The International Duty of a Reliable Criminal Investigation: A Comparison to Recent U.S. Supreme Court Jurisprudence
Wallace, Don, Scroggs, Amber, Ilett, Melanie, Journal of the Institute of Justice and International Studies
In the past year, the U.S. Supreme Court handed down two decisions, which seemingly send contradictory signals for the investigatory powers of law enforcement and prosecution in the pretrial process of the criminal justice system in the U.S. In the first, Perry v. New Hampshire (2012), the Court determined that unless law enforcement orchestrated the identification, there is no duty extending to the suspect that the reliability of the eyewitness identification be examined prior to prosecution. Thus, the reliability of the identification need not be evaluated by the trial judge prior to allowing presentation of the evidence to the jury. The Court was convinced that the requirement of a fair trial provides adequate evidentiary protections for a defendant facing the prospect of unreliable prosecution evidence. These protections include the use of either expert testimony or special instructions given by the judge to the jury on the fallibility and unreliability of eyewitnesses generally.
In the second of these two cases, the U.S. Supreme Court ruled on the issue of the course of legal representation that precedes a specific plea with respect to other potential pleas and plea offers. In noting the reality that 94 percent of state convictions in the U.S. are the result of guilty pleas, the ruling in Missouri v. Frye (2012) was that the Sixth Amendment right to effective assistance of counsel extends to the consideration of plea offers that have lapsed or have been rejected prior to the plea offer that is accepted. Thus, a failure of defense counsel to communicate prosecution offers to accept a plea on terms that might be favorable to the accused may violate the Sixth Amendment Right to Counsel even though a defendant pleads guilty through a subsequent plea offer. In its ruling the majority of the Court took a less than formalistic perspective of the criminal justice system:
It is insufficient simply to point to the guarantee of a fair trial as a backstop that inoculates any errors in the pretrial process. To a large extent . . . horse trading between prosecutor and defense counsel determines who goes to jail and for how long. That is what plea bargaining is. It is not some adjunct to the criminal justice system; it is the criminal justice system (Missouri v. Frye, 2012, p. 1407, quotations omitted).
These two decisions seem to contradict one another regarding the perspective of the trial as a backstop to correct or "inoculate" errors in the pretrial process. The U.S. Supreme Court embraced the reality of the criminal justice system's reliance on plea bargaining in the U.S. in its decision in Missouri v. Frye employing the Sixth Amendment Right to competent counsel in plea-bargaining. But, by not recognizing that only exceptional cases go to jury trials, the Supreme Court held in Perry v. New Hampshire that there need be no judicial examination of the reliability of spontaneous eyewitness identifications prior to a jury trial. The consequence in Perry is that a prosecutor can use an untested identification produced by a suggestive process when bargaining for a guilty plea. The outcome of Perry should raise concern about the incentives for law enforcement and prosecution to provide an adequate criminal investigation that avoids both the conviction of the wrong individual3 and the failure to apprehend the real perpetrator who may continue to commit further crimes.4
The promise of Frye for effective counsel in the pretrial process may be a hollow one if the reliability of evidence is not assured where it has been gathered by suggestive methods though spontaneously without police orchestration. The Innocence Project's amicus curiae brief in Perry conceded that suggestive police procedures did produce many or most of the eyewitness misidentifications in DNA exonerations. However, it noted that recent exonerations demonstrate, other sources, such as family, friends, and media reports, can produce these misidentifications without any police orchestration (Innocence Network, 201 1). …