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Pretrial Identification and State Action

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In Neil v. Biggers, 409 U.S. 188 (1972), the Supreme Court addressed due process limitations on a witness's identification of the defendant when there has been a suggestive identification procedure pretrial.

In United States v. Bouthot, 878 F.2d 1506 (1989), the First Circuit decided that because Biggers was about fairness at trial, not pretrial police misconduct as in, e.g., Fourth Amendment cases, it did not matter whether the suggestive pretrial identification was a product of state action.

Last October, in State v. Addison, 160 N.H. 792 (2010), the Supreme Court of New Hampshire declined to follow the First Circuit and limited Biggers to state action. 

Two weeks ago, the US Supreme Court denied certiorari in Addison, but today it granted certiorari in a subsequent case following Addison.  That case, as titled in the US Supreme Court, is Perry v. New Hampshire, No. 10-8974.  In the state court, it was State v. Perry, 2009-0590 (Nov. 18, 2010).

Should all of this be federal constitutional law at all?  A great deal of the law of evidence consists of whether we should exclude evidence of dubious reliability or just trust the jury to give it the diminished weight it deserves.  Such questions are not generally constitutional.  They are the subject of statutes, rules of court, and common law.  The right of confrontation and the privilege against self-incrimination are, of course, constitutional because they written into the Constitution in black and white.  But does the general mandate of "due process" authorize the Supreme Court to decide questions of evidence law for all 50 states, banning whatever it considers "unfair"?  The high court has many times disclaimed such authority and many other times exercised it (or usurped it). It will be interesting to see how this one works out.

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