565 U.S. 228 (2012), 10-8974, Perry v. New Hampshire

Docket Nº:10-8974
Citation:565 U.S. 228, 132 S.Ct. 716, 181 L.Ed.2d 694, 80 U.S.L.W. 4073, 23 Fla.L.Weekly Fed. S 60
Opinion Judge:Ginsburg, Justice
Party Name:BARION PERRY, Petitioner v. NEW HAMPSHIRE
Attorney:Richard Guerriero argued the cause for petitioner. Michael A. Delaney argued the cause for respondent. Nicole A. Saharsky argued the cause for the United States, as amicus curiae, by special leave of court.
Judge Panel:Ginsburg, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, Thomas, Breyer, Alito, and Kagan, JJ., joined. Thomas, J., filed a concurring opinion. Sotomayor, J., filed a dissenting opinion, post, p. ___, post, p. ___. Justice Thomas, concurring. Justice Sotomay...
Case Date:January 11, 2012
Court:United States Supreme Court

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565 U.S. 228 (2012)

132 S.Ct. 716, 181 L.Ed.2d 694, 80 U.S.L.W. 4073, 23 Fla.L.Weekly Fed. S 60

BARION PERRY, Petitioner



No. 10-8974

United States Supreme Court

January 11, 2012

Argued November 2, 2011



[181 L.Ed.2d 700] [132 S.Ct. 717] Around 3 a.m. on August 15, 2008, the Nashua, New Hampshire, Police Department received a call reporting that an African-American male was trying to break into cars parked in the lot of the caller's apartment building. When an officer responding to the call asked eyewitness [132 S.Ct. 718] Nubia Blandon to describe the man, Blandon pointed to her kitchen window and said the man she saw breaking into the car was standing in the parking lot, next to a police officer. Petitioner Barion Perry's arrest followed this identification.

Before trial, Perry moved to suppress Blandon's identification on the ground that admitting it at trial would violate due process. The New Hampshire trial court denied the motion. To determine whether due process prohibits the introduction of an out-of-court identification at trial, the Superior Court said, this Court's decisions instruct a two-step inquiry: The trial court must first decide whether the police used an unnecessarily suggestive identification procedure; if they did, the court must next consider whether that procedure so tainted the resulting identification as to render it unreliable and thus inadmissible. Perry's challenge, the court found, failed at step one, for Blandon's identification did not result from an unnecessarily suggestive procedure employed by the police. A jury subsequently convicted Perry of theft by unauthorized taking.

On appeal, Perry argued that the trial court erred in requiring an initial showing that police arranged a suggestive identification procedure. Suggestive circumstances alone, Perry contended, suffice to require court evaluation of the reliability of an eyewitness identification before allowing it to be presented to the jury. The New Hampshire Supreme Court rejected Perry's argument and affirmed his conviction.

Held: The Due Process Clause does not require a preliminary judicial inquiry into the reliability of an eyewitness identification when the identification was not procured under unnecessarily suggestive circumstances arranged by law enforcement. Pp. ___ - ___, 181 L.Ed.2d, at 705-713.

(a) The Constitution protects a defendant against a conviction based on evidence of questionable reliability, not by prohibiting introduction of the evidence, but by affording the defendant means to persuade the jury that the evidence should be discounted as unworthy of credit. Only when evidence " is so extremely unfair that its admission violates fundamental conceptions of justice," Dowling v. United States, 493 U.S. 342, 352, 110 S.Ct. 668, 107 L.Ed.2d 708

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(internal quotation marks omitted), does the Due Process Clause preclude its admission.

