Lyin’ Eyes (Redux)

Last year, I wrote about a case accepted by the Supreme Court that dealt with eyewitness identification. Specifically, it was going to address the issue of whether some kind of police misconduct is required before a court must exclude an out-of-court identification as unduly suggestive (the ID at issue in the case, all agreed, was not the byproduct of any police shenanigans). Defense attorneys across the country hoped that the Court might use the opportunity to seriously reevaluate the whole nature of eyewitness testimony, in light of all we’ve learned in recent years about how unreliable it is. Unfortunately, the Court, by a large majority, played things close to the vest.

The case, Perry v. New Hampshire, involved police responding to a report of car robberies in an apartment complex parking lot. When police arrived, Perry was found in the parking lot with a pair of car stereo amplifiers in his hand. He matched the vague description given of the person breaking into cars. As part of the investigation, an officer went to the fourth-floor apartment from which the initial call had been made and spoke to the caller’s wife, Blandon. She provided the same vague description. When prompted for further detail, she pointed out the window at Perry (who was standing with another officer in the parking lot) and identified him as the perpetrator. Perry was arrested. A month later, Blandon could not pick Perry out of a photo lineup. Perry was charged with theft and criminal mischief.

Perry tried to suppress that on the scene identification, not because the cops did anything wrong, but because the circumstances of the identification were inherently suggestive. The New Hampshire courts wouldn’t go along with that argument and, ultimately, neither did the Supreme Court, which affirmed Perry’s conviction 8-1.

Justice Ginsburg, writing for the Court, rejected Perry’s attempt to decouple the due process issue from the behavior of the police and focus solely on the reliability of the identification at issue. A major purpose of the suppression of an identification is to deter the police from engaging in improper conduct. Where there was no improper conduct, that purpose cannot be in play. Perry’s position would:

open the door to judicial preview, under the banner of due process, of most, if not all, eyewitness identifications.

The court recognized Perry’s argument (supported by numerous amici) that eyewitness testimony is inherently unreliable, but concludes that the “potential unreliability” of evidence does not preclude its introduction and that confrontation, cross examination, and the like are adequate to deal with the problem.

The only dissenter was Justice Sotomayor, who seems to take more to heart all we’ve learned about eyewitness testimony over the years. She wrote 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.

Among the statistics she used to back up that claim is the staggering figure that 76% of the first 250 exonerations due to DNA evidence involved incorrect identifications by eyewitnesses (and, in some cases, victims). That’s not much better than our terrorist detecting skills I talked about last week.

I understand the reticence of the Court to step beyond regulation of police conduct when it comes to suppression of evidence. Unfortunately, eyewitness testimony still holds a much greater weight with average jurors, and the public at large, than science indicates it deserves. The traditional crucible of cross examination may not be enough, in the large body of cases, to deal with that. Ultimately, the responsibility may lie with the defense bar itself to educate the public at large.