Supreme Court Misses Opportunity To Make It More Difficult To Introduce Eyewitness Testimony In Perry v. New Hampshire

The United States Supreme Court has just passed on an opportunity to ensure greater fairness is criminal trials. In Perry v. New Hampshire, the Supreme Court justices evaluated the circumstances surrounding eyewitness testimony and when it may be introduced at testimony. In an 8 to 1 decision, the Court concluded that unless evidence exists that police have “manipulated” the circumstances, judges cannot throw out eyewitness testimony on their own. However Justice Sonia Sotomayor, the only dissenter, asserts this is “backwards.” The primary goal is to “assure a fair trial” and “[w]hether the police have created suggestive circumstances intentionally or inadvertently …it is no more or less likely to misidentify the perpetrator.” Eyewitness testimony is just as powerful in persuading a jury regardless of the circumstances.

As a criminal defense attorney in Michigan, I agree. When an individual faces the possibility of arrest, charges and a possible conviction in a crime such as theft or robbery, a drug offense or violent crime, his or her fate may depend in part on eye witness testimony. When that testimony is flawed, the possibility for great injustice exists. Under any circumstance, if you are facing criminal charges in Michigan, it is crucial to speak with an aggressive Michigan criminal defense lawyer immediately to begin preparing your defense and challenge the evidence against you – including any eye witness statements.

Perry is a criminal law case out of New Hampshire involving car robberies. In Perry, police officers were notified about a man breaking into cars behind an apartment building. A woman gave a vague description of a potential suspect. However, after seeing Perry standing next to a police officer she then identified him as the suspect. Based on her identification, Perry was convicted. Perry argued that his standing next to the police officer unduly influenced the woman’s identification. The New Hampshire Supreme Court determined that because the police did not create the suggestive circumstance, the eyewitness identification testimony was allowed. The U.S. Supreme Court has just affirmed this decision.


However, as Justice Sotomayor comments – the reasoning of the majority is backwards. Eyewitness testimony may be extremely persuasive. Allowing the testimony in any criminal trial may lead to an unfair criminal conviction. In fact as pointed out by Sotomayor, the “vast body of scientific literature” has established the unreliability of eyewitness testimony. This is evidenced by the fact that 76% of cases overturned through the use of DNA testing involved convictions that were made following eyewitness testimony.

As a result, when circumstances make eye witness testimony unfair – whether intentional or unintentional – a judge should be able to throw out that testimony. Unfortunately, the U.S. Supreme Court has just missed an opportunity to make criminal trials more just by making it harder to introduce eyewitness testimony.

For more information about this case, or if you are under investigation or have been arrested for any crime, contact an aggressive Michigan criminal defense attorney at the Law Offices of Grabel & Associates for a free, immediate consultation.

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