November 2, 2011 / 8:05 PM / 8 years ago

Top court hears eyewitness identification case

WASHINGTON (Reuters) - Supreme Court justices appeared reluctant on Wednesday to change how criminal trials are conducted in a case about the reliability of eyewitness identification testimony.

The justices during arguments in a New Hampshire case cited existing safeguards aimed at preventing such testimony and expressed reservation about adopting a broad rule for criminal trials.

At issue is whether the U.S. Constitution’s due process protections require a judicial inquiry into the reliability of an eyewitness identification even in cases where the police do not improperly suggest the suspect is guilty.

The case involved Barion Perry, who was convicted of theft for breaking into a car in 2008 at an apartment building parking lot in Nashua. He was sentenced to three to 10 years in prison.

Nubia Blandon, who lived in a fourth-floor apartment, told police she saw Perry take things from the car. She described the suspect as a “tall black man,” but gave no other details. She later could not pick him out of a police photo lineup.

Perry’s lawyer, Richard Guerriero, argued that Blandon should have been excluded from testifying at trial because her observations were unreliable, and he proposed a rule that would extend the due process protections to other criminal cases.

But he faced skeptical questions from both liberal and conservative justices.

Liberal Justice Ruth Bader Ginsburg said a defense lawyer could ask a judge to instruct the jury to be careful because eyewitness testimony can be unreliable and could make that point in cross-examining a witness and in closing arguments.

“Why aren’t all those safeguards enough?” she asked.


Liberal Justice Elena Kagan asked whether Guerriero’s proposed rule would apply to other categories of possible unreliable testimony, such as testimony by jailhouse informants.

Moderate conservative Justice Anthony Kennedy said the reliability of witness testimony usually was a factual question decided by the jury. “You’re just usurping the province of the jury, it seems,” he told Guerriero.

Conservative Justice Samuel Alito said Guerriero’s proposed rule would exclude the testimony of a rape victim who did not get a good look at her attacker, but later identified the perpetrator when a photo appeared in the newspaper after an arrest for a rape in another part of the city.

New Hampshire Attorney General Michael Delaney and U.S. Justice Department attorney Nicole Saharsky urged the justices to uphold a ruling by a lower court that allowed the eyewitness testimony in the case.

Delaney said Perry’s conviction resulted from a fair trial, while Saharsky said a judicial inquiry into the reliability of an eyewitness identification was required only when the police unnecessarily suggested a certain suspect was guilty.

A ruling in the case is expected early next year.

The Supreme Court case is Perry v. New Hampshire, No. 10-8974.

Reporting by James Vicini, Editing by Peter Cooney

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