Members of the Supreme Court seemed skeptical last Wednesday when asked to establish a new constitutional rule prohibiting the use of unreliable eyewitness testimony at criminal trials.  Under existing law, unreliable eyewitness testimony is excludable only when the source of unreliability stems from police misconduct.  In Perry v. New Hampshire, Public Defender Richard Guerriero argued that the Court should establish a new constitutional standard whereby judges must exclude eyewitness testimony whenever the circumstances surrounding a defendant’s identification imply that she is guilty.  Guerriero’s rule would apply whether or not police are responsible for the suggestive circumstances.

Justices’ skepticism was two-pronged.  First, several justices questioned Guerriero’s assertion that existing rules of evidence were insufficient to screen for unreliable evidence.  “What is the difference between what you are asking for and what already exists in the law?” Justice Breyer asked.  Under Federal Rule of Evidence 403, Breyer noted, a judge may exclude evidence that she thinks is unduly prejudicial or misleading.  Justice Ginsburg pointed to other safeguards: “You can ask the judge to tell the jury: ‘Be careful; eyewitness testimony is often unreliable.’  You can point that out in cross-examination.”  The necessity for a new rule, these justices posited, was dubious.

Other justices criticized Guerriero’s proposed rule as excessively narrow.  “What is magic about suggestiveness as opposed to all of the other matters that could cause eyewitness identification to be wrong?” Justice Scalia pondered.  Guerriero’s rule would exclude a witness’s identification only when given under circumstances suggestive of a defendant’ guilt.  If the witness’s identification was unreliable for some other reason – because the witness was standing far away from the crime scene such that she could not see the culprit clearly – the evidence would be admissible.

Justice Scalia also questioned why Guerriero’s rule would apply only to eyewitness testimony given under suggestive circumstances.  “Let’s say . . . that the killer had left a message on the . . . phone and the police in some manner create suggestiveness that causes a witness to identify that as the voice of the killer.  You really think that we would say, well, this is not eyewitness testimony; eyewitness testimony creates a special risk?”  Guerriero suggested that his rule followed from Court precedent, in which the justices have said that eyewitness testimony is special.  “[W]e don’t mean it,” Scalia quipped.

In many ways, Guerriero’s argument proved too much.  If the Constitution requires the exclusion of unreliable evidence, the criminal justice system would be turned on its head.  A host of unreliable evidence is admitted at every trial, yet we as a society are comfortable with it, because we trust jurors’ ability to gauge the dependability of what is presented to them.  Once we begin questioning our faith in juries – even if that skepticism is merited – the foundation of the justice system begins to crumble.  The justices seem to be willing to preserve the myth of juror competence – at least in the near term – lest the system fall apart.

To read a transcript of the oral arguments, click here.  To read the parties’ briefs, click here.