PERRY v. NEW HAMPSHIRE

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

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No. 10–8974

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BARION PERRY, PETITIONER v. NEW HAMPSHIRE

on writ of certiorari to the supreme court of new hampshire

[January 11, 2012]

Justice Ginsburg delivered the opinion of the Court.

In our system of justice, fair trial for persons charged with criminal offenses is secured by the Sixth Amendment, which guarantees to defendants the right to counsel, compulsory process to obtain defense witnesses, and the opportunity to cross-examine witnesses for the prosecution. Those safeguards apart, admission of evidence in state trials is ordinarily governed by state law, and the reliability of relevant testimony typically falls within the province of the jury to determine. This Court has recognized, in addition, a due process check on the admission of eyewitness identification, applicable when the police have arranged suggestive circumstances leading the witness to identify a particular person as the perpetrator of a crime.

An identification infected by improper police influence, our case law holds, is not automatically excluded. Instead, the trial judge must screen the evidence for reliability pretrial. If there is “a very substantial likelihood of irreparable misidentification,” Simmons v. United States, 390 U. S. 377, 384 (1968) , the judge must disallow presentation of the evidence at trial. But if the indicia of reliability are strong enough to outweigh the corrupting effect of the police-arranged suggestive circumstances, the identification evidence ordinarily will be admitted, and the jury will ultimately determine its worth.

We have not extended pretrial screening for reliability to cases in which the suggestive circumstances were not arranged by law enforcement officers. Petitioner requests that we do so because of the grave risk that mistaken identification will yield a miscarriage of justice. 1 Our decisions, however, turn on the presence of state action and aim to deter police from rigging identification procedures, for example, at a lineup, showup, or photograph array. When no improper law enforcement activity is involved, we hold, it suffices to test reliability through the rights and opportunities generally designed for that purpose, notably, the presence of counsel at postindictment lineups, vigorous cross-examination, protective rules of evidence, and jury instructions on both the fallibility of eyewitness identification and the requirement that guilt be proved beyond a reasonable doubt.

I A

Around 3 a.m. on August 15, 2008, Joffre Ullon called the Nashua, New Hampshire, Police Department and reported that an African-American male was trying to break into cars parked in the lot of Ullon’s apartment building. Officer Nicole Clay responded to the call. Upon arriving at the parking lot, Clay heard what “sounded like a metal bat hitting the ground.” App. 37a–38a. She then saw petitioner Barion Perry standing between two cars. Perry walked toward Clay, holding two car-stereo amplifiers in his hands. A metal bat lay on the ground behind him. Clay asked Perry where the amplifiers came from. “[I] found them on the ground,” Perry responded. Id., at 39a.

Meanwhile, Ullon’s wife, Nubia Blandon, woke her neighbor, Alex Clavijo, and told him she had just seen someone break into his car. Clavijo immediately went downstairs to the parking lot to inspect the car. He first observed that one of the rear windows had been shattered. On further inspection, he discovered that the speakers and amplifiers from his car stereo were missing, as were his bat and wrench. Clavijo then approached Clay and told her about Blandon’s alert and his own subsequent observations.

By this time, another officer had arrived at the scene. Clay asked Perry to stay in the parking lot with that officer, while she and Clavijo went to talk to Blandon. Clay and Clavijo then entered the apartment building and took the stairs to the fourth floor, where Blandon’s and Clavijo’s apartments were located. They met Blandon in the hallway just outside the open door to her apartment.

Asked to describe what she had seen, Blandon stated that, around 2:30 a.m., she saw from her kitchen window a tall, African-American man roaming the parking lot and looking into cars. Eventually, the man circled Clavijo’s car, opened the trunk, and removed a large box. 2

Clay asked Blandon for a more specific description of the man. Blandon pointed to her kitchen window and said the person she saw breaking into Clavijo’s car was standing in the parking lot, next to the police officer. Perry’s arrest followed this identification.

About a month later, the police showed Blandon a photographic array that included a picture of Perry and asked her to point out the man who had broken into Clavijo’s car. Blandon was unable to identify Perry.

B

Perry was charged in New Hampshire state court with one count of theft by unauthorized taking and one count of criminal mischief. 3 Before trial, he moved to suppress Blandon’s identification on the ground that admitting it at trial would violate due process. Blandon witnessed what amounted to a one-person showup in the parking lot, Perry asserted, which all but guaranteed that she would identify him as the culprit. Id., at 15a–16a.

The New Hampshire Superior Court denied the motion. Id., at 82a–88a. 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. First, the trial court must decide whether the police used an unnecessarily suggestive identification procedure. Id., at 85a. If they did, the court must next consider whether the improper identification procedure so tainted the resulting identification as to render it unreliable and therefore inadmissible. Ibid. (citing Neil v. Biggers, 409 U. S. 188 (1972) , and Manson v. Brathwaite, 432 U. S. 98 (1977) ).

Perry’s challenge, the Superior Court concluded, failed at step one: Blandon’s identification of Perry on the night of the crime did not result from an unnecessarily suggestive procedure “manufacture[d] . . . by the police.” App. 86a–87a. Blandon pointed to Perry “spontaneously,” the court noted, “without any inducement from the police.” Id., at 85a–86a. Clay did not ask Blandon whether the man standing in the parking lot was the man Blandon had seen breaking into Clavijo’s car. Ibid. Nor did Clay ask Blandon to move to the window from which she had observed the break-in. Id., at 86a.

The Superior Court recognized that there were reasons to question the accuracy of Blandon’s identification: the parking lot was dark in some locations; Perry was standing next to a police officer; Perry was the only African-American man in the vicinity; and Blandon was unable, later, to pick Perry out of a photographic array. Id., at 86a–87a. But “[b]ecause the police procedures were not unnecessarily suggestive,” the court ruled that the reliability of Blandon’s testimony was for the jury to consider. Id., at 87a.

At the ensuing trial, Blandon and Clay testified to Blandon’s out-of-court identification. The jury found Perry guilty of theft and not guilty of criminal mischief.

On appeal, Perry repeated his challenge to the admissibility of Blandon’s out-of-court identification. The trial court erred, Perry contended, in requiring an initial showing that the police arranged the suggestive identification procedure. Suggestive circumstances alone, Perry argued, suffice to trigger the court’s duty to evaluate the reliability of the resulting identification before allowing presentation of the evidence to the jury.

The New Hampshire Supreme Court rejected Perry’s argument and affirmed his conviction. Id., at 9a–11a. Only where the police employ suggestive identification techniques, that court held, does the Due Process Clause require a trial court to assess the reliability of identification evidence before permitting a jury to consider it. Id., at 10a–11a.

We granted certiorari to resolve a division of opinion on the question whether the Due Process Clause requires a trial judge to conduct a preliminary assessment of the reliability of an eyewitness identification made under suggestive circumstances not arranged by the police. 563 U. S. ___ (2011). 4

II A

The Constitution, our decisions indicate, 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. Constitutional safeguards available to defendants to counter the State’s evidence include the Sixth Amendment rights to counsel, Gideon v. Wainwright, 372 U. S. 335 –345 (1963); compulsory process, Taylor v. Illinois, 484 U. S. 400 –409 (1988); and confrontation plus cross-examination of witnesses, Delaware v. Fensterer, 474 U. S. 15 –20 (1985) (per curiam). Apart from these guarantees, we have recognized, state and federal statutes and rules ordinarily govern the admissibility of evidence, and juries are assigned the task of determining the reliability of the evidence presented at trial. See Kansas v. Ventris, 556 U. S. 586 , n. (2009) (“Our legal system . . . is built on the premise that it is the province of the jury to weigh the credibility of competing witnesses.”). Only when evidence “is so extremely unfair that its admission violates fundamental conceptions of justice,” Dowling v. United States, 493 U. S. 342, 352 (1990) (internal quotation marks omitted), have we imposed a constraint tied to the Due Process Clause. See, e.g., Napue v. Illinois, 360 U. S. 264, 269 (1959) (Due process prohibits the State’s “knowin[g] use [of] false evidence,” because such use violates “any concept of ordered liberty.”).

Contending that the Due Process Clause is implicated here, Perry relies on a series of decisions involving police-arranged identification procedures. In Stovall v. Denno, 388 U. S. 293 (1967) , first of those decisions, a witness identified the defendant as her assailant after police officers brought the defendant to the witness’ hospital room. Id., at 295. At the time the witness made the identification, the defendant—the only African-American in the room—was handcuffed and surrounded by police officers. Ibid. Although the police-arranged showup was undeniably suggestive, the Court held that no due process violation occurred. Id., at 302. Crucial to the Court’s decision was the procedure’s necessity: The witness was the only person who could identify or exonerate the defendant; the witness could not leave her hospital room; and it was uncertain whether she would live to identify the defendant in more neutral circumstances. Ibid.

A year later, in Simmons v. United States, 390 U. S. 377 (1968) , the Court addressed a due process challenge to police use of a photographic array. When a witness identifies the defendant in a police-organized photo lineup, the Court ruled, the identification should be suppressed only where “the photographic identification procedure was so [unnecessarily] suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Id., at 384–385. Satisfied that the photo array used by Federal Bureau of Investigation agents in Simmons was both necessary and unlikely to have led to a mistaken identification, the Court rejected the defendant’s due process challenge to admission of the identification. Id., at 385–386. In contrast, the Court held in Foster v. California, 394 U. S. 440 (1969) , that due process required the exclusion of an eyewitness identification obtained through police-arranged procedures that “made it all but inevitable that [the witness] would identify [the defendant].” Id., at 443.

Synthesizing previous decisions, we set forth in Neil v. Biggers, 409 U. S. 188 (1972) , and reiterated in Manson v. Brathwaite, 432 U. S. 98 (1977) , the approach appropriately used to determine whether the Due Process Clause requires suppression of an eyewitness identification tainted by police arrangement. The Court emphasized, first, that 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. Even when the police use such a procedure, the Court next said, suppression of the resulting identification is not the inevitable consequence. Brathwaite, 432 U. S., at 112–113; Biggers, 409 U. S., at 198–199.

A rule requiring automatic exclusion, the Court reasoned, would “g[o] too far,” for it would “kee[p] evidence from the jury that is reliable and relevant,” and “may result, on occasion, in the guilty going free.” Brathwaite, 432 U. S., at 112; see id., at 113 (when an “identification is reliable despite an unnecessarily suggestive [police] identification procedure,” automatic exclusion “is a Draconian sanction,” one “that may frustrate rather than promote justice”).

Instead of mandating a per se exclusionary rule, the Court held that the Due Process Clause requires courts to assess, on a case-by-case basis, whether improper police conduct created a “substantial likelihood of misidentification.” Biggers, 409 U. S., at 201; see Brathwaite, 432 U. S., at 116. “[R]eliability [of the eyewitness identification] is the linchpin” of that evaluation, the Court stated in Brathwaite. Id., at 114. 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. Otherwise, the evidence (if admissible in all other respects) should be submitted to the jury. 5

Applying this “totality of the circumstances” approach, id., at 110, the Court held in Biggers that law enforcement’s use of an unnecessarily suggestive showup did not require suppression of the victim’s identification of her assailant. 409 U. S., at 199–200. Notwithstanding the improper procedure, the victim’s identification was reliable: She saw her assailant for a considerable period of time under adequate light, provided police with a detailed description of her attacker long before the showup, and had “no doubt” that the defendant was the person she had seen. Id., at 200 (internal quotation marks omitted). Similarly, the Court concluded in Brathwaite that police use of an unnecessarily suggestive photo array did not require exclusion of the resulting identification. 432 U. S., at 114–117. The witness, an undercover police officer, viewed the defendant in good light for several minutes, provided a thorough description of the suspect, and was certain of his identification. Id., at 115. Hence, the “indicators of [the witness’] ability to make an accurate identification [were] hardly outweighed by the corrupting effect of the challenged identification.” Id., at 116.

B

Perry concedes that, in contrast to every case in the Stovall line, law enforcement officials did not arrange the suggestive circumstances surrounding Blandon’s identification. See Brief for Petitioner 34; Tr. of Oral Arg. 5 (counsel for Perry) (“[W]e do not allege any manipulation or intentional orchestration by the police.”). He contends, however, that it was mere happenstance that each of the Stovall cases involved improper police action. The rationale underlying our decisions, Perry asserts, supports a rule requiring trial judges to prescreen eyewitness evidence for reliability any time an identification is made under suggestive circumstances. We disagree.

Perry’s argument depends, in large part, on the Court’s statement in Brathwaite that “reliability is the linchpin in determining the admissibility of identification testimony.” 432 U. S., at 114. If reliability is the linchpin of admissibility under the Due Process Clause, Perry maintains, it should make no difference whether law enforcement was responsible for creating the suggestive circumstances that marred the identification.

Perry has removed our statement in Brathwaite from its mooring, and thereby attributes to the statement a meaning a fair reading of our opinion does not bear. As just explained, supra, at 8–9, the Brathwaite Court’s reference to reliability appears in a portion of the opinion concerning the appropriate remedy when the police use an unnecessarily suggestive identification procedure. The Court adopted a judicial screen for reliability as a course preferable to a per se rule requiring exclusion of identification evidence whenever law enforcement officers employ an improper procedure. The due process check for reliability, Brathwaite made plain, comes into play only after the defendant establishes improper police conduct. The very purpose of the check, the Court noted, was to avoid depriving the jury of identification evidence that is reliable, notwithstanding improper police conduct. 432 U. S., at 112–113. 6

Perry’s contention that improper police action was not essential to the reliability check Brathwaite required is echoed by the dissent. Post, at 3–4. Both ignore a key premise of the Brathwaite decision: A primary aim of excluding identification evidence obtained under unnecessarily suggestive circumstances, the Court said, is to deter law enforcement use of improper lineups, showups, and photo arrays in the first place. See 432 U. S., at 112. Alerted to the prospect that identification evidence improperly obtained may be excluded, the Court reasoned, police officers will “guard against unnecessarily suggestive procedures.” Ibid. This deterrence rationale is inapposite in cases, like Perry’s, in which the police engaged in no improper conduct.

