Perry v. New Hampshire

LII note: The U.S. Supreme Court has now decided Perry v. New Hampshire.


Does admitting eyewitness identification evidence at trial whenever the identification was made under suggestive circumstances violate due process?

Oral argument: 
November 2, 2011

Barion Perry was convicted of theft for attempting to take amplifiers from a car. A nearby woman, Nubia Blandon, identified Perry as the perpetrator. Perry filed a pretrial motion to suppress Blandon’s identification. Perry argues that eyewitness testimony should not be admitted into evidence at trial when it was obtained under suggestive circumstances. The State of New Hampshire contends that improper state action should be required before eyewitness testimony is barred and that due process does not require preliminary judgments on the reliability of evidence before it is admitted at trial. The Supreme Court of New Hampshire upheld the trial court's denial of the motion because there was no evidence of improper state action. The Supreme Court’s decision could affect the conditions under which parties can use eyewitness testimony at trial.

Questions as Framed for the Court by the Parties 

Do the due process protections against unreliable identification evidence apply to all identifications made under suggestive circumstances, as held by the First Circuit Court of Appeals and other federal courts of appeals, or do they apply only when the suggestive circumstances were orchestrated by the police, as held by the New Hampshire Supreme Court and other courts?


At approximately 3:00 a.m. on August 15, 2008, the Nashua Police Department responded to a report that a black man was trying to enter vehicles in a parking lot behind an apartment building. SeeBrief of Petitioner at 2. Officer Nicole Clay arrived at the scene to find Petitioner Barion Perry holding two sound amplifiers between vehicles. SeeBrief of Respondent at 2. Perry told Clay he had found the amplifiers on the ground and was just moving them but that he had seen other individuals at the scene. SeeBrief of Petitioner at 2. Clay and Perry were approached by Alex Clavijo, who claimed that the amplifiers had been taken from his car. SeeBrief of Respondent at 2–3. Clavijo noted that he had not seen the break-in but had been told about it by a neighbor. SeeId. at 2.

Another officer, Robert Dunn, arrived at the scene, and Clay left Dunn with Perry in the lot while Clay and Clavijo went to speak to the neighbor who had witnessed the crime. SeeBrief of Petitioner at 3. The neighbor, Nubia Blandon, stated through translation that she had seen a “tall black man” open Clavijo’s car trunk and remove a large item. SeeBrief of Respondent at 3. Blandon did not provide other details, and Clay did not ask for more descriptive details or identification, but Blandon pointed out the window and said that the perpetrator “was the man s. . . in the back parking lot standing with the police officer,” referring to Perry standing outside with Dunn. SeeBrief of Petitioner at 4. Blandon’s husband arrived home and identified Perry as having been in the parking lot earlier. SeeBrief of Respondent at 4. The police arrested Perry. SeeBrief of Petitioner at 5. At a photograph lineup some days after, Blandon was unable to pick out Perry’s face. SeeBrief of Respondent at 5.

Perry was charged with theft for taking the amplifiers from the car and criminal mischief for damaging the car during the break-in. SeeBrief of Petitioner at 5. Before trial, Perry moved to suppress Blandon’s identification to Clay as denial of due process of the law because of the suggestive circumstances and unreliability of the identification. SeeId. The trial court denied the motion, ruling that the lack of improper police involvement in the identification process made the identification admissible. SeeBrief of Respondent at 7. At trial, Blandon was cross-examined and provided some details while admitting to not remembering others. SeeBrief of Petitioner at 6. The court admitted Blandon’s out-of-court identification, but she was not asked to identify the perpetrator in court. SeeBrief of Respondent at 7.

The New Hampshire Hillsborough County Superior Court found Perry guilty of theft but acquitted him of the criminal mischief charge. SeeBrief of Petitioner at 6. Perry appealed the theft conviction to the New Hampshire Supreme Court, claiming the trial court wrongly denied the motion to suppress. SeeNew Hampshire Supreme Court Order at 1. The New Hampshire Supreme Court issued an order affirming the trial court’s findings, again stating that the lack of suggestive police involvement made the identification admissible. Seeid . at 1–2. Perry appealed to the United States Supreme Court, which granted certiorari on May 31, 2011 to determine whether due process demands that a court consider the reliability of an identification, regardless of police involvement in the suggestive circumstances of the identification. See .


