It's an iconic image in American justice, the victim standing behind a two-way mirror, looking out through the hazy glass. Against a height marked wall, the suspect stands with fillers side-by-side. The police officer calls each man forward. The perpetrator advances and the victim cries out. They've found their man. The victim will then be brought in to testify at trial and the prosecution will question them about the identification process.
This type of eyewitness evidence and subsequent testimony has played a vital role in identifying and charging suspects in criminal cases for decades. It has also been a continuous source of controversy. More than 200 defendants convicted using eyewitness testimony have been exonerated based on DNA evidence. These facts, among others, have led the Supreme Court to review this type of evidence.
The Supreme Court is considering the reliability of eyewitness identifications in Perry v. New Hampshire. Suspected of breaking into numerous cars in a New Hampshire neighborhood, Barion Perry was identified by a neighbor as the perpetrator. Because of that, Perry was convicted of theft and sentenced to three to ten years at the New Hampshire State Prison. Subsequent appeals agreed with the trial court's findings. Granting a writ of certiorari, the Supreme Court hopes to address the question of whether eyewitness testimony is overly suggestive and, therefore, unreliable. This is an issue that has not been addressed by the Supreme Court since 1977, long before DNA came onto the investigative scene.
The main issues before the Court is whether the use of suggestive circumstances prompting witness identification violates Due Process protection against unreliable identification evidence. Currently, the trial judge can provide a limiting instruction to the jury, at his or her discretion, to alert them that eyewitness identification can be unreliable. Perry and his attorney do not believe this instruction is enough, though, as they are insisting a rule be established that completely excludes eyewitness testimony. During the oral arguments, the Court Justices were hesitant, especially Justice Ginsberg, questioning whether a hard rule is unnecessary or impractical.
Scholars and advocates have scrutinized eyewitness evidence and it will ultimately be up to the Supreme Court to determine the destiny of this evidence in our court systems. Keep up with the answer to this question and the Court's other decisions at the official Supreme Court website or the SCOTUS blog.
Jennifer Dickquist is currently a 2L at Duquesne University. She is a research assistant at the Duquesne Center for Legal Information and a part of the Bill of Rights Clinic. Jennifer graduated from LeMoyne College in Syracuse, N.Y. with a in political science. She will graduate from Duquesne Law in 2013 and can be researched at dickquistj@duq.edu.
