Perry v. New Hampshire

Perry v. New Hampshire, 565 U.S. 228 (2012), addressed when the Due Process Clause requires a judge to screen an eyewitness identification for reliability before the jury hears it.

The case began after police in Nashua, New Hampshire, responded to a report that a man was breaking into vehicles in an apartment-building parking lot. One witness had been watching from her apartment window. When an officer spoke with her in the apartment, she identified the suspect by pointing out the window to a man standing in the parking lot with another officer. That man was Barion Perry.

The identification was suggestive in the practical sense: the witness was not viewing a lineup or a carefully administered photo array; she was pointing to the person police had already detained outside. But the key point for the Supreme Court was that the police had not arranged a suggestive identification procedure to make Perry stand out. The identification occurred because of the circumstances at the scene.

Perry moved to suppress the identification, arguing that it was unreliable and that admitting it would violate due process. The New Hampshire courts rejected that argument, and the case reached the Supreme Court of the United States.

The plain-English issue was whether the Constitution requires a judge to hold a special reliability screening before trial whenever an eyewitness identification is made under suggestive circumstances, even when the police did not create or arrange those circumstances.

In other words, if an identification may be unreliable because the situation was suggestive, does due process require exclusion or judicial screening simply because of that risk? Or does that special constitutional rule apply only when law enforcement officers used an unnecessarily suggestive identification procedure, such as a problematic lineup, showup, or photo display?

The Supreme Court held that the federal due process rule requiring pretrial judicial screening of eyewitness-identification reliability applies only when the suggestive circumstances were arranged by law enforcement.

Justice Ginsburg wrote the majority opinion. The Court explained that earlier eyewitness-identification cases focused on improper police conduct. When officers use unnecessarily suggestive procedures, courts must evaluate whether the identification is still reliable enough to be admitted. But when the suggestive circumstances were not created by the police, the Constitution does not automatically require the judge to conduct that same pretrial reliability review.

The practical rule from Perry v. New Hampshire is that unreliable eyewitness evidence is not automatically excluded under the Due Process Clause merely because it is questionable or suggestive. If the police did not create the suggestive identification procedure, the ordinary protections of trial are generally relied upon instead. Those protections include cross-examination, the right to counsel, presentation of defense evidence, jury instructions, and the rules of evidence.

Justice Thomas concurred, agreeing that the Court’s precedents supported limiting the due process exclusion rule to identifications resulting from police suggestion. Justice Sotomayor dissented, emphasizing the special dangers of eyewitness identifications and arguing that reliability concerns should receive stronger constitutional protection.

For officers, detectives, and supervisors, Perry v. New Hampshire draws an important but limited constitutional line. If a witness makes an identification under circumstances the police did not arrange, federal due process does not automatically require suppression just because the situation was suggestive. A spontaneous or happenstance identification at a scene is treated differently from a police-created lineup, showup, or photo array.

That does not mean officers should be casual about identifications. The case does not approve suggestive police practices. If law enforcement creates an unnecessarily suggestive identification procedure, courts may still conduct a due process reliability review and may exclude the identification if it is too unreliable. Perry protects against expanding the constitutional suppression rule to non-police-created circumstances; it does not give officers permission to steer witnesses toward a suspect.

The safest police practice remains to avoid unnecessary suggestion whenever officers are arranging an identification. Officers should document exactly how an identification happened, what the witness said, where the suspect and witness were located, what officers said before the identification, and whether the witness appeared certain or uncertain. Clear reports matter because the legal question may turn on whether the suggestive circumstances were created by police conduct or simply occurred because of the unfolding scene.

For detectives, Perry reinforces the importance of using careful identification procedures when there is time to do so. Properly administered photo arrays, lineups, and showups reduce the risk of misidentification and make the evidence easier to defend in court. Even when the Constitution does not require suppression, a weak or poorly documented identification can still be attacked through cross-examination and may carry less weight with a jury.

For supervisors and trainers, the lesson is that Perry is not just an evidence case; it is also a documentation and procedure case. The admissibility question may depend on whether officers arranged the suggestive circumstances. Agencies should continue training officers to avoid unnecessary showups, avoid telling witnesses that police have caught the suspect, avoid cues that point to one person, and record witness statements as accurately as possible.

For students and citizens, the case shows the difference between reliability concerns and constitutional exclusion. The Supreme Court recognized that eyewitness identifications can be unreliable, but it held that the special due process screening rule is triggered by improper police arrangement of suggestive circumstances, not by every suggestive identification that occurs in the real world.