This case concerns the scope of due process safeguards regarding eyewitness testimony. See Question Presented. Perry argues that due to its inherent problems, such testimony should be excluded whenever it is made under unreliable circumstances, and that improper state action should not be required to trigger exclusion. See Brief for Petitioner at 14–15. New Hampshire argues that due process does not require that evidence be reliable before it is admissible and that improper state action should be required before eyewitness testimony is excluded. See Brief for Respondent at 43. The State maintains that there are other provisions in the Constitution that effectively safeguard against the unreliability of eyewitness testimony. See Id. at 42–43.

Scope and Obligations Regarding Fourteenth Amendment Due Process

Perry argues that when determining admissibility of eyewitness testimony, emphasis should be placed on the reliability of the evidence and not on whether improper state action was present. See Brief for Petitioner at 14–15. He insists that the requirement of improper state action is at odds with the rationale of Fourteenth Amendment due process. See Id. at 22. Perry maintains that imposing this limitation on eyewitness testimony improperly imports the Fourth Amendment exclusionary rule to due process principles. See Id. at 23. Perry points out that the purpose of the exclusionary rule is to deter police from making unreasonable search and seizures, and to exclude evidence that was improperly obtained, regardless of reliability. See Id. at 23–24. However, he argues, due process goals encompass notions of fairness; therefore, reliability, not state action, is the “linchpin” in deciding whether or not eyewitness testimony should be admissible. See Id. at 17. Perry points out that the factors courts have considered in determining the admissibility of eyewitness testimony, including the witness’ level of certainty during identification, the time elapsed between the event and identification, and degree of attention, prove that reliability of the identification was the primary concern. See Id. at 15, 17. He accepts that police and state action are relevant to the due process inquiry to the extent that they influence the reliability of the witness identification, but asserts that they are not dispositive. See Id. at 17. Therefore, Perry argues, the threshold inquiry for admissibility is reliability, not whether improper state action was present. See Id.

In contrast, New Hampshire argues that the Due Process Clause does not require that identification evidence be reliable before it is admissible. See Brief for Respondent at 12. The State argues that the Clause's plain meaning does not require courts to make reliability judgments before admitting eyewitness testimony. See Id. at 13. Moreover, it asserts that due process has limited application and governs only situations where notions of “fundamental fairness” are offended as determined by reference to the Bill of Rights. See Id. at 13–15. In addition, New Hampshire insists that making reliability a condition of admissibility would unduly expand the application of due process and disrupt the careful balance between the legislature and the Constitution. See Id. The State contends that fundamental fairness concerns arise when state action interferes with the defendant’s right to a fair trial and the defendant suffered prejudice; there is no reliability threshold. See Id. at 16–17. Accordingly, New Hampshire insists that while the purpose of due process is to ensure fairness during trial, it does not attempt to enforce that principle by requiring the evidence to be reliable before it is presented at trial. See Id. at 19. The State further says that there is no overarching constitutional requirement that the evidence be reliable before it is admissible. See Id. at 43. Rather, New Hampshire argues that reliability judgments should be left to the trier of fact and also held to the standards established by the rules of evidence. See Id. at 19. Based upon this theory, the State argues that the court properly admitted Ms. Blandon’s testimony into trial. See Id. at 43.

