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No need for new eye witness rule, Supreme Court justices suggest at hearing

The Supreme Court heard oral arguments on whether judges need to intervene to prevent testimony from unreliable witnesses at criminal trials. The justices indicated that existing safeguards in the justice system are adequate.

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At 2:53 a.m. on Aug. 15, 2008, Nashua, N.H., police received a report that a black man was trying to gain entry into vehicles in an apartment building parking lot. The responding officer heard the sound of an aluminum bat falling to the pavement and discovered Perry in the lot between parked cars. He was carrying two sound system amplifiers.

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Perry said he found the items and that two kids had been in the parking lot. The officer, Nicole Clay, was unable to locate any other suspects.

When a backup police officer arrived, Ms. Clay instructed Perry to remain with that officer in the parking lot.

She then entered the apartment building to question a witness, Nubia Blandon. Ms. Blandon spoke Spanish. A neighbor translated the questions and answers. Blandon told the officer that she had seen a tall, black man walk through the parking lot, looking into the cars, circle her neighbor’s car, open the trunk, and remove a large box. She said the man was carrying a baseball bat.

Officer Clay requested a description of the man. Blandon said it was the man in the back parking lot standing with the police officer. She gestured toward the window.

Blandon’s husband, Joffre Ullon, who phoned in the initial police report, told Clay he had seen a black man walking through the parking lot lifting up car door handles. The officer asked for a description of the man. Like his wife, Mr. Ullon said it was the man standing in the parking lot with the police officer.

In addition to the amplifiers, police found a large box with speakers in the parking lot.

Blandon reportedly watched Perry for more than a half hour before Officer Clay arrived, but she was unable to identify his face in a police photo array a month later. Ullon identified Perry’s photo when shown a police photo array.

Perry was arrested and charged with theft. Before the trial, his lawyer asked the judge to exclude Blandon’s out-of-court identification of Perry because the police presence in the parking lot made it suggestive and unreliable.

The judge ruled that the police had not engaged in a suggestive technique. The court further ruled that since the identification procedure was not suggestive, it was not necessary for the court to determine the reliability of Blandon’s statement. That issue would be left to the jury at Perry’s trial.

At trial, Perry was convicted and, because he had a prior record, was sentenced to three to 10 years in prison.

Perry’s lawyers appealed the suggestive witness issue. The New Hampshire Supreme Court dismissed the appeal and upheld the conviction.

They then appealed to the US Supreme Court.

A decision in the case is expected by June.

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