SUMMARY OF ARGUMENT

I.A. Accurate eyewitness identifications are a crucial part of the truth-seeking process. But identifications can be inaccurate, and the admission into evidence of inaccurate identifications can violate a criminal defendant’s due process rights. Several decades ago, this Court established a framework for courts to address claims that a particular identification should be excluded from evidence because it was both made under suggestive circumstances and bears insufficient independent indicia of reliability, i.e., probable accuracy. In doing so, the Court made clear that “[r]eliability is the linchpin in determining the admissibility of identification testimony,” Manson v. Brathwaite, 432 U.S. 98, 114 (1977), and that “the primary evil to be avoided” is the “ ‘likelihood of … misidentification,’ ” Neil v. Biggers, 409 U.S. 188, 198 (1972) (quoting Simmons v. United States, 390 U.S. 377, 384 (1968)). Here, how- ever, the New Hampshire Supreme Court imposed an additional condition—that state actors improperly caused an identification to be made under suggestive circumstances—before any due process inquiry can be made.

In considering the propriety of that additional requirement, this Court should take account of extensive psychological research, much of it conducted since 1977, which shows that the presence or absence of state action in creating any suggestiveness is frequently irrelevant to “the primary evil to be avoided,” i.e., the “likelihood of … misidentification.” Biggers, 409 U.S. at 198. In particular, this research has identified many factors bearing on the reliability of an eyewitness identification that are independent of the conduct of law enforcement. These include the passage of time between observation and identification; the level of stress experienced by the witness during the crime; the duration of the witness’s exposure to the perpetrator; the distance between the witness and the perpetrator; the perpetrator’s bran- dishing of a weapon at the crime scene; and racial differences between the witness and the perpetrator. The fact that reliability—the “linchpin” of admissibility—is affected by so many factors unrelated to state action calls into serious question requiring state action as a prerequisite for due process scrutiny of identifications.

B. The risk of inaccurate eyewitness identifications is not merely a theoretical possibility. Controlled experiments as well as studies of actual identifications have consistently found that the rate of incorrect identifications is approximately 33 percent. This high error rate provides further reason not to immunize an entire category of identifications from any due process scrutiny.

C. The problem of unreliable identifications can- not be adequately addressed by allowing such identifications into evidence and then relying on cross- examination, jury instructions, or expert testimony to avoid wrongful conviction. Research shows that juries tend to “over believe” eyewitness testimony, making jury reliance on even unreliable identifications likely. Research also shows that jury instructions are typically ineffective (and in any event largely within the discretion of trial courts to give or deny). Expert testimony is likewise within the discretion of trial courts, and exclusions of it are often upheld on appeal under a deferential standard of review. Finally, cross-examination can do little to affect a witness who is being entirely truthful but whose identification is nonetheless incorrect.

II. The identifications that the decision below immunizes from due process scrutiny—those that involve suggestiveness but not state action—are particularly likely to lead to false identifications. As this case demonstrates, it is one-on-one identifications, as opposed to line-ups or photo arrays, that are most likely to involve suggestiveness but not state action. But when made under suggestive circumstances, as here, one-on-one identifications present the most troubling features of “show-ups,” a form of one-on-one identification in which police affirmatively present a single suspect to a witness and request an identification. Like show-ups— which this court has recognized create serious risks of erroneous identification—other one-on-one identifications communicate to the eyewitness that the police believe the lone suspect to be the culprit. And, in contrast to lineups, they do not offer “incorrect” choices, which can serve as a safeguard with an eyewitness who opts to make an identification despite being uncertain. The decision below thus immunizes from due process scrutiny identifications that pose a serious risk of inaccuracy.

Summary

Eyewitness identifications play a critical role in the legal system's pursuit of truth. However, such identifications can be inaccurate, and the inclusion of incorrect identifications in evidence can infringe upon a criminal defendant's right to due process. The Supreme Court previously established a framework to address claims that an identification should be excluded if it resulted from suggestive circumstances and lacks sufficient independent indicators of accuracy. The Court emphasized that reliability is paramount in determining admissibility and that preventing misidentification is the primary objective. Yet, the New Hampshire Supreme Court introduced an additional condition, requiring improper state action in creating suggestive circumstances before a due process inquiry can begin.