Adequate Safeguards for Eyewitness Testimony

Perry contends that because eyewitness testimony is a “uniquely unreliable kind of evidence,” due process requires additional safeguards. See Brief for Petitioner at 17. He maintains that the fairness principles embodied in due process limit using unreliable eyewitness testimony during trial. See Id.Furthermore, Perry states that because eyewitness testimony poses unique problems, evaluating its reliability should not always be left to the jury during trial. See Id. at 13. He also cites evidence garnered through science and experience regarding the problems inherent with eyewitness testimony. See Id. at 17. Perry states that forensic evidence, specifically DNA analysis, has proved that misidentifications occur regularly. See Id. at 18. Accordingly, he asserts there have been frequent, wrongful convictions due to misidentifications. See Id. at 19. Moreover, Perry also points out that aside from its unique unreliability, unreliable eyewitness testimony will also prejudice the defendant because it is hard to refute and its has a powerful effect on the jury. See Id. at 13. For those reasons, Perry argues that it is a violation of due process to admit such testimony if it arises from circumstances that would make the identification unreliable, regardless of police or state involvement. See Id. at 13.

By contrast, New Hampshire contends that the Constitution ensure the reliability of evidence admitted at trial, see Brief for Respondent at 20, by protecting the defendant’s rights to face his accuser, to have an attorney, to have a speedy trial, and to obtain witnesses to support his case, see Id. at 21. The State maintains that these safeguards adequately address any reliability concerns. See Id. For example, New Hampshire explains that confronting the accuser will effectively allow the defendant to expose the flaws in the evidence offered against him through cross-examination. See Id. at 22. Also, the State contends that allowing a defendant access to effective counsel gives the defendant the opportunity to address the witness' competency of and the reliability of the evidence presented. See Id. at 23–24. Furthermore, New Hampshire argues that the jury will make their own independent determination regarding the reliability of the evidence. See Id. at 24–25. The State maintains that these safeguards effectively protect the reliability of the evidence and that due process does not ensure the fairness of a trial by imposing additional reliability requirements on eyewitness testimony before admitting it at trial. See Id. at 28.

Applying his rationale to his case, Perry argues that Ms. Blandon’s identification was unreliable and should not have been admissible. See Brief for Petitioner at 34. He points out that Ms. Blandon’s description of the perpetrator was generic and many people could have fit the description. See Id. Perry asserts that it was dark and she spotted the man from her apartment window, which was far away. See Id. He argues that because her testimony was the only factor linking him to the crime, admitting the evidence was a significant error. See Id. at 35. Perry asserts that these factors demonstrate the unreliability of eyewitness testimony generally and therefore that due process requires additional safeguards. See Id. at 11, 35.

New Hampshire counters that Perry had ample opportunities to test the reliability of the eyewitness testimony offered against him. See Brief for Respondent at 27. The State points out that Perry was represented by an attorney and had the opportunity for cross-examination. See Id. Also, New Hampshire states that Perry had adequate opportunity to present his own case and directly address concerns regarding the reliability of the eyewitness testimony offered against him. See Id. The State also maintains that the jury received proper instructions on how to evaluate eyewitness testimony. See Id. New Hampshire argues that these safeguards were sufficient to ensure that the reliability of the eyewitness testimony was amply tested at trial. See Id.


Safeguarding the Judicial Process

Perry argues that identifications are inherently unreliable and therefore should be excluded whenever there are suggestive circumstances, regardless of state action, to ensure fair trials. SeeBrief of Petitioner at 27–29. The InnocenceNetwork (“IN”) agrees, stating that the resulting unfairness is the same regardless of those responsible for the suggestive identification circumstances. See Brief for IN in Support of Petitioner at 8. The AmericanPsychologicalAssociation (“APA”) shares Perry’s concern about the unreliability of the identification process, and asserts that the passage of time, witness stress, distance from the scene, and a cross-racial bias are just a few of the factors that contribute to misidentification. SeeBrief for APA in Support of Petitioner at 9–12. The APA notes that at least thirty-three percent of identifications are inaccurate. Seeid . at 14–15. The National Association of Criminal Defense Lawyers (“NACDL”) further notes that suggestive circumstances can make a witness think an identification is reliable when it is not. SeeBrief for NACDL in Support of Petitioner at 7–9. According to the NACDL, a witness whose belief about the perpetrator’s identity is confirmed is more likely to think that a possibly incorrect identification is correct. Seeid . at 8.

