By Brandon L. Garrett, a professor at University of Virginia School of Law and author of "Convicting the Innocent: Where Criminal Prosecutions Go Wrong.”
While there had been great interest in the oral arguments in Perry v. New Hampshire yesterday, because the case is the first case dealing with due process standards for reviewing eyewitness identifications that the Court has heard since deciding Manson v. Brathwaite thirty-four years ago, and because there has been a drumbeat of revelations about wrongful convictions based on eyewitness misidentifications, the proceedings suggested that this was an odd case for the Court to have accepted in the first place.
The case involved a report of a black man breaking into a car in a parking lot to steal a stereo. Police arrived at the scene and asked Barion Perry to wait with a uniformed officer. Another police officer went into a building to talk to an eyewitness, who promptly looked out the window and identified Perry, the only black man standing there, next to the officer in uniform, as the man who had stolen the stereo. The eyewitness was later unable to identify Perry either in a subsequent lineup or at his trial. The trial court rejected Perry’s claim that this was a show-up identification, where the eyewitness was shown a single suspect, that should be reviewed under the Manson v. Brathwaite due process standard. The trial court, and then the New Hampshire Supreme Court, concluded that the identification happened by happenstance, and since the police did not intend to arrange a show-up, there was no state action, and due process did not apply. Since the case was about whether to even apply the Manson v. Brathwaite standard, the larger and more pressing issues about improving that standard, regulating presentation of eyewitness evidence in the courtroom, and improving lineup procedures in the first instance, are not squarely raised.