Eyewitness Testimony Questioned

Story first appeared in USA TODAY.

Supreme Court justices on Wednesday challenged the notion that testimony from arguably unreliable eyewitnesses should be specially scrutinized at trial because of how it can lead to wrongful convictions.

Why is unreliable eyewitness identification any different from unreliable anything else introduced at trial, Justice Antonin Scalia asked during arguments in a New Hampshire case.

Eyewitness identification evidence is unique, responded lawyer Richard Guerriero. He represents a man whose theft conviction was based partly on the report of a woman who said she watched him out her apartment window. Guerriero called mistaken IDs the leading cause of miscarriages of justice.

Justice Elena Kagan said jailhouse informants could also create an especially unreliable category.

Longstanding national concerns about the trustworthiness of eyewitness accounts formed the backdrop of Wednesday's dispute. The American Psychological Association, which has entered the case on the defendant's side, says, Controlled experiments as well as studies of actual identifications have consistently found that the rate of incorrect identifications is approximately 33 percent.

Supreme Court cases dating to the 1960s have similarly stressed that eyewitness identifications are particularly untrustworthy and can lead to tainted jury verdicts and injustice. The question Wednesday is what safeguards for due process of law and fairness are necessary.

New Hampshire Attorney General Michael Delaney, urging the court to uphold the theft conviction, said identification evidence should be specially reviewed by a judge only when police obtained the ID through an unnecessarily suggestive police method — for example, in photos shown to a witness. The federal government and 29 states are siding with New Hampshire, urging the high court to leave the question of eyewitness reliability generally to a jury.

Wednesday's case arose after Barion Perry was identified by a woman watching from her window as a man peered into cars in a parking lot below, broke into one of them and took a stereo system.

A Nashua police officer who had been called to the scene stopped Perry when she saw him with a set of speakers. He said he had been there innocently and was just moving them. When another officer asked the witness in the apartment for a description of the person who broke into the car, the woman said it was the man in the lot talking to the other officer.

Appealing Perry's theft conviction, Guerriero said due process of law required the trial judge to specially review the witness's identification because Perry was standing next to a police officer when she identified him, possibly suggesting that police considered him a suspect.

Guerriero argued that special review of testimony is necessary when an identification is made under any suggestive circumstances, even those unrelated to police conduct.

Due process concerns arise, Attorney General Delaney countered, if it looks like police officers are essentially stacking the deck, putting their thumb on the scale and skewing the fact-finding process. He said police officers did not try to point the witness toward Perry.

Delaney noted in his brief that the witness was cross-examined at trial about the view from her fourth-floor apartment window and how it was partially blocked by a van, and that the jury nonetheless found Perry guilty.

Justice Stephen Breyer implied that no new judicial review should be required because judges already consider, before evidence is put to jurors, whether its relevance might be outweighed by the chance it would be misleading.

Justice Anthony Kennedy told Guerriero, he doesn't know what you want the police to do in this case. Kennedy said it might have been improper police conduct for police not to have asked the woman in the apartment who she saw in the lot below.

A ruling in the case of Perry v. New Hampshire is likely by the end of June when the justices usually recess for the summer.