Tomorrow, the Supreme Court will hear argument in the front-end case of Perry v. New Hampshire. Here's the issue:
Do the due process protections against unreliable identification evidence apply to all identifications made under suggestive circumstances or only when the suggestive circumstances were orchestrated by the police?
While I haven't been covering this case too much, it has been getting a lot of attention around the internet. And a lot of that is focusing on the unreliability of eyewitness identification evidence. As the New Jersey Supreme Court recently concluded in its seminal case of State v. Henderson, this clearly is a factor that can impact upon the reliability of eyewitness evidence and it should be considered both at the suppression hearing and at trial.
However, I am not expecting the Supreme Court to issue a broad ruling discussing in general the unreliability of eyewitness evidence. In fact, I am not even sure that a majority of this Court is particularly concerned about the growing body of work showing that eyewitness identification evidence is exceedingly unreliable. So I am setting my expectations low with the potential that I will be pleasantly surprised.
And should that surprise occur, I will let Alex Satanovsky offer up one goodie and one question (with some editing):
1. It seems to me that, under Teague, a favorable ruling in Perry would be exactly the kind of rare case that would qualify for retroactive application on collateral review. It would be "watershed" new rule in criminal procedure, and it would be based squarely upon concerns for the truthfinding process. As of yet, no such "new rule" has ever been made retroactive under this framework. (In Wharton v. Bocking, a unanimous court struck down Ninth Circuit's retroactive application of the Crawford confrontation clause rule, holding that the departure from Roberts was not essential to the truthfinding process, thus not warranting for retroactive review). But Perry could be different. If Perry wins, it will be precisely because the unreliability is so perverse, so damning to truth-seeking, that the previous "state action requirement" necessary to suppress an unduly suggestive identification was simply gloss. A whole lot of inmates would (rightfully) see this as an opening to reassert their factual innocence -- in a way that is qualitatively different than the previous situations where a defendant had argued that there had been a "watershed" rule -- (I'm thinking Crawford, Gant, JEB v. NC, . .. )
2. But what about on habeas review? The AEDPA only allows for retroactive application of rules that are "made retroactive" by the Supreme Court. Is this supposed to incorporate-by-reference the Teague rule for the rare/watershed case, or does it supercede Teague, effecitvely requiring the Supreme Court to expressly announce -- "this new rule shall be retroactive"?
Anyway, I think the answer is not clear, and should be worth seeing whether this issue pops up in the background of the oral argument.
Thanks again, Alex.
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