Perry v. New Hampshire ( 2012 )

(Slip Opinion) OCTOBER TERM, 2011 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
PERRY v. NEW HAMPSHIRE
CERTIORARI TO THE SUPREME COURT OF NEW HAMPSHIRE
No. 10–8974. Argued November 2, 2011—Decided January 11, 2012
Around 3 a.m. on August 15, 2008, the Nashua, New Hampshire Police
Department received a call reporting that an African-American male
was trying to break into cars parked in the lot of the caller’s apart-
ment building. When an officer responding to the call asked eyewit-
ness Nubia Blandon to describe the man, Blandon pointed to her
kitchen window and said the man she saw breaking into the car was
standing in the parking lot, next to a police officer. Petitioner Barion
Perry’s arrest followed this identification.
Before trial, Perry moved to suppress Blandon’s identification on
the ground that admitting it at trial would violate due process. The
New Hampshire trial court denied the motion. To determine whether
due process prohibits the introduction of an out-of-court identification
at trial, the Superior Court said, this Court’s decisions instruct a two-
step inquiry: The trial court must first decide whether the police used
an unnecessarily suggestive identification procedure; if they did, the
court must next consider whether that procedure so tainted the re-
sulting identification as to render it unreliable and thus inadmissi-
ble. Perry’s challenge, the court found, failed at step one, for Blan-
don’s identification did not result from an unnecessarily suggestive
procedure employed by the police. A jury subsequently convicted
Perry of theft by unauthorized taking.
On appeal, Perry argued that the trial court erred in requiring an
initial showing that police arranged a suggestive identification pro-
cedure. Suggestive circumstances alone, Perry contended, suffice to
require court evaluation of the reliability of an eyewitness identifica-
tion before allowing it to be presented to the jury. The New Hamp-
shire Supreme Court rejected Perry’s argument and affirmed his
conviction.
Held: The Due Process Clause does not require a preliminary judicial
2 PERRY v. NEW HAMPSHIRE
Syllabus
inquiry into the reliability of an eyewitness identification when the
identification was not procured under unnecessarily suggestive cir-
cumstances arranged by law enforcement. Pp. 6–19.
(a) The Constitution protects a defendant against a conviction
based on evidence of questionable reliability, not by prohibiting in-
troduction of the evidence, but by affording the defendant means to
persuade the jury that the evidence should be discounted as unwor-
thy of credit. Only when evidence “is so extremely unfair that its
admission violates fundamental conceptions of justice,” Dowling v.
United States, 493 U. S. 342, 352 (internal quotation marks omitted),
does the Due Process Clause preclude its admission.
Contending that the Due Process Clause is implicated here, Perry
relies on a series of decisions involving police-arranged identification
procedures. See Stovall v. Denno, 388 U. S. 293; Simmons v. United
States, 390 U. S. 377; Foster v. California, 394 U. S. 440; Neil v. Big-
gers, 409 U. S. 188; and Manson v. Brathwaite, 432 U. S. 98. These
cases detail the approach appropriately used to determine whether
due process requires suppression of an eyewitness identification
tainted by police arrangement. First, due process concerns arise only
when law enforcement officers use an identification procedure that is
both suggestive and unnecessary. Id., at 107, 109; Biggers, 409 U. S.,
at 198. Even when the police use such a procedure, however, sup-
pression of the resulting identification is not the inevitable conse-
quence. Brathwaite, 432 U. S., at 112–113; Biggers, 409 U. S., at
198–199. Instead, due process requires courts to assess, on a case-by-
case basis, whether improper police conduct created a “substantial
likelihood of misidentification.” Id., at 201. “[R]eliability [of the eye-
witness identification] is the linchpin” of that evaluation.
Brathwaite, 432 U. S., at 114. Where the “indicators of [a witness’]
ability to make an accurate identification” are “outweighed by the
corrupting effect” of law enforcement suggestion, the identification
should be suppressed. Id., at 114, 116. Otherwise, the identification,
assuming no other barrier to its admission, should be submitted to
the jury. Pp. 6–10.
(b) Perry argues that it was mere happenstance that all of the cas-
es in the Stovall line involved improper police action. The rationale
underlying this Court’s decisions, Perry asserts, calls for a rule re-
quiring trial judges to prescreen eyewitness evidence for reliability
any time an identification is made under suggestive circumstances.
This Court disagrees.
If “reliability is the linchpin” of admissibility under the Due Pro-
cess Clause, Brathwaite, 432 U. S., at 114, Perry contends, it should
not matter whether law enforcement was responsible for creating the
suggestive circumstances that marred the identification. This argu-
Cite as: 565 U. S. ____ (2012) 3
Syllabus
ment removes Brathwaite’s statement from its mooring, attributing
to it a meaning that a fair reading of the opinion does not bear. The
due process check for reliability, Brathwaite made plain, comes into
play only after the defendant establishes improper police conduct.
Perry’s contention also ignores a key premise of Brathwaite: A pri-
mary aim of excluding identification evidence obtained under unnec-
essarily suggestive circumstances is to deter law enforcement use of
improper procedures in the first place. This deterrence rationale is
inapposite in cases, like Perry’s, where there is no improper police
conduct. Perry also places significant weight on United States v.
Wade, 388 U. S. 218, describing it as a decision not anchored to im-
proper police conduct. But the risk of police rigging was the very
danger that prompted the Court in Wade to extend a defendant’s
right to counsel to cover postindictment lineups and showups.
Perry’s position would also open the door to judicial preview, under
the banner of due process, of most, if not all, eyewitness identifica-
tions. There is no reason why an identification made by an eyewit-
ness with poor vision or one who harbors a grudge against the de-
fendant, for example, should be regarded as inherently more reliable
than Blandon’s identification here. Even if this Court could, as Perry
contends, distinguish “suggestive circumstances” from other factors
bearing on the reliability of eyewitness evidence, Perry’s limitation
would still involve trial courts, routinely, in preliminary examina-
tions, for most eyewitness identifications involve some element of
suggestion. Pp. 10–14.
(c) In urging a broadly applicable rule, Perry maintains that eye-
witness identifications are uniquely unreliable. The fallibility of
eyewitness evidence does not, without the taint of improper state
conduct, warrant a due process rule requiring a trial court to screen
the evidence for reliability before allowing the jury to assess its cre-
ditworthiness. The Court’s unwillingness to adopt such a rule rests,
in large part, on its recognition that the jury, not the judge, tradi-
tionally determines the reliability of evidence. It also takes account
of other safeguards built into the adversary system that caution ju-
ries against placing undue weight on eyewitness testimony of ques-
tionable reliability. These protections include the defendant’s Sixth
Amendment rights to counsel and to confront and cross-examine the
eyewitness, eyewitness-specific instructions warning juries to take
care in appraising identification evidence, and state and federal rules
of evidence permitting trial judges to exclude relevant evidence if its
probative value is substantially outweighed by its prejudicial impact
or potential for misleading the jury. Many of these safeguards were
availed of by Perry’s defense. Given the safeguards generally appli-
cable in criminal trials, the introduction of Blandon’s eyewitness tes-
4 PERRY v. NEW HAMPSHIRE
Syllabus
timony, without a preliminary judicial assessment of its reliability,
did not render Perry’s trial fundamentally unfair. Pp. 14–18.
Affirmed.
GINSBURG, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and SCALIA, KENNEDY, THOMAS, BREYER, ALITO, and KAGAN, JJ.,
joined. THOMAS, J., filed a concurring opinion. SOTOMAYOR, J., filed a
dissenting opinion.
Cite as: 565 U. S. ____ (2012) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 10–8974
_________________
BARION PERRY, PETITIONER v. NEW HAMPSHIRE
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
NEW HAMPSHIRE
[January 11, 2012]
JUSTICE GINSBURG delivered the opinion of the Court.
In our system of justice, fair trial for persons charged
with criminal offenses is secured by the Sixth Amend-
ment, which guarantees to defendants the right to counsel,
compulsory process to obtain defense witnesses, and the
opportunity to cross-examine witnesses for the prosecu-
tion. Those safeguards apart, admission of evidence in
state trials is ordinarily governed by state law, and the
reliability of relevant testimony typically falls within the
province of the jury to determine. This Court has recog-
nized, in addition, a due process check on the admission of
eyewitness identification, applicable when the police have
arranged suggestive circumstances leading the witness to
identify a particular person as the perpetrator of a crime.
An identification infected by improper police influence,
our case law holds, is not automatically excluded. Instead,
the trial judge must screen the evidence for reliability
pretrial. If there is “a very substantial likelihood of irrep-
arable misidentification,” Simmons v. United States, 390
U. S. 377, 384 (1968), the judge must disallow presenta-
tion of the evidence at trial. But if the indicia of reliability
are strong enough to outweigh the corrupting effect of the
2 PERRY v. NEW HAMPSHIRE
Opinion of the Court
police-arranged suggestive circumstances, the identifica-
tion evidence ordinarily will be admitted, and the jury will
ultimately determine its worth.
We have not extended pretrial screening for reliability
to cases in which the suggestive circumstances were not
arranged by law enforcement officers. Petitioner requests
that we do so because of the grave risk that mistaken
identification will yield a miscarriage of justice.1 Our
decisions, however, turn on the presence of state action
and aim to deter police from rigging identification proce-
dures, for example, at a lineup, showup, or photograph
array. When no improper law enforcement activity is
involved, we hold, it suffices to test reliability through the
rights and opportunities generally designed for that pur-
pose, notably, the presence of counsel at postindictment
lineups, vigorous cross-examination, protective rules of evi-
dence, and jury instructions on both the fallibility of
eyewitness identification and the requirement that guilt
be proved beyond a reasonable doubt.
