Supreme Court Watch: Perry v. New Hampshire And The Jury's Role In Assessing Identification Evidence

In resolving a circuit and state court split, the Supreme Court holds that the Due Process Clause does not require judicial review on whether to suppress an eyewitness identification which was not arranged by police; instead of judicial pre-screening of this eyewitness evidence, the protections in the trial process allow the jury to assess the reliability of challenged eyewitness evidence, in Perry v. New Hampshire, 565 U.S. __, 132 S.Ct. 716, 181 L.Ed.2d 694 (Jan. 11, 2012) (No. 10-8974)

Question Presented

Yesterday, the Supreme Court issued an important opinion concerning the admissibility of eyewitness identification evidence which is not arranged by the police. In Perry, the question presented was:

When a witness in a criminal case identifies a suspect out-of-court, under suggestive circumstances which give rise to a substantial likelihood of later misidentification, due process requires the trial judge to determine whether the out-of-court identification and any subsequent in-court identification are reliable before either may be admitted into evidence. Question: Do the due process protections against unreliable identification evidence apply to all identifications made under suggestive circumstances, as held by the First Circuit Court of Appeal and other federal courts of appeal, or only when the suggestive circumstances were orchestrated by the police, as held by the New Hampshire Supreme Court and other courts?
See United States v. De León-Quiñones, 588 F. 3d 748, 754 (1st Cir. 2009) (citing and applying United States v. Bouthot, 878 F.2d 1506, 1516 (1st Cir. 1989) ("Because the due process focus in the identification context is on the fairness of the trial and not exclusively on police deterrence, it follows that federal courts should scrutinize all suggestive identification procedures, not just those orchestrated by the police, to determine if they would sufficiently taint the trial so as to deprive the defendant of due process.")); see also Perry v. New Hampshire Oral Argument Transcript, at 3:10-15 (Petitioner's counsel contending: "An eyewitness identification made under a suggestive influence presents a unique danger of misidentification and a miscarriage of justice. It is that danger of misidentification which implicates due process and requires an evaluation of the reliability of the identification."); State Supreme Court Brief for the Defendant; State Supreme Court Brief for the State of New Hampshire.

Lower Court Split

The circuits and other state courts had divided on whether due process required judicial review of all suggestive identification procedures, not merely those arranged by the police. See Perry, 565 U.S. at _ n.4 (listing cases). The New Hampshire Supreme Court had expressly rejected the position taken by the First Circuit. See State of New Hampshire v. Barion Perry (No. 2009-0590) (noting recent decision “declin[ing] to adopt the First Circuit’s reasoning that a Biggers analysis is required in all ‘suggestive identification procedures’” and “hold[ing] that the [Neil v.] Biggers[, 409 U.S. 188, 199-201 (1972)] analysis does not apply to a potentially suggestive out-of-court identification where there is a complete absence of improper state action”) (citations omitted).

Case Facts

The case involved a 3 a.m. report of a car burglary to the police. Witness Blandon alerted her neighbor that she observed someone breaking into his car. Officers arrived and saw Perry near the car holding car-stereo amplifiers. While Perry was asked to remain, officers interviewed the car owner and Blandon. Blandon reported that:

[A]round 2:30 a.m., she saw from her kitchen window a tall, African-American man roaming the parking lot and looking into cars. Eventually, the man circled Clavijo’s car, opened the trunk, and removed a large box. [¶] [Officer] Clay asked Blandon for a more specific description of the man. Blandon pointed to her kitchen window and said theperson she saw breaking into Clavijo’s car was standing inthe parking lot, next to the police officer. Perry’s arrest followed this identification. [¶] About a month later, the police showed Blandon a photographic array that included a picture of Perry and askedher to point out the man who had broken into Clavijo’s car.Blandon was unable to identify Perry.
Perry, 565 U.S. at _ (footnote omitted). At the state court trial, the motion to suppress Brandon's identification on due process grounds was denied. Blandon and Officer Clay testified about her identification of Perry. the jury convicted Perry of theft and acquitted him on criminal mischief. The New Hampshire Supreme Court rejected the due process challenge to the identification evidence. See State of New Hampshire v. Barion Perry (No. 2009-0590).


