The Cautionary Instruction: U.S. Supreme Court fails to act on eyewitness identification

The Pittsburgh Post-Gazette/Ipso Facto
January 20, 2012

Last week, the U.S. Supreme Court issued a long anticipated decision on eyewitness evidence. Nearly thirty-three years have passed since the high court took a serious look at the reliability of eyewitness identification.

The decision did not turn out the way that many had hoped. Since the Supreme Court last took up the eyewitness issue, more than 2,000 studies on the topic have been published in professional and academic journals. One study found that eyewitness misidentifications contributed to the wrongful conviction of 76 percent of the first 250 individuals whose cases were overturned by DNA evidence.

The case argued before the U.S. Supreme Court involved Barion Perry. He was convicted of theft based on the testimony of a woman who said she saw the theft and described the suspect as tall and black. Then, without prompting from the police, she went to her window and identified Perry, who was standing outside next to a police officer. The identification was used to convict Perry, despite objections from his lawyers that seeing him next to the police officer could have unfairly influenced the woman’s identification.

Under existing law, judges are required to screen testimony for reliability whenever police are suspected of using suggestive tactics. Such prescreening has been deemed necessary to preserve the fairness of a trial in the face of suggestive police procedures and to deter police from creating “suggestive circumstances” that point to a specific suspect.

Perry’s lawyer wanted the court to expand the prescreening practice to all identifications made under suggestive circumstances. However, the Supreme Court affirmed a decision from the New Hampshire Supreme Court that the testimony was allowable because police did not create the suggestive circumstance.

Justice Ruth Bader Ginsburg, writing for the majority, said there was no reason to treat most eyewitness evidence differently from other potentially flawed evidence. “The jury, not the judge, traditionally determines the reliability of evidence,” she wrote.

“The potential unreliability of a type of evidence does not alone render its introduction at the defendant’s trial fundamentally unfair,” wrote Ginsburg, noting cross-examination, jury instructions and the rules of evidence are sufficient safeguards.

The sole reason to impose a judicial prescreening process is to deter police from creating “suggestive circumstances” that point to a specific suspect, Ginsburg said. “When there is no improper police conduct there is nothing to deter.”

The decision is a setback for reform advocates. In Pennsylvania, the Advisory Committee on Wrongful Convictions proposed a number of measures to insure the reliability of eyewitness identification. Most of those measures are being challenged by prosecutors and victim advocates. This decision signals that the U.S. Supreme Court is not ready to expand the review of eyewitness identification.

Visit Ipso Facto