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Eyewitnesses, reliability, and due process

An eyewitness identification violates due process of law if the police manipulated the procedure to suggest that the suspect is the culprit.  There are a number of Supreme Court cases on that point.  But does the Due Process Clause of the Fourteenth Amendment reach more broadly, to impose a constitutional requirement of reliability on all eyewitness identifications, even if the police did nothing wrong?  That was the issue before the Supreme Court today in Perry v. New Hampshire.

My previous post is here.  CJLF's brief is here.  The transcript of today's argument is here.

The case didn't seem that hard from the beginning, and today's argument tends to confirm that.  Mark Sherman reports for AP:
Justice Ruth Bader Ginsburg peppered Richard Guerriero, the public defender representing Barion Perry at the Supreme Court, with questions about why the court should add to existing protections that include the ability to cross-examine a witness and ask the judge to tell jurors about problems with eyewitness identification.
Justice Kagan seemed skeptical about the idea of excluding evidence on unreliability alone, without police involvement.  Where would this end?  What about other kinds of allegedly unreliable evidence?  She may be concerned about the entire field of evidence be transformed into a due process question.

Near the end of the SG's amicus appearance, the Court got a little light-hearted about hypothetical types of unreliable evidence.

JUSTICE ALITO: ... Let's say you have --the State puts on a witness who -- who says this person did it because I saw it in my crystal ball.
*                           *                         *
JUSTICE KENNEDY: Is tea leaf reading okay?

The answer, of course, is that such wild examples need not be addressed to resolve this case.  This is routine evidence.


Lyle Denniston's post at scotusblog certainly seemed to take a position:

"A remarkable scene unfolded in the Supreme Court Wednesday morning: despite piles of studies indicating that eyewitnesses often cannot be believed, despite a string of Supreme Court precedents saying that it is a serious constitutional problem, and despite a lawyer’s repeated efforts to show that it is a truly unique problem, the Justices acted largely as if it might not be a constitutional problem at all — or, if it is, it is one that juries can be trusted to neutralize. Such, it appears, is the consequence of precedents, most more than three decades old, no longer having devoted defenders on this bench."

But there simply cannot be a generalized due process "reliability" test for the admissibility of evidence, or every single question of admissibility of evidence becomes a federal question (raisable on habeas). What becomes of federalism?

Mr. Denniston seems to have a problem with antecedents. The "it" refers to eyewitness testimony, and no Supreme Court precedent that I am aware of holds that eyewitness testimony itself is constitutionally suspect. Supreme Court cases do hold that eyewitness testimony is easily tainted and powerful to a jury, so harmlessness isn't so easily proved.

I haven't read the briefs in this one--but it seems like the facts of this case are similar to show-up cases, which I had thought were ok.

Denniston's post is pretty shrill. Remember Colorado v. Connelly, where the defendant walked into a police station and confessed because the voice of God inside his head told him to? Was that involuntary, in the absence of any police coercion? No. Did that undermine precedents on coerced confessions? No.

The old cases don't need "defenders" here because they are not under attack. Yes, the Court will distinguish them, but the distinction is obvious. The suggestion that some kind of chipping away is at issue here is over the top.

Denniston seems disappointed that the "excited interest" that the Court was going to decide issues not really presented by the case is going to turn out to be unjustified. A veteran Court-watcher of his tenure should have known that was highly likely.

Show-ups are not necessarily okay, but this identification is considerably more reliable than a show-up. The witness spontaneously went over to her window and identified Perry, who was simply standing with a police officer, as the witness herself was. Not only did the police do nothing to suggest Perry was the suspect, the situation itself did not suggest he was a suspect rather than another witness.

Connelly is a damned good analogy.

SCOTUSblog is pretty consistently pro-defendant. It sort of pretends to be neutral, but it isn't. It is to legal reporting what Dan Rather was to reporting in general: A patina of faux neutrality trying to cover a barge of left-wing bias.

Even by the normal low standards, however, this piece was particularly bad.

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