Perry v. New Hampshire
The Supreme Court ruled that a judge only has to pre-screen an eyewitness identification for reliability when police themselves created the suggestive situation that led to it. Because the suggestive circumstances here arose by chance rather than police design, no special due-process check applied.
The decision narrows a long line of cases about unreliable eyewitness testimony, leaving juries, cross-examination, and jury instructions to handle identifications that happen to be suggestive but weren't arranged by law enforcement.
“We have not extended pretrial screening for reliability to cases in which the suggestive circumstances were not arranged by law enforcement officers.”
The majority's core statement limiting when courts must screen eyewitness identifications for reliability.
How it got here: A New Hampshire trial court denied Perry's motion to suppress the identification and he was convicted; the New Hampshire Supreme Court affirmed, and the U.S. Supreme Court agreed to review the due-process question.
The Case in Depth
What happened
Nubia Blandón told police the man she saw breaking into her neighbor's car was the man standing in the parking lot next to a police officer — Barion Perry, who had been found nearby holding stolen stereo equipment. Perry argued that this identification was so suggestive (he was the only person there, standing beside an officer) that a judge should have screened it for reliability before letting the jury hear it, even though police never arranged the suggestive setup themselves.
The question before the Court
If police didn't set up the suggestive situation that led a witness to identify a suspect, must a judge still screen that identification for reliability before trial?
The Court's answer
No — the Court ruled that a judge must pre-screen an eyewitness identification for reliability only when police themselves arranged the suggestive circumstances that produced it. Because Perry's suggestive scene — standing near a police officer while a witness looked out her window — happened by chance rather than police design, no special constitutional screening applied.
The Court explained that the due-process check exists mainly to deter police from rigging identification procedures, so it only makes sense when police created the suggestiveness. Without police arrangement, ordinary trial tools — cross-examination, defense argument, and jury instructions on eyewitness fallibility — are constitutionally sufficient to let jurors weigh the evidence themselves.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
Criminal defendants whose accusers happened to see them in a suggestive setting the police didn't create — for example, standing near a police officer at a crime scene — can no longer ask a judge to screen that identification's reliability before trial. Instead, they must rely on cross-examination, jury instructions, and other trial safeguards to challenge the evidence in front of the jury.
What changes now
This is a final merits decision resolving the constitutional question; the New Hampshire Supreme Court's judgment affirming Perry's conviction stands, and no further proceedings on this issue are required. Going forward, courts applying the Due Process Clause to eyewitness identifications must ask first whether police arranged the suggestive circumstances before conducting any reliability screening; if not, the evidence goes to the jury without special pretrial review.
What this does not decide
The Court expressly left open whether due process protections apply when there is no police action involved at all in a suggestive identification, since Perry's case did involve some police presence. It also did not disturb the existing two-step reliability test for identifications that are police-arranged.
Concurrences and dissents
Concurrence — Justice Thomas
Justice Thomas joined the majority in full but wrote separately to argue that the Court's prior eyewitness-identification cases were themselves wrongly decided, because they rest on a notion of 'substantive due process fairness' that he believes the Fourteenth Amendment does not actually guarantee. He would limit those precedents strictly to their own facts rather than extend them, even under the majority's own reasoning.
Dissent — Justice Sotomayor
“By rendering protection contingent on improper police arrangement of the suggestive circumstances, the Court effectively grafts a mens rea inquiry onto our rule.”The dissent's central objection that the majority improperly added an intent requirement.
Justice Sotomayor argued that the Court's due-process concern has always been about the reliability of suggestive identifications, not whether police intentionally arranged the suggestive circumstances. She contended the majority effectively added an improper intent requirement, creating a confusing line between intentional and accidental police-caused suggestion. She would have applied the ordinary two-step reliability inquiry regardless of police intent and sent the case back for that analysis.
How the Court got there
The legal reasoning, step by step
- The Court explained that ordinarily, unreliable evidence is challenged through the ordinary trial process — cross-examination, defense counsel, and jury instructions — rather than being screened out by a judge beforehand under the Due Process Clause.
- It traced its prior eyewitness-identification cases (Stovall, Simmons, Biggers, Brathwaite) and observed that in every one of them, police had arranged the suggestive procedure, such as a lineup, showup, or photo array.
- The Court reasoned that the due-process check in those cases exists mainly to deter police from rigging identification procedures; since deterring police misconduct is the point, the check makes sense only when police actually created the suggestive circumstances.
- Applying that reasoning to Perry's case, the Court found that because the suggestive scene — Perry standing near an officer — arose by happenstance rather than police design, the due-process reliability check never came into play.
- The Court concluded that ordinary trial safeguards, including cross-examination and jury instructions on eyewitness reliability, were constitutionally sufficient to test the identification's trustworthiness here.
Doctrinal impact
Cases affected by this decision
Reaffirms Manson v. Brathwaite (432 U.S. 98)
The Court relied on Brathwaite's reliability test but clarified it applies only when police arranged the suggestive procedure.
Limits Neil v. Biggers (409 U.S. 188)
The Court narrowed the reach of Biggers' reliability screening to identifications stemming from police-arranged suggestiveness.