Coleman v. Alabama, 399 U. S. 1 (1970) , another decision in the Stovall line, similarly shows that the Court has linked the due process check, not to suspicion of eyewitness testimony generally, but only to improper police arrangement of the circumstances surrounding an identification. The defendants in Coleman contended that a witness’ in-court identifications violated due process, because a pretrial stationhouse lineup was “so unduly prejudicial and conducive to irreparable misidentification as fatally to taint [the later identifications].” 399 U. S., at 3 (plurality opinion). The Court rejected this argument. Id., at 5–6 (plurality opinion), 13–14 (Black, J., concurring), 22, n. 2 (Burger, C. J., dissenting), 28, n. 2 (Stewart, J., dissenting). No due process violation occurred, the plurality explained, because nothing “the police said or did prompted [the witness’] virtually spontaneous identification of [the defendants].” Id., at 6. True, Coleman was the only person in the lineup wearing a hat, the plurality noted, but “nothing in the record show[ed] that he was required to do so.” Ibid. See also Colorado v. Connelly, 479 U. S. 157, 163, 167 (1986) (Where the “crucial element of police overreaching” is missing, the admissibility of an allegedly unreliable confession is “a matter to be governed by the evidentiary laws of the forum, . . . and not by the Due Process Clause.”).

Perry and the dissent place significant weight on United States v. Wade, 388 U. S. 218 (1967) , describing it as a decision not anchored to improper police conduct. See Brief for Petitioner 12, 15, 21–22, 28; post, at 2–4, 8–10. In fact, the risk of police rigging was the very danger to which the Court responded in Wade when it recognized a defendant’s right to counsel at postindictment, police-organized identification procedures. 388 U. S., at 233, 235–236. “[T]he confrontation compelled by the State between the accused and the victim or witnesses,” the Court began, “is peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial.” Id., at 228 (emphasis added). “A major factor contributing to the high incidence of miscarriage of justice from mistaken identification,” the Court continued, “has been the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification.” Ibid. (emphasis added). To illustrate the improper suggestion it was concerned about, the Court pointed to police-designed lineups where “all in the lineup but the suspect were known to the identifying witness, . . . the other participants in [the] lineup were grossly dissimilar in appearance to the suspect, . . . only the suspect was required to wear distinctive clothing which the culprit allegedly wore, . . . the witness is told by the police that they have caught the culprit after which the defendant is brought before the witness alone or is viewed in jail, . . . the suspect is pointed out before or during a lineup, . . . the participants in the lineup are asked to try on an article of clothing which fits only the suspect.” Id., at 233 (footnotes omitted). Beyond genuine debate, then, prevention of unfair police practices prompted the Court to extend a defendant’s right to counsel to cover postindictment lineups and showups. Id., at 235.

Perry’s argument, reiterated by the dissent, thus lacks support in the case law he cites. Moreover, his position would open the door to judicial preview, under the banner of due process, of most, if not all, eyewitness identifications. External suggestion is hardly the only factor that casts doubt on the trustworthiness of an eyewitness’ testimony. As one of Perry’s amici points out, many other factors bear on “the likelihood of misidentification,” post, at 9—for example, the passage of time between exposure to and identification of the defendant, whether the witness was under stress when he first encountered the suspect, how much time the witness had to observe the suspect, how far the witness was from the suspect, whether the suspect carried a weapon, and the race of the suspect and the witness. Brief for American Psychological Association as Amicus Curiae 9–12. There is no reason why an identification made by an eyewitness with poor vision, for example, or one who harbors a grudge against the defendant, should be regarded as inherently more reliable, less of a “threat to the fairness of trial,” post, at 14, than the identification Blandon made in this case. To embrace Perry’s view would thus entail a vast enlargement of the reach of due process as a constraint on the admission of evidence.

Perry maintains that the Court can limit the due process check he proposes to identifications made under “suggestive circumstances.” Tr. of Oral Arg. 11–14. Even if we could rationally distinguish suggestiveness from other factors bearing on the reliability of eyewitness evidence, Perry’s limitation would still involve trial courts, routinely, in preliminary examinations. Most eyewitness identifications involve some element of suggestion. Indeed, all in-court identifications do. Out-of-court identifications volunteered by witnesses are also likely to involve suggestive circumstances. For example, suppose a witness identifies the defendant to police officers after seeing a photograph of the defendant in the press captioned “theft suspect,” or hearing a radio report implicating the defendant in the crime. Or suppose the witness knew that the defendant ran with the wrong crowd and saw him on the day and in the vicinity of the crime. Any of these circumstances might have “suggested” to the witness that the defendant was the person the witness observed committing the crime.

C

In urging a broadly applicable due process check on eyewitness identifications, Perry maintains that eyewitness identifications are a uniquely unreliable form of evidence. See Brief for Petitioner 17–22 (citing studies showing that eyewitness misidentifications are the leading cause of wrongful convictions); Brief for American Psychological Association as Amicus Curiae 14–17 (describing research indicating that as many as one in three eyewitness identifications is inaccurate). See also post, at 14–17. We do not doubt either the importance or the fallibility of eyewitness identifications. Indeed, in recognizing that defendants have a constitutional right to counsel at postindictment police lineups, we observed that “the annals of criminal law are rife with instances of mistaken identification.” Wade, 388 U. S., at 228.

We have concluded in other contexts, however, that the potential unreliability of a type of evidence does not alone render its introduction at the defendant’s trial fundamentally unfair. See, e.g., Ventris, 556 U. S., at 594, n. (declining to “craft a broa[d] exclusionary rule for uncorroborated statements obtained [from jailhouse snitches],” even though “rewarded informant testimony” may be inherently untrustworthy); Dowling, 493 U. S., at 353 (rejecting argument that the introduction of evidence concerning acquitted conduct is fundamentally unfair because such evidence is “inherently unreliable”). We reach a similar conclusion here: 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 such evidence for reliability before allowing the jury to assess its creditworthiness.

Our unwillingness to enlarge the domain of due process as Perry and the dissent urge rests, in large part, on our recognition that the jury, not the judge, traditionally determines the reliability of evidence. See supra, at 7. 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. These protections include the defendant’s Sixth Amendment right to confront the eyewitness. See Maryland v. Craig, 497 U. S. 836, 845 (1990) (“The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant.”). Another is the defendant’s right to the effective assistance of an attorney, who can expose the flaws in the eyewitness’ testimony during cross-examination and focus the jury’s attention on the fallibility of such testimony during opening and closing arguments. Eyewitness-specific jury instructions, which many federal and state courts have adopted, 7 likewise warn the jury to take care in appraising identification evidence. See, e.g., United States v. Telfaire, 469 F. 2d 552, 558–559 (CADC 1972) (per curiam) (D. C. Circuit Model Jury Instructions) (“If the identification by the witness may have been influenced by the circumstances under which the defendant was presented to him for identification, you should scrutinize the identification with great care.”). See also Ventris, 556 U. S., at 594, n. (citing jury instructions that informed jurors about the unreliability of uncorroborated jailhouse-informant testimony as a reason to resist a ban on such testimony); Dowling, 493 U. S., at 352–353. The constitutional requirement that the government prove the defendant’s guilt beyond a reasonable doubt also impedes convictions based on dubious identification evidence.

State and federal rules of evidence, moreover, permit trial judges to exclude relevant evidence if its probative value is substantially outweighed by its prejudicial impact or potential for misleading the jury. See, e.g., Fed. Rule Evid. 403; N. H. Rule Evid. 403 (2011). See also Tr. of Oral Arg. 19–22 (inquiring whether the standard Perry seeks differs materially from the one set out in Rule 403). In appropriate cases, some States also permit defendants to present expert testimony on the hazards of eyewitness identification evidence. See, e.g., State v. Clopten, 2009 UT 84, A33, 223 P. 3d 1103, 1113 (“We expect . . . that in cases involving eyewitness identification of strangers or near-strangers, trial courts will routinely admit expert testimony [on the dangers of such evidence].”).

Many of the safeguards just noted were at work at Perry’s trial. During her opening statement, Perry’s court-appointed attorney cautioned the jury about the vulnerability of Blandon’s identification. App. 115a (Blandon, “the eyewitness that the State needs you to believe[,] can’t pick [Perry] out of a photo array. How carefully did she really see what was going on? . . . How well could she really see him?”). While cross-examining Blandon and Officer Clay, Perry’s attorney constantly brought up the weaknesses of Blandon’s identification. She highlighted: (1) the significant distance between Blandon’s window and the parking lot, id., at 226a; (2) the lateness of the hour, id., at 225a; (3) the van that partly obstructed Blandon’s view, id., at 226a; (4) Blandon’s concession that she was “so scared [she] really didn’t pay attention” to what Perry was wearing, id., at 233a; (5) Blandon’s inability to describe Perry’s facial features or other identifying marks, id., at 205a, 233a–235a; (6) Blandon’s failure to pick Perry out of a photo array, id., at 235a; and (7) Perry’s position next to a uniformed, gun-bearing police officer at the moment Blandon made her identification, id., at 202a–205a. Perry’s counsel reminded the jury of these frailties during her summation. Id., at 374a–375a (Blandon “wasn’t able to tell you much about who she saw . . . . She couldn’t pick [Perry] out of a lineup, out of a photo array . . . . [Blandon said] [t]hat guy that was with the police officer, that’s who was circling. Again, think about the context with the guns, the uniforms. Powerful, powerful context clues.”).

After closing arguments, the trial court read the jury a lengthy instruction on identification testimony and the factors the jury should consider when evaluating it. Id., at 399a–401a. The court also instructed the jury that the defendant’s guilt must be proved beyond a reasonable doubt, id., at 390a, 392a, 395a–396a, and specifically cautioned that “one of the things the State must prove [beyond a reasonable doubt] is the identification of the defendant as the person who committed the offense,” id., at 398a–399a.

Given the safeguards generally applicable in criminal trials, protections availed of by the defense in Perry’s case, 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.

*  *  *

For the foregoing reasons, we agree with the New Hampshire courts’ appraisal of our decisions. See supra, at 4–5. Finding no convincing reason to alter our precedent, we hold that 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. Accordingly, the judgment of the New Hampshire Supreme Court is

Affirmed.

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1  The dissent, too, appears to urge that all suggestive circumstances raise due process concerns warranting a pretrial ruling. See post, at 6, 9, 14–17. Neither Perry nor the dissent, however, points to a single case in which we have required pretrial screening absent a police-arranged identification procedure. Understandably so, for there are no such cases. Instead, the dissent surveys our decisions, heedless of the police arrangement that underlies every one of them, and inventing a “longstanding rule,” post, at 6, that never existed. Nor are we, as the dissent suggests, imposing a mens rea requirement, post, at 1, 7, or otherwise altering our precedent in any way. As our case law makes clear, what triggers due process concerns is police use of an unnecessarily suggestive identification procedure, whether or not they intended the arranged procedure to be suggestive.

2  The box, which Clay found on the ground near where she first encountered Perry, contained car-stereo speakers. App. 177a–178a.

3  The theft charge was based on the taking of items from Clavijo’s car, while the criminal mischief count was founded on the shattering of Clavijo’s car window.

4  Compare United States v. Bouthot, 878 F. 2d 1506, 1516 (CA1 1989) (Due process requires federal courts to “scrutinize all suggestive identification procedures, not just those orchestrated by the police.”); Dunnigan v. Keane, 137 F. 3d 117, 128 (CA2 1998) (same); Thigpen v. Cory, 804 F. 2d 893, 895 (CA6 1986) (same), with United States v. Kimberlin, 805 F. 2d 210, 233 (CA7 1986) (Due process check is required only in cases involving improper state action.); United States v. Zeiler, 470 F. 2d 717, 720 (CA3 1972) (same); State v. Addison, 160 N. H. 792, 801, 8 A. 3d 118, 125 (2010) (same); State v. Reid, 91 S. W. 3d 247, 272 (Tenn. 2002) (same); State v. Nordstrom, 200 Ariz. 229, 241, 25 P. 3d 717, 729 (2001) (same); Semple v. State, 271 Ga. 416, 417–418, 519 S. E. 2d 912, 914–915 (1999) (same); Harris v. State, 619 N. E. 2d 577, 581 (Ind. 1993) (same); State v. Pailon, 590 A. 2d 858, 862–863 (R. I. 1991) (same); Commonwealth v. Colon-Cruz, 408 Mass. 533, 541–542, 562 N. E. 2d 797, 805 (1990) (same); State v. Brown, 38 Ohio St. 3d 305, 310–311, 528 N. E. 2d 523, 533 (1988) (same); Wilson v. Commonwealth, 695 S. W. 2d 854, 857 (Ky. 1985) (same).

5  Among “factors to be considered” in evaluating a witness’ “ability to make an accurate identification,” the Court listed: “the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.” Manson v. Brathwaite, 432 U. S. 98, 114 (1977) (citing Neil v. Biggers, 409 U. S. 188 –200 (1972)).

6  The Court’s description of the question presented in Brathwaite assumes that improper state action occurred: “[Does] the Due Process Clause of the Fourteenth Amendment compe[l] the exclusion, in a state criminal trial, apart from any consideration of reliability, of pretrial identification evidence obtained by a police procedure that was both suggestive and unnecessary.” 432 U. S., at 99.