I
A
Around 3 a.m. on August 15, 2008, Joffre Ullon called
the Nashua, New Hampshire, Police Department and
——————
1 The dissent, too, appears to urge that all suggestive circumstances
raise due process concerns warranting a pretrial ruling. See post, at 6,
9, 14–17. Neither Perry nor the dissent, however, points to a single
case in which we have required pretrial screening absent a police-
arranged identification procedure. Understandably so, for there are no
such cases. Instead, the dissent surveys our decisions, heedless of the
police arrangement that underlies every one of them, and inventing a
“longstanding rule,” post, at 6, that never existed. Nor are we, as the
dissent suggests, imposing a mens rea requirement, post, at 1, 7, or
otherwise altering our precedent in any way. As our case law makes
clear, what triggers due process concerns is police use of an unneces-
sarily suggestive identification procedure, whether or not they intended
the arranged procedure to be suggestive.
Cite as: 565 U. S. ____ (2012) 3
Opinion of the Court
reported that an African-American male was trying to
break into cars parked in the lot of Ullon’s apartment
building. Officer Nicole Clay responded to the call. Upon
arriving at the parking lot, Clay heard what “sounded like
a metal bat hitting the ground.” App. 37a–38a. She then
saw petitioner Barion Perry standing between two cars.
Perry walked toward Clay, holding two car-stereo amplifi-
ers in his hands. A metal bat lay on the ground behind
him. Clay asked Perry where the amplifiers came from.
“[I] found them on the ground,” Perry responded. Id.,at 39a.
Meanwhile, Ullon’s wife, Nubia Blandon, woke her
neighbor, Alex Clavijo, and told him she had just seen
someone break into his car. Clavijo immediately went
downstairs to the parking lot to inspect the car. He first
observed that one of the rear windows had been shattered.
On further inspection, he discovered that the speakers
and amplifiers from his car stereo were missing, as were
his bat and wrench. Clavijo then approached Clay and
told her about Blandon’s alert and his own subsequent
observations.
By this time, another officer had arrived at the scene.
Clay asked Perry to stay in the parking lot with that
officer, while she and Clavijo went to talk to Blandon.
Clay and Clavijo then entered the apartment building
and took the stairs to the fourth floor, where Blandon’s and
Clavijo’s apartments were located. They met Blandon in
the hallway just outside the open door to her apartment.
Asked to describe what she had seen, Blandon stated
that, around 2:30 a.m., she saw from her kitchen window a
tall, African-American man roaming the parking lot and
looking into cars. Eventually, the man circled Clavijo’s
car, opened the trunk, and removed a large box.2
——————
2 The box, which Clay found on the ground near where she first en-
countered Perry, contained car-stereo speakers. App. 177a–178a.
4 PERRY v. NEW HAMPSHIRE
Opinion of the Court
Clay asked Blandon for a more specific description of the
man. Blandon pointed to her kitchen window and said the
person she saw breaking into Clavijo’s car was standing in
the parking lot, next to the police officer. Perry’s arrest
followed this identification.
About a month later, the police showed Blandon a pho-
tographic array that included a picture of Perry and asked
her to point out the man who had broken into Clavijo’s car.
Blandon was unable to identify Perry.
B
Perry was charged in New Hampshire state court with
one count of theft by unauthorized taking and one count of
criminal mischief.3 Before trial, he moved to suppress
Blandon’s identification on the ground that admitting it at
trial would violate due process. Blandon witnessed what
amounted to a one-person showup in the parking lot,
Perry asserted, which all but guaranteed that she would
identify him as the culprit. Id., at 15a–16a.
The New Hampshire Superior Court denied the motion.
Id., at 82a–88a. To determine whether due process pro-
hibits the introduction of an out-of-court identification at
trial, the Superior Court said, this Court’s decisions in-
struct a two-step inquiry. First, the trial court must de-
cide whether the police used an unnecessarily suggestive
identification procedure. Id., at 85a. If they did, the court
must next consider whether the improper identification
procedure so tainted the resulting identification as to
render it unreliable and therefore inadmissible. Ibid.(citing Neil v. Biggers, 409 U. S. 188 (1972), and Manson v.
Brathwaite, 432 U. S. 98 (1977)).
Perry’s challenge, the Superior Court concluded, failed
at step one: Blandon’s identification of Perry on the night
——————
3 The theft charge was based on the taking of items from Clavijo’s car,
while the criminal mischief count was founded on the shattering of
Clavijo’s car window.
Cite as: 565 U. S. ____ (2012) 5
Opinion of the Court
of the crime did not result from an unnecessarily sugges-
tive procedure “manufacture[d] . . . by the police.” App.
86a–87a. Blandon pointed to Perry “spontaneously,” the
court noted, “without any inducement from the police.”
Id., at 85a–86a. Clay did not ask Blandon whether the
man standing in the parking lot was the man Blandon had
seen breaking into Clavijo’s car. Ibid. Nor did Clay ask
Blandon to move to the window from which she had ob-
served the break-in. Id., at 86a.
The Superior Court recognized that there were reasons
to question the accuracy of Blandon’s identification: the
parking lot was dark in some locations; Perry was stand-
ing next to a police officer; Perry was the only African-
American man in the vicinity; and Blandon was unable,
later, to pick Perry out of a photographic array. Id., at
86a–87a. But “[b]ecause the police procedures were not
unnecessarily suggestive,” the court ruled that the relia-
bility of Blandon’s testimony was for the jury to consider.
Id., at 87a.
At the ensuing trial, Blandon and Clay testified to
Blandon’s out-of-court identification. The jury found Perry
guilty of theft and not guilty of criminal mischief.
On appeal, Perry repeated his challenge to the admissi-
bility of Blandon’s out-of-court identification. The trial
court erred, Perry contended, in requiring an initial show-
ing that the police arranged the suggestive identification
procedure. Suggestive circumstances alone, Perry argued,
suffice to trigger the court’s duty to evaluate the reliability
of the resulting identification before allowing presentation
of the evidence to the jury.
The New Hampshire Supreme Court rejected Perry’s
argument and affirmed his conviction. Id., at 9a–11a.
Only where the police employ suggestive identification
techniques, that court held, does the Due Process Clause
require a trial court to assess the reliability of identifica-
tion evidence before permitting a jury to consider it. Id.,6 PERRY v. NEW HAMPSHIRE
Opinion of the Court
at 10a–11a.
We granted certiorari to resolve a division of opinion on
the question whether the Due Process Clause requires a trial
judge to conduct a preliminary assessment of the reliability of
an eyewitness identification made under suggestive circum-
stances not arranged by the police. 563 U. S. ___ (2011).4
II
A
The Constitution, our decisions indicate, protects a de-
fendant against a conviction based on evidence of ques-
tionable reliability, not by prohibiting introduction of the
evidence, but by affording the defendant means to per-
suade the jury that the evidence should be discounted
as unworthy of credit. Constitutional safeguards available
to defendants to counter the State’s evidence include
the Sixth Amendment rights to counsel, Gideon v. Wain-
wright, 372 U. S. 335, 343–345 (1963); compulsory process,
Taylor v. Illinois, 484 U. S. 400, 408–409 (1988); and
confrontation plus cross-examination of witnesses, Dela-
ware v. Fensterer, 474 U. S. 15, 18–20 (1985) (per curiam).
——————
4 Compare United States v. Bouthot, 878 F. 2d 1506, 1516 (CA1 1989)
(Due process requires federal courts to “scrutinize all suggestive identi-
fication procedures, not just those orchestrated by the police.”); Dunni-
gan v. Keane, 137 F. 3d 117, 128 (CA2 1998) (same); Thigpen v. Cory,
804 F. 2d 893, 895 (CA6 1986) (same), with United States v. Kimberlin,
805 F. 2d 210, 233 (CA7 1986) (Due process check is required only in
cases involving improper state action.); United States v. Zeiler, 470
F. 2d 717, 720 (CA3 1972) (same); State v. Addison, 160 N. H. 792, 801,
8 A. 3d 118, 125 (2010) (same); State v. Reid, 91 S. W. 3d 247, 272
(Tenn. 2002) (same); State v. Nordstrom, 200 Ariz. 229, 241, 25 P. 3d
717, 729 (2001) (same); Semple v. State, 271 Ga. 416, 417–418, 519 S. E.
2d 912, 914–915 (1999) (same); Harris v. State, 619 N. E. 2d 577, 581
(Ind. 1993) (same); State v. Pailon, 590 A. 2d 858, 862–863 (R. I. 1991)
(same); Commonwealth v. Colon-Cruz, 408 Mass. 533, 541–542, 562
N. E. 2d 797, 805 (1990) (same); State v. Brown, 38 Ohio St. 3d 305,
310–311, 528 N. E. 2d 523, 533 (1988) (same); Wilson v. Common-
wealth, 695 S. W. 2d 854, 857 (Ky. 1985) (same).
Cite as: 565 U. S. ____ (2012) 7
Opinion of the Court
Apart from these guarantees, we have recognized, state
and federal statutes and rules ordinarily govern the ad-
missibility of evidence, and juries are assigned the task of
determining the reliability of the evidence presented at
trial. See Kansas v. Ventris, 556 U. S. 586, 594, n. (2009)
(“Our legal system . . . is built on the premise that it is the
province of the jury to weigh the credibility of competing
witnesses.”). Only when evidence “is so extremely unfair
that its admission violates fundamental conceptions of
justice,” Dowling v. United States, 493 U. S. 342, 352
(1990) (internal quotation marks omitted), have we im-
posed a constraint tied to the Due Process Clause. See,
e.g., Napue v. Illinois, 360 U. S. 264, 269 (1959) (Due
process prohibits the State’s “knowin[g] use [of] false
evidence,” because such use violates “any concept of or-
dered liberty.”).