The Court should consider extensive psychological research, much of it conducted since 1977, which demonstrates that the presence or absence of state action in creating suggestiveness is often irrelevant to the likelihood of misidentification. This research has identified numerous factors affecting the reliability of an eyewitness identification that are independent of law enforcement conduct. These include the time elapsed between observation and identification, the witness's stress level during the crime, the duration of exposure to the perpetrator, the distance between the witness and the perpetrator, the perpetrator's use of a weapon, and racial differences between the witness and the perpetrator. The fact that reliability, the cornerstone of admissibility, is influenced by so many factors unrelated to state action raises serious questions about requiring state action as a prerequisite for due process scrutiny of identifications.

The risk of inaccurate eyewitness identifications is not merely theoretical. Controlled experiments and studies of actual identifications consistently show an approximate 33 percent error rate. This high error rate further supports the argument against exempting an entire category of identifications from due process review.

Allowing unreliable identifications into evidence and relying on cross-examination, jury instructions, or expert testimony to prevent wrongful convictions is insufficient. Research indicates that juries tend to overemphasize eyewitness testimony, making reliance on even unreliable identifications probable. Jury instructions are often ineffective and are largely at the discretion of trial courts. Expert testimony is also discretionary, and its exclusion is frequently upheld on appeal. Furthermore, cross-examination has limited impact on a truthful witness whose identification is nonetheless incorrect.

The identifications shielded from due process scrutiny by the lower court's decision, those involving suggestiveness but not state action, are particularly prone to false identifications. This case illustrates that one-on-one identifications, as opposed to line-ups or photo arrays, are most likely to involve suggestiveness without state action. However, when made under suggestive circumstances, as in this case, one-on-one identifications share the troubling characteristics of "show-ups," where police actively present a single suspect to a witness for identification. Like show-ups, which the Court has recognized carry a significant risk of erroneous identification, other one-on-one identifications communicate to the eyewitness that police believe the lone suspect is the culprit. Unlike lineups, they lack "incorrect" choices, which can serve as a safeguard for an uncertain eyewitness. Thus, the decision below exempts from due process scrutiny identifications that pose a serious risk of inaccuracy.

Summary

Accurate eyewitness identifications are critical for justice, but inaccurate ones can violate a defendant's rights. The Supreme Court previously established guidelines for when an identification, made under suggestive conditions, lacks sufficient reliability to be admissible. The Court emphasized that reliability is key to admissibility and that avoiding misidentification is the main goal. However, the New Hampshire Supreme Court added a requirement that state officials must have improperly caused the suggestive circumstances before a due process review can occur.

This additional requirement should be reconsidered in light of extensive psychological research, much of it conducted since 1977. This research indicates that whether state action caused the suggestiveness often has no bearing on the likelihood of misidentification. Studies have identified many factors affecting the reliability of eyewitness identification that are independent of law enforcement conduct. These factors include the time elapsed between observation and identification, the witness's stress level during the crime, the duration of exposure to the perpetrator, the distance between the witness and the perpetrator, the presence of a weapon, and racial differences between the witness and the perpetrator. The fact that numerous factors unrelated to state action impact reliability, the "linchpin" of admissibility, raises serious questions about requiring state action as a prerequisite for due process scrutiny of identifications.

The risk of inaccurate eyewitness identifications is substantial. Both controlled experiments and studies of actual identifications consistently show an error rate of approximately 33 percent. This high error rate provides further reason to avoid exempting any category of identifications from due process scrutiny.

The problem of unreliable identifications cannot be adequately managed by admitting them into evidence and relying on cross-examination, jury instructions, or expert testimony to prevent wrongful convictions. Research shows that juries tend to overly trust eyewitness testimony, making it likely they will rely on even unreliable identifications. Jury instructions are often ineffective and are largely at the discretion of trial courts. Expert testimony is also discretionary, and its exclusion is frequently upheld on appeal. Furthermore, cross-examination has limited impact on a truthful witness whose identification is nevertheless incorrect.

The identifications that the lower court's decision protects from due process scrutiny—those involving suggestiveness but not state action—are particularly prone to leading to false identifications. As this case illustrates, one-on-one identifications, as opposed to lineups or photo arrays, are most likely to involve suggestiveness without state action. When made under suggestive circumstances, as in this case, one-on-one identifications share the troubling characteristics of "show-ups," where police present a single suspect to a witness for identification. Like show-ups, which courts recognize pose serious risks of error, other one-on-one identifications signal to the eyewitness that the police believe the lone suspect is the perpetrator. Unlike lineups, they do not offer "incorrect" choices, which can serve as a safeguard for an uncertain eyewitness. Therefore, the decision effectively immunizes identifications that carry a significant risk of inaccuracy from due process review.

