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Should eye witnesses have to pass a test? Supreme Court to decide.

The Supreme Court hears arguments Wednesday on whether testimony from unreliable witnesses should be barred from criminal trials, or whether the trial process itself makes clear if testimony is reliable.

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Mr. Guerriero said pre-trial examination of eye-witness reliability should not be confined to cases involving suggestive tactics by law enforcement. In cases like Perry’s, judges should determine before the trial whether an eye witness’s testimony will be accurate and reliable, he said.

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A coalition of lawyers running Innocence Projects across the country filed a friend of the court brief urging the justices to reverse Perry’s conviction and establish a broader judicial rule for testing witness reliability.

“This court should now make clear what has long been implicit from its decisions and what two decades of exonerations have conclusively proven: that the admission at trial of a suggestive identification can amount to a due process violation even if the suggestive circumstances are not orchestrated by law enforcement,” wrote Timothy O’Toole in a brief on behalf of the Innocence Network, a coalition of 63 lawyer-run projects established to identify and free innocent convicts.

On the other side, the Obama administration and 29 states are urging the court to uphold the New Hampshire court decisions.

“The due process clause does not require a judicial inquiry into the reliability of an eyewitness identification when the identification was not procured under unnecessarily suggestive circumstances orchestrated by law enforcement,” wrote US Solicitor General Donald Verrilli.

He added: “The court adopted its limited due process rule because it was concerned that police suggestion would lead a witness to choose the wrong person, not because it believed that eyewitness identifications are inherently unreliable.”

Suggestive and unreliable techniques include showing an eye-witness an individual in police custody and asking if he was the man who committed the crime.

It is also unreliable and suggestive for police to publish a photo of the suspect and then present those who come forward as eye-witnesses to the crime. In such cases the identification may be based on the published photo rather than a distinct memory of the suspect during the actual crime.

Potential testimony may also be tainted if police conducting a photo spread verify to the would-be witness that he or she has identified the “right” person. Studies show that police verification can give eyewitnesses an extra measure of confidence on the witness stand, which undercuts the ability of a jury to assess the witness’s certainty and reliability.

The case, Perry v. New Hampshire (10-8974), is set for oral argument on Wednesday at 10 a.m. A decision is expected by next June.

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