SUMMARY OF ARGUMENT

The New Hampshire courts deprived Petitioner of due process when, based solely on the absence of improper state action, they categorically refused to consider whether the suggestive circumstances of his pre-trial identification created a very substantial likelihood of misidentification. Due process is concerned with the fairness and integrity of judicial proceedings and, in furtherance of that concern, requires special attention to certain limited categories of cases where the risk of an erroneous conviction is especially acute. Suggestive identifications, regardless of the cause of the suggestiveness, are one of those limited categories: experience shows that they present a particularly grave danger of producing an unfair trial. In such cases, a per se rule that precludes judicial scrutiny of the risk of misidentification before evidence of the identification is admitted, based solely on the presence of a single circumstance – the presence or absence of improper state action – rather than the Court-mandated analysis of the totality of the circumstances, cannot comport with due process. Improper state action does not necessarily have a greater impact on the reliability of the identification than any other factor, and “reliability is the linchpin in determining the admissibility of identification testimony.” Manson v. Brathwaite, 432 U.S. 98, 114 (1976).

As discussed in Point I, suggestiveness may imperil the reliability of an identification regardless of whether it arises from improper state action or another source. A suggestive identification is one in which the circumstances surrounding the identification prompt the witness to conclude that “this is the man” – that the individual being viewed is the one who committed the crime. Identifications made under such circumstances present a heightened risk of un- reliability for at least three reasons. First, witnesses who make identifications under suggestive circum- stances are apt to remember the face they are seeing at the time of the identification as the face of the person who committed the crime. Second, they are likely to become hardened in their conviction that they identified the right person and their level of certainty may increase. Third, as a result, it is difficult to cross-examine such witnesses effectively and expose the insidious and often subtle effects of the suggestiveness. The rule this Court previously developed requiring suggestive identifications to be examined for reliability is designed to ensure that unreliable identifications do not reach the jury and fatally undermine the fairness of the trial.

Given that the core objective of the due process protections is to avoid erroneous deprivations of life and liberty at trial, not to regulate state conduct outside the courtroom and before trial, the New Hampshire Supreme Court’s rule is ill-designed to advance that end. Suggestive identifications caused by inadvertent state action (as was the case with Petitioner) or by other factors (such as the media or a private investigator) may be equally or even more suggestive than those caused by improper or unnecessary state action and create all the same risks to the integrity of the fact-finding process. While the Court first developed this analysis in cases where the suggestiveness of the identification was the result of deliberate, or at least unnecessary, choices made by law enforcement – who are ordinarily responsible for identifying the perpetrator – that factor should not be dispositive to the reliability analysis.

As shown in Point II, suggestive identifications are just one of a number of contexts where conditions present a heightened risk of erroneous fact-finding at trial and where, therefore, due process requires measures to protect the integrity of that process. Other examples include cases involving substantial pre-trial publicity unfavorable to the defendant, and cases involving communications with jurors outside the courtroom concerning the subject matter of the trial. In such cases, the issue is whether the jurors will be able to reach their verdict solely on the basis of the competent evidence and arguments presented at trial. Due process requires that jurors be protected from external influences that may impair that ability, regardless of whether private or public actors are responsible for those influences. Exactly the same considerations should apply here.

Summary

The New Hampshire courts failed to provide due process by refusing to assess whether the suggestive nature of a pre-trial identification created a high probability of misidentification. This refusal was based solely on the absence of improper state action. Due process focuses on the fairness and integrity of legal proceedings, necessitating close attention to cases where the risk of an incorrect conviction is particularly high. Suggestive identifications represent such a category, as they demonstrably carry a significant risk of an unfair trial, regardless of what caused the suggestiveness.

A rule that prevents judicial review of misidentification risk before admitting identification evidence, based only on whether there was improper state action rather than a comprehensive analysis of all circumstances, does not align with due process. Improper state action does not inherently impact the identification's reliability more than other factors. The fundamental principle for determining if identification testimony is admissible is its reliability.

