Perry v. New Hampshire and the Fallibility of Eyewitness Testimony

When I was a county prosecutor, I frequently ran “Wade Hearings,” pre-trial hearings to determine whether the police-arranged identification procedure was so “impermissibly suggestive that it [gave] rise to a very substantial likelihood of irreparable misidentification.”

These defense-challenged identifications include on-scene “show -ups” at the crime scene (“the guy over there in handcuffs we found with your purse — is that the guy who robbed you lady?”), and photo arrays, or line-ups (pictured above). If the Court determined that the identification was too suggestive, the identification was excluded based on a due-process violation.

What all of these identification procedures had in common was that they were police-arranged. Civilian identifications which were not the result of police action were not subject to exclusion, only evaluation by a jury. Tacit is the notion that a jury can evaluate eyewitness testimony on its own; the issue whether the prosecutor got the right guy is a matter of fact for a jury.

That notion is changing as social science challenges the veracity of eyewitness testimony. On November 2, 2011 the United States Supreme Court will hear oral argument inPerry v. New Hampshire, a case seeking judicial review of all potentially suggestive identifications police-arranged or not, informed by the maturing body of science related to the fallibility of human perception and the malleability of memory.

When I wrote about this issue seven years ago, expert challenges to eyewitness testimony had just begun appearing in state appellate courts. Those cases have now reached the high courts and on August 24, 2011, the New Jersey Supreme Court handed down State v. Cecilia X. Chen, a pivotal case with national implications. Chen credited the challenges to eyewitness testimony and created a new set of procedural rules for eyewitness identifications.  These include hearings even when the state did not participate in the identification.

One senses the first rumblings of a seismic shift. It has been thirty-four years since the United States Supreme Court has heard an eyewitness identification case; they are the bread and butter of criminal courts all over the country.