Lexis Nexis - Case Brief

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Law School Case Brief

Perry v. New Hampshire - 565 U.S. 228, 132 S. Ct. 716 (2012)


In the federal system of justice, a fair trial for persons charged with criminal offenses is secured by the Sixth Amendment, which guarantees to defendants the right to counsel, compulsory process to obtain defense witnesses, and the opportunity to cross-examine witnesses for the prosecution. Those safeguards apart, admission of evidence in state trials is ordinarily governed by state law, and the reliability of relevant testimony typically falls within the province of the jury to determine. The United States Supreme Court has recognized, in addition, a due process check on the admission of eyewitness identification, applicable when the police have arranged suggestive circumstances leading the witness to identify a particular person as the perpetrator of a crime.


In the wee hours of the morning, the Nashua, New Hampshire, Police Department received a call reporting that an African-American male was trying to break into cars parked in the lot of the caller's apartment building. When an officer responding to the call asked the eyewitness to describe the man, the caller's wife pointed to her kitchen window and said the man she saw breaking into the car was standing in the parking lot, next to a police officer. Defendant Barion Perry's arrest followed this identification. Before trial, Defendant moved to suppress the identification on the ground that admitting it at trial would violate due process. The New Hampshire trial court denied the motion. To determine whether due process prohibits the introduction of an out-of-court identification at trial, the Superior Court said, this Court's decisions instruct a two-step inquiry: The trial court must first decide whether the police used an unnecessarily suggestive identification procedure; if they did, the court must next consider whether that procedure so tainted the resulting identification as to render it unreliable and thus inadmissible. Defendant's challenge, the court found, failed at step one, for the identification did not result from an unnecessarily suggestive procedure employed by the police. A jury subsequently convicted Defendant of theft by unauthorized taking. On appeal, Defendant argued that the trial court erred in requiring an initial showing that police arranged a suggestive identification procedure. Suggestive circumstances alone, Defendant argued, were sufficient to require court evaluation of the reliability of an eyewitness identification before allowing it to be presented to the jury. The New Hampshire Supreme Court rejected that argument and affirmed his conviction. Defendant petitioned for certiorari review.


Does the admission of the caller’s wife identification violate the sixth amendment rights of the defendant?




The Court held that the Due Process Clause of the U.S. Constitution did not require trial judges to conduct preliminary assessments of the reliability of eyewitness identifications that were made under suggestive circumstances when the circumstances were not created by law enforcement personnel. A primary aim of the line of cases which excluded eyewitness identification evidence that was obtained under unnecessarily suggestive circumstances that police created was to deter police from using improper procedures, and that rationale was inapposite in cases where there was no improper police conduct.

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