Will Pennsylvania Supreme Court Consider U.S. Supreme Court Message?

If you saw someone commit a crime, would you be able to describe them accurately if questioned after the fact? Did you know that 75% of all wrongful convictions that occur within the United States stem from faulty eyewitness testimony, according to the Innocence Project?

In the wake of such information, for the first time since 1977 the U.S. Supreme Court considered the constitutional implications of eyewitness testimony that may help bring change in the judicial system.

In November, the Court heard oral arguments in Perry v. New Hampshire. At issue is whether

due process protections apply to all eyewitness identifications made under suggestive circumstances or only to eyewitness identifications made under suggestive circumstances when the police created the suggestive circumstances.

The examination of this issues derives from a series of studies conducted that document the high error rates connected with eyewitness identification.

Barion Perry, of the Perry v. New Hampshire Supreme Court Case, stood trial for theft and criminal mischief after a a married couple identified him as the man who was prowling in an apartment building and parking lot and breaking into cars. When police arrived on the scene, the wife identified Perry while looking through an apartment window. Interestingly, the woman was unable to identify Perry in a police lineup and was not able to point him out in court as the man she identified to police at the scene. Her husband was only able to identify Perry in a photo lineup as someone he “recognized,”  not as the man that he saw in the parking lot of the apartment complex.

Even with this wholly unconvincing information, a jury convicted Perry of theft and the judge sentenced him to three to 10 years in prison.

Perry appealed his conviction, claiming that the federal and New Hampshire constitutions prevented the use of eyewitness testimony when police have manipulated the identification procedures making it more likely that the eyewitness would select a specific person as a suspect. The New Jersey Supreme Court ruled that there was no reason to decide the constitutional issue since they found that the police did not create suggestive circumstances in Perry’s case. Perry then appealed to the U.S. Supreme Court.

Mr. Perry lost before the Court in a narrow ruling, where the Court decided that due process only requires suppression of an unreliable identification where police cause the pre-trial identification to occur. But lost in the ruling is the fact that the Court recognized many of the issues inherent in eyewitness identifications.

In particular, the Court set out that many variables should be considered when a trial court is weighing the admissibility of an eyewitness’ identification of a defendant; that traditional matters such as opportunity to view the criminal and the time the crime and the identification are not the sole considerations but only “among the factors to be considered.

More importantly, and of particular importance to Pennsylvania, the Court took pains to point out that the trial process offers a defendant a variety of “means” to challenge an eyewitness’ identification. Among those “means,” the Court included “tailored” jury instructions and, for appropriate cases, “expert testimony on the hazards of eyewitness identification evidence.” In Pennsylvania, neither of those protections are available for criminal defendants. The standard instruction used in eyewitness cases is based upon cases that precede the social science research informing eyewitness identification issues today. And, as we have pointed out many times in this blog, Pennsylvania is only one of two states that prohibit the use of experts at trial.

In the forthcoming case of Commonwealth v. Walker, the Pennsylvania Supreme Court has the ability to fix at least one of those problems. The Court could decide that Pennsylvania should join the other 48 states (and every federal district) in allowing experts on eyewitness identification issues to testify at trial. If even that one area is addressed, innocent Pennsylvanians would gain a significant protection against a wrongful conviction.

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