The decision, by an 8-to-1 vote, effectively ruled that the only reason to let judges rather than jurors assess the reliability of eyewitness evidence was to deter police misconduct.
Justice Ruth Bader Ginsburg, writing for the majority, said there was no reason to treat most eyewitness evidence differently from other potentially flawed evidence. “The jury, not the judge, traditionally determines the reliability of evidence,” she wrote.
“The potential unreliability of a type of evidence does not alone render its introduction at the defendant’s trial fundamentally unfair,” she added, noting that the court had refused to require special procedures for, for instance, testimony from “jailhouse snitches.” Cross-examination, jury instructions and the usual rules of evidence are sufficient safeguards, she wrote.
In dissent, Justice Sonia Sotomayor said the court had ignored its own precedents and a wealth of new knowledge. “This court has long recognized,” she wrote, “that eyewitness identifications’ 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.”
This was the court’s first hard look at the reliability of eyewitness evidence since 1977. In the interval, more than 2,000 studies on the topic have been published in professional journals. There is no area in which social science research has done more to illuminate a legal issue, scholars and judges have said, and Justice Sotomayor seemed to agree.
“The empirical evidence demonstrates that eyewitness misidentification is ‘the single greatest cause of wrongful convictions in this country,’ ” she wrote, quoting the conclusion of an August decision of the New Jersey Supreme Court that required courts to take special care in assessing such evidence. “Researchers have found that a staggering 76 percent of the first 250 convictions overturned due to DNA evidence since 1989 involved eyewitness misidentification.”
That research was conducted by Brandon L. Garrett, a law professor at the University of Virginia, for his book “Convicting the Innocent.” In an interview Wednesday, Professor Garrett said the majority had overestimated jurors’ ability to judge eyewitness testimony.
“We know,” he said, “that jurors place undue weight, for example, on the seeming confidence of an eyewitness.”
The case decided Wednesday, Perry v. New Hampshire, No. 10-8974, involved Barion Perry, who was convicted of theft based in part on a statement from a woman who said she saw him from a distance late at night. “He was,” Justice Sotomayor wrote, “the only African-American at the scene of the crime standing next to a police officer.”
The woman, Nubia Blandon, later failed to pick Mr. Perry out of a photo lineup and did not identify him in court.
Mr. Perry argued that the judge should have held a pretrial hearing to assess if the jury should hear the evidence in light of how the identification occurred. Justice Ginsburg wrote that a ruling in Mr. Perry’s favor based on the suggestive circumstances in his case would “open the door to judicial preview, under the banner of due process, of most, if not all, eyewitness identification.”
“There is no reason why an identification made by an eyewitness with poor vision, for example, or one who harbors a grudge against the defendant, should be regarded as inherently more reliable, less of a threat to the fairness of trial, than the identification Blandon made in this case,” she wrote.