U.S. Supreme Court to Reconsider Eyewitness Testimony

For the first time since 1977, the U.S. Supreme Court will consider the constitutional implications of eyewitness testimony. In November, the Court heard oral arguments in Perry v. New Hampshire. At issue is whether due process protections apply to all eyewitness identifications made under suggestive circumstances or only to eyewitness identifications made under suggestive circumstances when the police created the suggestive circumstances.

The issue is being examined again in the wake of a flood of studies documenting the high error rates associated with eyewitness identification. The scientific understanding of memory coupled with the development of DNA evidence has shed light on numerous wrongful convictions.

The decision is likely to have significant implications for Twin Cities criminal defense lawyers. Whether building a defense against indecent exposure crimes whose evidence is primarily based on eyewitness testimony or defending against violent crimes, the determination of the Supreme Court will have serious repercussions for defendants' rights.

Details of the Case

Barion Perry stood trial for theft and criminal mischief after a woman and her husband identified him as the man who was prowling in an apartment building parking lot, breaking into cars. The woman spoke with the police officer who arrived on the scene and identified Perry through the apartment window. The woman was not able to identify Perry later in a photo lineup and was not able to point him out in court as the man she identified when speaking to police. Her husband was only able to identify Perry in a photo lineup as someone he "recognized" - not as the man he saw in the parking lot. A jury convicted Perry of theft and the judge sentenced him to three to 10 years in prison.

Perry appealed his conviction, claiming that the federal and New Hampshire constitutions prevented the use of eyewitness testimony when police have manipulated the identification procedures making it more likely that the eyewitness would select a specific person as a suspect. The New Jersey Supreme Court ruled that there was no reason to decide the constitutional issue since they found that the police did not create suggestive circumstances in Perry's case. Perry then appealed to the U.S. Supreme Court.

Problems with Eyewitness Testimony

Research is increasingly revealing the disturbing prevalence of witness misidentification in the criminal justice system. Over 2,000 studies published in academic journals in the past 30 years have documented the problems with the reliability of eyewitness identification evidence. Studies show that of the over 75,000 eyewitness identifications that people make each year in criminal investigations about one-third are wrong. Law professor Brandon Garret noted in his book Convicting the Innocent that 190 of the first 250 defendants exonerated by DNA testing in the U.S were convicted based on eyewitness testimony.

Human memory is not like videotape - it cannot record things perfectly and a person cannot simply replay it at will to recall every detail clearly. Trauma and stress affect a person's ability to remember events, and more often than not eyewitnesses to crimes are stressed or traumatized by the events.

Even though human memory is unreliable, juries overwhelmingly believe eyewitnesses. In an amicus brief, the American Psychological Association (APA) pointed to studies that show juries "over-believe" eyewitnesses who testify in criminal trials.

When a person is facing criminal charges, he or she deserves to have a fair trial based on reliable evidence, and studies have shown that eyewitness identifications are not always reliable. The Supreme Court will now decide if what standard applies when challenging the reliability of that evidence.

When your future is on the line, it is important to hire a criminal defense attorney who will fight for your rights. You should speak with a Minneapolis criminal defense attorney who has a strong record of challenging constitutional rights violations.