Contending that the Due Process Clause is implicated
here, Perry relies on a series of decisions involving police-
arranged identification procedures. In Stovall v. Denno,
388 U. S. 293 (1967), first of those decisions, a witness
identified the defendant as her assailant after police offic-
ers brought the defendant to the witness’ hospital room.
Id., at 295. At the time the witness made the identifica-
tion, the defendant—the only African-American in the
room—was handcuffed and surrounded by police officers.
Ibid. Although the police-arranged showup was undenia-
bly suggestive, the Court held that no due process viola-
tion occurred. Id., at 302. Crucial to the Court’s decision
was the procedure’s necessity: The witness was the only
person who could identify or exonerate the defendant; the
witness could not leave her hospital room; and it was
uncertain whether she would live to identify the defendant
in more neutral circumstances. Ibid.A year later, in Simmons v. United States, 390 U. S. 377(1968), the Court addressed a due process challenge to
police use of a photographic array. When a witness identi-
8 PERRY v. NEW HAMPSHIRE
Opinion of the Court
fies the defendant in a police-organized photo lineup, the
Court ruled, the identification should be suppressed only
where “the photographic identification procedure was so
[unnecessarily] suggestive as to give rise to a very sub-
stantial likelihood of irreparable misidentification.” Id., at
384–385. Satisfied that the photo array used by Federal
Bureau of Investigation agents in Simmons was both
necessary and unlikely to have led to a mistaken identifi-
cation, the Court rejected the defendant’s due process
challenge to admission of the identification. Id., at 385–
386. In contrast, the Court held in Foster v. California,
394 U. S. 440 (1969), that due process required the exclu-
sion of an eyewitness identification obtained through
police-arranged procedures that “made it all but inevitable
that [the witness] would identify [the defendant].” Id., at
443.
Synthesizing previous decisions, we set forth in Neil v.
Biggers, 409 U. S. 188 (1972), and reiterated in Manson v.
Brathwaite, 432 U. S. 98 (1977), the approach appropri-
ately used to determine whether the Due Process Clause
requires suppression of an eyewitness identification taint-
ed by police arrangement. The Court emphasized, first,
that due process concerns arise only when law enforce-
ment officers use an identification procedure that is both
suggestive and unnecessary. Id., at 107, 109; Biggers, 409
U. S., at 198. Even when the police use such a procedure,
the Court next said, suppression of the resulting identifi-
cation is not the inevitable consequence. Brathwaite, 432
U. S., at 112–113; Biggers, 409 U. S., at 198–199.
A rule requiring automatic exclusion, the Court rea-
soned, would “g[o] too far,” for it would “kee[p] evidence
from the jury that is reliable and relevant,” and “may
result, on occasion, in the guilty going free.” Brathwaite,
432 U. S., at 112; see id., at 113 (when an “identification is
reliable despite an unnecessarily suggestive [police] identi-
fication procedure,” automatic exclusion “is a Draconian
Cite as: 565 U. S. ____ (2012) 9
Opinion of the Court
sanction,” one “that may frustrate rather than promote
justice”).
Instead of mandating a per se exclusionary rule, the
Court held that the Due Process Clause requires courts to
assess, on a case-by-case basis, whether improper police
conduct created a “substantial likelihood of misidentifi-
cation.” Biggers, 409 U. S., at 201; see Brathwaite, 432
U. S., at 116. “[R]eliability [of the eyewitness identifica-
tion] is the linchpin” of that evaluation, the Court stated
in Brathwaite. Id., at 114. Where the “indicators of [a
witness’] ability to make an accurate identification” are
“outweighed by the corrupting effect” of law enforcement
suggestion, the identification should be suppressed. Id., at
114, 116. Otherwise, the evidence (if admissible in all
other respects) should be submitted to the jury.5
Applying this “totality of the circumstances” approach,
id., at 110, the Court held in Biggers that law enforce-
ment’s use of an unnecessarily suggestive showup did not
require suppression of the victim’s identification of her
assailant. 409 U. S., at 199–200. Notwithstanding the
improper procedure, the victim’s identification was relia-
ble: She saw her assailant for a considerable period of time
under adequate light, provided police with a detailed de-
scription of her attacker long before the showup, and
had “no doubt” that the defendant was the person she had
seen. Id., at 200 (internal quotation marks omitted).
Similarly, the Court concluded in Brathwaite that police
use of an unnecessarily suggestive photo array did not
——————
5 Among “factors to be considered” in evaluating a witness’ “ability to
make an accurate identification,” the Court listed: “the opportunity of
the witness to view the criminal at the time of the crime, the witness’
degree of attention, the accuracy of his prior description of the criminal,
the level of certainty demonstrated at the confrontation, and the time
between the crime and the confrontation.” Manson v. Brathwaite, 432
U. S. 98, 114 (1977) (citing Neil v. Biggers, 409 U. S. 188, 199–200
(1972)).
10 PERRY v. NEW HAMPSHIRE
Opinion of the Court
require exclusion of the resulting identification. 432 U. S.,
at 114–117. The witness, an undercover police officer,
viewed the defendant in good light for several minutes,
provided a thorough description of the suspect, and was
certain of his identification. Id., at 115. Hence, the “indi-
cators of [the witness’] ability to make an accurate identi-
fication [were] hardly outweighed by the corrupting effect
of the challenged identification.” Id., at 116.
B
Perry concedes that, in contrast to every case in the
Stovall line, law enforcement officials did not arrange the
suggestive circumstances surrounding Blandon’s identifi-
cation. See Brief for Petitioner 34; Tr. of Oral Arg. 5
(counsel for Perry) (“[W]e do not allege any manipulation
or intentional orchestration by the police.”). He contends,
however, that it was mere happenstance that each of
the Stovall cases involved improper police action. The
rationale underlying our decisions, Perry asserts, supports
a rule requiring trial judges to prescreen eyewitness evi-
dence for reliability any time an identification is made
under suggestive circumstances. We disagree.
Perry’s argument depends, in large part, on the Court’s
statement in Brathwaite that “reliability is the linchpin in
determining the admissibility of identification testimony.”
432 U. S., at 114. If reliability is the linchpin of admissi-
bility under the Due Process Clause, Perry maintains, it
should make no difference whether law enforcement was
responsible for creating the suggestive circumstances that
marred the identification.
Perry has removed our statement in Brathwaite from its
mooring, and thereby attributes to the statement a mean-
ing a fair reading of our opinion does not bear. As just
explained, supra, at 8–9, the Brathwaite Court’s reference
to reliability appears in a portion of the opinion concerning
the appropriate remedy when the police use an unneces-
Cite as: 565 U. S. ____ (2012) 11
Opinion of the Court
sarily suggestive identification procedure. The Court
adopted a judicial screen for reliability as a course prefer-
able to a per se rule requiring exclusion of identification
evidence whenever law enforcement officers employ an
improper procedure. The due process check for reliability,
Brathwaite made plain, comes into play only after the
defendant establishes improper police conduct. The very
purpose of the check, the Court noted, was to avoid depriv-
ing the jury of identification evidence that is reliable,
notwithstanding improper police conduct. 432 U. S., at112–113.6
Perry’s contention that improper police action was not
essential to the reliability check Brathwaite required is
echoed by the dissent. Post, at 3–4. Both ignore a key
premise of the Brathwaite decision: A primary aim of ex-
cluding identification evidence obtained under unneces-
sarily suggestive circumstances, the Court said, is to deter
law enforcement use of improper lineups, showups, and
photo arrays in the first place. See 432 U. S., at 112.
Alerted to the prospect that identification evidence im-
properly obtained may be excluded, the Court reasoned,
police officers will “guard against unnecessarily suggestive
procedures.” Ibid. This deterrence rationale is inapposite
in cases, like Perry’s, in which the police engaged in no
improper conduct.
Coleman v. Alabama, 399 U. S. 1 (1970), another deci-
sion in the Stovall line, similarly shows that the Court has
linked the due process check, not to suspicion of eyewit-
ness testimony generally, but only to improper police
arrangement of the circumstances surrounding an identi-
——————
6 The Court’s description of the question presented in Brathwaite
assumes that improper state action occurred: “[Does] the Due Process
Clause of the Fourteenth Amendment compe[l] the exclusion, in a state
criminal trial, apart from any consideration of reliability, of pretrial
identification evidence obtained by a police procedure that was both
suggestive and unnecessary.” 432 U. S., at 99.
12 PERRY v. NEW HAMPSHIRE
Opinion of the Court
fication. The defendants in Coleman contended that a
witness’ in-court identifications violated due process,
because a pretrial stationhouse lineup was “so unduly
prejudicial and conducive to irreparable misidentification
as fatally to taint [the later identifications].” 399 U. S., at
3 (plurality opinion). The Court rejected this argument.
Id., at 5–6 (plurality opinion), 13–14 (Black, J., concur-
ring), 22, n. 2 (Burger, C. J., dissenting), 28, n. 2 (Stewart,
J., dissenting). No due process violation occurred, the
plurality explained, because nothing “the police said or did
prompted [the witness’] virtually spontaneous identifica-
tion of [the defendants].” Id., at 6. True, Coleman was the
only person in the lineup wearing a hat, the plurality
noted, but “nothing in the record show[ed] that he was
required to do so.” Ibid. See also Colorado v. Connelly,
479 U. S. 157, 163, 167 (1986) (Where the “crucial element
of police overreaching” is missing, the admissibility of an
allegedly unreliable confession is “a matter to be governed
by the evidentiary laws of the forum, . . . and not by the
Due Process Clause.”).