7  See Model Crim. Jury Instr. No. 4.15 (CA3 2009); United States v. Holley, 502 F. 2d 273, 277–278 (CA4 1974); Pattern Crim. Jury Instr. No. 1.29 (CA5 2001); Pattern Crim. Jury Instr. No. 7.11 (CA6 2011); Fed. Crim. Jury Instr. No. 3.08 (CA7 1999); Model Crim. Jury Instr. for the District Courts No. 4.08 (CA8 2011); Model Crim. Jury Instr. No. 4.11 (CA9 2010); Crim. Pattern Jury Instr. No. 1.29 (CA10 2011); Pattern Jury Instr. (Crim. Cases) Spec. Instr. No. 3 (CA11 2010); Rev. Ariz. Jury Instr., Crim., No. 39 (3d ed. 2008); 1 Judicial Council of Cal. Crim. Jury Instr. No. 315 (Summer 2011); Conn. Crim. Jury Instr. 2.6–4 (2007); 2 Ga. Suggested Pattern Jury Instr. (Crim. Cases) No. 1.35.10 (4th ed. 2011); Ill. Pattern Jury Instr., Crim., No. 3.15 (Supp. 2011); Pattern Instr., Kan. 3d, Crim., No. 52.20 (2011); 1 Md. Crim. Jury Instr. & Commentary §§2.56, 2.57(A), 2.57(B) (3d ed. 2009 and Supp. 2010); Mass. Crim. Model Jury Instr. No. 9.160 (2009); 10 Minn. Jury Instr. Guides, Crim., No. 3.19 (Supp. 2006); N. H. Crim. Jury Instr. No. 3.06 (1985); N. Y. Crim. Jury Instr. “Identification—One Witness” and “Identification—Witness Plus” (2d ed. 2011); Okla. Uniform Jury Instr., Crim., No. 9–19 (Supp. 2000); 1 Pa. Suggested Standard Crim. Jury Instr. No. 4.07B (2d ed. 2010); Tenn. Pattern Jury Instr., Crim., No. 42.05 (15th ed. 2011); Utah Model Jury Instr. CR404 (2d ed. 2010); Model Instructions from the Vt. Crim. Jury Instr. Comm. Nos. CR5–601, CR5–605 (2003); W. Va. Crim. Jury Instr. No. 5.05 (6th ed. 2003).

SUPREME COURT OF THE UNITED STATES

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No. 10–8974

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BARION PERRY, PETITIONER v. NEW HAMPSHIRE

on writ of certiorari to the supreme court of new hampshire

[January 11, 2012]

Justice Sotomayor, dissenting.

This Court has long recognized that 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. Our cases thus establish a clear rule: The admission at trial of out-of-court eyewitness identifications derived from imper-missibly suggestive circumstances that pose a very substantial likelihood of misidentification violates due process. The Court today announces that that rule does not even “com[e] into play” unless the suggestive circumstances are improperly “police-arranged.” Ante, at 2, 11.

Our due process concern, however, arises not from the act of suggestion, but rather from the corrosive effects of suggestion on the reliability of the resulting identification. By rendering protection contingent on improper police arrangement of the suggestive circumstances, the Court effectively grafts a mens rea inquiry onto our rule. The Court’s holding enshrines a murky distinction—between suggestive confrontations intentionally orchestrated by the police and, as here, those inadvertently caused by police actions—that will sow confusion. It ignores our precedents’ acute sensitivity to the hazards of intentional and unintentional suggestion alike and unmoors our rule from the very interest it protects, inviting arbitrary results. And it recasts the driving force of our decisions as an interest in police deterrence, rather than reliability. Because I see no warrant for declining to assess the circumstances of this case under our ordinary approach, I respectfully dissent. 1

I

The “driving force” behind United States v. Wade, 388 U. S. 218 (1967) , Gilbert v. California, 388 U. S. 263 (1967) , and Stovall v. Denno, 388 U. S. 293 (1967) , was “the Court’s concern with the problems of eyewitness identification”—specifically, “the concern that the jury not hear eyewitness testimony unless that evidence has aspects of reliability.” Manson v. Brathwaite, 432 U. S. 98 –112 (1977). We have pointed to the “ ‘formidable’ ” number of “miscarriage[s] of justice from mistaken identification” in the annals of criminal law. Wade, 388 U. S., at 228. We have warned of the “vagaries” and “ ‘proverbially untrustworthy’ ” nature of eyewitness identifications. Ibid. And we have singled out a “major factor contributing” to that proverbial unreliability: “the suggestibility inherent in the context of the pretrial identification.” Id., at 228, 235.

Our precedents make no distinction between intentional and unintentional suggestion. To the contrary, they explicitly state that “[s]uggestion can be created intentionally or unintentionally in many subtle ways.” Id., at 229. Rather than equate suggestive conduct with misconduct, we specifically have disavowed the assumption that suggestive influences may only be “the result of police procedures intentionally designed to prejudice an accused.” Id., at 235; see also id., at 236 (noting “grave potential for prejudice, intentional or not, in the pretrial lineup”); id., at 239 (describing lack of lineup regulations addressing “risks of abuse and unintentional suggestion”). “Persons who conduct the identification procedure may suggest, intentionally or unintentionally, that they expect the witness to identify the accused.” Moore v. Illinois, 434 U. S. 220, 224 (1977) . The implication is that even police acting with the best of intentions can inadvertently signal “ ‘that’s the man.’ ” Wade, 388 U. S., at 236; see also Kirby v. Illinois, 406 U. S. 682 –691 (1972) (“[I]t is always necessary to ‘scrutinize any pretrial confrontation . . .’ ”). 2

In Wade itself, we noted that the “potential for improper influence [in pretrial confrontations] is illustrated by the circumstances . . . [i]n the present case.” 388 U. S., at 233–234. We then highlighted not the lineup procedure, but rather a preprocedure encounter: The two witnesses who later identified Wade in the lineup had seen Wade outside while “await[ing] assembly of the lineup.” Id., at 234. Wade had been standing in the hallway, which happened to be “observable to the witnesses through an open door.” Ibid. One witness saw Wade “within sight of an FBI agent”; the other saw him “in the custody of the agent.” Ibid. In underscoring the hazards of these circumstances, we made no mention of whether the encounter had been arranged; indeed, the facts suggest that it was not.

More generally, our precedents focus not on the act of suggestion, but on suggestion’s “corrupting effect” on reliability. Brathwaite, 432 U. S., at 114. Eyewitness evidence derived from suggestive circumstances, we have explained, is uniquely resistant to the ordinary tests of the adversary process. An eyewitness who has made an identification often becomes convinced of its accuracy. “Regardless of how the initial misidentification comes about, the witness thereafter is apt to retain in his memory the image of the photograph rather than of the person actually seen, reducing the trustworthiness of subsequent . . . courtroom identification.” Simmons v. United States, 390 U. S. 377 –384 (1968) (emphasis added); see also Wade, 388 U. S., at 229 (witness is “not likely” to recant). Suggestion bolsters that confidence.

At trial, an eyewitness’ artificially inflated confidence in an identification’s accuracy complicates the jury’s task of assessing witness credibility and reliability. It also impairs the defendant’s ability to attack the eyewitness’ credibility. Stovall, 388 U. S., at 298. That in turn jeopardizes the defendant’s basic right to subject his accuser to meaningful cross-examination. See Wade, 388 U. S., at 235 (“[C]ross-examination . . . cannot be viewed as an absolute assurance of accuracy and reliability . . . where so many variables and pitfalls exist”). The end result of suggestion, whether intentional or unintentional, is to fortify testimony bearing directly on guilt that juries find extremely convincing and are hesitant to discredit. See id., at 224 (“[A]t pretrial proceedings . . . the results might well settle the accused’s fate and reduce the trial itself to a mere formality”); Gilbert, 388 U. S., at 273 (“[T]he witness’ testimony of his lineup identification will enhance the impact of his in-court identification on the jury”).

Consistent with our focus on reliability, we have declined to adopt a per se rule excluding all suggestive identifications. Instead, “reliability is the linchpin” in deciding admissibility. Brathwaite, 432 U. S., at 114. We have explained that a suggestive identification procedure “does not in itself intrude upon a constitutionally protected in-terest.” Id., at 113, n. 13; see also Neil v. Biggers, 409 U. S. 188 –199 (1972) (rejecting the proposition that “unnecessary suggestiveness alone requires the exclusion of evidence”). “Suggestive confrontations are disapproved because they increase the likelihood of misidentification”—and “[i]t is the likelihood of misidentification which violates a defendant’s right to due process.” Id., at 198; see also United States ex rel. Kirby v. Sturges, 510 F. 2d 397, 406 (CA7 1975) (Stevens, J.) (“The due process clause applies only to proceedings which result in a deprivation of life, liberty or property. . . . [I]f a constitutional violation results from a showup, it occurs in the courtroom, not in the police station”). In short, “ ‘what the Stovall due process right protects is an evidentiary interest.’ ” Brathwaite, 432 U. S., at 113, n. 14.

To protect that evidentiary interest, we have applied a two-step inquiry: First, the defendant has the burden of showing that the eyewitness identification was derived through “impermissibly suggestive” means. 3 Simmons, 390 U. S., at 384. Second, if the defendant meets that burden, courts consider whether the identification was reliable under the totality of the circumstances. That step entails considering the witness’ opportunity to view the perpetrator, degree of attention, accuracy of description, level of certainty, and the time between the crime and pretrial confrontation, then weighing such factors against the “corrupting effect of the suggestive identification.” Brathwaite, 432 U. S., at 108, 114. Most identifications will be admissible. The standard of “fairness as required by the Due Process Clause,” id., at 113, however, demands that a subset of the most unreliable identifications—those carrying a “ ‘very substantial likelihood of . . . misidentification’ ”—will be excluded. Biggers, 409 U. S., at 198.

II A

The majority today creates a novel and significant limitation on our longstanding rule: Eyewitness identifications so impermissibly suggestive that they pose a very substantial likelihood of an unreliable identification will be deemed inadmissible at trial only if the suggestive circumstances were “police-arranged.” Ante, at 2. Absent “improper police arrangement,” “improper police conduct,” or “rigging,” the majority holds, our two-step inquiry does not even “com[e] into play.” Ante, at 2, 11. I cannot agree.

The majority does not simply hold that an eyewitness identification must be the product of police action to trigger our ordinary two-step inquiry. Rather, the majority maintains that the suggestive circumstances giving rise to the identification must be “police-arranged,” “police rigg[ed],” “police-designed,” or “police-organized.” Ante, at 2, 12–13. Those terms connote a degree of intentional orchestration or manipulation. See Brief for Respondent 19 (no indication that police “deliberately tried to manipulate any evidence”); Brief for United States as Amicus Curiae 18 (“[N]o one deliberately arranged the circumstances to obtain an identification”). The majority cate-gorically exempts all eyewitness identifications derived from suggestive circumstances that were not police-manipulated—however suggestive, and however unreliable—from our due process check. The majority thus appears to graft a mens rea requirement onto our existing rule. 4

As this case illustrates, police intent is now paramount. As the Court acknowledges, Perry alleges an “accidental showup.” Brief for Petitioner 34 (emphasis added); see ante, at 4. He was the only African-American at the scene of the crime standing next to a police officer. For the majority, the fact that the police did not intend that showup, even if they inadvertently caused it in the course of a police procedure, ends the inquiry. The police were questioning the eyewitness, Blandon, about the perpetrator’s identity, and were intentionally detaining Perry in the parking lot—but had not intended for Blandon to identify the perpetrator from her window. Presumably, in the majority’s view, had the police asked Blandon to move to the window to identify the perpetrator, that could have made all the difference. See Tr. of Oral Arg. 32, 37.

I note, however, that the majority leaves what is required by its arrangement-focused inquiry less than clear. In parts, the opinion suggests that the police must arrange an identification “procedure,” regardless of whether they “inten[d] the arranged procedure to be suggestive.” Ante, at 2, n. 1; see also ante, at 7–8. Elsewhere, it indicates that the police must arrange the “suggestive circum-stances” that lead the witness to identify the accused. See ante, at 1–2, 10–11, 18–19. Still elsewhere it refers to “im-proper” police conduct, ante, at 1–2, 9–12, connoting bad faith. Does police “arrangement” relate to the procedure, the suggestiveness, or both? If it relates to the procedure, do suggestive preprocedure encounters no longer raise the same concerns? If the police need not “inten[d] the arranged procedure to be suggestive,” ante, at 2, n. 1, what makes the police action “improper”? And does that mean that good-faith, unintentional police suggestiveness in a police-arranged lineup can be “impermissibly suggestive”? If no, the majority runs headlong into Wade. If yes, on what basis—if not deterrence—does it distinguish unintentional police suggestiveness in an accidental confrontation?

The arrangement-focused inquiry will sow needless con-fusion. If the police had called Perry and Blandon to the police station for interviews, and Blandon saw Perry being questioned, would that be sufficiently “improper police arrangement”? If Perry had voluntarily come to the police station, would that change the result? Today’s opinion renders the applicability of our ordinary inquiry contingent on a murky line-drawing exercise. Whereas our two-step inquiry focuses on overall reliability—and could account for the spontaneity of the witness’ identification and degree of police manipulation under the total-ity of the circumstances—today’s opinion forecloses that assessment by establishing a new and inflexible step zero.

B

The majority regards its limitation on our two-step rule as compelled by precedent. Its chief rationale, ante, at 7–13, is that none of our prior cases involved situations where the police “did not arrange the suggestive circumstances.” Ante, at 10; see also ante, at 2, n. 1. That is not necessarily true, given the seemingly unintentional encounter highlighted in Wade. But even if it were true, it is unsurprising. The vast majority of eyewitness identifications that the State uses in criminal prosecutions are obtained in lineup, showup, and photograph displays arranged by the police. Our precedents reflect that practical reality.

It is also beside the point. Our due process concerns were not predicated on the source of suggestiveness. Rather, “[i]t is the likelihood of misidentification which violates a defendant’s right to due process,” Biggers, 409 U. S., at 198, and we are concerned with suggestion in-sofar as it has “corrupting effect[s]” on the identification’s reliability. Brathwaite, 432 U. S., at 114. Accordingly, whether the police have created the suggestive circumstances intentionally or inadvertently, the resulting identification raises the same due process concerns. It is no more or less likely to misidentify the perpetrator. It is no more or less powerful to the jury. And the defendant is no more or less equipped to challenge the identification through cross-examination or prejudiced at trial. The arrangement-focused inquiry thus untethers our doctrine from the very “ ‘evidentiary interest’ ” it was designed to protect, inviting arbitrary results. Id., at 113, n. 14.

