No Santa Claus today, but there is a Hannukah Harry
by: Ryan • January 10, 2012 • no comments
Alex is right. No COA opinions today. But SCOTUS has come through, writing an opinion which, I am happy to say, does no damage to existing due process case law.
In Perry v. New Hampshire, the defendant loses, but after oral argument went so badly, that was to be expected. I think the defendant - and lone dissenter Sotomayor - have an important point about the difference between the exclusionary rule under the 4th And 5th Amendments and excluding evidence under the due process clause, but - again - it was obvious from oral argument that a majority of the Court was never going to adopt that position.
Perry is an Eyewitness Identification case. My fear had been that the Court might reconsider all of its prior eyewitness identification case law. In fact, I had concerns that the Court would reject exclusion as a remedy for a tainted identification ever, arguing that it was solely a jury question and dependent on the defense counsel to explain to the jury why the identification was unreliable. (The problem is, even when the unreliability of the identification is explained in detail, jurors still tend to find the identification convincing.) Moreover, this wasn't just an abstract issue for me. I am handling the appeal of a murder case where there was a horribly unreliable and suggestive identification. Eliminate exclusion of the remedy and we would almost certainly lose the appeal.
Thankfully, that didn't come to pass. I still need to read the opinion in more detail, but my brief review is that it reaffirms some basic but important tenets. One of which is, as noted in a footnote:
"As our case law makes clear, what triggers due process concerns is police use of an unnecessarily suggestive identification procedure, whether or not they intended the arranged procedure to be suggestive."
I encourage you to read the case. I think there are more problematic ID cases than the defense counsel is always able to identify. I've been in court when a witness who no one thought could identify the defendant suddenly develops the ability to do so. Defense counsel needs to be prepared for that situation.
There are numerous resources that are available if you have a bad ID. Two great speakers at the OCDLA winter conference spoke on the issue. There are easily locatable posts on this blog that - I hope - make the issue clear and simple.