Perry and the dissent place significant weight on United
States v. Wade, 388 U. S. 218 (1967), describing it as a
decision not anchored to improper police conduct. See
Brief for Petitioner 12, 15, 21–22, 28; post, at 2–4, 8–10.
In fact, the risk of police rigging was the very danger to
which the Court responded in Wade when it recognized a
defendant’s right to counsel at postindictment, police-
organized identification procedures. 388 U. S., at 233,
235–236. “[T]he confrontation compelled by the State
between the accused and the victim or witnesses,” the
Court began, “is peculiarly riddled with innumerable
dangers and variable factors which might seriously, even
crucially, derogate from a fair trial.” Id., at 228 (emphasis
added). “A major factor contributing to the high incidence
of miscarriage of justice from mistaken identification,” the
Court continued, “has been the degree of suggestion inher-
Cite as: 565 U. S. ____ (2012) 13
Opinion of the Court
ent in the manner in which the prosecution presents
the suspect to witnesses for pretrial identification.” Ibid.
(emphasis added). To illustrate the improper suggestion it
was concerned about, the Court pointed to police-designed
lineups where “all in the lineup but the suspect were
known to the identifying witness, . . . the other partici-
pants in [the] lineup were grossly dissimilar in appearance
to the suspect, . . . only the suspect was required to wear
distinctive clothing which the culprit allegedly wore, . . .
the witness is told by the police that they have caught the
culprit after which the defendant is brought before the
witness alone or is viewed in jail, . . . the suspect is point-
ed out before or during a lineup, . . . the participants in the
lineup are asked to try on an article of clothing which fits
only the suspect.” Id., at 233 (footnotes omitted). Beyond
genuine debate, then, prevention of unfair police practices
prompted the Court to extend a defendant’s right to coun-
sel to cover postindictment lineups and showups. Id., at
235.
Perry’s argument, reiterated by the dissent, thus lacks
support in the case law he cites. Moreover, his position
would open the door to judicial preview, under the banner
of due process, of most, if not all, eyewitness identifica-
tions. External suggestion is hardly the only factor that
casts doubt on the trustworthiness of an eyewitness’ tes-
timony. As one of Perry’s amici points out, many other
factors bear on “the likelihood of misidentification,” post,
at 9—for example, the passage of time between exposure
to and identification of the defendant, whether the witness
was under stress when he first encountered the suspect,
how much time the witness had to observe the suspect,
how far the witness was from the suspect, whether the
suspect carried a weapon, and the race of the suspect and
the witness. Brief for American Psychological Association
as Amicus Curiae 9–12. There is no reason why an iden-
tification made by an eyewitness with poor vision, for ex-
14 PERRY v. NEW HAMPSHIRE
Opinion of the Court
ample, or one who harbors a grudge against the defend-
ant, should be regarded as inherently more reliable, less of
a “threat to the fairness of trial,” post, at 14, than the
identification Blandon made in this case. To embrace
Perry’s view would thus entail a vast enlargement of the
reach of due process as a constraint on the admission of
evidence.
Perry maintains that the Court can limit the due pro-
cess check he proposes to identifications made under
“suggestive circumstances.” Tr. of Oral Arg. 11–14. Even
if we could rationally distinguish suggestiveness from
other factors bearing on the reliability of eyewitness evi-
dence, Perry’s limitation would still involve trial courts,
routinely, in preliminary examinations. Most eyewitness
identifications involve some element of suggestion. In-
deed, all in-court identifications do. Out-of-court identifi-
cations volunteered by witnesses are also likely to involve
suggestive circumstances. For example, suppose a witness
identifies the defendant to police officers after seeing a
photograph of the defendant in the press captioned “theft
suspect,” or hearing a radio report implicating the defend-
ant in the crime. Or suppose the witness knew that the
defendant ran with the wrong crowd and saw him on the
day and in the vicinity of the crime. Any of these circum-
stances might have “suggested” to the witness that the
defendant was the person the witness observed commit-
ting the crime.
C
In urging a broadly applicable due process check on
eyewitness identifications, Perry maintains that eyewit-
ness identifications are a uniquely unreliable form of
evidence. See Brief for Petitioner 17–22 (citing studies
showing that eyewitness misidentifications are the leading
cause of wrongful convictions); Brief for American Psycho-
logical Association as Amicus Curiae 14–17 (describing
Cite as: 565 U. S. ____ (2012) 15
Opinion of the Court
research indicating that as many as one in three eyewit-
ness identifications is inaccurate). See also post, at 14–17.
We do not doubt either the importance or the fallibility of
eyewitness identifications. Indeed, in recognizing that
defendants have a constitutional right to counsel at
postindictment police lineups, we observed that “the an-
nals of criminal law are rife with instances of mistaken
identification.” Wade, 388 U. S., at 228.
We have concluded in other contexts, however, that the
potential unreliability of a type of evidence does not alone
render its introduction at the defendant’s trial fundamen-
tally unfair. See, e.g., Ventris, 556 U. S., at 594, n. (declin-
ing to “craft a broa[d] exclusionary rule for uncorroborated
statements obtained [from jailhouse snitches],” even
though “rewarded informant testimony” may be inherently
untrustworthy); Dowling, 493 U. S., at 353 (rejecting ar-
gument that the introduction of evidence concerning
acquitted conduct is fundamentally unfair because such
evidence is “inherently unreliable”). We reach a similar
conclusion here: The fallibility of eyewitness evidence does
not, without the taint of improper state conduct, warrant a
due process rule requiring a trial court to screen such
evidence for reliability before allowing the jury to assess
its creditworthiness.
Our unwillingness to enlarge the domain of due process
as Perry and the dissent urge rests, in large part, on our
recognition that the jury, not the judge, traditionally de-
termines the reliability of evidence. See supra, at 7. We
also take account of other safeguards built into our adver-
sary system that caution juries against placing undue
weight on eyewitness testimony of questionable reliability.
These protections include the defendant’s Sixth Amend-
ment right to confront the eyewitness. See Maryland v.
Craig, 497 U. S. 836, 845 (1990) (“The central concern of
the Confrontation Clause is to ensure the reliability of the
evidence against a criminal defendant.”). Another is the
16 PERRY v. NEW HAMPSHIRE
Opinion of the Court
defendant’s right to the effective assistance of an attorney,
who can expose the flaws in the eyewitness’ testimony
during cross-examination and focus the jury’s attention on
the fallibility of such testimony during opening and closing
arguments. Eyewitness-specific jury instructions, which
many federal and state courts have adopted,7 likewise
warn the jury to take care in appraising identification
evidence. See, e.g., United States v. Telfaire, 469 F. 2d
552, 558–559 (CADC 1972) (per curiam) (D. C. Circuit
Model Jury Instructions) (“If the identification by the
witness may have been influenced by the circumstances
under which the defendant was presented to him for iden-
tification, you should scrutinize the identification with
great care.”). See also Ventris, 556 U. S., at 594, n. (citing
jury instructions that informed jurors about the unrelia-
bility of uncorroborated jailhouse-informant testimony as
a reason to resist a ban on such testimony); Dowling, 493
——————
7 See Model Crim. Jury Instr. No. 4.15 (CA3 2009); United States v.
Holley, 502 F. 2d 273, 277–278 (CA4 1974); Pattern Crim. Jury Instr.
No. 1.29 (CA5 2001); Pattern Crim. Jury Instr. No. 7.11 (CA6 2011);
Fed. Crim. Jury Instr. No. 3.08 (CA7 1999); Model Crim. Jury Instr. for
the District Courts No. 4.08 (CA8 2011); Model Crim. Jury Instr.
No. 4.11 (CA9 2010); Crim. Pattern Jury Instr. No. 1.29 (CA10 2011);
Pattern Jury Instr. (Crim. Cases) Spec. Instr. No. 3 (CA11 2010); Rev.
Ariz. Jury Instr., Crim., No. 39 (3d ed. 2008); 1 Judicial Council of Cal.
Crim. Jury Instr. No. 315 (Summer 2011); Conn. Crim. Jury Instr. 2.6–
4 (2007); 2 Ga. Suggested Pattern Jury Instr. (Crim. Cases) No. 1.35.10
(4th ed. 2011); Ill. Pattern Jury Instr., Crim., No. 3.15 (Supp. 2011);
Pattern Instr., Kan. 3d, Crim., No. 52.20 (2011); 1 Md. Crim. Jury
Instr. & Commentary §§2.56, 2.57(A), 2.57(B) (3d ed. 2009 and Supp.
2010); Mass. Crim. Model Jury Instr. No. 9.160 (2009); 10 Minn. Jury
Instr. Guides, Crim., No. 3.19 (Supp. 2006); N. H. Crim. Jury Instr.
No. 3.06 (1985); N. Y. Crim. Jury Instr. “Identification—One Witness”
and “Identification—Witness Plus” (2d ed. 2011); Okla. Uniform Jury
Instr., Crim., No. 9–19 (Supp. 2000); 1 Pa. Suggested Standard Crim.
Jury Instr. No. 4.07B (2d ed. 2010); Tenn. Pattern Jury Instr., Crim.,
No. 42.05 (15th ed. 2011); Utah Model Jury Instr. CR404 (2d ed. 2010);
Model Instructions from the Vt. Crim. Jury Instr. Comm. Nos. CR5–
601, CR5–605 (2003); W. Va. Crim. Jury Instr. No. 5.05 (6th ed. 2003).
Cite as: 565 U. S. ____ (2012) 17
Opinion of the Court
U. S., at 352–353. The constitutional requirement that
the government prove the defendant’s guilt beyond a
reasonable doubt also impedes convictions based on dubi-
ous identification evidence.