Indeed, it is the majority’s approach that lies in tension with our precedents. Whereas we previously disclaimed the crabbed view of suggestiveness as “the result of police procedures intentionally designed to prejudice an ac-cused,” Wade, 388 U. S., at 235, the majority’s focus on police rigging and improper conduct will revive it. Whereas our precedents were sensitive to intentional and unintentional suggestiveness alike, see supra, at 2–3, today’s decision narrows our concern to intentionally orchestrated suggestive confrontations. We once described the “pri-mary evil to be avoided” as the likelihood of misidentification. Biggers, 409 U. S., at 198. Today’s decision, however, means that even if that primary evil is at its apex, we need not avoid it at all so long as the suggestive circumstances do not stem from improper police arrangement.

C

The majority gives several additional reasons for why applying our due process rule beyond improperly police-arranged circumstances is unwarranted. In my view, none withstands close inspection.

First, the majority insists that our precedents “aim to deter police from rigging identification procedures,” so our rule should be limited to applications that advance that “primary aim” and “key premise.” Ante, at 2, 11 (citing Brathwaite, 432 U. S., at 112). That mischaracterizes our cases. We discussed deterrence in Brathwaite because Brathwaite challenged our two-step inquiry as lacking deterrence value. Brathwaite argued that deterrence de-manded a per se rule excluding all suggestive identifications. He said that our rule, which probes the reliability of suggestive identifications under the totality of the circumstances, “cannot be expected to have a significant deterrent impact.” Id., at 111.

We rebutted Brathwaite’s criticism in language the majority now wrenches from context: Upon summarizing Brathwaite’s argument, we acknowledged “several interests to be considered.” Ibid. We then compared the two rules under each interest: First, we noted the “driving force” behind Wade and its companion cases—“the concern that the jury not hear eyewitness testimony unless that evidence has aspects of reliability”—and found both approaches “responsive to this concern,” but the per se rule to go “too far” in suppressing reliable evidence. 432 U. S., at 111–112. We noted a “second factor”—deterrence—conceding that the per se rule had “more significant deterrent effect,” but noting that our rule “also has an influence on police behavior.” Id., at 112. Finally, we noted a “third factor”—“the effect on the administration of justice”—describing the per se rule as having serious drawbacks on this front. Ibid. That was no list of “primary aim[s].” Nor was it a ringing endorsement of the primacy of deterrence. We simply underscored, in responding to Brathwaite, that our rule was not without deterrence benefits. To the contrary, we clarified that deterrence was a subsidiary concern to reliability, the “driving force” of our doctrine. It is a stretch to claim that our rule cannot apply wherever “[t]his deterrence rationale is inapposite.” Ante, at 11.

Second, the majority states that Coleman v. Alabama, 399 U. S. 1 (1970) , held that “[n]o due process violation occurred . . . because nothing ‘the police said or did prompted’ ” the identification and shows that our rule is linked “only to improper police arrangement.” Ante, at 11–12. That misreads the decision. In Coleman, the petitioners challenged a witness’ in-court identification of them at trial on grounds that it had been tainted by a suggestive pretrial lineup. We held that no due process violation occurred because the in-court identification ap-peared to be “entirely based upon observations at the time of the assault and not at all induced by the conduct of the lineup,” and thus could not be said to stem from an identification procedure “ ‘so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.’ ” 399 U. S., at 5–6 (plurality opinion). We then dismissed each of the asserted suggestive influences as having had no bearing on the identification at all: The petitioners claimed that the police intimated to the witness that his attackers were in the lineup; we found the record “devoid of evidence that anything the police said or did” induced the identification. Id., at 6. The petitioners claimed that they alone were made to say certain words; we found that the witness identified petitioners before either said anything. One petitioner claimed he was singled out to wear a hat; we found that the witness’ identification “d[id] not appear . . . based on the fact that he remembered that [the attacker] had worn a hat.” Ibid. Thus, far from indicating that improper police conduct is a prerequisite, Coleman merely held that there had been no influence on the witness. In fact, in concluding that the lineup was not “ ‘so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification,’ ” Coleman indicates that the two-step inquiry is not truncated at the threshold by the absence of police misconduct.

Third, the majority emphasizes that we should rely on the jury to determine the reliability of evidence. See ante, at 15–16. But our cases are rooted in the assumption that eyewitness identifications upend the ordinary expectation that it is “the province of the jury to weigh the credibility of competing witnesses.” Kansas v. Ventris, 556 U. S. 586 , n. (2009). As noted, jurors find eyewitness evidence unusually powerful and their ability to assess credibility is hindered by a witness’ false confidence in the accuracy of his or her identification. That disability in no way de-pends on the intent behind the suggestive circumstances.

The majority’s appeals to protecting the jury’s domain, moreover, appeared in dissent after dissent from our de-cisions. See Foster v. California, 394 U. S. 440, 447 (1969) (Black, J., dissenting) (“[T]he jury is the sole tribunal to weigh and determine facts” and “must . . . be allowed to hear eyewitnesses and decide for itself whether it can recognize the truth”); Simmons, 390 U. S., at 395 (Black, J., concurring in part and dissenting in part) (“The weight of the evidence . . . is not a question for the Court but for the jury”). So too does the majority’s assurance that other constitutional protections like the Sixth Amendment rights to compulsory process and confrontation can suffice to expose unreliable identifications. Compare ante, at 6, with Foster, 394 U. S., at 448–449 (Black, J., dissenting) (“The Constitution sets up its own standards of unfairness in criminal trials,” including the Sixth Amendment “right to compulsory process” and “right to confront . . . witnesses”). So too does the majority’s appeal to leave reliability to the rules of evidence. Compare ante, at 17, with Foster, 394 U. S., at 448 (Black, J., dissenting) (“ ‘Rules of evidence are designed in the interests of fair trials’ ”), and Stovall, 388 U. S., at 306 (Black, J., dissenting) (“[T]he result . . . is to put into a constitutional mould a rule of evidence”). Those arguments did not prevail then; they should not prevail here.

Fourth, the majority suggests that applying our rule beyond police-arranged suggestive circumstances would entail a heavy practical burden, requiring courts to engage in “preliminary judicial inquiry” into “most, if not all, eyewitness identifications.” Ante, at 13, 18. But that is inaccurate. The burden of showing “impermissibly suggestive” circumstances is the defendant’s, so the objection falls to the defendant to raise. And as is implicit in the majority’s reassurance that Perry may resort to the rules of evidence in lieu of our due process precedents, trial courts will be entertaining defendants’ objections, pretrial or at trial, to unreliable eyewitness evidence in any event. The relevant question, then, is what the standard of admissibility governing such objections should be. I see no reason to water down the standard for an equally suggestive and unreliable identification simply because the suggestive confrontation was unplanned.

It bears reminding, moreover, that we set a high bar for suppression. The vast majority of eyewitnesses proceed to testify before a jury. To date, Foster is the only case in which we have found a due process violation. 394 U. S., at 443. There has been no flood of claims in the four Federal Circuits that, having seen no basis for an arrangement-based distinction in our precedents, have long indicated that due process scrutiny applies to all suggestive identification procedures. See Dunnigan v. Keane, 137 F. 3d 117, 128 (CA2 1998); United States v. Bouthot, 878 F. 2d 1506, 1516 (CA1 1989); Thigpen v. Cory, 804 F. 2d 893, 895 (CA6 1986); see also Green v. Loggins, 614 F. 2d 219, 223 (CA9 1980). Today’s decision nonetheless precludes even the possibility that an unintended confrontation will meet that bar, mandating summary dismissal of every such claim at the threshold.

Finally, the majority questions how to “rationally distinguish suggestiveness from other factors bearing on the reliability of eyewitness evidence,” such as “poor vision” or a prior “grudge,” ante, at 13–14, and more broadly, how to distinguish eyewitness evidence from other kinds of arguably unreliable evidence. Ante, at 14–15. Our precedents, however, did just that. We emphasized the “ ‘formidable number of instances in the records of English and Amer-ican trials’ ” of “miscarriage[s] of justice from mistaken identification.” Wade, 388 U. S., at 228. We then observed that “ ‘the influence of improper suggestion upon identifying witnesses probably accounts for more miscarriages of justice than any other single factor.’ ” Id., at 229. More-over, the majority points to no other type of evidence that shares the rare confluence of characteristics that makes eyewitness evidence a unique threat to the fairness of trial. Jailhouse informants, cf. ante, at 15, unreliable as they may be, are not similarly resistant to the traditional tools of the adversarial process and, if anything, are met with particular skepticism by juries.

It would be one thing if the passage of time had cast doubt on the empirical premises of our precedents. But just the opposite has happened. A vast body of scientific literature has reinforced every concern our precedents articulated nearly a half-century ago, though it merits barely a parenthetical mention in the majority opinion. Ante, at 14. Over the past three decades, more than two thousand studies related to eyewitness identification have been published. One state supreme court recently appointed a special master to conduct an exhaustive survey of the current state of the scientific evidence and concluded that “[t]he research . . . is not only extensive,” but “it represents the ‘gold standard in terms of the applicability of social science research to law.’ ” State v. Henderson, 208 N. J. 208, 283, 27 A. 3d 872, 916 (2011). “Experimental methods and findings have been tested and retested, subjected to scientific scrutiny through peer-reviewed journals, evaluated through the lens of meta-analyses, and replicated at times in real-world settings.” Ibid.; see also Schmechel, O’Toole, Easterly, & Loftus, Beyond the Ken? Testing Jurors’ Understanding of Eyewitness Reliability Evidence, 46 Jurimetrics 177, 180 (2006) (noting “nearly unanimous consensus among researchers about the [eyewitness reliability] field’s core findings”).

The empirical evidence demonstrates that eyewitness misidentification is “ ‘the single greatest cause of wrongful convictions in this country.’ ” 5 Researchers have found that a staggering 76% of the first 250 convictions overturned due to DNA evidence since 1989 involved eyewitness misidentification. 6 Study after study demonstrates that eyewitness recollections are highly susceptible to distortion by postevent information or social cues; 7 that jurors routinely overestimate the accuracy of eyewitness identifications; 8 that jurors place the greatest weight on eyewitness confidence in assessing identifications 9 even though confidence is a poor gauge of accuracy; 10 and that suggestiveness can stem from sources beyond police-orchestrated procedures. 11 The majority today never-theless adopts an artificially narrow conception of the dangers of suggestive identifications at a time when our concerns should have deepened.

III

There are many reasons why Perry’s particular situation might not violate due process. The trial court found that the circumstances surrounding Blandon’s identification did not rise to an impermissibly suggestive level. It is not at all clear, moreover, that there was a very substantial likelihood of misidentification, given Blandon’s lack of equivocation on the scene, the short time between crime and confrontation, and the “fairly well lit” parking lot. App. 56. The New Hampshire Supreme Court, however, never made findings on either point and, under the majority’s decision today, never will.

*  *  *

The Court’s opinion today renders the defendant’s due process protection contingent on whether the suggestive circumstances giving rise to the eyewitness identification stem from improper police arrangement. That view lies in tension with our precedents’ more holistic conception of the dangers of suggestion and is untethered from the evidentiary interest the due process right protects. In my view, the ordinary two-step inquiry should apply, whether the police created the suggestive circumstances intentionally or inadvertently. Because the New Hampshire Supreme Court truncated its inquiry at the threshold, I would vacate the judgment and remand for a proper analysis. I respectfully dissent.

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1  Because the facts of this case involve police action, I do not reach the question whether due process is triggered in situations involving no police action whatsoever.

2  Wade held that the dangers of pretrial identification procedures necessitated a right to counsel; that same day, Stovall held that a defendant ineligible for the Wade rule was still entitled to challenge the confrontation as a due process violation. Because the two were companion cases advancing interrelated rules to avoid unfairness at trial resulting from suggestive pretrial confrontations, Wade’s exposition of the dangers of suggestiveness informs both contexts. See Manson v. Brathwaite, 432 U. S. 98, 112 (1977) (“Wade and its companion cases reflect the concern that the jury not hear eyewitness testimony unless that evidence has aspects of reliability”).

3  Our precedents refer to “impermissibly,” “unnecessarily,” and “unduly” suggestive circumstances interchangeably. See, e.g., Brathwaite, 432 U. S., at 105, n. 8, 107–108, 110, 112–113 (“impermissibly” and “unnecessarily”); Neil v. Biggers, 409 U. S. 188 –199 (1972) (“impermissibly” and “unnecessarily”); Coleman v. Alabama, 399 U. S. 1 –5 (1970) (“unduly” and “impermissibly”); Simmons v. United States, 390 U. S. 377 –384 (1968) (“unduly” and “impermissibly”). The Circuits have followed suit. E.g., Thigpen v. Cory, 804 F. 2d 893, 895 (CA6 1986) (“unduly”); Green v. Loggins, 614 F. 2d 219, 223 (CA9 1980) (“unnecessarily or impermissibly”). All reinforce our focus not on the act of suggestion, but on whether the suggestiveness rises to such a level that it undermines reliability. Police machinations can heighten the likelihood of misidentification, but they are no prerequisite to finding a confrontation “so impermissibly suggestive as to give rise to a very substantial likelihood of . . . misidentification.” Simmons, 390 U. S., at 384.

4  The majority denies that it has imposed a mens rea requirement, see ante, at 2, n. 1, but by confining our due process concerns to police-arranged identification procedures, that is just what it has done. The majority acknowledges that “whether or not [the police] intended the arranged procedure to be suggestive” is irrelevant under our precedents, ibid., but still places dispositive weight on whether or not the police intended the procedure itself.

5  State v. Henderson, 208 N. J. 208, 231, 27 A. 3d 872, 885 (2011); see also, e.g., Benn v. United States, 978 A. 2d 1257, 1266 (D. C. 2009); State v. Dubose, 285 Wis. 2d 143, 162, 699 N. W. 2d 582, 592 (2005); Dept. of Justice, Office of Justice Programs, E. Connors, T. Lundregan, N. Miller, & T. McEwen, Convicted by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence After Trial 24 (1996); B. Cutler & S. Penrod, Mistaken Identification: The Eyewitness, Psychology, and the Law 8 (1995); Wells, “Good, You Identified the Suspect”: Feedback to Eyewitnesses Distorts their Reports of the Witnessing Experience, 83 J. of Applied Psychology No. 3 360 (1998).

