Supreme Court Says No to New Rule on Eyewitness Testimony

By Richey, Warren | The Christian Science Monitor, January 11, 2012 | Go to article overview

Supreme Court Says No to New Rule on Eyewitness Testimony


Richey, Warren, The Christian Science Monitor


The lawyer for a convicted New Hampshire man had asked the Supreme Court to establish an expanded rule to help prevent unreliable eyewitness testimony at criminal trials.

The US Supreme Court on Wednesday declined to create a new constitutional rule that would have required judges to test the reliability of eyewitness testimony whenever the witness's observations were made under suggestive circumstances.

In an 8-to-1 decision, the court said various trial protections, including specific jury instructions, are adequate to safeguard the fairness of trials where eyewitness testimony is introduced.

"The fallibility of eyewitness evidence does not ... warrant a due process rule requiring a trial court to screen such evidence for reliability before allowing the jury to assess its creditworthiness," Justice Ruth Bader Ginsburg wrote in the majority opinion.

The issue arose in the case of a New Hampshire man, Barion Perry, who was arrested after a witness told police she had seen him remove a large box from her neighbor's car.

When asked by police to identify the man, she motioned toward the window and said he was standing in the parking lot with a police officer.

A month later, however, the witness was unable to identify the suspect's face in a police photo array.

Mr. Perry's lawyers asked the judge at his trial to exclude the witness's testimony. The judge refused, in part because the suggestive circumstances of Perry's identification had not been orchestrated by police.

Perry was convicted.

On appeal to the Supreme Court, Perry's lawyer asked the justices to establish a new rule that would help prevent unreliable eyewitness testimony from being introduced at criminal trials.

Under existing precedent, judges are required to screen witness testimony for reliability whenever police are suspected of using suggestive tactics. Such prescreening has been deemed necessary to preserve the fairness of a trial in the face of suggestive police procedures.

But Perry's lawyer wanted the court to significantly expand that practice to all witnesses whenever an identification was made under suggestive circumstances. …

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