Expressing an abundant faith in trial juries’ capacity to root out questionable eyewitness accounts, the Supreme Court, over one dissent, refused on Wednesday to require a new screening procedure in situations where police have not actually manipulated the identification — intentionally or not. The ruling, in Perry v. New Hampshire (docket 10-8974), came amid growing complaints that those who claim to have seen a crime occurring too often get it wrong, resulting in unjustified guilty verdicts because of the high value most jurors place on what they deem to be first-hand observation.
Justice Ruth Bader Ginsburg’s main opinion insisted that the Court was adding nothing new to a long-standing practice of allowing jurors, not judges in a mid-trial screening process, to decide whether to believe eyewitness testimony. Jurors, with their roles at least partly limited by the constitutional rights of the suspect, have been trusted to evaluate such testimony, unless their judgment has been influenced by police creation of “suggestive circumstances” surrounding the identification, Ginsburg noted. The Court rejected a plea by a New Hampshire man to require such a screening procedure by the judge any time an identification had been made in a “suggestive” setting. Justice Sonia Sotomayor, the lone dissenter, would have required that approach, arguing that it was dictated by the Court’s precedents.
The Court took on the New Hampshire case because lower courts had split. Some, including the First Circuit Court, with federal jurisdiction that includes New Hampshire, had ruled that federal judges must scrutinize all suggestive ID procedures, not just those orchestrated by police. The New Hampshire Supreme Court had taken the opposite view, as had several federal appeals courts and other courts.
In the specific case before the Court, the witness, who had called police to check on a black man allegedly breaking into autos in the parking lot of her apartment complex, was questioned by a police officer in the building. She then went to the kitchen window of her apartment, looked out, and identified a suspect in the parking lot — the only black person standing next to a police officer who had come to investigate. About a month later, though, that witness could not pick out the same person from an array of photos shown to her by police.
The Court noted that, most of the time, it is up to state or lower federal courts to decide on issues of when evidence will be admitted. Thus, the Court’s ruling on Wednesday may not be the last word on the possible filtering of eyewitness testimony. In a widely noted recent ruling, for example, the New Jersey Supreme Court has imposed some new limitations on the admission of such evidence because of the high potential it perceived of wrong eyewitness accounts (State v. Henderson, August 24, 2011).
The decision came in the case of Barion Perry of Nashua, N.H., who was convicted of unauthorized taking of private property, and was sentenced to three to ten years in prison. The woman who had picked him out in the still-dark morning hours of August 15, 2008, in her apartment’s parking lot testified against him at the trial, over defense objection that her identification at the scene was the result of the suggestive circumstances that Perry was the only black man in the parking lot then. At the trial, she could not identify Perry as the car burglar.
In rejecting his challenge based upon the Constitution’s Due Process Clause, the Court majority on Wednesday said the main rationale behind a string of Court precedents going back to 1967 was to deter police from arranging witness identifications in such a way that were so suggestive that the witness basically had no choice but to pick out the suspect on whom police were focusing. That deterrence rationale, Justice Ginsburg wrote, would not be in play if, in a given case, the police had not arranged the identification in a suggestive way.
The disagreement between the Ginsburg opinion for the Court and Justice Sotomayor’s dissent was the differing way they interpreted the Court’s precedents. The Ginsburg opinion said that every one of them had involved a factor of police arrangement of a witness interview so that it would be suggestive, while the Sotomayor opinion said all of those were pointed at the suggestive nature of the eyewitness identification, whether or not arranged by police.
While Justice Ginsburg insisted that the Court was not limiting the exclusion of eyewitness testimony only to those situations in which the police had intentionally arranged for the identification to be suggestive, Justice Sotomayor countered that the language the Court opinion had used indicated that the Justices were adopting a new standard so that no screening would be done of any eyewitness account by the judge unless police had intended to make it suggestive.
Justice Sotomayor chastised the Ginsburg opinion for failing to take adequate account of a host of new studies that, Sotomayor said, show conclusively how wrong eyewitness testimony often is. She noted that one study showed that “a staggering 76 percent” of the first 250 convictions overturned on the basis of DNA evidence since 1989 had involved eyewitness misidentification. The dissenting opinion said “study after study demonstrates” the same thing.
The Ginsburg and Sotomayor opinions diverged also over the question of whether a broadening of the category of eyewitness accounts barred because of suggestive circumstances would have a real impact on the criminal justice system. Justice Ginsburg said that, if the Court ruled as Perry and the dissenting opinion had urged, it would “open the door to judicial preview, under the banner of due process, of most, if not all, eyewitness identifications.” Justice Sotomayor answered that, in the four federal Circuits where the broad approach had been taken, there has been no such effect.
Justice Clarence Thomas, while he joined the Ginsburg opinion, wrote separately to argue that the Court should confine its prior precedents on the constitutional issue to the factual situations in those cases.
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