Summary

Accurate eyewitness identifications are critical for finding the truth in legal cases. However, these identifications can be wrong, and allowing incorrect ones into evidence can violate a defendant's right to a fair trial. The Supreme Court previously set up rules for when an identification should not be used as evidence because it was suggested to the witness and is likely not accurate. The Court emphasized that reliability is the most important factor in deciding if identification testimony can be used, and the main goal is to avoid misidentification. However, the New Hampshire Supreme Court added another requirement: that government officials must have improperly caused the suggested identification before the fairness of the process can be questioned.

When considering this added requirement, the Court should look at extensive psychological research, much of it done since 1977. This research shows that whether or not government officials caused the suggestion often does not matter for avoiding misidentification. This research has found many factors that affect how reliable an eyewitness identification is, and these factors are separate from police actions. These include how much time passed between seeing the event and making the identification, how stressed the witness was during the crime, how long the witness saw the person, the distance between the witness and the person, if the person had a weapon, and if the witness and the person were of different races. The fact that many factors not related to government action affect reliability, which is key to allowing evidence, raises serious questions about requiring government action before questioning the fairness of an identification.

The risk of inaccurate eyewitness identifications is real. Studies and experiments have consistently shown that about 33 percent of identifications are incorrect. This high error rate is another reason not to prevent an entire group of identifications from being reviewed for fairness.

The problem of unreliable identifications cannot be solved by simply allowing them into evidence and then relying on questioning witnesses, jury instructions, or expert opinions to prevent wrongful convictions. Research shows that juries tend to believe eyewitness testimony too much, making it likely they will trust even unreliable identifications. Research also indicates that jury instructions are usually not effective and are largely up to the trial court to decide whether to give them. Expert testimony is also up to the trial courts, and decisions to exclude it are often upheld on appeal. Finally, questioning a witness who is telling the truth but whose identification is wrong will do little to change the outcome.

The identifications that the lower court's decision protects from fairness review—those involving suggestion but no government action—are particularly likely to lead to false identifications. As this case shows, one-on-one identifications, rather than lineups or photo arrays, are most likely to involve suggestion without government action. But when made under suggestive conditions, like in this case, one-on-one identifications have the most troubling characteristics of "show-ups," where police show a single suspect to a witness and ask for an identification. Like show-ups, which the Court has recognized create serious risks of incorrect identification, other one-on-one identifications tell the eyewitness that the police believe the single suspect is the guilty person. Unlike lineups, they do not offer "incorrect" choices, which can help a witness who is uncertain still make an identification. Therefore, the decision protects identifications that pose a serious risk of being inaccurate from being reviewed for fairness.

Summary

Getting facts right in court cases is very important, especially when a witness identifies someone. But sometimes, what a witness remembers is wrong. When wrong identifications are used in court, it can be unfair to the person accused.

Years ago, the Supreme Court set rules for when a witness's identification should not be used in court. These rules say that if an identification was made in a way that pushed the witness to pick a certain person, and if it's not likely to be correct, then it should not be allowed. The main goal is to avoid picking the wrong person.

But in this case, the New Hampshire Supreme Court added another rule. It said that the police or government must have done something wrong to make the witness choose someone before the court can even look at whether the identification was fair.

Many studies have been done since the old rules were made. These studies show that whether the police did something wrong often doesn't matter for how likely it is that a witness picked the wrong person. For example, how much time passed, how stressed the witness was, how long they saw the person, and if the person had a weapon can all make a difference in how good an identification is. These things are not about what the police did. Since many things outside of police actions can make an identification unreliable, it doesn't make sense to only care about what the police did.

It's not just a guess that witness identifications can be wrong. Studies show that about one out of three identifications are wrong. This high number means that courts should not just ignore a whole type of identification without checking if it's fair.

It's also hard to fix bad identifications later in a trial. People on juries often trust what witnesses say too much, even if the identification is not reliable. Telling the jury about problems or having an expert speak often doesn't help much. Asking the witness questions can't make a truthful witness remember correctly if their memory is already wrong.

The type of identifications that the New Hampshire court's rule protects from being checked are often the riskiest. These are usually when a witness sees only one person, not a group of people. When a witness only sees one person, it can make them think that person is the one the police believe did it. Unlike seeing a group of people, there are no other choices for the witness to pick from. This means these single-person identifications, especially when done in a way that guides the witness, are very likely to be wrong. The New Hampshire court's rule makes it harder to check these risky identifications.