The National District Attorneys Association (“NDAA”) argues that Perry’s argument to exclude any identifications made in potentially suggestive circumstances would harm the judicial process by leading to unnecessary exclusions of identifications and a disrespect for the trial guarantees afforded by the Constitution. See Brief for NDAA in Support of Respondent at 12–14. New Hampshire argues that there are already adequate safeguards to merit the inclusion of identifications as evidence. See Brief of Respondent at 42. First, as twenty-nine states and Guam note, states are already able to govern the inclusion of identifications through legislation and codification of evidence rules. SeeBrief for Louisiana et al . in Support of Respondent at 21–22, 24–25. Second, the Criminal Justice Legal Foundation (“CJLF”) mentions that law enforcement agencies have guidelines to make identifications as reliable as possible and to minimize the occurrence of any suggestive circumstances. SeeBrief for CJLF in Support of Respondent at 18–19. Third, as the United States DepartmentofJustice (“DOJ”) states, the inclusion of other evidence, such as DNA evidence, can serve as a means to minimize the importance of identification evidence. SeeBrief for USA in Support of Respondent at 27. Twenty-nine states and Guam also warn that applying Perry’s ‘reliability’ standard will cause more procedural harm by causing confusion and inconsistent results among courts. SeeBrief of Louisiana et al . at 22.

Impact on the Criminal Justice System

According to Perry and a group of exonerated convicts (“exonerees”), identifications must be reliable because mistaken identifications can cost innocent people their freedom or their lives. SeeBrief for Petitioner at 17–20; Brief for Exonerees in Support of Petitioner at 30. The IN states that recent cases of DNA exoneration of individuals convicted based on misidentifications highlight the danger of unreliable identification. SeeBrief of IN at 7–8. According to the exonerees, overturning a conviction is not enough of a remedy to make up for their suffering. SeeBrief of Exonerees at 24. They further note that both the mistaken perpetrator and the victim suffer, because the perpetrator has trouble starting a new life if the conviction is overturned, and the victim has lost valuable time in bringing the actual attacker to justice. See id . at 24, 28. The victim could also suffer horribly, exonerees add, from the guilt of having sent an innocent person to prison. See id .

The states and Guam note that identification procedures are invaluable to the criminal justice system. SeeBrief of Louisiana et al. at 22. According to the district attorneys, the unreliability test becomes an unfairness test subject to individual judges’ preferences and weakens the jury's role. SeeBrief of NDAA at 14–15. The DOJ agrees, stating that excluding identifications frustrates the jury's fundamental role, seeBrief of USA at 30–31, which is to determine the accuracy of identification evidence as the finder of fact, seeid . at 25, 31. New Hampshire argues that the benefits of identification evidence outweigh the costs. See at 34–37. According to the CJLF, while a frequent exclusion of identification evidence might help eliminate a high number of wrongful convictions, there is a serious danger of causing a high number of wrongful acquittals. SeeBrief of CJLF at 31.


The Supreme Court will decide whether improper state action must be present for eyewitness testimony to violate due process. Perry asserts that because such testimony is uniquely problematic, due process requires the court to determine reliability before the testimony is admitted at trial regardless of state action. New Hampshire insists that admission of eyewitness testimony can only violate due process when obtained through improper state action. The parties disagree about whether other constitutional provisions provide adequate safeguards to ensure the reliability of evidence admitted during trial and about the costs and benefits of identification in the criminal justice system. The Supreme Court’s decision will affect the extent to which a court can admit eyewitness testimony.

Written by 


The authors would like to thank former Supreme Court Reporter of Decisions Frank Wagner for his assistance in editing this preview.

Additional Resources 

• New York Times, Adam Liptak: 34 Years Later , Supreme Court will Revisit Eyewitness IDs (Aug. 22, 2011)

• St. Louis Today, Maggie Clark: New Doubt Is Cast on Eyewitness Testimony (Sept. 25, 2011)