Perry v. New Hampshire

This case concerns the scope of due process safeguards regarding eyewitness testimony. See Question Presented. Perry argues that due to its inherent problems, such testimony should be excluded whenever it is made under unreliable circumstances, and that improper state action should not be required to trigger exclusion. See Brief for Petitioner at 14–15. New Hampshire argues that due process does not require that evidence be reliable before it is admissible and that improper state action should be required before eyewitness testimony is excluded. See Brief for Respondent at 43. The State maintains that there are other provisions in the Constitution that effectively safeguard against the unreliability of eyewitness testimony. See Id. at 42–43.

Scope and Obligations Regarding Fourteenth Amendment Due Process

Perry argues that when determining admissibility of eyewitness testimony, emphasis should be placed on the reliability of the evidence and not on whether improper state action was present. See Brief for Petitioner at 14–15. He insists that the requirement of improper state action is at odds with the rationale of Fourteenth Amendment due process. See Id. at 22. Perry maintains that imposing this limitation on eyewitness testimony improperly imports the Fourth Amendment exclusionary rule to due process principles. See Id. at 23. Perry points out that the purpose of the exclusionary rule is to deter police from making unreasonable search and seizures, and to exclude evidence that was improperly obtained, regardless of reliability. See Id. at 23–24. However, he argues, due process goals encompass notions of fairness; therefore, reliability, not state action, is the “linchpin” in deciding whether or not eyewitness testimony should be admissible. See Id. at 17. Perry points out that the factors courts have considered in determining the admissibility of eyewitness testimony, including the witness’ level of certainty during identification, the time elapsed between the event and identification, and degree of attention, prove that reliability of the identification was the primary concern. See Id. at 15, 17. He accepts that police and state action are relevant to the due process inquiry to the extent that they influence the reliability of the witness identification, but asserts that they are not dispositive. See Id. at 17. Therefore, Perry argues, the threshold inquiry for admissibility is reliability, not whether improper state action was present. See Id.

In contrast, New Hampshire argues that the Due Process Clause does not require that identification evidence be reliable before it is admissible. See Brief for Respondent at 12. The State argues that the Clause's plain meaning does not require courts to make reliability judgments before admitting eyewitness testimony. See Id. at 13. Moreover, it asserts that due process has limited application and governs only situations where notions of “fundamental fairness” are offended as determined by reference to the Bill of Rights. See Id. at 13–15. In addition, New Hampshire insists that making reliability a condition of admissibility would unduly expand the application of due process and disrupt the careful balance between the legislature and the Constitution. See Id. The State contends that fundamental fairness concerns arise when state action interferes with the defendant’s right to a fair trial and the defendant suffered prejudice; there is no reliability threshold. See Id. at 16–17. Accordingly, New Hampshire insists that while the purpose of due process is to ensure fairness during trial, it does not attempt to enforce that principle by requiring the evidence to be reliable before it is presented at trial. See Id. at 19. The State further says that there is no overarching constitutional requirement that the evidence be reliable before it is admissible. See Id. at 43. Rather, New Hampshire argues that reliability judgments should be left to the trier of fact and also held to the standards established by the rules of evidence. See Id. at 19. Based upon this theory, the State argues that the court properly admitted Ms. Blandon’s testimony into trial. See Id. at 43.

Adequate Safeguards for Eyewitness Testimony

Perry contends that because eyewitness testimony is a “uniquely unreliable kind of evidence,” due process requires additional safeguards. See Brief for Petitioner at 17. He maintains that the fairness principles embodied in due process limit using unreliable eyewitness testimony during trial. See Id.Furthermore, Perry states that because eyewitness testimony poses unique problems, evaluating its reliability should not always be left to the jury during trial. See Id. at 13. He also cites evidence garnered through science and experience regarding the problems inherent with eyewitness testimony. See Id. at 17. Perry states that forensic evidence, specifically DNA analysis, has proved that misidentifications occur regularly. See Id. at 18. Accordingly, he asserts there have been frequent, wrongful convictions due to misidentifications. See Id. at 19. Moreover, Perry also points out that aside from its unique unreliability, unreliable eyewitness testimony will also prejudice the defendant because it is hard to refute and its has a powerful effect on the jury. See Id. at 13. For those reasons, Perry argues that it is a violation of due process to admit such testimony if it arises from circumstances that would make the identification unreliable, regardless of police or state involvement. See Id. at 13.

By contrast, New Hampshire contends that the Constitution ensure the reliability of evidence admitted at trial, see Brief for Respondent at 20, by protecting the defendant’s rights to face his accuser, to have an attorney, to have a speedy trial, and to obtain witnesses to support his case, see Id. at 21. The State maintains that these safeguards adequately address any reliability concerns. See Id. For example, New Hampshire explains that confronting the accuser will effectively allow the defendant to expose the flaws in the evidence offered against him through cross-examination. See Id. at 22. Also, the State contends that allowing a defendant access to effective counsel gives the defendant the opportunity to address the witness' competency of and the reliability of the evidence presented. See Id. at 23–24. Furthermore, New Hampshire argues that the jury will make their own independent determination regarding the reliability of the evidence. See Id. at 24–25. The State maintains that these safeguards effectively protect the reliability of the evidence and that due process does not ensure the fairness of a trial by imposing additional reliability requirements on eyewitness testimony before admitting it at trial. See Id. at 28.

Applying his rationale to his case, Perry argues that Ms. Blandon’s identification was unreliable and should not have been admissible. See Brief for Petitioner at 34. He points out that Ms. Blandon’s description of the perpetrator was generic and many people could have fit the description. See Id. Perry asserts that it was dark and she spotted the man from her apartment window, which was far away. See Id. He argues that because her testimony was the only factor linking him to the crime, admitting the evidence was a significant error. See Id. at 35. Perry asserts that these factors demonstrate the unreliability of eyewitness testimony generally and therefore that due process requires additional safeguards. See Id. at 11, 35.

New Hampshire counters that Perry had ample opportunities to test the reliability of the eyewitness testimony offered against him. See Brief for Respondent at 27. The State points out that Perry was represented by an attorney and had the opportunity for cross-examination. See Id. Also, New Hampshire states that Perry had adequate opportunity to present his own case and directly address concerns regarding the reliability of the eyewitness testimony offered against him. See Id. The State also maintains that the jury received proper instructions on how to evaluate eyewitness testimony. See Id. New Hampshire argues that these safeguards were sufficient to ensure that the reliability of the eyewitness testimony was amply tested at trial. See Id.