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The Honorable Court at Officer Resource

US Supreme Court Perry v. New Hampshire 10-8974

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by , 05-20-12 at 08:25 PM (655 Views)
Read the decision here.
Discussion here.

When I first heard about this case, I thought the Supreme Court was going to rule on whether or not show-up field identifications were permissible. After I read the decision, it turned out that wasn't quite the issue (but close enough).

Here's the facts: Police in New Hampshire were investigating a call of suspect breaking into cars. While an officer waited with the suspect in the parking lot, another officer met with the reporting party. When asked to describe the suspect, the reporting party instead walked over to her window and pointed the suspect out. He was subsequently arrested and charged with... doesn't really matter. He was convicted, and he appealed. The defendant (Perry) wanted the court to suppress his identification as the suspect because the manner in which the identification was carried out was too suggestive and therefore unreliable.

A couple of things stood out for me about this case. First, this wasn't a typical field identification. There's a somewhat formal process in place for those... a suspect is detained, and then a witness is brought to the suspect after being informed that the person being detained may or may not be the person the police are looking for, and care is taken to make sure that we don't say anything suggestive to the witness or talk them into making an identification that they aren't really sure of. Voila! Field identification. That isn't what happened in this case, though... the police never gave that kind of advisement, and they never asked the witness to look at Perry. They just asked her to describe the suspect and then she pointed him out on her own. The second point that stood out for me was that a month after the arrest the police showed the same witness a photo line-up which included Perry, and she couldn't pick him out. I'm not really sure why they did that, especially so late in the game.

Anyway, Perry wanted the eyewitness identification to be suppressed because it was unreliable. In previous cases, the court has held that eyewitness identifications will be suppressed when the police obtain that identification using procedures that are so unnecessarily suggestive that they create a substantial likelihood of irreparable misidentification. Even when procedures are unnecessarily suggestive, the identification might be allowed in court if there are sufficient indicia of reliability to mitigate the improper procedure. But that's the exact opposite of the instant case. In Perry, there was nothing suggestive about the police procedures. The identification was suggestive because of factors outside of police control, and unreliable because they had an unreliable witness to work with (and because eyewitness identifications are inherently unreliable).

The court held that the reason for suppressing unnecessarily suggestively obtained identifications is to discourage police conduct. More importantly, the court held that simple unreliability is not a reason to suppress evidence; it is the jury's role to weigh the evidence and decide what is reliable and what is not. The proper way for the defense to undermine unreliable evidence isn't to use the exclusionary rule, but to educate the jury on the unreliability of the evidence (which they did, and Perry was convicted anyway). So the field identification in this case was properly admitted into evidence.

So like I said, show up identifications aren't quite the issue in this case, after all. Although this case would still be on point for a show up... here's my take (not necessarily the court's): when we do a show up identification, the process is inherently suggestive. We do what we can to mitigate that (by telling the witness that the person detained may not be the suspect, and by being careful not to ask leading questions or reveal other evidence to the witness), but we're still taking a witness to see some guy who (hopefully) matches the suspect description and is surrounded by cops. That's okay because it's necessary, but also because we're relying on other indicia of reliability to make sure that the identification is solid (indicia like the level of certainty the witness expresses, the degree to which the suspect matches the descriptions that witnesses have already given, the suspect's proximity to the crime scene, and the level of familiarity between the suspect and the witness). We're leaning very heavily on all of that to overcome the necessary suggestiveness of the field ID procedure. This is why it kills me when cops bring every witness they can find for a show up... seems to me like it would be better practice to just bring one or two to establish PC (or not), and then let the other witnesses identify the suspect later through less suggestive means (like a photo array).

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