• Supreme Court Decides Perry v. New Hampshire
  • January 13, 2012 | Authors: Deborah A. Ellingboe; Marie E. Williams
  • Law Firms: Faegre Baker Daniels - Minneapolis Office ; Faegre Baker Daniels - Denver Office
  • On January 11, 2012, the Supreme Court decided Perry v. New Hampshire, No. 10-8974, holding that the Supreme Court of New Hampshire properly admitted evidence of an eyewitness identification. When a defendant cannot first establish that there was any improper police conduct in obtaining an identification, the trial court need not conduct a judicial assessment of the reliability of the identification.

    Around 3 a.m. on August 15, 2008, the Nashua, New Hampshire Police Department was called to a location where it had been reported that an African-American male was trying to break into cars in the parking lot of an apartment building. After securing the area, police asked the caller's wife to explain what she had seen, and then asked for a more specific description of the man she had seen in the parking lot. She pointed out her kitchen window and said the person she saw breaking into a car was standing in the parking lot, next to a police officer. Perry, the individual standing next to the police officer, was arrested. About a month later, in a photographic array, the eyewitness was unable to identify Perry.

    Perry moved to suppress the eyewitness identification of him on the ground that it would violate the Due Process Clause. He argued that the eyewitness saw what amounted to a one-person lineup in the parking lot, which all but guaranteed that she would identify him as the culprit. The New Hampshire Superior Court denied the motion, finding that the eyewitness identification of Perry did not result from an unnecessarily suggestive procedure manufactured by the police. The New Hampshire Supreme Court also rejected Perry's argument and affirmed his conviction.

    The Supreme Court affirmed. The Court first noted that the Constitution protects a defendant from a conviction based on evidence of questionable reliability, not by prohibiting the evidence, but by affording the defendant means to persuade the jury that the evidence is unreliable. The Court's previous decisions have held that the approach used to determine whether the Due Process Clause requires suppression of an eyewitness identification is a two-step analysis. First, the due process concerns arise only when law enforcement officers use an identification procedure that is both suggestive and unnecessary. Even when the police use such a procedure, suppression is not always required. Rather, as a second step, a trial court should assess on a case-by-case basis whether improper police conduct created a substantial likelihood of misidentification. Perry conceded that law enforcement officials did not arrange the suggestive circumstances surrounding his identification. Because there was no improper police conduct, no further inquiry was required. It was proper for the jury to consider, and assess the reliability of, the identification.

    Justice Ginsburg delivered the opinion of the Court, in which Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, Breyer, Alito, and Kagan joined. Justice Thomas filed a concurring opinion. Justice Sotomayor filed a dissenting opinion.