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The Due Process Clause as a Code of Evidence

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In 1965, the great Judge Henry Friendly warned against the Warren Court's drive toward The Bill of Rights as a Code of Criminal Procedure in an article with that title, 53 Cal. L. Rev. 929.  "[I]n applying the Bill of Rights to the states, the Supreme Court should not regard these declarations of fundamental principles as if they were a detailed code of criminal procedure, allowing no room whatever for reasonable difference of judgment or play in the joints." 

Friendly's main point was that state legislatures and other rule-making authorities should be allowed to make the judgment calls outside the few, simple rules actually in the Bill of Rights.  The Court did not listen, and today there are few questions of criminal procedure where the defense lawyer cannot "make a federal case out of it."  Indeed, there are seminars telling lawyers to do just that, so that they can get a second bite at the apple in federal habeas if the state court rejects the claim.

How about evidence? Certainly the Bill of Rights does have some evidentiary provisions, including the privilege against self-incrimination, the right to confront adverse witnesses, and compulsory process for defense witnesses.  But how about the bulk of the evidence code, the underlying purpose of which is simply to have trials decided on reliable evidence subject to adversarial testing.  Should the Supreme Court declare a general constitutional right to be tried on only reliable evidence and thereby make itself the overseer of this area of law for the entire nation?

The Court looked at that prospect in Perry v. New Hampshire, and today it beat a hasty retreat.

The Supreme Court has used the Due Process Clause to keep out identifications that are arranged by the police and suggestive and unnecessarily so and unreliable.  That's a lot of ands.  The broad argument, lifting some language from a prior case out of context, is that reliability is everything.  (See slip op. p. 10.)  The Constitution, this argument goes, forbids unreliable identifications regardless of why they are unreliable.

But judging the reliability of evidence is the heart of the jury's function.  Is that entire role to be shifted to the trial judge, reviewed by appellate courts, and then reviewed again in federal court because it is a constitutional question?  The Court was horrified at the thought.  Perry's "position would open the door to judicial preview,* under the banner of due process, of most, if not all, eyewitness identifications."  (*And review, although the opinion does not say so.)

Well, how about a more limited rule?  Instead of constitutionalizing all reliability questions for all identifications, just make external suggestion the constitutional issue, regardless of whether that suggestion comes from the police or from happenstance (as in this case).

In a delicious irony, Justice Ginsburg's opinion for the Court uses the amicus brief of the American Psychological Association, filed in support of the defendant, against the defendant.  The APA, among others, piled into this case thinking it was going to be about the reliability of eyewitness identification generally.  Their brief recites research finding numerous factors affecting reliability.  There is no good reason to seize on one factor and make that one a constitutional criterion while leaving all the others to state evidence law.

With amici like these, who needs opponents?

So it's either back off or take the plunge.  The Court backs off.  "To embrace Perry's view would thus entail a vast enlargement of the reach of due process as a constraint on the admission of evidence."  And we ain't touchin' that with a ten-foot pole.

What about all the research on eyewitness identifications?  Deal with that in other ways, says the Court.  This section of the opinion is rather disappointing, though.  On special jury instructions, Justice Ginsburg cites the Telfaire instruction despite research showing it is ineffective.  As noted in our brief, though, that research does not support the broader proposition for which the APA tries to use it, that enhanced jury instructions are hopeless.  What a fair review of the literature on instructions actually shows is that more research is needed.

So now that the threat of federal constitutional interdict has been lifted, let us go about the business of enhancing our knowledge about identifications and how juries should be instructed to use them.  There can be no doubt that bad identifications have convicted innocent people.  There can also be no doubt that overly broad limitations on identifications would be a get-out-of-jail-free card for some very dangerous thugs.  We must proceed, but with caution.

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In other words, the issues with eye-witness testimony, as far as the Constitution is concerned, generally go to the weight of the evidence, not its admissibility.

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