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More than three decades ago, the U.S. Supreme Court set out due process protections against the admission of police-manipulated, eyewitness identification evidence. On Wednesday, it appeared skeptical of arguments to expand those protections. In Perry v. New Hampshire, the justices are being asked to require courts to look into the reliability of eyewitness identifications whenever an identification is made amid suggestive circumstances — regardless of whether the police were involved. “An eyewitness identification made under a suggestive influence presents a unique danger of misidentification and a miscarriage of justice,” argued New Hampshire Public Defender Richard Guerriero, counsel to Barion Perry. “It is that danger of misidentification which implicates due process and requires an evaluation of the reliability of the identification.” But New Hampshire Attorney General Michael Delaney disagreed, saying a due process inquiry is required “only when the police arrange a confrontation to elicit a witness’s identification of a suspect and use unnecessarily suggestive techniques that skew the fact-finding process. 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.” The justices’ renewed interest in eyewitness identifications comes as studies and research increasingly cast doubt on the reliability of those identifications. Amicus groups on both sides of the Perry case, for example, cite a recent book, “Convicting the Innocent,” which examined evidence in the first 250 DNA exonerations. That study revealed that 76 percent of those cases involved mistaken eyewitness identifications. Perry was detained in the parking lot of an apartment building when police, acting on a report that someone was trying to break into cars there, found Perry carrying two radio amplifiers. He claimed to have found them. While Perry and an officer were in the lot, a man approached and said someone had broken into his car and had stolen items, including two amplifiers. The man discovered the theft because his neighbor in the apartment building told him about it. While Perry remained with a second officer, the first officer went to interview the neighbor who lived on the fourth floor. The neighbor told the officer she had seen someone from her window looking into cars and saw that person open the trunk of her neighbor’s car and remove something. She described the perpetrator as a tall, black man. She then pointed to her window and said it was the man in the parking lot standing with the police officer. The eyewitness later was unable to pick Perry from an array of photo, but her identification was admitted at his trial despite his lawyer’s motion to suppress it. The New Hampshire Supreme Court affirmed his conviction, rejecting his claim that due process applies even when suggestive circumstances are not intentionally created by the police. During Wednesday’s arguments, Justice Antonin Scalia asked Guerriero, Perry’s lawyer, if due process is not limited to suggestive circumstances created by the police, “Why 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?” Guerriero answered that eyewitness identification evidence is unique and has been recognized that way by the Court. The Court, he added, has described it in earlier cases as probably the leading cause of miscarriages of justice. “And, in fact, experience with the DNA exonerations that we’ve seen recently in the last 10 or 15 years have shown that,” he said. Justice Elena Kagan told him that she understood there was very good empirical evidence “which should lead us all to wonder about the reliability of eyewitness testimony.” But, she suggested 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.” If some study found other evidence that led to 75 percent of wrongful convictions, said Guerriero, then the Court should look at it, “but I don’t think any other evidence matches” that contribution by eyewitness evidence. There are other safeguards in place, noted Justice Ruth Bader Ginsburg. “You can ask the judge to tell the jury: Be careful; eyewitness testimony is often unreliable. You can point that out in cross-examination. You can say something about it in your summation to the jury. And as Justice Breyer brought up, you have the evidence rule that says if prejudicial value outweighs probative value that the judge can say, `I’m not going to let it in.’ Why aren’t all those safeguards enough?” Guerriero said eyewitness testimony has a “powerful influence” on juries. He told the justices that he was not proposing that all eyewitness evidence be barred or undergo heightened scrutiny. “The standard is this evidence is excluded only if it’s very substantially likely to lead to a misidentification,” he explained. But New Hampshire Attorney General Delaney told the Court that the standard is not reliability of the identification. “The standard for due process in this area is the use of orchestrated police suggestion,” he insisted. Assistant to the Solicitor General Nicole Saharsky agreed with Delaney, adding, “And that’s because, as the State has said, the Court’s central concern in these cases is the State putting a thumb on the scales, gaining an unfair advantage. Just as, as Justice Scalia said, the State can’t create a false document and introduce it at trial, it can’t manipulate someone’s memory and then use that evidence to prove guilt at trial. Does that mean, asked Justice Kagan, there can never be a due process violation from the admission of unreliable evidence, “assuming that the State has not created that evidence, has not produced that evidence, but the State knows that the evidence is unreliable or has a very substantial chance of being so, that that can never be a due process violation?” Saharsky replied, “If the question is just unreliable, the Court has said on numerous occasions: The Constitution doesn’t protect to ensure all evidence is reliable. It provides a process by which the court can test reliability through cross-examination, confrontation, et cetera. The Court has not found, so far as we can tell, a case where it said that the mere introduction of unreliable evidence would isolate the Due Process Clause.” Perry’s case, she added, involves “very routine, run-of-the-mill evidence.” Perry is asking the Court to take reliability determinations away from juries, she said. Once the Court says that due process protects reliability, she argued, “I assure you that there will be defendants throughout the United States making arguments about all different kinds of evidence, not involving the police being unreliable, and that that all needs to be taken away from the jury.” But Guerriero countered, “This is not going to open the floodgates or create a slew of new claims. This is only a question of what legal standard applies when the judge hears the defendant’s objection that this violates due process, there is a substantial likelihood of misidentification. So it’s not any new claims. It’s not any separate hearings. It’s simply a question of what exactly is the due process rule.” Marcia Coyle can be contacted at [email protected].

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