Supreme Court Watch: Perry v. New Hampshire
Today, litigants will argue a case in front of the United States Supreme Court that may forever change the way in which eyewitness testimony is weighed in criminal proceedings.
The case, Perry v. New Hampshire, is a narrow case on its face. What constitutes a suggestive eyewitness identification that would violate a defendant’s 14th Amendment right to due process? Is seeing a suspect in handcuffs, even if the observation is inadvertent, unnecessarily prejudicial? Or do police have to be actively engaged in making a suspect look guilty to taint the eyewitness identification?
If those issues alone were important, the case would not have attracted the attention that it has. If those issues alone were under consideration, the Supreme Court would never have granted certiorari. However, the buzz is that the Supreme Court will revisit standards for eyewitness testimony that have been in place for 34 years. Much has changed in the intervening time, and there is excitement in some circles that eyewitness testimony may be denigrated to the point of uselessness by the Roberts Court.
The standard for eyewitness testimony has been Manson v. Brathwaite, a case decided by the court in 1977. In a 7–2 decision, the Court held that eyewitness testimony was to be judged reliable using a multi-pronged test, taking into account:
- the opportunity of the witness to view the perpetrator at the time of the crime.
- the witness’ degree of attention.
- the accuracy of the witness’ prior description of the perpetrator.
- the level of certainty demonstrated by the witness at the confrontation.
- the length of time between the crime and the confrontation.
As we’ll see below, all of these prongs, but especially the last two, have been completely discredited by psychological research and actual experience, such as comparison of eyewitness identification to physical evidence.
In the early morning of August 15, 2008, in an apartment complex parking lot in Nashua, New Hampshire, someone broke into the trunk of Alex Clavijo’s Honda Civic and stole a stereo system. Clavijo’s neighbors had called the police because of suspicious activity in the parking lot. The police officer, Nicole Clay, arrived to find Barion Perry holding stereo amplifiers, which he claimed he had found on the ground in the parking lot and was moving out of the way. Police put Perry in handcuffs while they questioned him. Meanwhile, one of the neighbors, Nubia Blandon, saw Perry from her window and identified him as the man she had seen in the parking lot that morning.
Even though Blandon made the identification on her own, and the police did not try to make Perry look guilty for the inadvertent lineup, Perry’s attorneys have argued that the eyewitness identification was poisoned by the fact that Blandon saw him in handcuffs and should not be admissible. Blandon could not identify him in a photo lineup, but her husband could. In court, she could not identify him.
The New Hampshire State Supreme Court upheld Perry’s conviction and three-to-10 year sentence, stating that because the police did not deliberately taint the eyewitness identification, it did not violate the Constitution’s due process clause. (It’s that pesky 14th Amendment, again. Maybe we should just repeal it. This part of the 14th, however, dates back to the Magna Carta; of course, that’s English law, not American law.) In this, they disagreed with the First United States Circuit Court, but they further claimed parallel jurisdiction for due process cases. Hence, Perry’s attorneys took their case to the United States Supreme Court.
The Supreme Court may decide the case on the narrow issue alone, and may make a ruling about who has due process jurisdiction in such cases, but what really has me and others in a froth is that they might just revisit the 1977 Manson rules on the weight given to eyewitness testimony.
Eyewitness testimony has caused no end of problems for American jurisprudence. Take, for example, the infamous McMartin Preschool trial. We believe we have a solid memory of events, especially events which have a strong emotional component. Psychologists call these “flashbulb memories,” because it’s as if a flashbulb goes off in a darkened room and the picture is frozen in our minds.
For example, I have a clear and vivid memory of what I was doing on November 22, 1963, the day President John F. Kennedy was shot, even though I was just barely five years old at the time.
The problem is, our memories of such events are mistaken.
My memory of the events of that day is inaccurate, and there is no way to access an accurate memory. My memory has been shaped by the retelling of it, starting at the time that it happened. I’ve added bits and pieces to give the story a narrative flow and power, and those events I so vividly remember may or may not have happened. I’ve seen video of news announcers on that day, and used those objective pieces of evidence to enhance my story and strengthen my conviction that I have a perfect memory for the events of that day. Clear as my memory is, what I so clearly remember is — wrong.
To convince yourself that the process of eyewitness testimony is full of problems, try this simple test. We focus on one aspect of the scene, while we may miss other important information that we’re not ready to receive.
A book I’d highly recommend, for those interested, is Associative Illusions of Memory, edited by David Gallo. It details specific psychological tests that can be used to demonstrate the fallibility of memory: it’s easy to create vivid, complete memories of events which never occurred.
This sort of research was the basis for the American Psychological Association (APA)‘s amicus brief in the Perry v. New Hampshire case. (An amicus curiae brief, meaning “friend of the court”, is filed by someone other than the parties to the case.) The APA files amicus briefs several times a year, for Circuit and Supreme Court cases, and subjects them to a vigorous peer-review process.
From the brief:
Controlled experiments as well as studies of actual identifications have consistently found that the rate of incorrect identifications is approximately 33 percent.
An interesting note, relevant to Perry, is that cross-race identifications are significantly less reliable. Even the best-case scenario of 33% error seems to fly in the face of “beyond a reasonable doubt”.
The demonstrated worthlessness of eyewitness testimony has not diminished the general public’s fondness for it.
All the evidence points rather strikingly at the conclusion that there is almost nothing more convincing than a live human being who takes the stand, points a finger at the defendant, and says, ‘That’s the one!’ — Elizabeth Loftus
This leads us to the following question: if the general public were convinced by a polygraph test, astrology, a psychic, or haruspicy, would that make those sorts of testimony admissible in court? We don’t allow chicken entrails as evidence in criminal cases, and I would argue that we shouldn’t give any special weight to eyewitness testimony, either.
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