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When is identification a constitutional issue?

Under what circumstances does a challenge to the reliability of an eyewitness identification become a federal constitutional issue rather than a question of state evidence law?  The Supreme Court's identification cases of the 1960s and 1970s involved allegations that the police had tainted the identification.  They used improper, unnecessarily suggestive techniques, or they excluded defense counsel from a lineup.  What if the police had nothing to do with the circumstances alleged to have made the identification unreliable?

In Perry v. New Hampshire, the defendant wants the Supreme Court to scrutinize identifications for reliability under the Due Process Clause of the Fourteenth Amendment even when the identification was spontaneous by the witness.  The case will be argued November 2.

CJLF's amicus brief in this case was mailed in today.  We contend that this matter is and should remain a question of state evidence law, not federal constitutional law.  As Justice Stewart said in Spencer v. Texas, the Constitution does not give the Justices "a roving commission to impose upon the criminal courts of [the states their] own notions of enlightened policy...." 

Reliability of identification is an important issue, to be sure, but not everything important is a federal constitutional issue to be decided by the US Supreme Court.  Some issues about reliability remain disputed among experts.  Better to advance this aspect of law through rule-making and legislative processes than through constitutional case law.

The brief was written primarily by CJLF attorney Christine Dowling.

Oh, and if it makes everyone feel better, Perry is stone-cold guilty without the challenged identification.  He was caught loot-handed by a police officer at the scene and identified by another, unchallenged witness as well.

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