On January 11, 2012, the United States Supreme Court issued an opinion in Perry v. New Hampshire, 10-8974, a case involving the phenomenon of eyewitness misidentification. In Perry, the Court was urged to rule that across-the-board procedural changes should be made in all criminal cases to guard against the chance of eyewitness misidentification. Specifically, the issue presented was “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 not arranged by the police.” However, because Perry’s case did not involve any allegations of police misconduct, the Court declined to rule for Perry. The Court stated, “[w]hen 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 postindictment 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.” Perry, No. 10-8974, slip op. at page 2.
Although long, the opinion is worth reading because the Court discusses the evolution of caselaw on the exclusion of eyewitness identifications which were obtained by improper police influence and because the Court acknowledges some of the problems with eyewitness misidentification. I was amazed to read, at page 15 of the slip opinion, that the Court stated that “the potential unreliability of a type of evidence does not alone render its introduction at the defendant’s trial fundamentally unfair.” Wow. Notwithstanding its acknowledgement of some of the issues inherent in eyewitness identifications, the Court basically finds that sending the issue to the jury should suffice. See Perry, slip. op. at page 15 (“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.”) Perhaps the most interesting part of the opinion is Justice Sotomayor’s dissent. I highly recommend you take a few minutes to read it, as she really does a good job of picking apart the flaws of the majority opinion’s analysis.
What does the Perry decision mean for the criminal defense bar of South Florida? In short, claims of eyewitness misidentification and suggestive police lineups will continue to be analyzed on a case-by-case basis. However, at least Justice Sotomayor’s dissent might provide some good information that a criminal defense attorney could cite in future motions challenging the admissibility of eyewitness identifications.