The U.S. Supreme Court recently decided the case of Perry v. New Hampshire. We originally wrote about the Perry case back in September. The defendant in the case was identified by a witness while also standing next to a police officer. When the witness was first asked for a description of the person suspected of committing a burglary, the witness said he was a "tall black man." When asked by an officer if she could provide a more detailed description, she pointed to the defendant standing with another officer and identified him as the suspect of the burglary. The question for the court was whether there must be police misconduct to successfully exclude unduly suggestive eyewitness identification evidence as a violation of due process. In a more broad sense, the Court was asked to determine if the standards for introducing eyewitness identifications should be strengthened due to the inherent unreliability of them.
In and 8 to 1 decision authored by Justice Ruth Bader Ginsburg, the court held that some sort of police misconduct is required for a judge to throw out and eyewitness identification. Specifically, the eyewitness testimony will not be thrown out unless it can be shown that the police have manipulated circumstances to produce a certain outcome. Justice Ginsburg cited to the purpose behind this rule as the reasoning for neglecting to strengthen the standards for admitting an eyewitness identification. The purpose behind it, she stated, is to deter police misconduct. Specifically, she said "when there is no misconduct, there is nothing to deter." By declining to hold otherwise, the Court left the job to the jury to determine the reliability of an eyewitness identification. By allowing the identification to be admitted, the jury will still have the opportunity to hear any rebuttal by the defense. The Court felt this was enough to surpass the inherent unreliable nature of an eyewitness identification.
Justice Sonya Sotomayor was the only dissenting Justice. She disagreed with the purpose of the rule of requiring police misconduct. According to her the purpose of the rule is to ensure a fair trial, not to deter police misconduct. Anything that weakens the opportunity for the defendant to have a fair trial should not be admitted. She stated in her dissent,
"Whether the police have created the suggestive circumstances intentionally or inadvertently... it is no more or less likely to misidentify the perpetrator. It is no more or less powerful to the jury."
This decision is quite controversial given the multitude of scientific studies that have proven that eyewitness identification is unreliable. It is no secret many convictions have been based off of eyewitness identification. Many of those convicted based on eyewitness identifications were later exonerated when technology progressed into the the use of DNA testing. It may be surprising to some that the Court has ignored the evidence of the this blatant unreliability, especially when there is a chance that many convictions are tainted with unreliable identifications. It will be interesting to see when the Court will be presented with this issue next. It is almost certain to rise again.