.

When this Court adopted the framework outlined in Manson, it recognized that suggestive police procedures may “so irreparably ‘taint[]’ the out-of-court and in-court identifications” that a defendant is denied due process.Madison, supra, 109 N.J. at 239. To protect due process concerns, the Manson Court’s two-part test rested on three assumptions: (1) that it would adequately measure the reliability of eyewitness testimony; (2) that the test’s focus on suggestive police procedure would deter improper practices; and (3) that jurors would recognize and discount untrustworthy eyewitness testimony. See Manson, supra, 432 U.S. at 112-16, 97 S. Ct. at 2252-54, 53 L. Ed. 2d at 152-55.

We remanded this case to determine whether those assumptions and other factors reflected in the two-part Manson/Madison test are still valid. We conclude from the hearing that they are not.

The hearing revealed that Manson/Madison does not adequately meet its stated goals: it does not provide a sufficient measure for reliability, it does not deter, and it overstates the jury’s innate ability to evaluate eyewitness testimony.

In the opinion the NJ court states:

To evaluate whether there is evidence of suggestiveness to trigger a hearing, courts should consider the following non-exhaustive list of system variables[.]

This is a nice checklist of the more important factors to think about with out of court eyewitness identifications.  The court also calls on the appropriate committees to propose new pattern jury instructions to address eyewitness identification concerns.

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[n.1]  Simmons is a photo array case where the police procedure was challenged.

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