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U.S. Supreme Court

Supreme Court Weighs Judges’ Duties to Evaluate Eyewitness Testimony

Posted Nov 4, 2011 4:27 PM CDT
By Mark Hansen

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U.S. Supreme Court justices on Wednesday appeared unmoved by the argument that eyewitness identification evidence is so inherently unreliable it should be subjected to special judicial scrutiny.

"Why is unreliable eyewitness identification any different from unreliable anything else" introduced at trial, Justice Antonin Scalia asked Richard Guerriero, the lawyer for Barion Perry, a New Hampshire man whose theft conviction was based in part on the testimony of a woman who had identified him from a distance at night, the New York Times, the National Law Journal (reg. req.), USA Today and others report.

Justice Elena Kagan said jailhouse informants could be said to be as unreliable as eyewitness identifications.

"I understand you have very good empirical evidence which should lead us all to wonder about the reliability of eyewitness testimony," she told Guerriero. "I'm just suggesting that eyewitness testimony is not the only kind of testimony which people can do studies on and find that it's more unreliable than you think."

Guerriero tried to argue that an eyewitness identification made under the suggestive influence of a police lineup presents a unique danger of a misidentification and a miscarriage of justice. So much so, he said, that the Constitution's due process clause requires that a defendant be allowed to seek a hearing before a judge to decide whether such evidence can be used against him at trial.

"It is that danger of misidentification which implicates due process and requires an evaluation of the reliability of the identification," he said.

But a majority of the justices seemed to agree with New Hampshire Attorney General Michael Delaney, who said that a due process inquiry should be required "only when the police arrange a confrontation to elicit a witness' identification of a suspect and use unnecessarily suggestiive techniques that skew the fact-finding process."

The federal government and 29 other states are siding with New Hampshire in asking the high court to generally leave the reliability of eyewitness identifications in the hands of the jury.

A ruling in the case is expected before the end of the court's term in June.

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