Contending that the Due Process Clause is implicated here, Perry relies on a series of decisions involving police-arranged identification procedures. See Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199; Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247; Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402; Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401; and Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140. These cases detail the approach appropriately used to determine whether due process requires suppression of an [181 L.Ed.2d 701] eyewitness identification tainted by police arrangement. First, due process concerns arise only when law enforcement officers use an identification procedure that is both suggestive and unnecessary . Id., at 107, 109; Biggers, 409 U.S., at 198, 93 S.Ct. 375, 34 L.Ed.2d 401 . Even when the police use such a procedure, however, suppression of the resulting identification is not the inevitable consequence. Brathwaite, 432 U.S., at 112-113, 97 S.Ct. 2243, 53 L.Ed.2d 140; Biggers, 409 U.S., at 198-199, 93 S.Ct. 375, 34 L.Ed.2d 401. Instead, due process requires courts to assess, on a case-by-case basis, whether improper police conduct created a " substantial likelihood of misidentification." Id., at 201, 93 S.Ct. 375, 34 L.Ed.2d 401. " [R]eliability [of the eyewitness identification] is the linchpin" [132 S.Ct. 719] of that evaluation. Brathwaite, 432 U.S., at 114, 97 S.Ct. 2243, 53 L.Ed.2d 140. Where the " indicators of [a witness'] ability to make an accurate identification" are " outweighed by the corrupting effect" of law enforcement suggestion, the identification should be suppressed. Id., at 114, 116, 97 S.Ct. 2243, 53 L.Ed.2d 140. Otherwise, the identification, assuming no other barrier to its admission, should be submitted to the jury. Pp. ___ - ___, 181 L.Ed.2d, at 705-708.

(b) Perry argues that it was mere happenstance that all of the cases in the Stovall line involved improper police action. The rationale underlying this Court's decisions, Perry asserts, calls for a rule requiring trial judges to prescreen eyewitness evidence for reliability any time an identification is made under suggestive circumstances. This Court disagrees.

If " reliability is the linchpin" of admissibility under the Due Process Clause, Brathwaite, 432 U.S., at 114, 97 S.Ct. 2243, 53 L.Ed.2d 140, Perry contends, it should not matter whether law enforcement was responsible for creating the suggestive circumstances that marred the identification. This argument removes Brathwaite 's statement from its mooring, attributing to it a meaning that a fair reading of the opinion does not bear. The due process check for reliability, Brathwaite made plain, comes into play only after the defendant establishes improper police conduct.

Perry's contention also ignores a key premise of Brathwaite: A primary aim of excluding identification evidence obtained under unnecessarily suggestive circumstances is to deter law enforcement use of improper procedures in the first place. This deterrence rationale is inapposite in cases, like Perry's, where there is no improper police conduct. Perry also places significant weight on United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, describing it as a decision not anchored to improper police

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conduct. But the risk of police rigging was the very danger that prompted the Court in Wade to extend a defendant's right to counsel to cover postindictment lineups and showups.

Perry's position would also open the door to judicial preview, under the banner of due process, of most, if not all, eyewitness identifications. There is no reason why an identification made by an eyewitness with poor vision or one who harbors a grudge against the defendant, for example, should be regarded as inherently more reliable than Blandon's identification here. Even if this Court could, as Perry contends, distinguish " suggestive circumstances" from other factors bearing on the reliability of [181 L.Ed.2d 702] eyewitness evidence, Perry's limitation would still involve trial courts, routinely, in preliminary examinations, for most eyewitness identifications involve some element of suggestion. Pp. ___ - ___, 181 L.Ed.2d, at 708-710.

(c) In urging a broadly applicable rule, Perry maintains that eyewitness identifications are uniquely unreliable. The fallibility of eyewitness evidence does not, without the taint of improper state conduct, warrant a due process rule requiring a trial court to screen the evidence for reliability before allowing the jury to assess its creditworthiness. The Court's unwillingness to adopt such a rule rests, in large part, on its recognition that the jury, not the judge, traditionally determines the reliability of evidence. It also takes account of other safeguards built into the adversary system that caution juries against placing undue weight on eyewitness testimony of questionable reliability. These protections include the defendant's Sixth Amendment rights to counsel and to confront and cross-examine the eyewitness, eyewitness-specific instructions warning juries to take care in appraising identification evidence, and State and Federal [132 S.Ct. 720] Rules of Evidence permitting trial judges to exclude relevant evidence if its probative value is substantially outweighed by its prejudicial impact or potential for misleading the jury. Many of these safeguards were availed of by Perry's defense. Given the safeguards generally applicable in criminal trials, the introduction of Blandon's eyewitness testimony, without a preliminary judicial assessment of its reliability, did not render Perry's trial fundamentally unfair. Pp. ___ - ___, 181 L.Ed.2d, at 710-713.


Richard Guerriero argued the cause for petitioner.


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