State and federal rules of evidence, moreover, permit
trial judges to exclude relevant evidence if its probative
value is substantially outweighed by its prejudicial impact
or potential for misleading the jury. See, e.g., Fed. Rule
Evid. 403; N. H. Rule Evid. 403 (2011). See also Tr. of
Oral Arg. 19–22 (inquiring whether the standard Perry
seeks differs materially from the one set out in Rule 403).
In appropriate cases, some States also permit defendants
to present expert testimony on the hazards of eyewitness
identification evidence. See, e.g., State v. Clopten, 2009
UT 84, A33, 223 P. 3d 1103, 1113 (“We expect . . . that in
cases involving eyewitness identification of strangers or
near-strangers, trial courts will routinely admit expert
testimony [on the dangers of such evidence].”).
Many of the safeguards just noted were at work at
Perry’s trial. During her opening statement, Perry’s court-
appointed attorney cautioned the jury about the vulnera-
bility of Blandon’s identification. App. 115a (Blandon,
“the eyewitness that the State needs you to believe[,] can’t
pick [Perry] out of a photo array. How carefully did she
really see what was going on? . . . How well could she
really see him?”). While cross-examining Blandon and
Officer Clay, Perry’s attorney constantly brought up the
weaknesses of Blandon’s identification. She highlighted:
(1) the significant distance between Blandon’s window and
the parking lot, id., at 226a; (2) the lateness of the hour,
id., at 225a; (3) the van that partly obstructed Blandon’s
view, id., at 226a; (4) Blandon’s concession that she was
“so scared [she] really didn’t pay attention” to what Perry
was wearing, id., at 233a; (5) Blandon’s inability to de-
scribe Perry’s facial features or other identifying marks,
id., at 205a, 233a–235a; (6) Blandon’s failure to pick Perry
18 PERRY v. NEW HAMPSHIRE
Opinion of the Court
out of a photo array, id., at 235a; and (7) Perry’s position
next to a uniformed, gun-bearing police officer at the
moment Blandon made her identification, id., at 202a–
205a. Perry’s counsel reminded the jury of these frailties
during her summation. Id., at 374a–375a (Blandon
“wasn’t able to tell you much about who she saw . . . . She
couldn’t pick [Perry] out of a lineup, out of a photo array
. . . . [Blandon said] [t]hat guy that was with the police
officer, that’s who was circling. Again, think about the
context with the guns, the uniforms. Powerful, powerful
context clues.”).
After closing arguments, the trial court read the jury a
lengthy instruction on identification testimony and the
factors the jury should consider when evaluating it. Id.,at 399a–401a. The court also instructed the jury that
the defendant’s guilt must be proved beyond a reasonable
doubt, id., at 390a, 392a, 395a–396a, and specifically
cautioned that “one of the things the State must prove
[beyond a reasonable doubt] is the identification of the
defendant as the person who committed the offense,” id.,at 398a–399a.
Given the safeguards generally applicable in criminal
trials, protections availed of by the defense in Perry’s case,
we hold that the introduction of Blandon’s eyewitness
testimony, without a preliminary judicial assessment of its
reliability, did not render Perry’s trial fundamentally
unfair.
* * *
For the foregoing reasons, we agree with the New
Hampshire courts’ appraisal of our decisions. See supra,
at 4–5. Finding no convincing reason to alter our prece-
dent, we hold that the Due Process Clause does not re-
quire a preliminary judicial inquiry into the reliability of
an eyewitness identification when the identification was
not procured under unnecessarily suggestive circum-
Cite as: 565 U. S. ____ (2012) 19
Opinion of the Court
stances arranged by law enforcement. Accordingly, the
judgment of the New Hampshire Supreme Court is
Affirmed.
Cite as: 565 U. S. ____ (2012) 1
THOMAS, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 10–8974
_________________
BARION PERRY, PETITIONER v. NEW HAMPSHIRE
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
NEW HAMPSHIRE
[January 11, 2012]
JUSTICE THOMAS, concurring.
The Court correctly concludes that its precedents estab-
lish a due process right to the pretrial exclusion of an
unreliable eyewitness identification only if the identifica-
tion results from police suggestion. I therefore join its
opinion. I write separately because I would not extend
Stovall v. Denno, 388 U. S. 293 (1967), and its progeny
even if the reasoning of those opinions applied to this case.
The Stovall line of cases is premised on a “substantive due
process” right to “fundamental fairness.” See, e.g., id., at
299 (concluding that whether a suggestive identification
“resulted in such unfairness that it infringed [the defend-
ant’s] right to due process of law” is “open to all persons to
allege and prove”); Manson v. Brathwaite, 432 U. S. 98,
113 (1977) (“The standard, after all, is that of fairness
as required by the Due Process Clause of the Fourteenth
Amendment”). In my view, those cases are wrongly de-
cided because the Fourteenth Amendment’s Due Process
Clause is not a “secret repository of substantive guaran-
tees against ‘unfairness.’ ” BMW of North America, Inc. v.
Gore, 517 U. S. 559, 598–599 (1996) (SCALIA, J., joined by
THOMAS, J., dissenting); see also McDonald v. Chicago,
561 U. S. ___, ___ (2010) (THOMAS, J., concurring in part
and concurring in judgment) (slip op., at 7) (“The notion
that a constitutional provision that guarantees only ‘pro-
cess’ before a person is deprived of life, liberty, or property
2 PERRY v. NEW HAMPSHIRE
THOMAS, J., concurring
could define the substance of those rights strains credu-
lity”). Accordingly, I would limit the Court’s suggestive
eyewitness identification cases to the precise circum-
stances that they involved.
Cite as: 565 U. S. ____ (2012) 1
SOTOMAYOR, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 10–8974
_________________
BARION PERRY, PETITIONER v. NEW HAMPSHIRE
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
NEW HAMPSHIRE
[January 11, 2012]
JUSTICE SOTOMAYOR, dissenting.
This Court has long recognized that eyewitness identifi-
cations’ unique confluence of features—their unreliability,
susceptibility to suggestion, powerful impact on the jury,
and resistance to the ordinary tests of the adversarial
process—can undermine the fairness of a trial. Our cases
thus establish a clear rule: The admission at trial of
out-of-court eyewitness identifications derived from imper-
missibly suggestive circumstances that pose a very substan-
tial likelihood of misidentification violates due process.
The Court today announces that that rule does not even
“com[e] into play” unless the suggestive circumstances are
improperly “police-arranged.” Ante, at 2, 11.
Our due process concern, however, arises not from the
act of suggestion, but rather from the corrosive effects of
suggestion on the reliability of the resulting identification.
By rendering protection contingent on improper police
arrangement of the suggestive circumstances, the Court
effectively grafts a mens rea inquiry onto our rule. The
Court’s holding enshrines a murky distinction—between
suggestive confrontations intentionally orchestrated by
the police and, as here, those inadvertently caused by
police actions—that will sow confusion. It ignores our
precedents’ acute sensitivity to the hazards of intentional
and unintentional suggestion alike and unmoors our rule
from the very interest it protects, inviting arbitrary re-
2 PERRY v. NEW HAMPSHIRE
SOTOMAYOR, J., dissenting
sults. And it recasts the driving force of our decisions as
an interest in police deterrence, rather than reliability.
Because I see no warrant for declining to assess the cir-
cumstances of this case under our ordinary approach, I
respectfully dissent.1
I
The “driving force” behind United States v. Wade, 388
U. S. 218 (1967), Gilbert v. California, 388 U. S. 263(1967), and Stovall v. Denno, 388 U. S. 293 (1967), was
“the Court’s concern with the problems of eyewitness
identification”—specifically, “the concern that the jury not
hear eyewitness testimony unless that evidence has as-
pects of reliability.” Manson v. Brathwaite, 432 U. S. 98,
111–112 (1977). We have pointed to the “ ‘formidable’ ”
number of “miscarriage[s] of justice from mistaken identi-
fication” in the annals of criminal law. Wade, 388 U. S., at
228. We have warned of the “vagaries” and “ ‘proverbi-
ally untrustworthy’ ” nature of eyewitness identifications.
Ibid. And we have singled out a “major factor contrib-
uting” to that proverbial unreliability: “the suggestibility
inherent in the context of the pretrial identification.” Id.,
at 228, 235.
Our precedents make no distinction between intentional
and unintentional suggestion. To the contrary, they ex-
plicitly state that “[s]uggestion can be created intentional-
ly or unintentionally in many subtle ways.” Id., at 229.
Rather than equate suggestive conduct with misconduct,
we specifically have disavowed the assumption that sug-
gestive influences may only be “the result of police proce-
dures intentionally designed to prejudice an accused.” Id.,
at 235; see also id., at 236 (noting “grave potential for
prejudice, intentional or not, in the pretrial lineup”); id., at
——————
1 Because the facts of this case involve police action, I do not reach the
question whether due process is triggered in situations involving no
police action whatsoever.
Cite as: 565 U. S. ____ (2012) 3
SOTOMAYOR, J., dissenting
239 (describing lack of lineup regulations addressing
“risks of abuse and unintentional suggestion”). “Persons
who conduct the identification procedure may suggest,
intentionally or unintentionally, that they expect the
witness to identify the accused.” Moore v. Illinois, 434
U. S. 220, 224 (1977). The implication is that even police
acting with the best of intentions can inadvertently signal
“ ‘that’s the man.’ ” Wade, 388 U. S., at 236; see also Kirby
v. Illinois, 406 U. S. 682, 690–691 (1972) (“[I]t is always
necessary to ‘scrutinize any pretrial confrontation . . .’ ”).2
In Wade itself, we noted that the “potential for improper
influence [in pretrial confrontations] is illustrated by the
circumstances . . . [i]n the present case.” 388 U. S., at
233–234. We then highlighted not the lineup procedure,
but rather a preprocedure encounter: The two witnesses
who later identified Wade in the lineup had seen Wade
outside while “await[ing] assembly of the lineup.” Id., at
234. Wade had been standing in the hallway, which hap-
pened to be “observable to the witnesses through an open
door.” Ibid. One witness saw Wade “within sight of
an FBI agent”; the other saw him “in the custody of the
agent.” Ibid. In underscoring the hazards of these cir-
cumstances, we made no mention of whether the encoun-
ter had been arranged; indeed, the facts suggest that it
was not.
