By Lauren Britsch, J.D. Candidate

 Most of us probably have seen police use lineups to identify suspects in movies or on television. Pop culture teaches us that eyewitness identifications play a substantial role in police procedure, not to mention the criminal justice system. Although state law generally governs admission of such evidence in state trials, due process places some limits on the admissibility of eyewitness identifications. Due process comes into question when the police apply what the Supreme Court have called “suggestive” procedures that essentially indicate to the witness whom to identify as the suspect.

A series of cases addressing the admissibility of eyewitness identifications ultimately led the Court to establish a two-part test to determine whether an out-of-court identification violates due process and should not be admitted as evidence at trial.[1] Two policy goals are usually at issue in the Court’s decisions when it considers the admissibility of identifications.  It goes without saying that one policy goal is to avoid misidentification and consequently conviction of an innocent person. The Court has expressed concern about eyewitness identifications, including the risk of a witness’s distorted memory that can be brought on by stressful circumstances or police pressure. The flip side of that policy is that the Court also wants to ensure the jury receives a complete picture of the case through the admission all available evidence, including identifications by eyewitnesses. Additionally, the Court wants to deter police from employing procedures that are suggestive,such as show-ups or single-photo photo arrays.

The Court has discussed two approaches for effectuating these policy goals: a per se exclusion of identifications gained through suggestive procedures, or admitting such identifications when they come with sufficient indicia of reliability. The per se rule has a greater deterrent effect on police, but the two-part approach also deters, just to a lesser degree. If a suggestive, but nonetheless reliable, identification is withheld from the jury, guilty defendants may go free, so the per se rule can result in a distorted administration of justice. However, if an identification with the trappings of reliability is admitted and turns out to be wrong, the administration of justice is similarly distorted.

The Court therefore settled on a two-part test, in which “reliability is the linchpin in determining the admissibility of identification testimony.”  Accordingly, an identification obtained through a suggestive procedure in not inadmissible automatically. The Court first determines whether the identification was unnecessarily suggestive (where unnecessarily basically means that no exigent circumstances were present). If the procedure was unnecessarily suggestive, the Court then inquires whether the identification was nonetheless reliable, based on five factors: 1) opportunity of the witness to view the criminal during the crime, 2) the witness’s degree of attention, 3) the accuracy of the witness’s prior description of the criminal, 4) the certainty demonstrated by the witness at the identification, 5) the length of time between the crime and the confrontation.

This test was at issue in Perry v. New Hampshire, 565 U.S. ____ (2012), recently decided by the Court. Barion Perry was charged in New Hampshire State Court with theft and criminal mischief for breaking into a car. A witness had seen someone she described as “a tall, African-American man” roam the parking lot, look into cars, and remove a box from the trunk of one car. Upon being asked by an officer for a more specific description, the witness pointed to Perry, who was standing in the parking lot next to another officer, and stated he was the man she had seen break into a car.

The trial court denied Perry’s motion to suppress this identification because the identification was the not the result of a police-manufactured, unnecessarily suggestive procedure. The witness’s identification of Perry was spontaneous and not induced by the police. The trial court acknowledged that the reliability of the identification was questionable, but this was a question for the jury because the first part of the test was not met. On appeal and certiorari, Perry argued that suggestive circumstances alone were enough to require the court to assess reliability, even if the suggestive procedure was not the result of police arrangement.

In its opinion, the Court notes that there is a difference of opinion among the federal courts about whether they must evaluate the reliability of all suggestive procedures or only those that are the result of improper police action. Perry argued that since reliability was the crux of the decision on admissibility, it should make no difference whether the suggestive procedure was arranged by police; the policies underlying exclusion of unreliable identifications are still at issue. The Court takes a different position, finding that the reliability inquiry is properly confined to those identifications obtained through police-arranged suggestive procedures; the Due Process Clause does not otherwise require a preliminary judicial inquiry into the reliability of an identification.

The Court criticizes Perry’s argument for ignoring one of the main policies behind the Court’s prior decisions: that excluding identifications obtained by suggestive procedures will deter police from using improper procedures. Where the police did not arrange the suggestive procedure, the rule has no deterrent effect, and therefore fails to effectuate one of its main policy goals. The Court reads its precedent on eyewitness identification as focused on procedures arranged by the police and the need to safeguard against police misconduct that leads to unreliable identifications. Also underlying the Court’s argument is the desire to avoid opening the floodgates of judicial review of every eyewitness identification, since many factors bear on the accuracy of identifications and all identifications involve some suggestiveness. The Court fears that accepting Perry’s argument “would entail a vast enlargement of the reach of due process constraint on the admission of evidence.” 

Like it has done in other evidentiary contexts, the Court refuses to adopt a broad exclusionary rule merely because eyewitness identifications may be uniquely unreliable. The Court cites its cases refusing to adopt rules categorically excluding statements from jailhouse snitches and evidence of acquitted conduct, both of which involve inherent unreliability. The Court also relies on other judicial safeguards such as cross-examination, the right to effective counsel, jury instructions, the beyond a reasonable doubt standard, and other exclusionary rules of evidence (such as Rule 403).

Justice Sotomayor dissented from the Court’s 8-1 opinion. She argues that the Court “effectively grafts a mens rea inquiry onto our rule,” and the distinction between procedures intentionally arranged by police and those that are the inadvertent result of police action is unclear. The majority fails to explain out if police must merely arrange the procedure or must intend to arrange a suggestive procedure. Justice Sotomayor points out the problem with this lack of distinction using a hypothetical: the police had called Perry and the witness to the police station for interviews, and the witness saw Perry being questioned. She states that whether this would constitute police arranged for purposes of invoking the reliability inquiry would be a confusing and difficult question. She also disagrees with the Court’s reading of its precedent, emphasizing that the prior cases were concerned with reliability, which is still implicated by suggestive procedures not arranged by the police. Her opinion criticizes the majority’s emphasis on the deterrence policy and the majority’s claim that requiring a reliability inquiry for all suggestive procedures would open the floodgates. As she points out, the four circuits that previously had not made the distinction based on police-arrangement have not faced a flood of claims. She concludes her dissent by emphasizing the growing empirical evidence that demonstrates the unreliability of eyewitness identification and witnesses’ propensity to misidentify suspects.

The Court substantially affirmed its precedent but also narrowed the application of the two-part suggestiveness/reliability test. The fact that several circuits were already applying this narrower test could mean the Court’s decision will not have a far-reaching effect on how eyewitness identification evidence is treated by the trial courts. It will be interesting to see, however, if the courts are faced with questions about what elements are required to show that identification procedures were in fact police-arranged so as to invoke a reliability inquiry, the major concern expressed in Justice Sotomayor’s dissent.