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Supreme Court declines to make it harder to introduce eyewitness testimony at trials

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The Supreme Court on Wednesday declined to make it harder to introduce eyewitness testimony at criminal trials, despite a recent proliferation of studies that show mistaken identity is the leading cause of wrongful convictions.

In an 8 to 1 decision, Justice Ruth Bader Ginsburg wrote that there is no reason for the court to change its view that judges on their own cannot throw out eyewitness testimony unless police have manipulated circumstances to produce a desired outcome.

The point is to deter police from creating “suggestive circumstances” that point to a specific suspect, Ginsburg said. “When there is no improper police conduct,” Ginsburg said in announcing the decision, “there is nothing to deter.”

If the police have not created the suggestive climate, she said, then it is up to the jury to decide whether to evaluate the eyewitness testimony, and for the defendant’s lawyer to try to discredit it.

The case comes from Nashua, N.H., where police were called about a man trying to break into vehicles behind an apartment building. At the scene, an officer found Barion Perry carrying two radio amplifiers, which he said he found on the ground.

Under questioning from police, a woman who said she saw the event described the suspect only as tall and black. Then, without prompting from the officer, she went to her window and identified Perry, who was standing next to a police officer.

The identification was used to convict Perry, despite objections from his lawyers that seeing him next to the police officer could have unfairly influenced the woman’s identification.

The court affirmed a decision from the state’s supreme court that the testimony was allowable because police did not create the suggestive circumstances.

Justice Sonia Sotomayor, the lone dissenter, said her colleagues had it backward. The primary goal is not to deter the police, she said, but to assure a fair trial.

“Whether the police have created the suggestive circumstances intentionally or inadvertently . . . it is no more or less likely to misidentify the perpetrator,” she wrote. “It is no more or less powerful to the jury.”

She said the “vast body of scientific literature” that has established the unreliability of eyewitness testimony — including the “staggering” fact that 76 percent of the first 250 convictions overturned by DNA involved eyewitness testimony — “merits barely a parenthetical mention in the majority opinion.”

The case is Perry v. New Hampshire .

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