More generally, our precedents focus not on the act of
suggestion, but on suggestion’s “corrupting effect” on
——————
2 Wade held that the dangers of pretrial identification procedures
necessitated a right to counsel; that same day, Stovall held that a
defendant ineligible for the Wade rule was still entitled to challenge the
confrontation as a due process violation. Because the two were com-
panion cases advancing interrelated rules to avoid unfairness at trial
resulting from suggestive pretrial confrontations, Wade’s exposition of
the dangers of suggestiveness informs both contexts. See Manson v.
Brathwaite, 432 U. S. 98, 112 (1977) (“Wade and its companion cases
reflect the concern that the jury not hear eyewitness testimony unless
that evidence has aspects of reliability”).
4 PERRY v. NEW HAMPSHIRE
SOTOMAYOR, J., dissenting
reliability. Brathwaite, 432 U. S., at 114. Eyewitness
evidence derived from suggestive circumstances, we have
explained, is uniquely resistant to the ordinary tests of the
adversary process. An eyewitness who has made an iden-
tification often becomes convinced of its accuracy. “Re-
gardless of how the initial misidentification comes about,
the witness thereafter is apt to retain in his memory the
image of the photograph rather than of the person actually
seen, reducing the trustworthiness of subsequent . . .
courtroom identification.” Simmons v. United States, 390
U. S. 377, 383–384 (1968) (emphasis added); see also
Wade, 388 U. S., at 229 (witness is “not likely” to recant).
Suggestion bolsters that confidence.
At trial, an eyewitness’ artificially inflated confidence in
an identification’s accuracy complicates the jury’s task of
assessing witness credibility and reliability. It also im-
pairs the defendant’s ability to attack the eyewitness’
credibility. Stovall, 388 U. S., at 298. That in turn jeop-
ardizes the defendant’s basic right to subject his accuser
to meaningful cross-examination. See Wade, 388 U. S.,
at 235 (“[C]ross-examination . . . cannot be viewed as an
absolute assurance of accuracy and reliability . . . where so
many variables and pitfalls exist”). The end result of
suggestion, whether intentional or unintentional, is to
fortify testimony bearing directly on guilt that juries find
extremely convincing and are hesitant to discredit. See
id., at 224 (“[A]t pretrial proceedings . . . the results might
well settle the accused’s fate and reduce the trial itself to a
mere formality”); Gilbert, 388 U. S., at 273 (“[T]he witness’
testimony of his lineup identification will enhance the
impact of his in-court identification on the jury”).
Consistent with our focus on reliability, we have de-
clined to adopt a per se rule excluding all suggestive iden-
tifications. Instead, “reliability is the linchpin” in deciding
admissibility. Brathwaite, 432 U. S., at 114. We have
explained that a suggestive identification procedure “does
Cite as: 565 U. S. ____ (2012) 5
SOTOMAYOR, J., dissenting
not in itself intrude upon a constitutionally protected in-
terest.” Id., at 113, n. 13; see also Neil v. Biggers, 409
U. S. 188, 198–199 (1972) (rejecting the proposition that
“unnecessary suggestiveness alone requires the exclusion
of evidence”). “Suggestive confrontations are disapproved
because they increase the likelihood of misidentifica-
tion”—and “[i]t is the likelihood of misidentification which
violates a defendant’s right to due process.” Id., at 198;
see also United States ex rel. Kirby v. Sturges, 510 F. 2d
397, 406 (CA7 1975) (Stevens, J.) (“The due process clause
applies only to proceedings which result in a deprivation of
life, liberty or property. . . . [I]f a constitutional violation
results from a showup, it occurs in the courtroom, not in
the police station”). In short, “ ‘what the Stovall due pro-
cess right protects is an evidentiary interest.’ ” Brathwaite,
432 U. S., at 113, n. 14.
To protect that evidentiary interest, we have applied a
two-step inquiry: First, the defendant has the burden of
showing that the eyewitness identification was derived
through “impermissibly suggestive” means.3 Simmons,
390 U. S., at 384. Second, if the defendant meets that
burden, courts consider whether the identification was
——————
3 Our precedents refer to “impermissibly,” “unnecessarily,” and “un-
duly” suggestive circumstances interchangeably. See, e.g., Brathwaite,
432 U. S., at 105, n. 8, 107–108, 110, 112–113 (“impermissibly” and
“unnecessarily”); Neil v. Biggers, 409 U. S. 188, 196–199 (1972) (“im-
permissibly” and “unnecessarily”); Coleman v. Alabama, 399 U. S. 1, 3–
5 (1970) (“unduly” and “impermissibly”); Simmons v. United States, 390
U. S. 377, 383–384 (1968) (“unduly” and “impermissibly”). The Circuits
have followed suit. E.g., Thigpen v. Cory, 804 F. 2d 893, 895 (CA6
1986) (“unduly”); Green v. Loggins, 614 F. 2d 219, 223 (CA9 1980)
(“unnecessarily or impermissibly”). All reinforce our focus not on the
act of suggestion, but on whether the suggestiveness rises to such a
level that it undermines reliability. Police machinations can heighten
the likelihood of misidentification, but they are no prerequisite to
finding a confrontation “so impermissibly suggestive as to give rise to a
very substantial likelihood of . . . misidentification.” Simmons, 390
U. S., at 384.
6 PERRY v. NEW HAMPSHIRE
SOTOMAYOR, J., dissenting
reliable under the totality of the circumstances. That step
entails considering the witness’ opportunity to view the
perpetrator, degree of attention, accuracy of description,
level of certainty, and the time between the crime and
pretrial confrontation, then weighing such factors against
the “corrupting effect of the suggestive identification.”
Brathwaite, 432 U. S., at 108, 114. Most identifications
will be admissible. The standard of “fairness as required
by the Due Process Clause,” id., at 113, however, demands
that a subset of the most unreliable identifications—those
carrying a “ ‘very substantial likelihood of . . . misidentifi-
cation’ ”—will be excluded. Biggers, 409 U. S., at 198.
II
A
The majority today creates a novel and significant limi-
tation on our longstanding rule: Eyewitness identifications
so impermissibly suggestive that they pose a very sub-
stantial likelihood of an unreliable identification will be
deemed inadmissible at trial only if the suggestive circum-
stances were “police-arranged.” Ante, at 2. Absent “im-
proper police arrangement,” “improper police conduct,” or
“rigging,” the majority holds, our two-step inquiry does not
even “com[e] into play.” Ante, at 2, 11. I cannot agree.
The majority does not simply hold that an eyewitness
identification must be the product of police action to trig-
ger our ordinary two-step inquiry. Rather, the majority
maintains that the suggestive circumstances giving rise
to the identification must be “police-arranged,” “police
rigg[ed],” “police-designed,” or “police-organized.” Ante, at
2, 12–13. Those terms connote a degree of intentional
orchestration or manipulation. See Brief for Respondent
19 (no indication that police “deliberately tried to manipu-
late any evidence”); Brief for United States as Amicus
Curiae 18 (“[N]o one deliberately arranged the circum-
stances to obtain an identification”). The majority cate-
Cite as: 565 U. S. ____ (2012) 7
SOTOMAYOR, J., dissenting
gorically exempts all eyewitness identifications derived
from suggestive circumstances that were not police-
manipulated—however suggestive, and however unrelia-
ble—from our due process check. The majority thus
appears to graft a mens rea requirement onto our existing
rule.4
As this case illustrates, police intent is now paramount.
As the Court acknowledges, Perry alleges an “accidental
showup.” Brief for Petitioner 34 (emphasis added); see
ante, at 4. He was the only African-American at the scene
of the crime standing next to a police officer. For the
majority, the fact that the police did not intend that
showup, even if they inadvertently caused it in the course
of a police procedure, ends the inquiry. The police were
questioning the eyewitness, Blandon, about the perpetra-
tor’s identity, and were intentionally detaining Perry in
the parking lot—but had not intended for Blandon to
identify the perpetrator from her window. Presumably, in
the majority’s view, had the police asked Blandon to move
to the window to identify the perpetrator, that could have
made all the difference. See Tr. of Oral Arg. 32, 37.
I note, however, that the majority leaves what is re-
quired by its arrangement-focused inquiry less than clear.
In parts, the opinion suggests that the police must arrange
an identification “procedure,” regardless of whether they
“inten[d] the arranged procedure to be suggestive.” Ante,
at 2, n. 1; see also ante, at 7–8. Elsewhere, it indicates
that the police must arrange the “suggestive circum-
stances” that lead the witness to identify the accused. See
——————
4 The majority denies that it has imposed a mens rea requirement, see
ante, at 2, n. 1, but by confining our due process concerns to police-
arranged identification procedures, that is just what it has done. The
majority acknowledges that “whether or not [the police] intended the
arranged procedure to be suggestive” is irrelevant under our prece-
dents, ibid., but still places dispositive weight on whether or not the
police intended the procedure itself.
