U.S. Supreme Court

Judges’ Role in Policing Eyewitness Testimony Is Back Before Supreme Court


The reliability of eyewitness identification is an issue in a case set to be argued before the U.S. Supreme Court in November.

The Supreme Court has previously ruled that the due process clause requires judges to exclude at least some eyewitness testimony based on unreliability, the New York Times reports. The new case, Perry v. New Hampshire, seeks more specifics about the kinds of identifications warranting a closer look. Do due process protections apply to all eyewitness IDs made under suggestive circumstances? Or just those IDs made when the suggestive circumstances were orchestrated by police?

The court is unlikely to go further and rule on the “larger and more important question of what that closer look should involve,” the Times says. Barry Scheck, director of the Innocence Project, tells the Times he’d like to see a new “legal architecture” that gives judges an authentic gatekeeping role.

According to the Times, eyewitness IDs play a big role in wrongful convictions. The newspaper cites “a pile of studies” suggesting eyewitness identifications are wrong about a third of the time. According to the research, the newspaper says, “it is perilous to base a conviction on a witness’s identification of a stranger. Memory is not a videotape. It is fragile at best, worse under stress and subject to distortion and contamination.”

The ABA has posted the petitioner’s brief (PDF).

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