and due process
BY RICHARD A. WISE, JD, PHD, UNIVERSITY OF NORTH DAKOTA • BRETT HOLFELD, UNIVERSITY
OF NORTH DAKOTA • MARC W. PEARCE, JD, PHD, UNIVERSITY OF NEBRASKA–LINCOLN
On Aug. 15, 2008, Officer Nicole Clay responded to a report hat an African-American male was trying to break into
cars parked outside an apartment building. At approximately 3
a.m., Clay arrived at the building and heard the sound of a metal bat hitting the ground. She then spotted Barion Perry standing between two cars and holding two car stereo amplifiers in
his hands. A metal bat lay on the ground, and the windows of
a nearby car had been shattered. When Clay asked Perry where
the amplifiers came from, he said he found them on the ground.
Clay asked Perry to stay with another officer while she
entered the apartment building. Inside, Clay spoke with a
witness who said she saw a tall, African-American man remove
a large box from the car with smashed windows. When asked
to provide a more specific description of the man, the witness
pointed to her window and said that the man was standing
outside next to a police officer.
One month later, police officers showed the witness a photo
array, but she was unable to identify Perry as the man she saw
breaking into the car. Nevertheless, Perry was charged with theft
and criminal mischief, and his case went to trial.
Before trial, Perry argued that the jury should not be
allowed to consider the witness’s initial identification of him.
He claimed that the identification “amounted to a one-person
show-up in the parking lot” that guaranteed he would be named
the culprit, and the jury’s consideration of this unreliable
identification would violate his due process rights (Perry v. New
Hampshire, 2012). The court rejected Perry’s argument and he
was ultimately convicted of theft.
Perry pursued his argument to the U.S. Supreme Court.
In an 8-1 decision, the court held that the Constitution’s
due process clause does not require courts to prescreen
eyewitness evidence for reliability when the police did not
create the suggestive circumstances that allegedly tainted the
Although the court did not rule in Perry’s favor, both the
majority and the dissent acknowledged that psychologists
have raised concerns about the reliability of eyewitness
identifications. These concerns, which are detailed in an amicus
brief filed by APA on behalf of Perry ( www.apa.org/about/
offices/ogc/amicus/ new-hampshire.aspx), include the following:
First, memory is a reconstructive process; thus, once it is altered
by a suggestive identification procedure, it is unlikely that the
eyewitness’s original memory can be restored (e.g., Wells &
Quinlivan, 2009). Also, research shows that approximately one
out of every three eyewitnesses makes erroneous identifications,
Memory is a reconstructive process;
thus, once it is altered by a suggestive
identification procedure, it is unlikely
that the eyewitness’s original memory
can be restored.
and jurors tend to overestimate eyewitness accuracy. Thus,
there is significant risk that jurors will rely upon erroneous
eyewitnesses (e.g., Sigler & Couch, 2002), and traditional legal
safeguards such as cross-examination, jury instructions and
expert testimony may be inadequate to compensate for this
problem (e.g., Wise, Dauphinais & and Safer, 2007). In addition,
studies suggest that one-person lineups, or “show-ups,” are the
most suggestive type of identification procedure and are most
likely to produce erroneous identifications (e.g., Steblay, Dysart,
Fulero & Lindsay, 2003).
Although Perry reduces the availability of due process
challenges to certain eyewitness identifications, there are
other ways to challenge identifications. First, identifications
often involve police action, and the actions of police remain
open to due process challenge after Perry. Second, suggestive
identifications can be challenged under evidence rules. For
example, evidence may be excluded when its probative value is
substantially outweighed by its prejudicial impact (e.g., Fed. R.
Evid. 403). Third, states can require greater judicial scrutiny of
eyewitness testimony than the Supreme Court does (e.g., State
v. Henderson, 2011). Fourth, legal professionals can be trained
to enhance their ability to deal with eyewitness identifications.
And finally, psychologists can continue to conduct research
to improve jury instructions and expert testimony about
eyewitness fallibility. n
“Judicial Notebook” is a project of APA Div. 9 (Society for the
Psychological Study of Social Issues).