Richard Guerriero, a lawyer for Barion Perry, a New Hampshire man convicted of theft based in part on the testimony of a woman who said she saw him from a distance late at night, argued to the U.S. Supreme Court that the Constitution’s due process clause should have allowed Mr. Perry to seek a hearing before a judge to decide whether eyewitness evidence against him should be kept from the jury.
The New York Times reported that the court’s precedents allow such hearings when the eyewitness identification at issue was the product of a suggestive police lineup or similar official conduct. Mr. Perry said there was similarly problematic suggestiveness in how he was identified, while he was held by the police in a parking lot near stolen goods. But he conceded that the suggestiveness was the product of happenstance and not official conduct.
During this week's argument, most of the justices did not seem inclined to order a hearing in such circumstances, in part because of the lack of a limiting principle. Why stop with eyewitness evidence that was the product of suggestion? Why stop with eyewitness evidence at all?
By the end of the argument in the case, Perry v. New Hampshire, No. 10-8974, Adam Liptak of the Times wrote "it seemed unlikely that the court was leaning toward adopting the criminal defendant’s point of view."
To read more: http://www.nytimes.com/2011/11/03/us/supreme-court-weighs-eyewitness-reliability.html?_r=1&pagewanted=print