8 PERRY v. NEW HAMPSHIRE
SOTOMAYOR, J., dissenting
ante, at 1–2, 10–11, 18–19. Still elsewhere it refers to “im-
proper” police conduct, ante, at 1–2, 9–12, connoting bad
faith. Does police “arrangement” relate to the procedure, the
suggestiveness, or both? If it relates to the procedure, do
suggestive preprocedure encounters no longer raise the
same concerns? If the police need not “inten[d] the ar-
ranged procedure to be suggestive,” ante, at 2, n. 1, what
makes the police action “improper”? And does that mean
that good-faith, unintentional police suggestiveness in a
police-arranged lineup can be “impermissibly sugges-
tive”? If no, the majority runs headlong into Wade. If
yes, on what basis—if not deterrence—does it distinguish
unintentional police suggestiveness in an accidental
confrontation?
The arrangement-focused inquiry will sow needless con-
fusion. If the police had called Perry and Blandon to
the police station for interviews, and Blandon saw Perry
being questioned, would that be sufficiently “improper
police arrangement”? If Perry had voluntarily come to the
police station, would that change the result? Today’s
opinion renders the applicability of our ordinary inquiry
contingent on a murky line-drawing exercise. Whereas
our two-step inquiry focuses on overall reliability—and
could account for the spontaneity of the witness’ identifi-
cation and degree of police manipulation under the total-
ity of the circumstances—today’s opinion forecloses that
assessment by establishing a new and inflexible step zero.
B
The majority regards its limitation on our two-step rule
as compelled by precedent. Its chief rationale, ante, at 7–
13, is that none of our prior cases involved situations
where the police “did not arrange the suggestive circum-
stances.” Ante, at 10; see also ante, at 2, n. 1. That is not
necessarily true, given the seemingly unintentional en-
counter highlighted in Wade. But even if it were true, it is
Cite as: 565 U. S. ____ (2012) 9
SOTOMAYOR, J., dissenting
unsurprising. The vast majority of eyewitness identifica-
tions that the State uses in criminal prosecutions are
obtained in lineup, showup, and photograph displays
arranged by the police. Our precedents reflect that practi-
cal reality.
It is also beside the point. Our due process concerns
were not predicated on the source of suggestiveness.
Rather, “[i]t is the likelihood of misidentification which
violates a defendant’s right to due process,” Biggers, 409
U. S., at 198, and we are concerned with suggestion in-
sofar as it has “corrupting effect[s]” on the identification’s
reliability. Brathwaite, 432 U. S., at 114. Accordingly,
whether the police have created the suggestive circum-
stances intentionally or inadvertently, the resulting iden-
tification raises the same due process concerns. It is no
more or less likely to misidentify the perpetrator. It is
no more or less powerful to the jury. And the defendant
is no more or less equipped to challenge the identifica-
tion through cross-examination or prejudiced at trial. The
arrangement-focused inquiry thus untethers our doctrine
from the very “ ‘evidentiary interest’ ” it was designed to
protect, inviting arbitrary results. Id., at 113, n. 14.
Indeed, it is the majority’s approach that lies in tension
with our precedents. Whereas we previously disclaimed
the crabbed view of suggestiveness as “the result of po-
lice procedures intentionally designed to prejudice an ac-
cused,” Wade, 388 U. S., at 235, the majority’s focus on
police rigging and improper conduct will revive it. Where-
as our precedents were sensitive to intentional and unin-
tentional suggestiveness alike, see supra, at 2–3, today’s
decision narrows our concern to intentionally orchestrated
suggestive confrontations. We once described the “pri-
mary evil to be avoided” as the likelihood of misidentification.
Biggers, 409 U. S., at 198. Today’s decision, however,
means that even if that primary evil is at its apex, we
need not avoid it at all so long as the suggestive circum-
10 PERRY v. NEW HAMPSHIRE
SOTOMAYOR, J., dissenting
stances do not stem from improper police arrangement.
C
The majority gives several additional reasons for why
applying our due process rule beyond improperly police-
arranged circumstances is unwarranted. In my view, none
withstands close inspection.
First, the majority insists that our precedents “aim to
deter police from rigging identification procedures,” so our
rule should be limited to applications that advance that
“primary aim” and “key premise.” Ante, at 2, 11 (citing
Brathwaite, 432 U. S., at 112). That mischaracterizes our
cases. We discussed deterrence in Brathwaite because
Brathwaite challenged our two-step inquiry as lacking
deterrence value. Brathwaite argued that deterrence de-
manded a per se rule excluding all suggestive identifica-
tions. He said that our rule, which probes the reliability of
suggestive identifications under the totality of the circum-
stances, “cannot be expected to have a significant deter-
rent impact.” Id., at 111.
We rebutted Brathwaite’s criticism in language the
majority now wrenches from context: Upon summarizing
Brathwaite’s argument, we acknowledged “several inter-
ests to be considered.” Ibid. We then compared the two
rules under each interest: First, we noted the “driving
force” behind Wade and its companion cases—“the concern
that the jury not hear eyewitness testimony unless that
evidence has aspects of reliability”—and found both ap-
proaches “responsive to this concern,” but the per se rule
to go “too far” in suppressing reliable evidence. 432 U. S.,
at 111–112. We noted a “second factor”—deterrence—
conceding that the per se rule had “more significant deter-
rent effect,” but noting that our rule “also has an influence
on police behavior.” Id., at 112. Finally, we noted a “third
factor”—“the effect on the administration of justice”—
describing the per se rule as having serious drawbacks on
Cite as: 565 U. S. ____ (2012) 11
SOTOMAYOR, J., dissenting
this front. Ibid. That was no list of “primary aim[s].” Nor
was it a ringing endorsement of the primacy of deterrence.
We simply underscored, in responding to Brathwaite,
that our rule was not without deterrence benefits. To
the contrary, we clarified that deterrence was a subsidiary
concern to reliability, the “driving force” of our doctrine. It
is a stretch to claim that our rule cannot apply wherever
“[t]his deterrence rationale is inapposite.” Ante, at 11.
Second, the majority states that Coleman v. Alabama,
399 U. S. 1 (1970), held that “[n]o due process violation
occurred . . . because nothing ‘the police said or did
prompted’ ” the identification and shows that our rule is
linked “only to improper police arrangement.” Ante, at
11–12. That misreads the decision. In Coleman, the
petitioners challenged a witness’ in-court identification of
them at trial on grounds that it had been tainted by a
suggestive pretrial lineup. We held that no due process
violation occurred because the in-court identification ap-
peared to be “entirely based upon observations at the
time of the assault and not at all induced by the conduct of
the lineup,” and thus could not be said to stem from an
identification procedure “ ‘so impermissibly suggestive as
to give rise to a very substantial likelihood of irreparable
misidentification.’ ” 399 U. S., at 5–6 (plurality opinion).
We then dismissed each of the asserted suggestive influ-
ences as having had no bearing on the identification at all:
The petitioners claimed that the police intimated to the
witness that his attackers were in the lineup; we found the
record “devoid of evidence that anything the police said or
did” induced the identification. Id., at 6. The petitioners
claimed that they alone were made to say certain words;
we found that the witness identified petitioners before
either said anything. One petitioner claimed he was
singled out to wear a hat; we found that the witness’
identification “d[id] not appear . . . based on the fact that
he remembered that [the attacker] had worn a hat.” Ibid.12 PERRY v. NEW HAMPSHIRE
SOTOMAYOR, J., dissenting
Thus, far from indicating that improper police conduct is a
prerequisite, Coleman merely held that there had been no
influence on the witness. In fact, in concluding that the
lineup was not “ ‘so impermissibly suggestive as to give
rise to a very substantial likelihood of irreparable misi-
dentification,’ ” Coleman indicates that the two-step in-
quiry is not truncated at the threshold by the absence of
police misconduct.
Third, the majority emphasizes that we should rely on
the jury to determine the reliability of evidence. See ante,
at 15–16. But our cases are rooted in the assumption that
eyewitness identifications upend the ordinary expectation
that it is “the province of the jury to weigh the credibility
of competing witnesses.” Kansas v. Ventris, 556 U. S. 586,
594, n. (2009). As noted, jurors find eyewitness evidence
unusually powerful and their ability to assess credibility
is hindered by a witness’ false confidence in the accuracy
of his or her identification. That disability in no way de-
pends on the intent behind the suggestive circumstances.
The majority’s appeals to protecting the jury’s domain,
moreover, appeared in dissent after dissent from our de-
cisions. See Foster v. California, 394 U. S. 440, 447
(1969) (Black, J., dissenting) (“[T]he jury is the sole tribu-
nal to weigh and determine facts” and “must . . . be al-
lowed to hear eyewitnesses and decide for itself whether it
can recognize the truth”); Simmons, 390 U. S., at 395(Black, J., concurring in part and dissenting in part) (“The
weight of the evidence . . . is not a question for the Court
but for the jury”). So too does the majority’s assurance
that other constitutional protections like the Sixth
Amendment rights to compulsory process and confronta-
tion can suffice to expose unreliable identifications. Com-
pare ante, at 6, with Foster, 394 U. S., at 448–449 (Black,
J., dissenting) (“The Constitution sets up its own stand-
ards of unfairness in criminal trials,” including the Sixth
Amendment “right to compulsory process” and “right to
Cite as: 565 U. S. ____ (2012) 13
SOTOMAYOR, J., dissenting
confront . . . witnesses”). So too does the majority’s appeal
to leave reliability to the rules of evidence. Compare ante,
at 17, with Foster, 394 U. S., at 448 (Black, J., dissenting)
(“ ‘Rules of evidence are designed in the interests of fair
trials’ ”), and Stovall, 388 U. S., at 306 (Black, J., dissent-
ing) (“[T]he result . . . is to put into a constitutional mould
a rule of evidence”). Those arguments did not prevail
then; they should not prevail here.