6  B. Garrett, Convicting the Innocent: Where Criminal Prosecutions Go Wrong 9, 48, 279 (2011); see also, e.g., Innocence Project, Facts on Post-Conviction DNA Exonerations (75% of postconviction DNA exoneration cases in the U. S. involved eyewitness misidentification), http://www.innocenceproject.org/Content/Facts_on_PostConviction_DNA_Exonerations.php (as visited Jan. 11, 2012, and available in Clerk of Court’s case file); Dept. of Justice, National Institute of Justice, Eyewitness Evidence: A Guide for Law Enforcement iii (1999) (85% of 28 felony convictions overturned on DNA evidence involved eyewitness misidentification).

7  See, e.g., Gabbert, Memon, Allan, & Wright, Say it to My Face: Examining the Effects of Socially Encountered Misinformation, 9 Legal & Criminological Psychol. 215 (2004); Douglass & Steblay, Memory Distortion in Eyewitnesses: A Meta-Analysis of the Post-Identification Feedback Effect, 20 Applied Cognitive Psychol. 859, 864–865 (2006).

8  See Brigham & Bothwell, The Ability of Prospective Jurors to Estimate the Accuracy of Eyewitness Identifications, 7 Law & Hum. Behav. 19, 22–24, 28 (1983) (nearly 84% of study respondents overestimated accuracy rates of identifications); see also, e.g., Sigler & Couch, Eyewitness Testimony and the Jury Verdict, 4 N. Am. J. Psychol. 143, 146 (2002).

9  See Cutler & Penrod, Mistaken Identification, at 181–209; Lindsay, Wells, & Rumpel, Can People Detect Eyewitness-Identification Accuracy Within and Across Situations? 66 J. Applied Psychol. 79, 83 (1981).

10  See Brewer, Feast, & Rishworth, The Confidence-Accuracy Re-lationship in Eyewitness Identification, 8 J. Experimental Psychol. Applied 44, 44–45 (2002) (“average confidence-accuracy correlations generally estimated between little more than 0 and .29”); see also, e.g., Sporer, Penrod, Read, & Cutler, Choosing, Confidence, and Accuracy: A Meta-Analysis of the Confidence-Accuracy Relation in Eyewitness Identification Studies, 118 Psychol. Bull. 315 (1995).

11  See Brief for Wilton Dedge et al. as Amici Curiae 8, n. 13.

SUPREME COURT OF THE UNITED STATES

_________________

No. 10–8974

_________________

BARION PERRY, PETITIONER v. NEW HAMPSHIRE

on writ of certiorari to the supreme court of new hampshire

[January 11, 2012]

Justice Thomas, concurring.

The Court correctly concludes that its precedents establish a due process right to the pretrial exclusion of an unreliable eyewitness identification only if the identification results from police suggestion. I therefore join its opinion. I write separately because I would not extend Stovall v. Denno, 388 U. S. 293 (1967) , and its progeny even if the reasoning of those opinions applied to this case. The Stovall line of cases is premised on a “substantive due process” right to “fundamental fairness.” See, e.g., id., at 299 (concluding that whether a suggestive identification “resulted in such unfairness that it infringed [the defendant’s] right to due process of law” is “open to all persons to allege and prove”); Manson v. Brathwaite, 432 U. S. 98, 113 (1977) (“The standard, after all, is that of fairness as required by the Due Process Clause of the Fourteenth Amendment”). In my view, those cases are wrongly de-cided because the Fourteenth Amendment’s Due Process Clause is not a “secret repository of substantive guarantees against ‘unfairness.’ ” BMW of North America, Inc. v. Gore, 517 U. S. 559 –599 (1996) (Scalia, J., joined by Thomas, J., dissenting); see also McDonald v. Chicago, 561 U. S. ___, ___ (2010) (Thomas, J., concurring in part and concurring in judgment) (slip op., at 7) (“The notion that a constitutional provision that guarantees only ‘process’ before a person is deprived of life, liberty, or property could define the substance of those rights strains credulity”). Accordingly, I would limit the Court’s suggestive eyewitness identification cases to the precise circumstances that they involved.

Print this transcript Transcript: 

ORAL ARGUMENT OF RICHARD GUERRIERO ON BEHALF OF THE PETITIONER

Chief Justice John G. Roberts: We'll hear argument first today in Case 10-8974, Perry v. New Hampshire.

Mr. Guerriero.

Mr. Guerriero: Mr. Chief Justice, and may it please the Court:

An eyewitness identification made under a suggestive influence presents a unique danger of misidentification and a miscarriage of justice.

It is that danger of misidentification which implicates due process and requires an evaluation of the reliability of the identification.

The constitutional--

Justice Sonia Sotomayor: Counselor, does your position depend on police involvement at all?

Mr. Guerriero: --No, Your Honor.

Justice Sonia Sotomayor: I'm -- if a private investigator shows a picture or -- that has no connection to the police, a company's investigator?

Mr. Guerriero: What I suggest--

Justice Sonia Sotomayor: Or the news media publishes a picture of someone that it thinks--

Mr. Guerriero: --I have a two-part answer to that.

The -- the significance of the suggested influence is how it affects reliability.

Most of the time that influence, the defense will allege, is from some police activity, and rightly so because they are mostly involved and rightly so because police suspicion is the kind of influence that would direct the witness's attention and say that's the man.

But it's not necessarily required, and in fact one of the Federal court of appeal cases, Dunnigan v. Keane, involved exactly that, a private investigator, where a private investigator from a bank showed surveillance photos to the witness and then later the witnesses made an ID.

Justice Antonin Scalia: Mr. Guerriero, if it's not -- if it's not limited to suggestive circumstances created by the police, why is unreliable eyewitness identification any different from unreliable anything else?

So shouldn't we look at every instance of evidence introduced in criminal cases to see if it was reliable or not?

Mr. Guerriero: No, Your Honor.

I suggest that eyewitness identification evidence is unique, and I think that this Court recognized that in Wade and in the subsequent cases, in fact described it at that time as probably the leading cause of miscarriages of justice.

And in fact experience with the DNA exonerations that we've seen recently in the last 10 or 15 years have shown that.

Justice Ruth Bader Ginsburg: So at least for all eyewitness testimony, there would have to be some pretesting for reliability?

Is that -- is that your contention?

Mr. Guerriero: No, Your Honor, and I don't think that's exactly what the Court said in Wade and the subsequent cases.

It's the combination of eyewitness identification testimony plus the suggestive influence which makes -- which brings it to sort of the height of suspicion and creates the greatest risk.

Justice Ruth Bader Ginsburg: And in this case, in which category do you place the eyewitness testimony?

Is it police suggestion, or is it suggestive but not through any manipulation on the police's part?

Mr. Guerriero: In our case, we do not allege any manipulation or intentional orchestration by the police.

But our position is that it appeared to the witness, to Ms. Blandon, that Mr. Perry was in fact a suspect, and she looked down and there was that suspicion.

Now, if we had been able to have our due process claim heard, the judge may or may not have agreed that that was suggestive and created a risk.

But--

Justice Antonin Scalia: Do you think that our cases which exclude or -- or require reversal when there is eyewitness testimony impaired by the police, you think that's really limited to eyewitness testimony?

Suppose the police created suggestiveness in another category of evidence.

Let's say -- let's say voice evidence, that the killer had left a message on the -- on the phone and the police in some manner create suggestiveness that causes a witness to identify that as the voice of the killer.

You really think that we would say, well, this is not eyewitness testimony; eyewitness testimony creates a special risk?

Don't you think that we would say whenever the police render evidence unreliable it -- it should be excluded?

Mr. Guerriero: --I think that may be a separate due process claim.

For example, if the police--

Justice Antonin Scalia: Exactly.

But -- but that -- that impairs your -- your argument, because if we accept your argument for eyewitness we should similarly accept it for everything else.

There is nothing special about eyewitness.

Mr. Guerriero: --I -- I disagree, Your Honor.

I think that what the Court has said is that there is something special about eyewitness identification testimony.

Justice Antonin Scalia: I'm saying we don't mean it.

[Laughter]

Mr. Guerriero: Well--

Justice Antonin Scalia: I'm saying that it's unbelievable that if the -- if the police created testimony, not eyewitness testimony but testimony that was unreliable because of police suggestiveness, I think we would throw that out as well.

Don't you think so?

Mr. Guerriero: --I -- well, I think that in any case, and I think the Court has said this in other circumstances, that in any case a defendant could raise a due process claim and say, either because of the way the prosecution handled the evidence or because of the -- the combination of rulings on evidence, that there was a due process violation that implicated fundamental fairness.

Justice Anthony Kennedy: In this case, suppose that the police talked to this -- to the lady that was in the -- in the apartment and saw the thing out the window and said, we -- we think we've solved this case but you can't look at this man.

We don't want to you look at this man.

Don't tell us.

We're not going to let you look out that window.

It seems to me that the defendant might have a due process argument that the police interfered, that she couldn't say right when he was there, that's not the man.

I don't know what you want the police to do in this case.

It seems to me it would have been, A, risking this argument from the defendant, and B, improper police conduct, not to ask the woman is this the man?

Mr. Guerriero: I disagree, Your Honor.

If the police wanted to ask her to make an identification, they could have done a line-up procedure or a photo line-up procedure fairly promptly that would be distinct from and much more fair than the show-up at the scene.

And there was no emergency or exigency here that would require a show-up.

Justice Antonin Scalia: What about -- what about unreliable eyewitness testimony in favor of the defendant?

Let's assume the same suggestiveness that causes you to exclude it when it's been introduced by the prosecution, but here it's being introduced by the defendant to show that it was somebody else, okay?

Is that going to be excluded?

Mr. Guerriero: It may be excluded under the rules of evidence, but the Due Process Clause doesn't--

Justice Antonin Scalia: Do you think it should be excluded under the rules of evidence?

If you say it's so unreliable -- this is a one-way door?

Mr. Guerriero: --The Due Process Clause--

Justice Antonin Scalia: All of the evidence that -- that causes the defendant to be convicted is excluded, but -- but any -- any evidence -- any evidence on the other side is not?

Mr. Guerriero: --Well, the defendant is obviously not trying to deprive the State of its liberty in the same way that the State is trying to deprive the defendant of his liberty at trial, so the Due Process Clause would not apply in that sense.

That's not to say that there wouldn't be evidentiary grounds for the State to raise that objection.

Justice Antonin Scalia: Well, you see, when -- when it's the State that causes the unreliability, I can see why it is a -- a ground that can be invoked only by the defendant.

But when you come up with a theory that it doesn't matter whether the State was the cause or not, I don't know why it wouldn't work both ways, that the evidence is inherently unreliable and it ought to be excluded whether it helps the defendant or hurts the defendant.

Mr. Guerriero: It -- it--

Justice Antonin Scalia: Once -- once you take the State out of the mix there is no reason to limit it to the -- to the defendant.

Justice Ruth Bader Ginsburg: You -- you answered that due process works only in favor of the defendant.

Mr. Guerriero: --That's right.

Justice Ruth Bader Ginsburg: Not in favor of the State.

Mr. Guerriero: That's right.

Justice Ruth Bader Ginsburg: And that is your only -- your only distinction.

You are saying that this is a one -- one-way--

Mr. Guerriero: That's right, Justice Ginsburg.

Justice Ruth Bader Ginsburg: --street.

Justice Antonin Scalia: Well--

Justice Samuel Alito: I take it from your -- I take it from your answers that simple unreliability is not enough.

If there's testimony--

Mr. Guerriero: That's right.

Justice Samuel Alito: --eyewitness testimony that seems of very dubious unreliability, that cannot be excluded.

Mr. Guerriero: That's right.

I--

Justice Samuel Alito: Something more is needed.

Mr. Guerriero: --That's right, and I might even go further.

Justice Samuel Alito: Something more is needed; suggestiveness is needed.

Mr. Guerriero: That's right.

Justice Samuel Alito: But suggestiveness doesn't require any police involvement?

Is that right?

Mr. Guerriero: That's right.

Justice Samuel Alito: Can you just define what you mean by suggestiveness?

Mr. Guerriero: Well, I think the court has given examples.

If it's effectively a show-up or a show-up.

The example in Foster involved a couple of different kinds of suggestiveness.

One was where the police did a line-up where the defendant was the only common person.

Justice Samuel Alito: Yes, but those are all situations where the police is involved, the police are involved.

Mr. Guerriero: Right.

The nonpolice examples of suggestiveness that rise to the due process level are mostly going to be show-ups.

The example in Dunnigan v. Keane was a private investigator showing, from the bank, that they had an ATM card that was stolen from the person.

Justice Samuel Alito: Well, what if you have cross-racial identification?

Would that qualify on the ground that studies have shown that those may be less reliable.

Mr. Guerriero: That may be a separate grounds to move for a jury instruction or for an expert.

I'm not sure that -- we certainly don't argue here and it wasn't argued below that that's a separate due process ground.

Justice Antonin Scalia: --Why not?

I mean, that's the point.

Why not?

What about an eyewitness identification from 200 yards?

You know, normally you'd leave it to the jury and the jury would say that's very unlikely.

But you want to say it has to be excluded and if it's not you retry the person.

What is magic about suggestiveness as opposed to all of the other matters that could cause eyewitness identification to be wrong?

Mr. Guerriero: Two answers to that, Your Honor.

First, it's not that these things are always excluded, and in fact the Court has set a very high bar.

I mean, the standard is this evidence is excluded only if it's very substantially likely to lead to a misidentification.

So--

Justice Samuel Alito: I understand that, but I need to know what you mean by suggestiveness.

What does that mean?

Can you just give me a definition of it?

