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Perry v. New Hampshire


An officer was called to an apartment parking lot to investigate a suspicious person in the early morning hours. Upon her arrival, she found the defendant engaged in what appeared to be the burglary of a motor vehicle. A second officer arrived and detained the defendant in the parking lot while the initial officer visited an eyewitness to the crime. The eyewitness was located in her residence on the fourth floor of the apartment complex. The officer asked for a description of the perpetrator of the crime and the eyewitness provided a basic description of the defendant. When the officer asked for a more specific description, the eyewitness “pointed to her kitchen window and said the person she saw breaking into…[the] car was standing in the parking lot, next to the police officer.” The officers arrested the defendant. Approximately one month later, the officers showed the eyewitness a photographic array that included a picture of the defendant but the eyewitness was not able to identify the perpetrator of the crime.


Whether a suggestive eyewitness circumstance that occurred through no influence of the government can amount to a Due Process violation?


No. The Due Process Clause is reserved as a protection against inherent governmental misconduct.


The Court is very concerned with the enormous influence the government has in the pretrial eyewitness identification process. A principle of due process is that trial courts screen these events to ensure that the government has provided a fair method of establishing the identity of the offender. However, the Court noted that “[W]e have not extended pretrial screening for reliability to cases in which the suggestive circumstances were not arranged by law enforcement officers.” This is because all prior decisions have aimed “to deter police from rigging identification procedures, for example, at a lineup, show-up, or photograph array.”

There were reasons to question the accuracy of the eyewitness’ identification in this case: the parking lot was dark; the defendant was standing next to a police officer; he was the only African-American male in the vicinity; and the witness was later unable to pick the defendant out of a photographic array. However, because the government’s procedures were not unnecessarily suggestive, the reliability of this testimony was for the jury to consider, not the trial court to suppress. “Only where the police employ suggestive identification techniques…does the Due Process Clause require a trial court to assess the reliability of identification evidence before permitting a jury to consider it.”


565 U.S. 228, 132 S. Ct. 716 (2012)

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