Bloomberg News

U.S. High Court Rejects Limits on Witness-ID Testimony

January 12, 2012

(Adds court’s history in criminal cases in third paragraph.)

Jan. 11 (Bloomberg) -- The U.S. Supreme Court rejected calls for judges to assess the reliability of eyewitnesses before letting them go in front of a jury to identify the culprit in a criminal case.

The justices, voting 8-1, ruled against a New Hampshire man who was identified by a witness and was subsequently convicted for breaking into a car. The accused man, Barion Perry, contended that the identification wasn’t reliable because he was being questioned by a police officer in a parking lot when the witness saw him from her apartment window.

The ruling reinforces the power of prosecutors while rebuffing defense contentions that eyewitness testimony is highly persuasive and frequently wrong. The decision continues a trend at the court, which under Chief Justice John Roberts has generally limited the rights of criminal defendants.

In the latest case, the justices said they wouldn’t extend previous rulings that protect suspects against witness identifications that are influenced by police suggestions. Writing for the court, Justice Ruth Bader Ginsburg said that rule applies only in cases involving law-enforcement misconduct.

“The jury, not the judge, traditionally determines the reliability of evidence,” Ginsburg wrote. “We also take account of other safeguards built into our adversary system that caution juries against placing undue weight on eyewitness testimony of questionable reliability.”

Car-Stereo Equipment

Justice Sonia Sotomayor, the lone dissenter, pointed to studies showing eyewitnesses’ misidentification of suspects to be the biggest cause of wrongful convictions. She said researchers found that misidentification was involved in a “staggering” 76 percent of the first 250 convictions to have been overturned due to DNA evidence.

“Eyewitness identifications’ unique confluence of features -- their unreliability, susceptibility to suggestion, powerful impact on the jury and resistance to the ordinary tests of the adversarial process -- can undermine the fairness of a trial,” wrote Sotomayor, a former prosecutor.

Police arrived at the Nashua, New Hampshire, apartment building in 2008 after receiving a call about a man breaking into cars. Officer Nicole Clay discovered Perry in the parking lot with two car-stereo amplifiers in his hands and a metal bat on the ground near him. Perry said he had found the amplifiers on the ground.

Pointing at Perry

Clay then asked Perry to stay with a second officer while she went into the apartment building with the car’s owner. They went to the fourth floor, where resident Nubia Blandon told Clay that she had seen a tall black man roaming the parking lot and removing something from a car.

When Clay asked for a more specific description, Blandon pointed out her kitchen window at Perry, who was still standing next to the second officer.

Blandon later testified at the trial. The jury found Perry guilty of theft and not guilty of criminal mischief.

Ginsburg said Perry’s trial attorney argued to the jury that Blandon’s identification wasn’t reliable. In addition, the trial judge read jurors a list of factors that they should consider in assessing the testimony.

“We hold that the introduction of Blandon’s eyewitness testimony, without a preliminary judicial assessment of its reliability, did not render Perry’s trial fundamentally unfair,” Ginsburg wrote.

The case is Perry v. New Hampshire, 10-8974.

--Editors: Justin Blum, Bob Drummond

To contact the reporter on this story: Greg Stohr in Washington at

To contact the editor responsible for this story: Steven Komarow at

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