On January 11, 2012, the Supreme Court announced its decision in Perry v. New Hampshire. The question here was whether, in a criminal case, the Due Process Clause of the Constitution requires a court to evaluate the reliability of an eyewitness identification of the defendant when the circumstances under which the identification occurred were suggestive, regardless of how those circumstances came about. The lower court rejected the defendant’s argument in favor of such a rule, concluding that a court is required to assess the reliability of identification evidence only when law enforcement employs suggestive identification techniques.
In an opinion delivered by Justice Ginsburg, the Supreme Court affirmed the decision of the lower court by a vote of 8-1. Where there is no improper law enforcement activity involved, the Court held, it suffices to test reliability through the normal rights and opportunities afforded for that purpose, such as the presence of counsel at post-indictment lineups and vigorous cross-examination. Justice Thomas filed an opinion concurring in the judgment, and Justice Sotomayor filed a dissenting opinion.
To discuss the case, we have Jessie Liu, who is a partner at Jenner & Block, LLP.