Perry v. New Hampshire

PETITIONER: Barion Perry
RESPONDENT: New Hampshire
LOCATION: U.S. Court of Appeals for the Ninth Circuit, California

DOCKET NO.: 10-8974
DECIDED BY: Roberts Court (2010-2016)
LOWER COURT: New Hampshire Supreme Court

CITATION: 565 US (2012)
GRANTED: May 31, 2011
ARGUED: Nov 02, 2011
DECIDED: Jan 11, 2012

Michael A. Delaney - Attorney General of New Hampshire for the respondent
Nicole A. Saharsky - Assistant to the Solicitor General, Department of Justice, for the United States, as amicus curiae, supporting the respondent
Richard Guerriero - for the petitioner

Facts of the case

Barion Perry is in prison for breaking into a car in 2008. Nubia Blandon told Nashua, N.H., police that she observed Perry from her apartment window taking things out of a parked car. She identified Perry at the scene but later could not pick him out of a photo lineup or describe him to police. A second witness identified Perry from the photo lineup. Perry filed a motion to suppress the photo identification because it was "unnecessarily suggestive" that he was a criminal. The New Hampshire Supreme Court upheld his conviction.


Do the Due Process protections against unreliable identification evidence apply to all identifications made under suggestive circumstances?

Media for Perry v. New Hampshire

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

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

John G. Roberts, Jr.:

Justice Ginsburg has our opinion this morning in Case 10-8974, Perry versus New Hampshire.

Ruth Bader Ginsburg:

Suppose the police arrange a lineup in which only the suspect is made to wear distinctive clothes and an eyewitness then picks the suspect out of the lineup, police arranged suggestive circumstances, we have held, called for a due process check before allowing the jury to hear the identification evidence, the trial judge must screen it for reliability.

The petitioner in this case, Barion Perry, asks us to extend judicial preview of eyewitness identifications to all suggestive circumstances not just those organized by the police.

For reasons explained in the opinion filed today, we decline to do so.

Petitioner Perry was arrested for theft after an eyewitness identified him as the man she had just seen breaking in to a car.

At the time of the identification, Perry was standing in a parking lot next to a police officer.

Perry moved to suppress the identification.

Admitting it at a trial, he argued, would be fundamentally unfair and therefore a denial of due process.

No improper police conduct, Perry conceded, tainted the identification in his case.

The New Hampshire trial court denied the supression motion.

Perry was tried and convicted and the New Hampshire Supreme Court upheld both the ruling on motion and Perry’s conviction.

We affirm the state court judgment.

In every case, in which we have invoked due process to require a trial judge to prescreen identification evidence, law enforcement officials had arranged the suggested -- suggestive circumstances that may have influenced the identification.

Perry so acknowledges, but urges a broader rule one requiring trial judges to preview eyewitness evidence in any and all suggestive circumstances whether or not police are involved.

A prime reason for excluding identification evidence generated by police under unnecessarily suggestive circumstances is deterrence.

The aim is to stop law enforcement officers from using improper arrangements, for example, suggestive lineups, showups or photo arrays where there is no improper police conduct, there is nothing to deter.

External suggestion is hardly the only factor that can cast out on the trustworthiness of an eyewitness' testimony, an eyewitness with poor vision or one who harbors a grudge against the defendant is not inherently more reliable then one who makes an identification under suggestive circumstances, but Perry does not ask us to extend pretrial screening that far.

He maintains that eyewitness identifications made under suggestive circumstances are a uniquely unreliable form of evidence and so, should be treated as a special category.

We do not doubt either the fallibility or the importance of eyewitness evidence generally or the caution appropriate whenever suggestive circumstances may have influenced an identification, but in our system of justice, the jury, not the judge, ordinarily determines the trustworthiness of the evidence.

Safeguards are built into our system that can serve to inhibit juries from placing undue weight on eyewitness and other testimony of questionable reliability.

These protections, many of them at work in Perry’s trial, include the defendant's Sixth Amendment right to counsel, to confront and cross-examine witnesses, eyewitness specific jury instructions and the constitutional requirement that the defendant's guilt be proved beyond a reasonable doubt.

State and federal rules of evidence, moreover, arm trial judges with discretion to exclude relevant evidence if its probative value is substantially outweighed by its prejudicial impact or potential for misleading the jury.

Absent improper police conduct, these safeguards, we hold, keep the introduction of eyewitness identification evidence within constitutional bounds.

Justice Thomas has filed a concurring opinion.

Justice Sotomayor has filed a dissenting opinion.