Mr. Guerriero: --It is conduct or circumstances that point -- that tell the witness that's the man.

And most commonly it would be showing a single photograph or presenting the person as a suspect or it appearing, as in this case, that the -- the defendant was a suspect.

And that's essentially how the Court has defined it, as conduct that says that's the man.

So there may be some things that the defense argues that are suggestive and the trial court looks at it and says, you know, that's a very slight suggestion.

You say he is the only guy in the line-up with a mustache.

I don't even -- I'm not going any further.

I don't think that's sufficient suggestion.

That doesn't qualify as saying that's the man.

Justice Elena Kagan: But just to repeat Justice Scalia's question, once you're not talking about police suggestiveness, once you're talking about suggestiveness that arises from non-State conduct, why should we be focused on suggestiveness as opposed to any other cause of unreliability?

Mr. Guerriero: Well, because that's what -- my first reason is that that's what the Court focused on in Wade as the main danger.

Justice Elena Kagan: Well, the Court was focusing on police suggestiveness.

That's the context of all our cases.

Now, you might say, well, look, there is a bigger problem and the bigger problem is the unreliability of identifications generally, but that doesn't relate to suggestiveness per se.

Mr. Guerriero: Well, I think our position is in between there.

We are not saying that there is a due process right to have eyewitness evidence excluded generally without some suggestiveness.

What we are saying is that if the suggestion comes from a nonpolice source or if it, as in this case, involved the police but their involvement was unintentional, it's just accidental, that that suggestiveness should still be considered because--

Justice Samuel Alito: What does that mean?

Justice Ruth Bader Ginsburg: Do you distinguish -- do you distinguish the husband's situation?

He was an eyewitness too, but there was a motion to suppress her testimony.

Is that an example where there is an eyewitness testimony but no suggestiveness?

Why didn't you move to suppress the husband's statement?

Mr. Guerriero: --Trial counsel simply did not move to suppress that testimony.

I don't have a good explanation and, to be frank, I would have filed the motion to suppress his testimony.

Justice Ruth Bader Ginsburg: So you'd put them both in the same category?

Mr. Guerriero: I would have.

Chief Justice John G. Roberts: Why isn't it -- this may be -- just again following up on Justice Alito's question, but there is always a degree of suggestiveness.

It's not like the person is picked randomly off the street and saying, you know, do you know this person?

It's in the context of an investigation.

The person has some contact with it.

So there is always some suggestiveness that, well, this person might have something to do with what went on.

Mr. Guerriero: That's right.

And if it rises to a level of what the Court has given as examples of a show-up or the same defendant appearing in a line-up or something else that says that's the man, then that raises a red flag.

And it's not a--

Chief Justice John G. Roberts: But whenever -- whenever the witness is asked, at least there is a suggestion that this might be the man.

And I don't know why you would think that's any greater than this is the man.

The police don't come up usually and say, this is the person that we think did it; is that who you saw?

They say, did you see this guy?

Mr. Guerriero: --Actually, I disagree with that aspect of your question, Your Honor.

And in fact I think the proper police procedure in certainly the police departments that I'm familiar with will instruct the witness that, do not assume that anyone that we think is a suspect is in this line-up.

And that's in the standard witness instructions, and they may even do multiple line-ups where they say, okay, we are going to show you three sets of eight and the suspect -- or there may or may not be a suspect in any of them.

We just want you to look at this set and see if anyone--

Chief Justice John G. Roberts: Well what about a situation like the one we had here, where you're not talking about a line-up.

Mr. Guerriero: --That's right.

Chief Justice John G. Roberts: But you're talking about the scene of a crime, and the police says, do you know this person, did you see this person, or anything else?

That in itself, any type of identification in the course of an investigation, I think you would have to say is suggestive, because the person is not picked up randomly.

Mr. Guerriero: It is, but the key is that it's not the suggestion that results in exclusion.

It's the suggestion that raises the red flag that allows the defendant to say, would the trial court please evaluate this according to the standards.

Chief Justice John G. Roberts: So this is -- again, this is just following up, I guess.

But I remember in law school one of the things in criminal law, the professor says, all right, everybody be quiet.

And then a certain amount of time goes by and then he starts asking people, well, how much time went by?

And people -- some people say 4 minutes, some people say, you know, 1 minute.

And it turns out, if I'm remembering correctly, to be a lot shorter than most people think.

So that's at least, the point that was trying to be made anyway, at least as unreliable as eyewitness testimony.

So your argument would have to cover that, wouldn't it?

Mr. Guerriero: I--

Chief Justice John G. Roberts: You know, how long were you there before this individual came into the shop?

The person says, I was there for 5 minutes, and that ruins the person's alibi, when it turns out, you know, study after study would say it really was 45 seconds or 1 minute.

Mr. Guerriero: --I think it's important to look back at what the Court said in Wade and in fact how what the Court said in Wade has been borne out.

Of course, there is aspects of unreliability to any kind of evidence.

Somebody could come and claim that there is issues with false confessions or issues with forensic evidence.

I think last term somebody made a claim -- tried to assert a claim regarding DNA evidence that was akin to an eyewitness identification claim.

But the point is that this kind of evidence was singled out by the Court and recognized as having particular dangers, and it's been borne out by the studies, not psychological--

Justice Anthony Kennedy: But again, that was in the context of procedures that the police had instituted.

Mr. Guerriero: --It may be that--

Justice Anthony Kennedy: And your -- and your rationale goes much beyond it.

In a way you're infringing on the province of the jury.

I don't usually like to reminisce, but there was a case I had where a prosecution witness was very, very certain, all too certain, and I said: Do you ever take your wife out to dinner or go out to dinner with friends?

And he said: Oh, yes.

I said: Has it ever happened to you that midway in the meal you say, is that our waiter, and you've seen -- the waiter has brought you the menu, he has taken your order, he has brought your food, and you were under no stress at the time.

Mr. Guerriero: --Right.

Justice Anthony Kennedy: And there was good light.

So you teach the jury this way.

And you're just -- you're just usurping the province of the jury, it seems.

Mr. Guerriero: I don't think so, Your Honor.

I mean, I think what this Court has said is that this is a special category of evidence that has to be red-flagged by or can be red-flagged by the defense for the trial judge to look at it and say--

Justice Stephen G. Breyer: What is--

Mr. Guerriero: --on a case by -- I'm sorry.

Justice Stephen G. Breyer: --Go ahead.

You were saying on a case -- all you want to do is red-flag it for the judge.

Mr. Guerriero: And then the trial judge would look at it and in the rare case where he says it's very substantially likely, which we agree is a high standard--

Justice Stephen G. Breyer: All right.

Now, how does that differ from what exists in I think every State and certainly in the Federal Rules in Rule 403?

The judge may exclude evidence if its relevance is outweighed by its prejudice or misleading the jury.

So why, in any instance where you think that this statement about to come in is unreliable for various reasons, you say: Judge, will you please look please look at Rule 403; I have some experts over here and whatever else you want that would show that this is misleading to the jury for all the reasons you have said in your brief, right.

So -- so since that is already the law and it does apply to every piece of evidence, including all the things we've been talking about, what is it that you want to change?

Mr. Guerriero: --Well, to answer the first part of your question, what's different about this evidence is that--

Justice Stephen G. Breyer: I didn't say what's different about it.

I'm not looking for a difference.

I'm looking -- I'm saying they are all the same.

And indeed we do what you want right now.

It's called Rule 403 in the Federal system.

What I'm asking you is what is it you want done, since all you want is the judge to look at it carefully, that is not done at this moment?

Mr. Guerriero: --The analysis under 403, which New Hampshire of course has as well, will accord a certain weight and value to the opportunity of counsel to cross-examine the witness and to make arguments to the jury.

And unlike any other kind of evidence, this Court has said, precious though it is, the right of cross-examination does not always--

Justice Stephen G. Breyer: Well, the judges don't, I'm sure -- I'm not 100 percent sure, you'd have to ask a trial judge.

But I am sure there are instances where judges say under Rule 403: I conclude it is misleading and it is prejudicial and it can't be made up for, therefore I exclude it.

All right, that happens.

Now, since that's what you want the judge to do, I repeat my question: What is the difference between what you're asking for and what already exists in the law?

Mr. Guerriero: --The difference--

Justice Stephen G. Breyer: Unless -- well, go ahead.

Mr. Guerriero: --I'm sorry.

The difference is that under a normal 403 analysis, when I told the judge, when I said she never could describe his face, she couldn't even say what clothes he was wearing, the judge will respond to me and say, that's fine.

That's all great fodder for cross-examination.

But the difference with this kind of evidence is that it's not just--

Justice Stephen G. Breyer: Whoa, wait.

Stop you there, because now what you seem to be saying is it isn't the case that you simply want the judge to look at this with care, rather you want the judge to change her result.

You want sometimes this to be excluded where under 403 it is sometimes not excluded.

Right.

Now, I ask -- if that's what you want, that's a different matter.

That's a substantive standard.

And so you're proposing a different substantive standard and I want to know what it is.

Mr. Guerriero: --It's -- it's the standard that this Court has established, if it's reasonably -- reasonably likely or substantially likely to lead to a risk of misidentification at trial, very substantially likely.

Justice Samuel Alito: That would be really a great change from the way trials are now conducted, wouldn't it.

Let me give you this example.

A victim is raped and the victim doesn't really have a very good opportunity to see the perpetrator.

It's dark, the person has a mask and so forth.

A couple of weeks go by and the victim reads on article in the paper that says so-and-so has been arrested for a rape in another part of the city.

There is a picture of that person in the paper and the victim says, that's the person who raped me.

Now, you want to make it possible for the judge to say that victim may not testify and identify the person that that person -- that the victim says was the perpetrator of the rape, on the ground that the newspaper picture was suggestive, even though there wasn't any police involvement and when you look at all the circumstances, the identification is unreliable.

Now, maybe that's a good system, but that is a drastic change, is it not, from the way criminal trials are now conducted?

Mr. Guerriero: Well, it's certainly not the change from what the law is in the Federal circuits that we cited.

And I would also point out that in one of the--

Justice Samuel Alito: Do you know of cases like that in which the judge has said that eyewitness identification cannot come in?

Mr. Guerriero: --In Thigpen v. Cory, which is a Sixth Circuit case, the court said -- in fact they specifically used the phrase "police machinations" -- that this did not arise from police machinations.

It was basically happenstance in that case that the witness was -- the witness identified the defendant and it was excluded as unreliable.

Justice Anthony Kennedy: But we've said in our case, Neil v. Biggers -- that was a rape case and we allowed it.

We allowed the eyewitness.

Mr. Guerriero: Well -- and I think the Court said in all its cases, and in particular in Simmons, that each case--

Justice Anthony Kennedy: And, in fact we said that it was unnecessarily suggestive, but that it was still reliable.

Mr. Guerriero: --And it may be.

I mean, it may -- you could have an extremely -- you could have a -- the police could do a show-up intending to produce an ID, but if the witness got a very good look at the person, was calm, was maybe a police officer like in Brathwaite and the court said, we don't care how deliberate this -- and even if there is manipulation, we don't care how much of that there is, we find it's reliable here.

Justice Elena Kagan: Suppose that there was some other category of testimony which proved even more unreliable than the category that you're talking about.

Let's say that it turned out study after study after study that jailhouse informants lie.

And so the testimony of jailhouse informants is likely to be just completely unreliable, to, you know, double as much as eyewitness testimony.

Same rule for that?

Mr. Guerriero: I think it would be a very high burden for the defense to meet there.

But if the finding was that there are times that a witness, that -- like in the eyewitness situation, where the witness truly believes that they are identifying the right person, but they are actually not and it could result in a miscarriage of justice, then I do believe fundamental fairness requires the Court to say due process doesn't allow that evidence.

Justice Elena Kagan: Okay.

Well, now we are talking about, now we are setting up a standard that applies outside eyewitness testimony.

It's just testimony that we find to be -- categories of testimony that we find to be extremely unreliable will be subject to this new due process red flag.

Is that right?

Mr. Guerriero: Well, I don't think so, Your Honor.

But more for a factual reason in that the Court said in 1967 that this is the leading cause of miscarriage of justice.

The studies and -- not just studies, but the transcripts and records of actual trials.

Justice Elena Kagan: No, I understand you have very good empirical evidence which should lead us all to wonder about the reliability of eyewitness testimony.

I'm just suggesting that eyewitness testimony is not the only kind of testimony which people can do studies on and find that it's more unreliable than you would think.

Mr. Guerriero: Well, maybe if somebody else came along and said, we've done a study and we find this kind of evidence, that in 75 percent of the wrongful convictions, this evidence contributed to the miscarriage of justice, then I would think the Court should take a look at that.

But I don't think any other evidence matches that.

Justice Ruth Bader Ginsburg: What about all the other safeguards that you have?

You can ask the judge to tell the jury: Be careful; eyewitness testimony is often unreliable.

You can point that out in cross-examination.

Mr. Guerriero: Yes.

Justice Ruth Bader Ginsburg: All those questions.

You can say something about it in your summation to the jury.

And as Justice Breyer brought up, you have the evidence rule that says if prejudicial value outweighs probative value that the judge can say, I'm not going to let it in.

Why aren't all those safeguards enough?

Mr. Guerriero: If all of those safeguards were enough, even when the police made--

Justice Ruth Bader Ginsburg: Well, leaving aside the police, because there -- there is an interest in deterrence, in deterring the police from manipulating evidence.

Mr. Guerriero: --I don't think deterrence is the primary basis of the court's cases, Your Honor, because the Court has said that if it proves to be reliable, no matter how manipulative the police were, this evidence comes in.

So the basis of the rule is not primarily determined -- deterrence; it's the risk of an unfair trial and the risk of a miscarriage of justice.

Justice Ruth Bader Ginsburg: There is a difference between suggestive and suggested by the police.

Mr. Guerriero: I'm sorry, Your Honor, I--

Justice Ruth Bader Ginsburg: If the suggestion comes from the police, then the evidence will be excluded.

