Perry v. New Hampshire

On November 2, 2011, the Supreme Court will consider a topic of much debate in recent weeks – eyewitness identification. The issue of mistaken eyewitness testimony reached a new level in public consciousness during the coverage of the last-minute appeals and eventual execution of Troy Davis on September 21, 2011. Davis’ case involved egregious examples of police interference with eyewitness recollection, yet the Supreme Court did not grant a stay to consider the issues. Instead, Perry v. New Hampshire will be the first time the Supreme Court has examined the constitutionality of eyewitness testimony in 34 years.

In Manson v. Braithwaite, the prior case on eyewitness identifications, the Court focused on the concept of reliability, which it defined as a multi-factor balancing test. The factors the Court enumerated seem sensible. They properly include: the opportunity of the witness to see the offender when the crime was committed; the witness’ attentiveness; the accuracy of any prior description; the level of the witnesses’ certainty; and the time between the crime and the identification. These factors are applied to the individual effects of each case and are then weighed against the “corrupting effect” of the identification to determine whether admitting the statement would satisfy Due Process. However, the factors are insufficient as identifications are easily tainted by suggestion, particularly from authority figures such as police officers, regardless of any conscious intention. The Manson factors do not explicitly account for identifications tainted by such suggestion.

Troublingly, the Manson test means that eyewitness identifications are almost always admitted, even in the face of overwhelming evidence of their unreliability. In the first 250 cases of DNA exoneration, 190, or 73%, relied on eyewitness testimony – the witnesses in those 190 cases were completely wrong. Even worse, many of those witnesses were confidently certain about their identifications: “There is absolutely no question in my mind,” “I’m 110% sure,” “That is one face I will never forget,” “This is the man, or it is his twin brother,” are all common phrases in eyewitness testimony. This false confidence makes the Court’s inclusion of certainty as a factor in the Manson test particularly troubling. Even more troubling is the fact that 36% of the DNA-exoneration cases involved multiple eyewitnesses, all of whom were wrong.

The failures of the Manson test are particularly troublesome as juries regularly place undue weight upon their accuracy. Juries believe that human memory is a perfect record that can be played back at any time, making mistaken eyewitness identifications particularly devastating, as Justice Brennan noted when dissenting in Watkins v. Souders. However, scientific studies have identified numerous problems with eyewitness testimony, particularly with memory decay and contamination. They have also highlighted cross-racial identifications and identifications in crimes where weapons were present as particularly troublesome.

Other courts have re-evaluated the usefulness and pitfalls of eyewitness testimony. Earlier this year, in State v. Henderson, the New Jersey Supreme Court took notice of new scientific understandings of eyewitness testimony and substantially revised the Manson test. Though it did not overturn the test, it called for pretrial hearings on the evidence’s suggestiveness and required more detailed jury instructions to explain the problems with eyewitness testimony. Its decision followed an extensive report by its special master, evaluating over 200 scientific studies and finding grievous flaws with eyewitness identifications and Manson.

The Supreme Court does not look likely to follow New Jersey’s lead. In Perry, the Court will not fully consider the constitutionality of eyewitness testimony, but a more limited question of whether suggestive identifications influenced by something other than police orchestration can violate Due Process. While there is room for the Court to more completely re-consider the constitutionality of suggestive identifications, it is doubtful that the Court will reach beyond the question presented to update Manson. However, this case remains one to watch as eyewitness identification issues arise in so many criminal appeals, and a broader question could come before the Court in a future case, making the Court’s posture in Perry precedential.