Important Eyewitness Identification Ruling: Perry v. New Hampshire

In Perry v. New Hampshire No. 10-8974 (Jan. 11, 2012) (8-1; Sotomayor, J., dissenting) the Supreme Court of the United States held that a pretrial identification not conducted by police officers or state agents is not - at least as a general matter - subject to due process scrutiny. This basis for the decision was not  unexpected, even if it was unfortunate.

The Court wrote (footnote omitted):

We have not extended pretrial screening for reliability to cases in which the suggestive circumstances were not arranged by law enforcement officers. Petitioner requests that we do so because of the grave risk that mistaken identification will yield a miscarriage of justice.Our decisions, however, turn on the presence of state action and aim to deter police from rigging identification procedures, for example,at a lineup, showup, or photograph array. When no improper law enforcement activity is involved, we hold, it suffices to test reliability through the rights and opportunities generally designed for that purpose, notably, the presence of counsel at postindictment lineups, vigorous cross-examination, protective rules of evidence, and jury instructions on both the fallibility of eyewitness identification and the requirement that guilt be proved beyond a reasonable doubt.

More welcome (as a conceptual or analytical matter) than the Court's flawed view of the requirement of state action was the Court's seeming awareness that the question of reliable or unreliable eyewitness identifications (in criminal cases) cannot readily be distinguished from the question of the reliability or unreliability of other types of evidence. (Such awareness - and perhaps acknowledgment - can be inferred from the Court's brief comparison of eyewitness identifications and testimony by "jailhouse snitches.")

• I think the question of the reliability of eyewitness identifications cannot and should not be separated from the even more general and decisive question of the reliability or unreliability of factual adjudication in criminal cases. 

The ruling in the case leaves open precisely how the Court and lower courts will use the federal due process guarantee to assure a minimum level of fact finding reliability in criminal cases. Although the Court did not speak as clearly as it might have - but when does it or anyone ever do that? - at least the Court made it tolerably clear, if only by means of a negative pregnant, that the guarantee of due process puts some sort of a ceiling on the risk of erroneous factual adjudication in criminal cases:

Only when evidence "is so extremely unfair that its admission violates fundamental conceptions of justice," Dowling v. United States, 493 U. S. 342, 352 (1990) (internal quotation marks omitted), have we imposed a constraint tied to the Due Process Clause. See, e.g., Napue v. Illinois, 360 U. S. 264, 269 (1959) (Due process prohibits the State’s 'knowin[g] use [of] false evidence,' because such use violates "any concept of ordered liberty.")

What is not clear from this statement and the Court's other pronouncements in the opinion is whether the Court will, in the near future, embrace the proposition that when the risk of fact finding error is so severe as to "shock the conscience" or offend "fundamental conceptions of justice," the due process guarantee can mandate remedies other than the (mere) exclusion of evidence - whether, for example, a criminal trial can be condemned as constitutionally defective because the accused had insufficient resources to mount a defense.

• Statements in the opinion such as the following suggest that support for such an approach will be forthcoming only grudgingly in the near future:

The Constitution, our decisions indicate, protects a defendant against a conviction based on evidence of questionable reliability, not by prohibiting introduction of the evidence, but by affording the defendant means to persuade the jury that the evidence should be discounted as unworthy of credit.

• Cf.  Justice Thomas' concurring opinion. He would plainly reject the approach I favor.

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