In an opinion authored by Justice Ruth Bader Ginsburg, the Court declined to extend its precedent which permits judicial review concerning the reliability of eyewitness identification which is challenged as unduly suggestive as a result of police involvement. See, e.g., Neil v. Biggers, 409 U.S. 188, 199-201 (1972) (setting forth due process factors for judicial review of a suggestive eyewitness identification which is the product of police involvement to determine whether police conduct resulted in a “substantial likelihood of misidentification”); see also Manson v. Brathwaite, 432 U. S. 98, 114 (1977) (listing due process factors). Specifically, instead of excluding the evidence, the Court held there were sufficient protections in the criminal justice process to allow the jury to assess the reliability of this eyewitness evidence:

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.
Perry, 565 U.S. at _.

"Protective Rules of Evidence"

The "protective rules of evidence" discussed in the opinion concerning eyewitness evidence included FRE 403 and FRE 702:

State and federal rules of evidence, moreover, permittrial judges to exclude relevant evidence if its probative value is substantially outweighed by its prejudicial impact or potential for misleading the jury. See, e.g., Fed. Rule Evid. 403; N. H. Rule Evid. 403 (2011). See also Tr. of Oral Arg. 19–22 (inquiring whether the standard Perry seeks differs materially from the one set out in Rule 403). In appropriate cases, some States also permit defendantsto present expert testimony on the hazards of eyewitnessidentification evidence. See, e.g., State v. Clopten, 2009 UT 84, A33, 223 P. 3d 1103, 1113 (“We expect . . . that in cases involving eyewitness identification of strangers ornear-strangers, trial courts will routinely admit expert testimony [on the dangers of such evidence].”).
Perry, 565 U.S. at _.

The Court noted that there was no rule of automatic exclusion even where an eyewitness identification was challenged as unduly suggestive based on police involvement. Each case is assessed on its facts. Further the deterrence objective of possible suppression does not apply where there is no inappropriate police conduct.

The Court expressed concern about expanding the reach of Due Process to allow judicial review to exclude evidence:

Moreover, his position would open the door to judicial preview, under the banner of due process, of most, if not all, eyewitness identifications. External suggestion is hardly the only factor that casts doubt on the trustworthiness of an eyewitness’ testimony…. To embrace Perry’s view would thus entail a vast enlargement of the reach of due process as a constraint on the admission of evidence.
Perry, 565 U.S. at _.

In addressing the claim about doubts raised concerning the reliability of eyewitness identification evidence, the Court concluded that:

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. [¶] Our unwillingness to enlarge the domain of due process as Perry and the dissent urge rests, in large part, on our recognition that the jury, not the judge, traditionally determines the reliability of evidence.
Perry, 565 U.S. at _. The trial was not unfair under the Due Process Clause as a result of the criminal trial safeguards.

In fact, during the oral argument on the case, Justice Antonin Scalia asked Petitioner's counsel why this category of evidence should be treated differently: "[W]hy is unreliable eyewitness identification any different from unreliable anything else? So, shouldn't we look at every instance of evidence introduced in criminal cases to see if it was reliable or not?" Perry v. New Hampshire Oral Argument Transcript, at 4:16-20.

Concurring and Dissenting Opinions

Justice Clarence Thomas concurred that prior “precedents establish a due process right to the pretrial exclusion of an unreliable eyewitness identification only if the identification results from police suggestion.” Perry, 565 U.S. at _ (Thomas, concurring). However, he would “limit the Court’s suggestive eyewitness identification cases to the precise circumstances that they involved.”

Justice Sonia Sotomayor dissented and was the sole Justice who would support extension of the Due Process standard to eyewitness identifications which were not arranged by the police.

Role of Jury and Counsel

The Perry opinion underscores the role of juries to determine the reliability of the evidence and limits the role of the courts to prescreen this evidence. As with other evidence, counsel will need to use the tools available in the trial process, as noted by the Court, to attack or defend the reliability of eyewitness identification which is not arranged by the police.

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