The Supreme Court appeared resistant Wednesday to increasing constitutional safeguards against the use of some eyewitness testimony at criminal trials, despite mounting evidence that eyewitness identification plays a crucial role in cases in which people were wrongly convicted.
The justices heard arguments in a case that deals with a narrow slice of the issue of eyewitness identification.
Judges already can bar testimony when the police do something to influence a witness to identify a suspect. In a case from New Hampshire, a man who was convicted of theft based on eyewitness testimony wants the court to extend the power of judges to exclude testimony when identifications are made under any suggestive circumstances, even when the police are not involved.
But taking the police out of the picture raised many questions among the justices across the bench.
Justice Antonin Scalia asked, "Why is unreliable eyewitness identification any different from unreliable anything else? So shouldn't we look at every instance of evidence introduced in criminal cases to see if it was reliable or not?"
Justice Ruth Bader Ginsburg peppered Richard Guerriero, the public defender representing Barion Perry at the Supreme Court, with questions about why the court should add to existing protections that include the ability to cross-examine a witness and ask the judge to tell jurors about problems with eyewitness identification.
"Why aren't all those safeguards enough?" Ginsburg said.
Guerriero tried repeatedly to focus the justices on the court decisions from the 1960s and 1970s that said eyewitness identifications can have a powerful influence on juries, but that they also could be untrustworthy. In those cases, Guerriero said, the court described mistaken identifications "as probably the leading cause of miscarriages of justice."
More recent evidence has only bolstered arguments about the danger of relying on what people think they saw. The vast majority of the nearly 300 people exonerated through the use of genetic evidence were convicted at least in part on the basis of eyewitness testimony, the Innocence Network said in its brief supporting Perry.
Justice Elena Kagan acknowledged the data when she told Guerriero that it "should lead us all to wonder about the reliability of eyewitness testimony." But even Kagan seemed unsure about situations where the police did not do anything to lead a witness to make an identification.
In Perry's case, police were questioning a woman who said she saw someone break into a car in the parking lot of her apartment building. Unprovoked by the police, the woman identified Perry from her apartment window as he stood in the lot with a police officer. Perry tried to keep her from testifying, arguing that she picked him out only because he was standing beside an officer.
The trial court allowed the testimony and the New Hampshire Supreme Court upheld Perry's conviction.
The justices suggested that the normal trial process should be sufficient and the juries should be able to weigh evidence, including the efforts of defense lawyers to discredit it. "You're just usurping the province of the jury, it seems," Justice Anthony Kennedy said.
A decision should come in the next few months.
The case is Perry v. New Hampshire, 10-8974.