Garner v. Colorado

Brief of the National Association of Criminal Defense Lawyers as amicus Curiae in Support of Petitioner (on petition for writ of certiorari).

Brief filed: 08/14/2019


Garner v. Colorado

United States Supreme Court; Case No. 19-75

Prior Decision

436 P.3d 1107 (Colo. Mar. 18, 2019)


This Court’s cases, which make clear that a defendant’s right to due process is implicated when the government orchestrates an unreliable identification procedure. Most recently, the Court held in Perry v. New Hampshire, 565 U.S. 228 (2012), that no due process check is required where there isn’t any state action. But Perry made clear that a due process check does apply where there is state action and also strong reason to doubt the reliability of an identification. Both of those circumstances are present in cases like this one, where government agents control and manipulate every step of the identification procedure. This Court should grant certiorari to resolve a clear post-Perry split on the question presented and reverse the decision below. Four courts have correctly held that a due process check applies in cases like this one. Eleven courts have wrongly held that a due process check does not apply in cases like this one. Perry was about more than police. Perry is not limited to identifications that result from official misconduct. The identifications here at issue pose unique due process risks. First-time in-court identifications are highly suggestive and error prone. Ordinary trial safeguards cannot remedy the risks inherent to these identifications.

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Sean Hecker, Joshua Matz, and Alexandra Conlon, Kaplan Hecker & Fink LLP, New York, NY; Jeffrey T. Green, NACDL, Washington, DC.

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