If the suggestion comes from someplace else, unless we change the rule--

Mr. Guerriero: --Well I think that that's a--

Justice Ruth Bader Ginsburg: --it would be admitted.

Mr. Guerriero: --I mean, I think that that's a -- that's a tricky issue to consider, because suggestion coming from the police is different from manipulation.

And if -- if the rule is unintended suggestion from the police implicates due process, then Perry was entitled to a due process analysis, because the unintended suggestion here was apparent police suspicion as he stood there.

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Guerriero: Thank you.

Chief Justice John G. Roberts: General Delaney.

ORAL ARGUMENT OF MICHAEL A. DELANEY ON BEHALF OF THE RESPONDENT

Mr. Delaney: Mr. Chief Justice and may it please the Court:

An eyewitness identification implicates due process concerns only when the police arrange a confrontation to elicit a witness's identification of a suspect and use unnecessarily suggestive techniques that skew the fact-finding process.

The central concern--

Justice Sonia Sotomayor: Now we've changed the language of Wade when it talks about intentional or unintentional.

And you're suggesting that police manipulation always has to be intentionally suggestive?

Mr. Delaney: --I'm not--

Justice Sonia Sotomayor: Even if the policeman tells you he wasn't really thinking or focusing on a distinguishing characteristic in the line-up?

Mr. Delaney: --That may play a role, Justice Sotomayor, but only in a limited sense, and not in the way the Petitioner is suggesting we look at unintentional conduct.

First, for the due process inquiry to trigger, there must be an arranged confrontation of a suspect and a witness by the police.

Justice Sonia Sotomayor: Could you tell me what you think would have happened here?

there was a reason the police asked this defendant to stay put.

They didn't want him to leave the scene, correct?

Mr. Delaney: That -- that's correct.

Justice Sonia Sotomayor: In your judgment -- I think Justice Kennedy hit the nail on the head.

My suspicion is that at some point they would have asked the witnesses in the building and engaged in a show-up.

What's so different between intentionally doing the show-up and holding the defendant in the back yard standing there next to a police officer, so that anyone who wants to, like this woman, who wants to find the guy, can just point to that one?

What's the difference?

Mr. Delaney: The difference in this case is the role that the police played in bringing about potential suggestion under your hypothetical.

What the Due Process Clause is concerned about is the role of the police in essentially stacking the deck, putting their thumb on the scale and skewing the fact-finding process.

It goes to the intent of the process--

Justice Sonia Sotomayor: No.

I mean, the way not to skew it was to put him in the police car and just let him sit there in the dark.

So they intentionally made him wait at the scene of the crime.

I'm not talking about whether this was necessary or unnecessary, because I think that a perfectly good argument could be made that the police acted reasonably and necessarily; all right?

It makes no sense to move a defendant that far from the scene of a crime if you're not sure he is the one who committed the crime, he or she.

But I'm -- I'm going to the question of how do we define, if we write this opinion, manipulation without getting into a mens rea type analysis and adding yet another layer to Biggers.

Mr. Delaney: --Well, first, I don't think you need to go there in this case.

You can simply say that, based on the factual findings of the State court, the police did not induce any type of show-up--

Justice Antonin Scalia: But doesn't -- we face that problem anyway, even if we -- whether or not we decide in this case that it doesn't matter that the police manipulated it, we are always going to have the problem of when has there been police manipulation; right?

Mr. Delaney: --That's correct.

Justice Antonin Scalia: I mean, that -- that's not a creation of this -- of this case.

Mr. Delaney: That's correct.

Justice Antonin Scalia: And I -- I would guess that in the case you're talking about, just telling the person to stay where he is, is not -- now, it would be different if -- if the defendant was -- was caught two blocks away and the police bring him back to the scene of the crime and make him stand there so that the woman can see him from the window.

That's quite different.

Mr. Delaney: It is quite different.

And Stovall tells us that the test is an objective one.

We look at the totality of the circumstances to determine whether there has been suggestive conduct.

Now, in that regard--

Chief Justice John G. Roberts: When you say that's -- when you say that's different, you're not -- you're not suggesting that that would be suggestive, are you?

Mr. Delaney: --No, I'm not.

Chief Justice John G. Roberts: Because presumably, that's the same argument -- that's for the jury and the counsel.

They can say during cross-examination the guy was two blocks away, you know, and -- and wasn't it only because the police brought him back that you -- all of that.

I don't see what difference it makes in terms of whether you have a suppression hearing before the trial.

Mr. Delaney: That's correct, Mr. Chief Justice.

It would not make a difference in that regard.

And on the facts of this case, we do have clear factual finding that this police officer in no way -- in no way induced this witness to move towards the window and identify a suspect who just happened to be standing next to a police officer.

If the concern under due process in this area has been a deterrence rationale, which this Court has stated in both Neil v. Biggers and in Manson v. Brathwaite, that must be the guiding principle.

Justice Elena Kagan: Well, it's both; right, General Delaney?

I mean, the Court has certainly talked about deterrence, but the Court also has very substantial discussions in all of these opinions about reliability.

And from the criminal defendant's point of view, it doesn't really much matter whether the unreliability is caused by police conduct or by something else.

So -- so tell me a little bit why you think the police conduct here, you know, that has to be there in every case?

Mr. Delaney: That is true, Justice Kagan, that -- that the opinions have discussed both issues.

And I would offer two considerations.

First, to the extent that the courts have talked about reliability as the linchpin or the likelihood of misidentification playing a role, they have only done that read in context within and only after an unnecessarily suggestive circumstance that they had applied.

Justice Elena Kagan: It seems that that's not right.

I mean, the reason we want to deter this conduct is because the conduct results in misidentifications and unreliable testimony.

That's the reason that deterrence is an important goal, is because this conduct leads to unreliable testimony.

Mr. Delaney: That is correct, and if we expand that out and we apply that rationale to the circumstances of a case not involving police activity, we lose that deterrence rationale.

There is no deterrence involved in a suggestive circumstance that does not involve the police.

Civilians are not going to be repeat players in this system.

Justice Anthony Kennedy: And what you're -- what you're saying, I take it, in the answer to Justice Kagan, was that there is really a two-part step.

First, was the police procedure unnecessarily suggestive?

And then if it was, are there other reliability -- was reliability impaired?

So you go -- you ask both questions.

Mr. Delaney: And that is the Biggers test.

And if we looked at reliability further as sort of the touchstone of our due process inquiry, we would need to misplace completely the role of examining whether the suggestive circumstances are unnecessary.

An -- an inquiry into necessity only makes sense in the context of a police investigation or police work.

And if we look at Stovall, certainly there is an example of a case that was a show-up, where this Court said that, despite the clearly suggestive circumstances, that show-up was imperative and necessary because the witness may have been about to die.

The Court did not conduct a reliability analysis.

So if reliability is the linchpin, it puts the Stovall holding in question and really Stovall would be undermined.

Justice Samuel Alito: What you're saying -- what you're saying seems to suggest that the rule we're talking about here is really not an aspect of due process per se, but, like the Fourth Amendment exclusionary rule, it's a special due process exclusionary rule that is meant to deter conduct that could result in a constitutional violation.

Is that right?

Mr. Delaney: I -- I think that's correct, Justice Alito.

And the analogy I would use would be to your perjury cases.

In Mooney you have clearly set a due process standard that prevents police or prosecutors from knowingly using false evidence.

And the concern there is how the police will skew the fact-finding process.

Stovall and the identification cases are very similar to that.

Our concern in essence is that the police through unnecessary suggestion in that circumstance are going to skew the fact-finding process and in this instance, in essence, create a false or altered memory.

Justice Samuel Alito: If -- if the exclusionary aspect of this is not part of due process itself, then doesn't it follow that what due process requires is reliability?

So doesn't that mean that the Petitioner's argument is correct, the due process standard is simply reliability, not suggestiveness?

Mr. Delaney: It's -- the standard is not reliability, Justice Alito.

The standard for due process in this area is the use of orchestrated police suggestion.

Justice Anthony Kennedy: What -- what about cases with inflammatory evidence, too many lurid photos or testimony that ignites prejudice in the community?

That's -- that's a -- that's reliability.

Mr. Delaney: That is, and we have both constitutional and non-constitutional tools and procedures right now to address that.

At the base, we require prosecutors under Jackson v. Virginia to have some minimum level of evidence so that a rational trier of fact can establish guilt beyond a reasonable doubt.

Above that, under the Sixth Amendment, we provide tools and procedures that allow a defendant to assess the reliability of evidence through cross-examination and summation and the right to counsel.

And beyond that, we have non-constitutional sources under the Rules of Evidence that are specifically designed to assess the relevance and the reliability of the evidence.

But if we go before that and say that the Due Process Clause after all that has some additional standing in -- in your jurisprudence to assess reliability, we really have gone to a very different place.

Justice Samuel Alito: You -- you have two cases.

You have Mr. Perry's case and you have another case that's very similar.

In fact, it's identical, except that in that instance the police officer talking to the witness said, would you take a look out the window and see if you recognize anybody.

Now, from the perspective of the defendants, the cases are -- seem -- as far as whether they get a fair trial, the cases are identical, are they not?

The evidence is the same.

The suggestiveness is the same.

Mr. Delaney: No, Justice Alito.

Those cases are quite different.

And to the extent we did have objective evidence that the police here had in some way brought that woman to the window to, in essence, conduct a show-up, then we may have triggered the first prong of Biggers.

And the court would then be required to do two things: First, to determine whether the circumstances were suggestive; and independent of that, also determine whether it was necessary or not, depending on the circumstances of the investigation.

So if in fact the police officer had directed the witness to the window, there may be at least grounds for the Biggers and Manson analysis to come into play.

These facts are very different from that.

Justice Elena Kagan: Well, I'm not sure you answered Justice Alito's questions about why there should be this difference between these two cases.

Now you might want to say that where police conduct is involved, the chances of unreliable identification are greater.

Or you may want to say something else.

But the question is: If we are focused on reliability, why are those two cases any different?

Mr. Delaney: Well, if we do look back to determine whether the circumstances involving the police are any more -- of more serious concern, if we look back to Wade, this Court did talk about the unique role of police suggestion in this context of confrontations.

And it specifically focused on the manner and the degree of suggestion in which the manner that police or prosecution present a witness, presents a witness to a suspect, what impact that can have.

That unique aspect of police suggestibility, the fact that a police officer when it brings someone forward is going to influence a witness to a high degree, does play a role and is the grounds upon which the Stovall cases have been built.

Justice Sonia Sotomayor: So tell me -- they gave the hypothetical of the police pointing out the defendant out the window.

But earlier you said it might be a different case if the defendant was two blocks away and they brought him back.

Same scenario.

They do that, bring him back two blocks; make him stand at the scene of the crime; and go upstairs, talk to the woman and she spontaneously says: It's the guy standing over there.

That would entitle the defendant to a Wade motion?

To a Wade hearing?

Mr. Delaney: You would look at the totality of the circumstances.

And to the extent from an objective standpoint it could be demonstrated that the police intentionally brought that witness back to the scene--

Justice Sonia Sotomayor: We are now -- we are now at mens rea again.

So what has surprised me about this case is in some ways the way the State court wrote this.

Because if the State court had simply said something like, there was no unnecessary show-up here, they were just holding someone until they could figure out what happened, there was no suggestiveness by the police, because the woman pointed out the window, throw out the motion, we wouldn't be here.

The argument has become something else now because you're trying to define a level of intent on the part of the police to create unreliability that I think just complicates the inquiry.

Mr. Delaney: --And I -- and, Justice Sotomayor, I'm not trying to create that complication.

And in fact, I would -- I would reference the State court decision a little bit differently.

It did ground its holding specifically in a finding that there were no sort of suggestive techniques at play here and no inducement.

The trial court order very specifically said it disagrees with the show-up characterization, that the witness had pointed out the Petitioner without any inducement from the police officer.

The officer did not direct the witness's attention to the window, and the officer did not ask whether a man in the parking lot was the man who broke into the cars.

On those facts, that can dispose of this case without getting into the issue of mens rea.

Justice Sonia Sotomayor: Well, what's happened is that your briefing and your counter's briefing is broader than I think needs to be on the facts of this case.

But putting that aside, you've addressed this as the need for police manipulation.

If you define it that way, then we do get into a mens rea discussion rather than what I think Biggers and Wade were about, which is are the circumstances created by the police unnecessarily suggestive.

Mr. Delaney: Yes.

And I agree with you that the inquiry under the -- under the first prong of Biggers is just that.

It's an objective inquiry based on the totality of the circumstances.

If there are no further questions, because the defendant's conviction was the product of a fair trial, because the State court properly applied this Court's jurisprudence and precedent in the area of eyewitness identification, and because the Petitioner's proposed rule would markedly expand this Court's due process jurisdiction, we respectfully request that the State court judgment be affirmed.

Thank you.

Chief Justice John G. Roberts: Thank you, counsel.

Ms. Saharsky.

ORAL ARGUMENT OF NICOLE A. SAHARSKY ON BEHALF OF THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE RESPONDENT

Ms Saharsky: Mr. Chief Justice, and may it please the Court:

A due process inquiry is required only when there is a police-arranged confrontation in order to obtain an identification and then the police unnecessarily suggest that a certain suspect is guilty.

And that's because, as the State has said, the Court's central concern in these cases is the State putting a thumb on the scales, gaining an unfair advantage.

Just as, as Justice Scalia said, the State can't create a false document and introduce it at trial, it can't manipulate someone's memory and then use that evidence to prove guilt at trial.

Justice Elena Kagan: So do you mean to say, Miss Saharsky, that there can never be a due process violation from the admission of unreliable evidence?

Assuming that the State has not created that evidence, has not produced that evidence, but the State knows that the evidence is unreliable or has a very substantial chance of being so, that that can never be a due process violation?

Ms Saharsky: I'm saying that's where the Court's cases are now.

The State can't knowingly introduce perjured testimony, but you're not talking about perjured, knowingly perjured testimony.

