Big Couple of Weeks for Eyewitness IDs and the Constitution
by: Ryan • October 28, 2011 • no comments
At SCOTUSblog, there's a long but worthwhile post about this week's oral argument at the US Supreme Court. Perry v. New Hampshire raises a new issue for the US Supreme Court: does exclusion of an unreliable identification require that the police are at least partially to blame for the suggestive ID? What if - for example - the witness identifies the defendant only after seeing the defendant's mugshot on the evening news?
SCOTUS has never explicitly ruled on this issue, but certain jurisdictions - including Oregon - assume there must be some police action before the identification can be suppressed. But a bad ID is bad because it creates an unfair trial, which means it violates the due process clause. Why would we apply the exclusionary rules that apply when there is a 4th Amendment violation?
Next week, the Oregon Supreme Court will hear argument in a case involving eyewitness identifications. Per the OSC press release, some of the issues are:
(1) Did the Court of Appeals err in concluding that the state had met its burden, under State v. Classen, 285 Or 221 (1979), of proving that an eyewitness identification obtained through concededly suggestive procedures was nonetheless independently reliable? (2) Was the Court of Appeals correct in suggesting that any error in admitting eyewitness testimony in suggestive-identification cases can be cured at trial by cross-examination, expert testimony, closing arguments, and jury instructions?
If you are involved in criminal defense, either as an attorney or an investigator, you can learn in depth about this issue at the OCDLA conference the first Friday and Saturday in December. Speakers include Jacqueline McMurtrie, Director, Innocence Project Northwest, and Dr. Dan Reisberg, Reed College, an expert in false identifications.
A number of other great topics and speakers at the Portland conference this year.
