Release Date:  January 11, 2012
Contact:  Michael Rushford
(916) 446-0345

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Decision in Perry v. New Hampshire preserves state evidence rules

In an 8-1 decision announced today, the United States Supreme Court denied a habitual thief’s claim that the testimony of an eyewitness at his trial violated his right to due process. The issue before the Court in the case of Perry v. New Hampshire was whether the current constitutional protection against the introduction of identifications obtained by improper police tactics should be extended to an identification a defendant claims is unreliable for other reasons.

The California-based Criminal Justice Legal Foundation had joined the case to encourage today’s decision, arguing that with the exception of cases where the identification is tainted by suggestive circumstances arranged by the police, the Constitution leaves rules governing this type of evidence to the states.

“With few exceptions, the Constitution leaves questions about the reliability of relevant criminal evidence to the states,” said Foundation Legal Director Kent Scheidegger. “The Court chose not to further constitutionalize the rules of evidence. That would have allowed thousands of criminals to delay justice and waste tax dollars dragging challenges to eyewitness testimony through the federal courts,” he added.

Writing for the majority, Associate Justice Ruth Bader Ginsburg stated, “...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.” Cases “when the police have arranged suggestive circumstances” are an exception to the general principle, warranting federal constitutional protection.

The case involves the conviction of Barion Perry for burglarizing a car in an apartment parking lot in Nashua, New Hampshire. It was Perry’s fourth conviction for a theft-related felony.

At around 3:00 a.m. on August 15, 2008, police responded to the call of an apartment resident reporting that a tall black man was attempting to break in to cars. When Officer Nicole Clay arrived at the brightly lit parking lot, she heard the sound of a metal baseball bat hit the pavement and saw Perry carrying two car stereo amplifiers. Perry told the officer that he had found the amplifiers. A short time later an apartment resident approached the pair and reported that a neighbor told him that someone had broken into his car. The man identified the amplifiers as his. When a second officer arrived, Officer Clay asked him to stay with Perry in the parking lot, while she and the car owner went to the third floor apartment of the neighbor, Nubia Blandon. Mrs. Blandon said that her husband had called the police after they had seen a tall black man wandering around the parking lot looking into cars. Blandon said she saw the man open the trunk of her neighbor’s car and remove some items. When Officer Clay asked if she could identify the man, Blandon went to a window and pointed to Perry, who was standing in the lot with the other officer. Prior to trial, Blandon was unable to identify Perry’s face from a photo lineup, but her husband did pick him out. At trial, Perry challenged Blandon’s testimony arguing her identification of him was unreliable and therefore violated the Due Process Clause of the 14th Amendment to the Constitution. The judge disagreed, allowing the testimony to be admitted, along with the circumstances surrounding Blandon’s identification and the fact that she was unable to pick Perry out of a photo lineup.

Following Perry’s conviction, his claims regarding his identification by Blandon were reviewed and rejected by the New Hampshire Supreme Court on direct appeal.

Earlier this year the U. S. Supreme Court accepted Perry’s appeal for review. Perry’s argument to overturn his conviction and federalize state evidence rules was supported by the American Psychological Association, the National Association of Criminal Defense Lawyers, and the Innocence Network.

The Criminal Justice Legal Foundation submitted a scholarly amicus curiae (friend of the court) brief opposing Perry’s claim. The Foundation cited earlier Supreme Court precedent noting that efforts to federalize the rules of evidence for state trials amounted to an encroachment on the constitutional power of the states.

“The science on reliability of identifications continues to evolve,” said Scheidegger. “Rigid constitutional rules, like the ones the Court has laid down for confessions, would fail to keep up with advances in knowledge on reliability. These issues are best addressed by state evidence rules.”

CJLF Legal Director Kent Scheidegger is available for comment at (916) 446-0345.
The Foundation’s brief in this case is available at:
Foundation arguments helped win five United States Supreme Court decisions benefitting law enforcement and public safety during the Court’s previous term.