Justice Stephen Breyer jumps in to add that the federal rules of evidence already preclude judges from allowing in evidence that is more prejudicial than it is probative. “What is the difference between what you're asking for and what already exists in the law?” Kagan worries that other classes of testimony are as unreliable as eyewitness evidence. “Let's say that it turned out study after study after study [showed] that jailhouse informants lie,” she says. “And so the testimony of jailhouse informants is likely to be just completely unreliable, double as much as eyewitness testimony. Same rule for that?”
Justice Ruth Bader Ginsburg asks why all the myriad safeguards against admitting bad evidence—jury instructions, evidentiary rules, and cross examination—are not enough to keep it from being used at a trail. When Guerriero sits down, he looks a bit like he’s just been the victim of a mugging. And he can’t quite identify his assailant.
New Hampshire’s attorney general, Michael A. Delaney, spends his time explaining that unless the police manipulated the eyewitness testimony, there can be no due process violation. Justice Sonia Sotomayor says she’s not inclined to create a test that looks at the police officer’s intentions. Explains Delaney: “The standard is not reliability. The standard for due process is the use of orchestrated police suggestion.” In his view, without the latter, there can be no constitutional wrong.
Then Nicole A. Saharsky has 10 minutes to argue for the Justice Department, which sides with New Hampshire. Her delivery is a strangely effective mix of high-speed assertions, but her point is that without police wrongdoing, there is no claim: “The State can't create a false document and introduce it at trial,” she explains, and “it can't manipulate someone's memory and then use that evidence to prove guilt at trial.”
Kagan asks about a hypothetical case in which an identification “has been produced by torture, but the torture has been through a nonstate actor.” Does the introduction of such evidence violate the Constitution? Saharsky replies that prosecutors wouldn’t ever introduce such evidence and systemic checks could keep it out, but suggests that the Constitution wouldn’t prevent its introduction. She explains that “there are numerous trial protections outside of the constitutional limits” that bar bad eyewitness identification testimony, including special jury instructions. But, as she explains: “The Constitution has enshrined the jury as the fundamental guarantee—the fundamental protector of liberty,” and taking reliability questions away from the jury would be improper. She concludes that a constitutional rule about the admissibility of unreliable evidence would mean that “defendants throughout the United States (will be) making arguments about all different kinds of evidence not involving the police being unreliable,” opening the floodgates to claims that all evidence is as tainted as eyewitness testimony.
In his rebuttal, Guerriero tries to explain again that the reason you want to take fallible eyewitness identifications away from the jury is precisely because eyewitness testimony is both powerful and wrong: “The witness's sincerity has a powerful effect on the jury,” he explains. But it’s clear that this court will either dismiss or slide right past the old precedents that suggest that eyewitness evidence is uniquely dangerous. Oddly enough, the fact that other compelling evidence may prove equally untrustworthy seems to have immunized all the bad eyewitness evidence.
Meanwhile, police forces are already dealing with the issue raised by the Perry case, as are some state courts. Just recently, a special master appointed by the New Jersey Supreme Court to examine eyewitness evidence concluded that such memory should be treated “as a form of trace evidence: a fragment collected at the scene of a crime, like a fingerprint or blood smear, whose integrity and reliability need to be monitored and assessed from the point of its recovery to its ultimate presentation at trial.”
So maybe one day the worst procedures that produce bad eyewitness IDs will finally be eradicated. If that happens, it will be because of the efforts of virtually every institution in the U.S. criminal justice system—except the Supreme Court, which will still be wondering.