Perry v. New Hampshire - Oral Argument - November 02, 2011

Perry v. New Hampshire

Media for Perry v. New Hampshire

Audio Transcription for Opinion Announcement - January 11, 2012 in Perry v. New Hampshire

Audio Transcription for Oral Argument - November 02, 2011 in Perry v. New Hampshire

John G. Roberts, Jr.:

We'll hear argument first today in Case 10-8974, Perry v. New Hampshire.

Mr. Guerriero.

Richard 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--

Sonia Sotomayor:

Counselor, does your position depend on police involvement at all?

Richard Guerriero:

--No, Your Honor.

Sonia Sotomayor:

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

Richard Guerriero:

What I suggest--

Sonia Sotomayor:

Or the news media publishes a picture of someone that it thinks--

Richard 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.

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?

Richard 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.

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?

Richard 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.

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?

Richard 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.