"Court takes up case on eyewitness identification," is Mark Sherman's initial AP report on oral arguments in the case of Perry v. New Hampshire (link to the SCOTUSblog case file, with all briefing.)
The Supreme Court appeared resistant Wednesday to increasing constitutional safeguards against the use of some eyewitness testimony at criminal trials, despite mounting evidence that eyewitness identification plays a crucial role in cases in which people were wrongly convicted.
The justices heard arguments in a case that deals with a narrow slice of the issue of eyewitness identification.
Judges already can bar testimony when the police do something to influence a witness to identify a suspect. In a case from New Hampshire, a man who was convicted of theft based on eyewitness testimony wants the court to extend the power of judges to exclude testimony when identifications are made under any suggestive circumstances, even when the police are not involved.
But taking the police out of the picture raised many questions among the justices across the bench.
Justice Antonin Scalia asked, "Why is unreliable eyewitness identification any different from unreliable anything else? So shouldn't we look at every instance of evidence introduced in criminal cases to see if it was reliable or not?"
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.
"Why aren't all those safeguards enough?" Ginsburg said.
And:
The justices suggested that the normal trial process should be sufficient and the juries should be able to weigh evidence, including the efforts of defense lawyers to discredit it. "You're just usurping the province of the jury, it seems," Justice Anthony Kennedy said.
A decision should come in the next few months.
Lyle Denniston has posted, "Argument recap: Eyewitnesses discredited? Hardly," at SCOTUSblog. Here's the beginning from the dean of Supreme Court correspondents:
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.
To be sure, the Court very likely will decide this case, Perry v. New Hampshire (10-8947), without overruling any of the eyewitness case precedents going back to 1957, but the question from here on could well be whether the Court may diminish the significance of those prior holdings by distinguishing them, little by little, case by case. There is a very simple way to end the Perry case, and most of the Justices seemed attracted to that. But the entire tone and content of the Perry argument suggested that something more basic was going on — a casting aside of the Due Process Clause as a barrier to unreliable criminal evidence, a project that Justice Antonin Scalia seemed eager to lead.
The transcript of the oral arguments is now available in Adobe .pdf format at the Court's website.
Earlier coverage of Perry v. New Hampshire is at the link; related posts in the eyewitness identification index.
More on eyewitness ID from the states will be in the next post.
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