If the question is just unreliable, the Court has said on numerous occasions -- it's rejected claims like that and said: The Constitution doesn't protect to ensure all evidence is reliable.

It provides a process by which the court can test reliability through cross-examination, confrontation, et cetera.

The Court has -- And that was in Crawford.

The Court has also said -- if I can just add one more thing -- in the due process context, that where the check comes in is in Jackson v. Virginia, that the verdict has to have enough evidence to be supported each element of the crime beyond a reasonable that a rational jury could find it.

So that is a due process check.

But where the Court's cases stand today, the Court has not found, so far as we can tell, a case where it said that the mere introduction of unreliable evidence would isolate the Due Process Clause.

And every time it's been confronted with a claim like that, in Dowling, for example, in Colorado v. Connelly, the Court has rejected such a claim.

Justice Elena Kagan: I'll give you an extreme example.

The extreme example is where an identification has been produced by torture, but the torture has been through a non-State actor.

Same answer?

Ms Saharsky: That is an extreme example.

There are many reasons why, A, the prosecution would never introduce that kind of evidence to begin with, and B, that there would be other checks on the process in addition to the confrontation and cross-examination types of things that we talked about.

There would be a check on the process through Brady and Giglio, for example, that if the government knew that those were the circumstances of the identification, they would have to turn that evidence over to the other side.

There would also be checks in terms of the trial process if the government actually put on evidence like that.

So it is -- it is very unlikely that such a thing would happen.

We are not saying that the Court has to hold in this case that due process could never play a role there.

But what we are saying here is this is very routine, run-of-the-mill evidence.

Someone who saw what happened and wants to come into court and tell the jury that, and as Justice Kennedy noted, you know, what Petitioner is asking for here is to take all of those away from the jury, really usurping the jury function and having these mini trials where the court itself is trying to decide reliability.

Justice Anthony Kennedy: It is interesting.

I was trying to find a case where some other class of evidence was excluded because it's unreliability.

And in Thompson v. Louisville, as you say, is just insufficient evidence, and that's different.

Inflammatory evidence might be an example.

Ms Saharsky: Yes.

I mean, that's different because--

Justice Anthony Kennedy: Lurid photos or something like that.

Ms Saharsky: --I mean, there you have, first of all, a separate constitutional provision of an impartial jury, and have you a direct influence upon the jury.

So it's not just unreliable evidence being a due process problem.

You have this separate Sixth Amendment protection and then you have it acting directly on the jury.

So we think that's a different case.

In the due process context where the Court's cases have really focused is on the States tilting the scales, the States corrupting the process by knowingly introducing perjured testimony, or by for example refusing to disclose material exculpatory evidence--

Justice Anthony Kennedy: I think there were some early cases when fingerprint testimony couldn't come in, when fingerprint technology was just new.

I don't know if those were due process or not.

Ms Saharsky: --I can't say.

I mean, when you look at the Court's more current cases though, to the extent the Court has heard argument like this evidence is too unreliable, we needed a special Constitutional rule.

For example, in Ventris, with respect to jail house snitches, the Court rejected that argument.

When the Court was told in Colorado v. Connelly there were concerns about reliability.

It said: No, reliability is up to the jury, and it uses the State rules of evidence, and this court's not going to be a rule-making organ for rules of procedure.

The Constitution puts in place the various checks on the process: Compulsory process, cross-examination, et cetera.

And then outside of that, it's really the role of the States to mold the trial process.

Justice Samuel Alito: I was intrigued by what your brief said about Federal Rule of Evidence 403.

Do you think that a Federal judge under that rule may exclude the testimony of a witness on the ground that the witness is, in the judgment of the trial judge, completely unbelievable?

Ms Saharsky: Well, I mean you would need to meet the standard of Rule 403 which is that the -- the probative value of the witness would be substantially outweighed by unfair prejudice.

I think it is unlikely that evidence would -- of an eyewitness, which the Court has said, particularly in cases like Biggers and Manson, is fairly probative, important evidence; the Court wanted to let it in, even in the circumstances if where you know, the police played a role in manipulation.

So probably no, the Court wouldn't -- wouldn't take the--

Justice Samuel Alito: But you think in theory that could be done?

So if you put on a cooperating witness in the case and this witness has made 100 inconsistent statements previously and has been convicted of perjury, that the judge can just say you can't put that witness on because that person is -- is a liar, and I'm not going to have the witness testify in my courtroom?

Ms Saharsky: --Well, I mean Rule 403 isn't talking about whether evidence is true or false.

It's talking about unfair prejudice to the jury, unfair prejudice being -- outweighing the probative value of the testimony.

So you know, I think it would be a -- call for the judge in that individual case.

I don't know that that -- that that kind of argument has been made very often.

But it's not just that trial protection; there are numerous trial protections outside of the constitutional limits that the States have put into place specifically with respect to eyewitness identification testimony.

For example, there are special jury instructions that most States use, and New Hampshire used special jury instructions here.

And there is something that's really notable about these instructions, which is that what Petitioner wants is when the jury has made a determination here, looking at factors like how far was the witness away from the person, how long was it before -- between the crime and when she made the identification -- the jury heard all of those factors, heard argument on it, was instructed on those things and it made a determination; and what Petitioner wants is for a trial court -- this Court, after the fact -- to use those exact same factors and come to a different conclusion.

Justice Anthony Kennedy: Was -- was the Daubert case our expert witness case where you have to have a threshold showing?

Was that due process or was that just -- that was just rule of evidence.

Ms Saharsky: Yes, it was just interpreting rule of evidence 70 -- 702.

So you know, at the end of the day what -- what Petitioner is really asking for is not some kind of threshold inquiry, but really taking the question of reliability away from the jury, and it would be a very big change in our system.

And--

Chief Justice John G. Roberts: Well, we--

Justice Sonia Sotomayor: --that already follow your adversary rules.

I think it's not just one or two.

It's about five or six.

The floodgates open there?

How many -- how many suppressions of witness identification has occurred in those circuits?

Ms Saharsky: --It is not many, but the principle the Petitioner is arguing for is a significant one.

It is that the Due Process Clause protects against -- protects reliability, and I assure you that once this Court says that this is the case, that there will be defendants throughout the United States making arguments about all different kinds of evidence not involving the police being unreliable, and that that all needs to be taken away for -- from the jury, and--

Chief Justice John G. Roberts: --Well, suppose the -- lie detectors, for example, that's been taken away from the jury on a categorical basis, right?

Ms Saharsky: --Well, there are some State rules of evidence that do that, but I mean, we are talking about as a matter of due process that it is fundamentally unfair at trial to not allow -- this -- to -- this evidence if given to the trial would be fundamentally unfair.

And you know, the Constitution has enshrined the jury as the fundamental guarantee -- the fundamental protector of liberty; and to think that that same Constitution through the Due Process Clause means that run-of-the-mill evidence has to be taken away from the juries, that the trial court can itself look at factors like how good of a view the person had?

Justice Samuel Alito: There surely is some minimal due process requirement for the admission of evidence, isn't there?

Are you saying there is none?

If the State abolished the hearsay rule, could it -- would it not be a violation of due process if the prosecution introduced quadruple hearsay?

Ms Saharsky: Well, I think that there would initially be a problem with respect to the Confrontation Clause and the court would probably go through the analysis that way.

We are not saying that the court--

Justice Samuel Alito: Let me give -- you're right.

Let me give you another example.

Let's say you have -- the State puts on a witness who -- who says this person did it because I saw it in my crystal ball.

Ms Saharsky: --Right.

And I think that the answer that I would give is the same one to the question Justice Kagan asked, which is where the Court is now, the Court has never that the introduction of some kind of evidence is so unreliable it'd violate due process.

In Dowling, for example, it had evidence that--

Justice Anthony Kennedy: Is tea leaf reading okay?

Ms Saharsky: --What I'm saying is the Court doesn't need to address that question here.

It also doesn't need to foreclose it.

But this is very run-of-the-mill evidence.

But it doesn't mean that the Court could never find that some kind of evidence is so problematic that the Due Process Clause could preclude its admission, but what we're talking about here is fairly run-of-the-mill evidence.

I would just point the Court to the decision in Dowling which was about a prior conviction for which the person had been acquitted; and then that evidence was let in at his trial, and he said that's a problem.

That evidence is too unreliable and too prejudicial, and the Court said that's not for the Due Process Clause.

The Constitution gives you the process to test evidence.

It doesn't ensure that all of the evidence that's going be introduced be reliable.

And that's what Petitioner is saying here today, and that would be a very expansive view of the Due Process Clause that just can't be reconciled with cases like Dowling and Colorado v. Connelly.

If the Court has no further questions we'd submit that the judgment of the court below should be affirmed.

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Guerriero, you have 2 minutes remaining.

REBUTTAL ARGUMENT OF RICHARD GUERRIERO ON BEHALF OF THE PETITIONER

Mr. Guerriero: I will try to make three points in those 2 minutes.

I would ask the Court to consider the circumstances that would be excluded if the Court accepts the rule proposed by the State, that there has to be some intentional manipulation or intentional orchestration.

Suppose that rather than the accidental or happenstance show-up we had here, suppose that the accident was in the line-up at the police station, and the police were completely in good faith, getting to the mental state issue, but in spite of their good faith there was suggestion in the line-up.

Would the trial court look at that and say even though this was a suggestive line-up we are not going to consider a due process claim because it wasn't intentional or deliberate manipulation?

We would suggest that that would be contrary to the principle that the primary evil is the risk of misidentification.

Consider another circumstance.

Suppose there are two witnesses at the police station, and in spite of the best efforts and good rules of the police, witness one looks at the line-up and then -- or looks at the photo line-up so that they can't be changed, let's say, and leaves the line-up and somehow communicates to witness two, I picked the one on the bottom at the right.

I think that's the one.

That suggestion would be very powerful from the person who experienced the very same crime.

Justice Antonin Scalia: Tell that to the jury.

What jury isn't going to be -- I mean the more persuasive your argument is, the more likely it is that a jury will take care of that.

Mr. Guerriero: The problem is that the witnesses who have -- are under the suggestive influence actually believed what they are testifying to, and the -- that's why the Court said in Wade cross-examination for this one kind of evidence -- not floodgates, but this one kind of evidence, cross-examination may not always be enough.

The witness's sincerity has a powerful effect on the jury.

The last point I want to make is this is not going to open the floodgates, as we say, or create a slew of new claims.

Under the Watkins case this Court knows that there -- there is not even required to have a separate hearing on this evidence, and the reason a separate hearing isn't required is because these issues would be fleshed out in front of the jury.

This is only a question of what legal standard applies when the judge hears the defendant's objection that this violates due process, there is a -- there is a substantial likelihood of misidentification.

So it's not any new claims.

It's not any separate hearings.

It's simply a question of what exactly is the due process rule.

Thank you.

Chief Justice John G. Roberts: Thank you, counsel.

The case is submitted.

Print this transcript Transcript: 

Chief Justice John G. Roberts: Justice Ginsburg has our opinion this morning in Case 10-8974, Perry versus New Hampshire.

Justice Ruth Bader Ginsburg: Suppose the police arrange a lineup in which only the suspect is made to wear distinctive clothes and an eyewitness then picks the suspect out of the lineup, police arranged suggestive circumstances, we have held, called for a due process check before allowing the jury to hear the identification evidence, the trial judge must screen it for reliability.

The petitioner in this case, Barion Perry, asks us to extend judicial preview of eyewitness identifications to all suggestive circumstances not just those organized by the police.

For reasons explained in the opinion filed today, we decline to do so.

Petitioner Perry was arrested for theft after an eyewitness identified him as the man she had just seen breaking in to a car.

At the time of the identification, Perry was standing in a parking lot next to a police officer.

Perry moved to suppress the identification.

Admitting it at a trial, he argued, would be fundamentally unfair and therefore a denial of due process.

No improper police conduct, Perry conceded, tainted the identification in his case.

The New Hampshire trial court denied the supression motion.

Perry was tried and convicted and the New Hampshire Supreme Court upheld both the ruling on motion and Perry’s conviction.

We affirm the state court judgment.

In every case, in which we have invoked due process to require a trial judge to prescreen identification evidence, law enforcement officials had arranged the suggested -- suggestive circumstances that may have influenced the identification.

Perry so acknowledges, but urges a broader rule one requiring trial judges to preview eyewitness evidence in any and all suggestive circumstances whether or not police are involved.

A prime reason for excluding identification evidence generated by police under unnecessarily suggestive circumstances is deterrence.

The aim is to stop law enforcement officers from using improper arrangements, for example, suggestive lineups, showups or photo arrays where there is no improper police conduct, there is nothing to deter.

External suggestion is hardly the only factor that can cast out on the trustworthiness of an eyewitness' testimony, an eyewitness with poor vision or one who harbors a grudge against the defendant is not inherently more reliable then one who makes an identification under suggestive circumstances, but Perry does not ask us to extend pretrial screening that far.

He maintains that eyewitness identifications made under suggestive circumstances are a uniquely unreliable form of evidence and so, should be treated as a special category.

We do not doubt either the fallibility or the importance of eyewitness evidence generally or the caution appropriate whenever suggestive circumstances may have influenced an identification, but in our system of justice, the jury, not the judge, ordinarily determines the trustworthiness of the evidence.

Safeguards are built into our system that can serve to inhibit juries from placing undue weight on eyewitness and other testimony of questionable reliability.

These protections, many of them at work in Perry’s trial, include the defendant's Sixth Amendment right to counsel, to confront and cross-examine witnesses, eyewitness specific jury instructions and the constitutional requirement that the defendant's guilt be proved beyond a reasonable doubt.

State and federal rules of evidence, moreover, arm trial judges with discretion to exclude relevant evidence if its probative value is substantially outweighed by its prejudicial impact or potential for misleading the jury.

Absent improper police conduct, these safeguards, we hold, keep the introduction of eyewitness identification evidence within constitutional bounds.

Justice Thomas has filed a concurring opinion.

Justice Sotomayor has filed a dissenting opinion.