Much has been written in the academic and scientific literature about the accuracy, or apparent inaccuracy, of eyewitness identification, particular cross-racial identification. Some have called for a Daubert-like gatekeeper role for trial judges. But the Supreme Court last week in Perry v. New Hampshire clarified the test for the admissibility of eyewitness identifications without requiring any general gate-keeping function. In an opinion by Justice Ginsburg, the Court held that the Due Process Clause, under most circumstances, does not require a trial judge to screen eyewitness identification evidence for reliability before allowing the jury to assess its creditworthiness. The Due Process Clause only requires a preliminary judicial inquiry into the reliability of an eyewitness identification when the identification was procured under unnecessarily suggestive circumstances arranged by law enforcement.
In Perry an eyewitness was asked at the scene for a more specific description of the man that she had seen breaking into her neighbor’s car, and pointed to the defendant while he was standing next to a police officer in the parking lot where the car was parked. The witness had identified the defendant in the equivalent of what, if arranged deliberately by the police, would have been an improper one-man line-up. But the eyewitness had voluntarily and spontaneously identified the defendant without being asked by the police to identify him. Because there was no improper police influence affecting the eyewitness’s identification in this case, the Court held that the identification procedure was not suggestive and unnecessary, and that the eyewitness testimony was, therefore, properly placed before the jury without a preliminary judicial assessment of its reliability.
The Court also held that, even when a suggestive and unnecessary identification procedure is used, suppression of the resulting identification is not automatic. Where there has been improper police conduct, the trial judge must screen the identification evidence for reliability before trial. After screening the evidence for reliability, the judge should only suppress the resulting identification if the “indicators of [a witness’] ability to make an accurate identification” are “outweighed by the corrupting effect of the improper police conduct.” In other words, the trial judge should only suppress the identification evidence if the improper police conduct created a “substantial likelihood of misidentification.” Otherwise, the identification evidence should be submitted to the jury.
(Jana Volante, Esq., the author of this entry, is an associate with Fox Rothschild LLP, based in our Pittsburgh, PA office. Her practice concerns white collar criminal defense and commercial litigation)