Perry v. New Hampshire (10-8974)

argument 10-8974

Perry v. New Hampshire

Supreme Court of the United States 56 min 6 speakers 8 chapters transcribed 5 days ago official recording ↗

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What is the central due‑process issue raised by Perry v. New Hampshire?

John G. Roberts 0:03

We'll hear argument first today in case ten eight nine seven four Perry versus New Hampshire. Mr Garriaro?

Mr. Garriaro 0:10

Mr. Chief Justice, and may it please the court. An eyewitness identification made under a suggestive influence presents a unique danger of misidentification and a miscarriage of justice. It is that danger of misidentification which implicates due process and requires an evaluation of the reliability of the identification.

Elena Kagan 0:34

uh position depend on police involvement at all. No, Your Honor. uh if a private investigator shows a picture or that has no connection to the police, a company's investigator. What I'm saying is that the first one is that the first one is a very good idea.

Mr. Garriaro 0:54

Well I I have a two part answer to that. The the significance of the suggestive influence is how it affects reliability. Most of the time that influence the defence will allege is from some police activity, and rightly so because they're mostly involved, and rightly so because police suspicion is the kind of influence that would direct at uh the witness's attention and say, That's the man. But it is not necessarily required. And in fact, in uh one of the Federal Court of Appeal cases, Donnegan versus Keene involved exactly that, a private investigator, where a private investigator from a bank showed uh surveillance photos to the witness and then later the witnesses made an ID. Mr. President,

Stephen G. Breyer 1:39

Guerrero, if it's not if it's not limited to um suggestive circumstances created by the police Why is uh unle unreliable Eyewitness identification any different from unreliable anything else. So shouldn't we r r look at every instance of evidence introduced in criminal cases to see if it was reliable

Mr. Garriaro 2:06

or not? No, Your Honor, I suggest that eyewitness identification evidence is unique. And I think that this court recognised that in Wade and in the subsequent cases, in fact described it at that time as um probably the leading cause of miscarriages of justice and in fact experience with the DNA exonerations that we've seen recently in the last ten or fifteen years have shown

Ruth Bader Ginsburg 2:29

at least for all eyewitness testimony there would have to be some pre testing for reliability. Is that is that Your contention.

Mr. Garriaro 2:39

No, Your Honor, and I don't think that's exactly what the court said in Wade and the subsequent cases. It's the combination of eyewitness identification testimony plus the suggestive influence which um makes which brings it to sort of the height of suspicion and creates the greater greatest risk.

Ruth Bader Ginsburg 2:58

And in this case In which category do you place the eyewitness testimony. Is it police suggestion? Or is it suggestive? but not to any manipulation on the police's part.

Mr. Garriaro 3:15

It in our case we do not allege any manipulation or intentional orchestration by the police. What our position is that it appeared to the witness, to Miss Blandon, that um Mr. Perry was in fact a suspect and she looked down and there was that suspicion. Now, if we would be been able to have our due process claim heard The judge may or may not have agreed that that was s suggestive and and created a risk. But do you think that our

Stephen G. Breyer 3:42

cases which uh uh exclude or or require reversal when there's uh eyewitness testimony uh impaired by uh uh the police. Uh you think that's really limited to eyewitness testimony? Suppose the the police uh um uh created s uh suggestiveness in in another category of evidence. Let's say let's say voice evidence, uh that the killer had left uh a message on uh on on the on the phone. And the police in some manner create suggestiveness that causes a witness to identify that as the voice of the killer. You really think that we would say, Well, this is not eyewitness testimony? Eyewitness testimony creates a special risk. Don't you think that we would say whenever the police Render evidence. Unreliable. Uh it it's exc it should be excluded.

Mr. Garriaro 4:41

Think that may be a separate due process claim. For example, if the police Exactly. But

Stephen G. Breyer 4:47

but that that impairs your your argument, because if we accept your argument for eyewitness, we should similarly accept it for everything else.