Brief filed: 08/05/2011
Perry v. New Hampshire
United States Supreme Court; Case No. 10-8974
Suggestive pretrial identifications by eyewitnesses, whatever the cause, present a grave danger of producing unfair trials and wrongful convictions. In such cases, a per se rule that precludes judicial scrutiny of the risk of misidentification before evidence of the identification is admitted, based solely on the presence of a single circumstance—the presence or absence of improper state action—rather than analysis of the totality of the circumstances, cannot comport with due process. Improper state action does not necessarily have a greater impact on the reliability of the identification than any other factor, and “reliability is the lynchpin in determining the admissibility of identification testimony.” Manson v. Brathwaite, 432 U.S. 98, 114 (1976).
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