Judicial Notebook

On Aug. 15, 2008, Officer Nicole Clay responded to a report that an African-American male was trying to break into cars parked outside an apartment building. At approximately 3 a.m., Clay arrived at the building and heard the sound of a metal bat hitting the ground. She then spotted Barion Perry standing between two cars and holding two car stereo amplifiers in his hands. A metal bat lay on the ground, and the windows of a nearby car had been shattered. When Clay asked Perry where the amplifiers came from, he said he found them on the ground.

Clay asked Perry to stay with another officer while she entered the apartment building. Inside, Clay spoke with a witness who said she saw a tall, African-American man remove a large box from the car with smashed windows. When asked to provide a more specific description of the man, the witness pointed to her window and said that the man was standing outside next to a police officer.

One month later, police officers showed the witness a photo array, but she was unable to identify Perry as the man she saw breaking into the car. Nevertheless, Perry was charged with theft and criminal mischief, and his case went to trial.

Before trial, Perry argued that the jury should not be allowed to consider the witness's initial identification of him. He claimed that the identification "amounted to a one-person show-up in the parking lot" that guaranteed he would be named the culprit, and the jury's consideration of this unreliable identification would violate his due process rights (Perry v. New Hampshire, 2012). The court rejected Perry's argument and he was ultimately convicted of theft.

Perry pursued his argument to the U.S. Supreme Court. In an 8-1 decision, the court held that the Constitution's due process clause does not require courts to prescreen eyewitness evidence for reliability when the police did not create the suggestive circumstances that allegedly tainted the identification.

Although the court did not rule in Perry's favor, both the majority and the dissent acknowledged that psychologists have raised concerns about the reliability of eyewitness identifications. These concerns, which are detailed in an amicus brief filed by APA on behalf of Perry, include the following: First, memory is a reconstructive process; thus, once it is altered by a suggestive identification procedure, it is unlikely that the eyewitness's original memory can be restored (e.g., Wells & Quinlivan, 2009). Also, research shows that approximately one out of every three eyewitnesses makes erroneous identifications, and jurors tend to overestimate eyewitness accuracy. Thus, there is significant risk that jurors will rely upon erroneous eyewitnesses (e.g., Sigler & Couch, 2002), and traditional legal safeguards such as cross-examination, jury instructions and expert testimony may be inadequate to compensate for this problem (e.g., Wise, Dauphinais & and Safer, 2007). In addition, studies suggest that one-person lineups, or "show-ups," are the most suggestive type of identification procedure and are most likely to produce erroneous identifications (e.g., Steblay, Dysart, Fulero & Lindsay, 2003).

Although Perry reduces the availability of due process challenges to certain eyewitness identifications, there are other ways to challenge identifications. First, identifications often involve police action, and the actions of police remain open to due process challenge after Perry. Second, suggestive identifications can be challenged under evidence rules. For example, evidence may be excluded when its probative value is substantially outweighed by its prejudicial impact (e.g., Fed. R. Evid. 403). Third, states can require greater judicial scrutiny of eyewitness testimony than the Supreme Court does (e.g., State v. Henderson, 2011). Fourth, legal professionals can be trained to enhance their ability to deal with eyewitness identifications. And finally, psychologists can continue to conduct research to improve jury instructions and expert testimony about eyewitness fallibility.

"Judicial Notebook" is a project of APA Div. 9 (Society for the Psychological Study of Social Issues).