Fourth, the majority suggests that applying our rule
beyond police-arranged suggestive circumstances would
entail a heavy practical burden, requiring courts to engage
in “preliminary judicial inquiry” into “most, if not all,
eyewitness identifications.” Ante, at 13, 18. But that is
inaccurate. The burden of showing “impermissibly sug-
gestive” circumstances is the defendant’s, so the objection
falls to the defendant to raise. And as is implicit in the
majority’s reassurance that Perry may resort to the rules
of evidence in lieu of our due process precedents, trial
courts will be entertaining defendants’ objections, pretrial
or at trial, to unreliable eyewitness evidence in any event.
The relevant question, then, is what the standard of ad-
missibility governing such objections should be. I see no
reason to water down the standard for an equally sugges-
tive and unreliable identification simply because the
suggestive confrontation was unplanned.
It bears reminding, moreover, that we set a high bar for
suppression. The vast majority of eyewitnesses proceed to
testify before a jury. To date, Foster is the only case in
which we have found a due process violation. 394 U. S., at
443. There has been no flood of claims in the four Federal
Circuits that, having seen no basis for an arrangement-
based distinction in our precedents, have long indicated
that due process scrutiny applies to all suggestive identifi-
cation procedures. See Dunnigan v. Keane, 137 F. 3d 117,
128 (CA2 1998); United States v. Bouthot, 878 F. 2d 1506,
1516 (CA1 1989); Thigpen v. Cory, 804 F. 2d 893, 895 (CA6
14 PERRY v. NEW HAMPSHIRE
SOTOMAYOR, J., dissenting
1986); see also Green v. Loggins, 614 F. 2d 219, 223 (CA9
1980). Today’s decision nonetheless precludes even the
possibility that an unintended confrontation will meet
that bar, mandating summary dismissal of every such
claim at the threshold.
Finally, the majority questions how to “rationally dis-
tinguish suggestiveness from other factors bearing on the
reliability of eyewitness evidence,” such as “poor vision” or
a prior “grudge,” ante, at 13–14, and more broadly, how to
distinguish eyewitness evidence from other kinds of argu-
ably unreliable evidence. Ante, at 14–15. Our precedents,
however, did just that. We emphasized the “ ‘formidable
number of instances in the records of English and Amer-
ican trials’ ” of “miscarriage[s] of justice from mistaken
identification.” Wade, 388 U. S., at 228. We then observed
that “ ‘the influence of improper suggestion upon identify-
ing witnesses probably accounts for more miscarriages of
justice than any other single factor.’ ” Id., at 229. More-
over, the majority points to no other type of evidence that
shares the rare confluence of characteristics that makes
eyewitness evidence a unique threat to the fairness of
trial. Jailhouse informants, cf. ante, at 15, unreliable as
they may be, are not similarly resistant to the traditional
tools of the adversarial process and, if anything, are met
with particular skepticism by juries.
It would be one thing if the passage of time had cast
doubt on the empirical premises of our precedents. But
just the opposite has happened. A vast body of scientific
literature has reinforced every concern our precedents
articulated nearly a half-century ago, though it merits
barely a parenthetical mention in the majority opinion.
Ante, at 14. Over the past three decades, more than two
thousand studies related to eyewitness identification have
been published. One state supreme court recently ap-
pointed a special master to conduct an exhaustive survey
of the current state of the scientific evidence and conclud-
Cite as: 565 U. S. ____ (2012) 15
SOTOMAYOR, J., dissenting
ed that “[t]he research . . . is not only extensive,” but “it
represents the ‘gold standard in terms of the applicability
of social science research to law.’ ” State v. Henderson, 208
N. J. 208, 283, 27 A. 3d 872, 916 (2011). “Experimental
methods and findings have been tested and retested,
subjected to scientific scrutiny through peer-reviewed
journals, evaluated through the lens of meta-analyses, and
replicated at times in real-world settings.” Ibid.; see also
Schmechel, O’Toole, Easterly, & Loftus, Beyond the Ken?
Testing Jurors’ Understanding of Eyewitness Reliability
Evidence, 46 Jurimetrics 177, 180 (2006) (noting “nearly
unanimous consensus among researchers about the [eye-
witness reliability] field’s core findings”).
The empirical evidence demonstrates that eyewitness
misidentification is “ ‘the single greatest cause of wrongful
convictions in this country.’ ”5 Researchers have found
that a staggering 76% of the first 250 convictions over-
turned due to DNA evidence since 1989 involved eyewit-
ness misidentification.6 Study after study demonstrates
——————
5 State v. Henderson, 208 N. J. 208, 231, 27 A. 3d 872, 885 (2011); see
also, e.g., Benn v. United States, 978 A. 2d 1257, 1266 (D. C. 2009);
State v. Dubose, 285 Wis. 2d 143, 162, 699 N. W. 2d 582, 592 (2005);
Dept. of Justice, Office of Justice Programs, E. Connors, T. Lundregan,
N. Miller, & T. McEwen, Convicted by Juries, Exonerated by Science:
Case Studies in the Use of DNA Evidence to Establish Innocence After
Trial 24 (1996); B. Cutler & S. Penrod, Mistaken Identification: The
Eyewitness, Psychology, and the Law 8 (1995); Wells, “Good, You
Identified the Suspect”: Feedback to Eyewitnesses Distorts their
Reports of the Witnessing Experience, 83 J. of Applied Psychology No. 3
360 (1998).
6 B. Garrett, Convicting the Innocent: Where Criminal Prosecutions
Go Wrong 9, 48, 279 (2011); see also, e.g., Innocence Project, Facts on
Post-Conviction DNA Exonerations (75% of postconviction DNA exon-
eration cases in the U. S. involved eyewitness misidentification), http://
www.innocenceproject.org/Content/Facts_on_PostConviction_DNA_
Exonerations.php (as visited Jan. 11, 2012, and available in Clerk of
Court’s case file); Dept. of Justice, National Institute of Justice, Eye-
witness Evidence: A Guide for Law Enforcement iii (1999) (85% of 28
16 PERRY v. NEW HAMPSHIRE
SOTOMAYOR, J., dissenting
that eyewitness recollections are highly susceptible to
distortion by postevent information or social cues;7 that
jurors routinely overestimate the accuracy of eyewitness
identifications;8 that jurors place the greatest weight on
eyewitness confidence in assessing identifications9 even
though confidence is a poor gauge of accuracy;10 and that
suggestiveness can stem from sources beyond police-
orchestrated procedures.11 The majority today never-
theless adopts an artificially narrow conception of the
dangers of suggestive identifications at a time when our
concerns should have deepened.
III
There are many reasons why Perry’s particular situa-
tion might not violate due process. The trial court found
——————
felony convictions overturned on DNA evidence involved eyewitness
misidentification).
7 See, e.g., Gabbert, Memon, Allan, & Wright, Say it to My Face:
Examining the Effects of Socially Encountered Misinformation, 9 Legal
& Criminological Psychol. 215 (2004); Douglass & Steblay, Memory
Distortion in Eyewitnesses: A Meta-Analysis of the Post-Identification
Feedback Effect, 20 Applied Cognitive Psychol. 859, 864–865 (2006).
8 See Brigham & Bothwell, The Ability of Prospective Jurors to Esti-
mate the Accuracy of Eyewitness Identifications, 7 Law & Hum. Behav.
19, 22–24, 28 (1983) (nearly 84% of study respondents overestimated
accuracy rates of identifications); see also, e.g., Sigler & Couch, Eyewit-
ness Testimony and the Jury Verdict, 4 N. Am. J. Psychol. 143, 146
(2002).
9 See Cutler & Penrod, Mistaken Identification, at 181–209; Lindsay,
Wells, & Rumpel, Can People Detect Eyewitness-Identification Accura-
cy Within and Across Situations? 66 J. Applied Psychol. 79, 83 (1981).
10 See Brewer, Feast, & Rishworth, The Confidence-Accuracy Re-
lationship in Eyewitness Identification, 8 J. Experimental Psychol.
Applied 44, 44–45 (2002) (“average confidence-accuracy correlations
generally estimated between little more than 0 and .29”); see also, e.g.,
Sporer, Penrod, Read, & Cutler, Choosing, Confidence, and Accuracy:
A Meta-Analysis of the Confidence-Accuracy Relation in Eyewitness
Identification Studies, 118 Psychol. Bull. 315 (1995).
11 See Brief for Wilton Dedge et al. as Amici Curiae 8, n. 13.
Cite as: 565 U. S. ____ (2012) 17
SOTOMAYOR, J., dissenting
that the circumstances surrounding Blandon’s identifica-
tion did not rise to an impermissibly suggestive level. It is
not at all clear, moreover, that there was a very substan-
tial likelihood of misidentification, given Blandon’s lack of
equivocation on the scene, the short time between crime
and confrontation, and the “fairly well lit” parking lot.
App. 56. The New Hampshire Supreme Court, however,
never made findings on either point and, under the major-
ity’s decision today, never will.
* * *
The Court’s opinion today renders the defendant’s due
process protection contingent on whether the suggestive
circumstances giving rise to the eyewitness identification
stem from improper police arrangement. That view lies
in tension with our precedents’ more holistic conception
of the dangers of suggestion and is untethered from the
evidentiary interest the due process right protects. In my
view, the ordinary two-step inquiry should apply, whether
the police created the suggestive circumstances intention-
ally or inadvertently. Because the New Hampshire Su-
preme Court truncated its inquiry at the threshold, I
would vacate the judgment and remand for a proper anal-
ysis. I respectfully dissent.