Eyewitness testimony can make or break the prosecution’s case in a criminal trial. But some legal scholars and court reformers have raised doubts about eyewitness testimony based on evidence that unreliable testimony contributes to up to 75 percent of wrongful convictions. This problem is discussed at length on TV programs like “Law & Order” and “The Good Wife,” and in this fictional setting, the unreliable witness is almost always detected at the last minute with no substantive harm done. In reality, however, unreliable eyewitness testimony wreaks havoc on a defendant’s right to a fair trial.
Few doubt the importance of this problem, but even fewer know how to solve it. The Supreme Court has vowed to take a stab at it during its current session. On Wednesday, the Court reviewed Perry v. New Hampshire and the question of whether the Constitution’s due process clause permits a defendant to seek a special hearing by a judge to determine whether eyewitness testimony should be withheld from a jury.
Here, Perry was convicted of theft based on the testimony of a witness who saw the defendant from a distance late at night. Courts currently allow special hearings to preclude eyewitness testimony when there is evidence that a defendant was identified following suggestive police actions or similar misconduct, but has stopped short of permitting broad reviews.
Requiring Justices to review eyewitness testimony would no doubt reduce unreliable identification. But adopting this practice broadly would carry the unintended consequence of restricting a staple of the American legal system under the Seventh Amendment: the plaintiff’s right to have their claims considered by a jury. Each of the Justices seemed to acknowledge that eyewitness testimony can be problematic, but that it remains unclear whether taking the jury out of the equation would make trial procedure more reliable or simply deprive plaintiffs of an integral part of their day in court.
Enjoying a rare day of agreement, Justices from both sides of the Court’s ideological divide acknowledged the inconsistencies of eyewitness testimony, but expressed skepticism that Perry’s solution would provide a net benefit. Justice Antonin Scalia worried that permitting a special hearing on the basis of unreliable eyewitness testimony lacked a limiting factor. “Why is unreliable eyewitness identification different from unreliable anything else?” he asked Perry’s attorney Richard Guerriero.
Justice Elana Kagen voiced a similar concern, and added that while eyewitness testimony has been proven particularly unreliable, it “is not the only kind of testimony which people can do studies on and find that it’s more unreliable than you would think.” Justice Ruth Bader Ginsburg suggested that the courts already have mechanisms for protecting against faulty eyewitness testimony. Among other factors, Ginsburg noted that a judge can warn the jury that an eyewitness may have been unreliable, and that it is part of the defense attorney’s responsibility to raise such doubts during cross-examination.
It’s clear that the courts need a mechanism for protecting defendants against unreliable witness testimony. But the Supreme Court appears reluctant to approve a fix if it comes with significant departure from Court precedent. If the SCOTUS rejects Perry’s claim, a defendant’s best bet to prevent future false identifications might be pushing for stronger jury instructions and cross-examination techniques to expose potentially unreliable witnesses.
Ben Buchwalter is a law student at UC Hastings College of Law in San Francisco.