No. The special rule that lets judges throw out unreliable eyewitness IDs is meant to stop police from rigging the process. If the police didn't set up the suggestive scene, then the rule doesn't apply. It's up to the jury to decide if the witness is telling the truth, and the defense lawyer can challenge the witness's memory in court through normal methods like cross-examination.

Yes. A mistaken identification is dangerous whether the police caused it or not. The main point of the rule should be to keep unreliable evidence out of court to prevent innocent people from going to jail. It shouldn't matter who is to blame for the suggestive situation; if an ID is very likely to be wrong, a judge should review it.

No. I agree with the outcome that the ID should be allowed, but for a bigger reason. I believe the Court was wrong in the past to create these special 'fairness' rules about evidence. The Constitution talks about fair procedures (like having a trial), not about which specific pieces of evidence are too 'unfair' to be shown to a jury.

No, the judge doesn't have to check the reliability of the eyewitness identification in this case. The Due Process Clause, which ensures fundamental fairness, only requires judges to screen an identification for reliability if the police intentionally did something suggestive to influence the eyewitness. Here, the police didn't ask the eyewitness to identify Perry. She did that on her own. So the reliability of her identification is for the jury to decide, not the judge.

I disagree. It shouldn't matter whether the police meant to influence the eyewitness or not. If the identification was made under circumstances that make it unreliable, the judge should still check its reliability before letting the jury hear about it. The majority's rule doesn't protect defendants enough from the risk of wrong identifications. I think the judge should have evaluated the reliability of the woman's identification of Perry, even though the police didn't arrange the suggestive circumstances on purpose.

I agree with the Court's opinion because it follows what our previous cases have said - that judges only have to screen eyewitness identifications for reliability if the police did something to influence the identification. But I actually think those older cases were wrongly decided. In my view, the Due Process Clause is about fair process, not judging the substance of the evidence. So I wouldn't expand the rule from those cases at all.

It held that "the Due Process Clause does not require a preliminary judicial inquiry into the reliability of an eyewitness identification when the identification was not procured under unnecessarily suggestive circumstances arranged by law enforcement."

D] ue process concerns arise only when law enforcement officers use an identification procedure that is both suggestive and unnecessary

To the extent that the conduct of law enforcement is so suggestive as to undermine the reliability of the witness' identification, "the Due Process Clause requires courts to assess, on a case-by-case basis, whether improper police conduct created a `substantial likelihood of misidentification.'"

The Due Process Clause is implicated if police used an identification procedure that was unnecessarily suggestive.

The United States Supreme Court recently explained in Perry that: When no improper law enforcement activity is involved,... it suffices to test reliability through the rights and opportunities generally designed for that purpose, notably, the presence of counsel at postindictment lineups, vigorous cross-examination, protective rules of evidence, and jury instructions on both …

—when it clarified that the "due process check for reliability*** comes into play only after the defendant establishes improper police conduct," and the "Constitution*** protects a defendant against a conviction based on evidence of questionable reliability, not by prohibiting introduction of the evidence, but by affording the defendant means to persuade the jury that the …

But if the indicia of reliability are strong enough to outweigh the corrupting effect of the police-arranged suggestive circumstances, the identification evidence ordinarily will be admitted, and the jury will ultimately determine its worth

To implicate the Due Process Clause, a petitioner must demonstrate that eyewitness identification was "procured under unnecessarily suggestive circumstances arranged by law enforcement."

—concluding that "[t] he fallibility of eyewitness evidence does not, without the taint of improper state conduct, warrant a due process rule requiring a trial court to screen such evidence for reliability before allowing the jury to assess its creditworthiness

"Only when evidence `is so extremely unfair that its admission violates fundamental conceptions of justice,'have we imposed a constraint tied to the Due Process Clause. "

No. The Due Process Clause does not require a preliminary judicial inquiry into the reliability of an eyewitness identification when the identification was not procured under unnecessarily suggestive circumstances arranged by law enforcement. The Court's precedents establishing a due process check on eyewitness evidence were aimed at deterring improper police conduct, such as rigging lineups or showups. This deterrence rationale is inapplicable when the suggestive circumstances are not the result of state action. The reliability of eyewitness testimony in such cases is sufficiently tested through the ordinary safeguards of the adversarial process, including the right to counsel, cross-examination, jury instructions, and the requirement of proof beyond a reasonable doubt.

