WASHINGTON -- The Supreme Court appeared satisfied Wednesday morning that no new constitutional rule was needed to weed out unreliable eyewitness identifications.
A jury found Barion Perry guilty of theft based on an eyewitness identification. The original identification occurred when the witness fingered Perry by pointing out her apartment window toward the crime scene, where Perry stood with a police officer.
Perry challenged his conviction up to the New Hampshire Supreme Court, arguing that the identification was suggestive and therefore unconstitutionally unreliable for use at trial. The state court found no violation of Perry's constitutional rights because the police did not orchestrate the suggestive circumstances.
At oral argument in Perry v. New Hampshire, the U.S. Supreme Court justices seemed to agree with their Granite State counterparts.
In all of the Court's prior eyewitness identification decisions, the facts of the case were rooted in police orchestration, so Perry's lawyer, Richard Guerriero, was asking the justices to step out on a limb to rule that all eyewitness identifications made under suggestive circumstances -- whether or not there was police manipulation -- should be barred under the 14th Amendment's due process clause. This proved a tall order.
Justice Sonia Sotomayor was the first to question the breadth of Guerriero's argument. "Does your position depend on police involvement at all?" she asked. Guerriero said no, which led her to wonder what happens if the "news media publishes a picture of someone" allegedly linked to a crime. If that person is later arrested for the crime, such a circumstance could violate his constitutional rights if a judge deemed it "substantially likely to lead to a risk of misidentification at trial," Guerriero stated later in his half-hour presentation.
Justice Samuel Alito thought Guerriero's proposed constitutional standard "would be really a great change from the way trials are now conducted." To illustrate his point, he returned to Sotomayor's media example, conjuring up a hypothetical in which a rape victim who did not get a good look at the perpetrator opens a newspaper several weeks later and reads about another rape across town in a story that includes the suspect's picture, prompting the woman to identify him as the person who raped her.
"Now you want to make it possible," Alito continued, "for the judge to say that victim may not testify and identify the person that the victim says was the perpetrator of the rape, on the ground that the newspaper picture was suggestive, even though there wasn't any police involvement."
When Guerriero replied that such a standard already exists in some federal courts, Alito sat back in his chair with a look of distaste.
Justices Antonin Scalia and Elena Kagan wondered what made suggestive eyewitness testimony so suspect as to require a constitutional safeguard above and beyond the tools used to prevent other unreliable evidence from reaching the jury.
"I understand you have very good empirical evidence which should lead us all to wonder about the reliability of eyewitness testimony," Kagan said. "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 would think."
Scalia found the slope just as slippery, asserting that "there is nothing special about eyewitness" identification. "If we accept your argument for eyewitness," he said, "we should similarly accept it for everything else."
Justice Stephen Breyer found the biggest weakness in Perry's case. At the state and federal court levels, there are rules of evidence that give judges the power to exclude unreliable evidence that could prejudice or mislead a jury. "Since that is already the law and it does apply to every piece of evidence," Breyer asked Guerriero, "what is it that you want to change?"
Justice Ruth Bader Ginsburg joined Breyer to note other traditional mechanisms used at trial to keep out unreliable evidence, such as asking the judge to give the jury a limiting instruction, exposing the witness's unreliability during cross-examination, and criticizing the evidence in a closing statement to the jury.
Unmentioned during Wednesday's oral argument was the New Jersey Supreme Court's recent ruling that makes it easier for that state's judges to find eyewitness identifications too unreliable to be admitted at trial.
By the time New Hampshire Attorney General Michael Delaney addressed the Court, the justices had already done much of his job for him. Sotomayor did give him a hard time for saying that only intentionally suggestive police manipulation is unconstitutional when the Court has never distinguished between "intentional or unintentional" police conduct, but the grilling reminded her colleagues that they don't need to narrow the law in order to rule against Perry.
Indeed, the questions posed to Delaney in his 20 minutes at the lectern, as well as those asked of fast-talking Assistant U.S. Solicitor General Nicole Saharsky during her 10 minutes arguing in support of New Hampshire, served to explore not whether the state would win, but rather what shape the decision announcing its inevitable win would take.
The opinion in Perry v. New Hampshire is expected by the end of June.