Perry v. New Hampshire: Excluding Eyewitness Testimony in Criminal Defense Cases

Today, the United States Supreme Court will listen to oral arguments in Perry v. New Hampshire. This criminal defense case asks a very important question about eyewitness identification: Must a court exclude eyewitness identification evidence in every situation where the identification was unreliable because it suggested that the defendant committed a crime, or only in unreliable police eyewitness identifications?

As the law stands, police-arranged eyewitness identifications can be challenged in court. If the court finds that the eyewitness identification was too suggestive, it can exclude the evidence. Identifications performed by civilians, on the other hand, are not excluded. Instead, the jury decides whether the evidence is reliable or unreliable. This is one way that innocent defendants are wrongfully convicted of Atlantic City sex crimes, drug crimes, even murder.

Perry v. New Hampshire is the first time in more than three decades that the U.S Supreme Court has examined eyewitness identification. In 1967, there was some evidence showing that mistaken identification was possible. Today, there is a large body of science that speaks to the imperfections in memory and human perception. For example, police conduct (such as how the police arrange photos for a witness) can influence a witness’ identification, but so can certain circumstances involving the alleged crime (such as the lighting in the area where the crime occurred).

This large body of science will be front-and-center in today’s oral arguments and may help determine whether courts need to exclude all unreliable eyewitness testimony.

This case follows a New Jersey Supreme Court decision, State v. Henderson, where the Court ruled that today’s scientific evidence shows that many “variables can affect and dilute memory and lead to mis-identifications.” The New Jersey Supreme Court created a new set of rules and procedures around witness identification, including pretrial hearings in all cases where evidence suggests that a witness’ identification was unreliable or suggestive.

Source: SCOTUSblog, “Argument Preview: Can Eyewitness Be Believed?” Lyle Denniston, Oct. 29, 2011.