Yes. The Court should require a preliminary assessment of reliability for identifications made under impermissibly suggestive circumstances, regardless of whether police arranged them. The majority incorrectly grafts a police-intent requirement onto the due process analysis. The core concern of the Court's precedents is not the source of suggestion but its 'corrosive effects' on the reliability of the identification, which can lead to wrongful convictions. An identification is no less likely to be mistaken, and no less powerful to a jury, simply because the police did not intentionally orchestrate the suggestive encounter.

No. While the majority correctly interprets precedent to require police action as a trigger, the entire line of cases creating a substantive due process right to exclude unreliable identifications is wrongly decided. The Fourteenth Amendment's Due Process Clause guarantees only 'process' and is not a 'secret repository of substantive guarantees against “unfairness.”' The Court should not be in the business of creating constitutional rules of evidence based on a vague notion of fundamental fairness. Therefore, the precedent established in *Stovall v. Denno* should not be extended.

No. The Due Process Clause does not require a preliminary judicial inquiry into the reliability of an eyewitness identification when the identification was not procured under unnecessarily suggestive circumstances arranged by law enforcement. In this case, Blandon's identification of Perry in the parking lot did not result from an identification procedure arranged by the police. The police did not ask Blandon whether the man standing in the parking lot was the man she saw breaking into cars. Nor did they ask her to move to the window to identify Perry. Because the identification did not stem from suggestive procedures employed by the police, the reliability of the identification was for the jury to consider, not the judge.

I respectfully dissent. The majority's decision is predicated on an artificial distinction between suggestive confrontations intentionally orchestrated by the police and those inadvertently caused by police actions. Our due process precedents focus on the likelihood of misidentification, not the source of suggestiveness. The majority's holding means that even if the suggestive circumstances lead to a very substantial likelihood of misidentification, due process protections are not triggered so long as the police did not create those circumstances intentionally. This rule unnecessarily narrows the scope of due process protection and is untethered from the evidentiary interest it is meant to protect. I would hold that the standard two-step inquiry should apply, regardless of whether the police created the suggestive circumstances intentionally or inadvertently.

I join the Court's opinion because the Court correctly concludes that its precedents establish a due process right to the pretrial exclusion of an unreliable eyewitness identification only if the identification results from police suggestion. However, I would not extend the Stovall line of cases even if the reasoning of those opinions applied here. Those cases are premised on a 'substantive due process' right to 'fundamental fairness' that in my view is not supported by the Fourteenth Amendment's Due Process Clause. I would limit the Court's suggestive eyewitness identification cases to the precise circumstances that they involved.

No. We hold that the Due Process Clause does not require a preliminary judicial inquiry into the reliability of an eyewitness identification when the identification was not procured under unnecessarily suggestive circumstances arranged by law enforcement. In this case, Blandon's identification of Perry in the parking lot did not result from an identification procedure arranged by the police. The police did not ask Blandon whether the man standing in the parking lot was the man she saw breaking into cars. Nor did they ask her to move to the window to identify Perry. Because the identification did not stem from suggestive procedures employed by the police, the reliability of the identification was for the jury to consider, not the judge.

Yes. I respectfully dissent. The majority's decision is predicated on an artificial distinction between suggestive confrontations intentionally orchestrated by the police and those inadvertently caused by police actions. Our due process precedents focus on the likelihood of misidentification, not the source of suggestiveness. The majority's holding means that even if the suggestive circumstances lead to a very substantial likelihood of misidentification, due process protections are not triggered so long as the police did not create those circumstances intentionally. This rule unnecessarily narrows the scope of due process protection and is untethered from the evidentiary interest it is meant to protect. I would hold that the standard two-step inquiry should apply, regardless of whether the police created the suggestive circumstances intentionally or inadvertently.

No. I join the Court's opinion because the Court correctly concludes that its precedents establish a due process right to the pretrial exclusion of an unreliable eyewitness identification only if the identification results from police suggestion. However, I would not extend the Stovall line of cases even if the reasoning of those opinions applied here. Those cases are premised on a 'substantive due process' right to 'fundamental fairness' that in my view is not supported by the Fourteenth Amendment's Due Process Clause. I would limit the Court's suggestive eyewitness identification cases to the precise circumstances that they involved.

Perry v. New Hampshire

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