Suggestiveness can compromise an identification's reliability, irrespective of whether it stems from improper state action or another source. A suggestive identification occurs when the surrounding circumstances lead a witness to believe a particular individual is the one who committed the crime. Such identifications increase the risk of unreliability for several reasons. Witnesses tend to remember the face seen during the identification as the perpetrator's face, become more certain of their identification, and are difficult to cross-examine effectively due to the subtle influence of suggestiveness. The existing rule for examining suggestive identifications for reliability aims to prevent unreliable identifications from reaching a jury and undermining trial fairness.

The primary goal of due process is to prevent unjust deprivations of life and liberty at trial, not to regulate state conduct outside the courtroom. Therefore, the New Hampshire Supreme Court's rule is poorly designed to achieve this goal. Suggestive identifications resulting from accidental state action or other factors, such as media influence or private investigators, can be equally or more suggestive than those caused by improper state action, posing similar risks to the integrity of fact-finding. While the analysis for suggestive identifications originated in cases involving deliberate or unnecessary actions by law enforcement, that factor should not be the sole determinant of reliability.

Suggestive identifications are one of several situations where a heightened risk of factual error exists at trial, demanding due process measures to safeguard the process's integrity. Other examples include cases with significant negative pre-trial publicity or external communications with jurors about the trial. In these scenarios, the concern is whether jurors can base their verdict solely on the competent evidence and arguments presented in court. Due process requires protecting jurors from outside influences that might impair this ability, regardless of whether private or public actors are responsible for those influences. The same considerations should apply to suggestive identifications.

Summary

The New Hampshire courts violated due process by refusing to consider whether the suggestive nature of a pre-trial identification made a misidentification very likely. This refusal was based solely on the absence of improper state action. Due process focuses on the fairness and integrity of legal proceedings, especially in cases where there is a high risk of an incorrect conviction. Suggestive identifications are one such category, as they pose a serious threat to a fair trial, regardless of what caused the suggestiveness.

A rule that prevents a court from examining the risk of misidentification before evidence is allowed, based only on whether improper state action occurred, does not align with due process. The U.S. Supreme Court has stated that "reliability is the linchpin in determining the admissibility of identification testimony." Improper state action does not necessarily affect reliability more than any other factor.

Suggestiveness can compromise the reliability of an identification regardless of its source. A suggestive identification occurs when the circumstances make a witness believe that the person being viewed is the one who committed the crime. Such identifications carry a higher risk of unreliability for several reasons. First, witnesses tend to remember the face seen during the identification as the perpetrator's face. Second, they often become more certain that they identified the correct person. Third, these factors make it difficult to question such witnesses effectively and reveal the subtle effects of the suggestiveness. The rule developed by the Court to examine suggestive identifications for reliability aims to prevent unreliable identifications from influencing a jury and undermining trial fairness.

The main goal of due process is to prevent incorrect convictions, not to regulate state behavior outside the courtroom. Therefore, the New Hampshire Supreme Court's rule does not effectively achieve this goal. Suggestive identifications caused by accidental state action or other factors, such as media or private investigators, can be just as or even more suggestive than those caused by improper state action. These types of identifications create the same risks to the integrity of the fact-finding process. While the Court first developed this analysis in cases where law enforcement was responsible for the suggestiveness, that factor should not be the only consideration in determining reliability.

Suggestive identifications are one of several situations where conditions create a high risk of incorrect findings at trial. In these situations, due process requires measures to protect the integrity of the process. Other examples include cases with significant negative pre-trial publicity or communication with jurors outside the courtroom about the trial. In such cases, the concern is whether jurors can make their decision based solely on the evidence and arguments presented at trial. Due process requires protecting jurors from external influences that could impair this ability, regardless of whether private or public actors are responsible for those influences. The same considerations should apply to suggestive identifications.

Summary

The New Hampshire courts did not follow proper legal procedures when they refused to consider if a suggestive pre-trial identification made it very likely that the wrong person was identified. This decision was based only on whether the state acted improperly, ignoring other factors. Fair legal proceedings require special attention to cases where there is a high risk of a wrong conviction. Suggestive identifications are one such category because they pose a serious threat to a fair trial. A strict rule that prevents courts from examining the risk of misidentification, based only on the state's actions, does not meet the standards of fair legal process. The reliability of an identification is the most important factor in deciding if it can be used in court, and improper state action does not always have the greatest impact on this reliability.

A suggestive identification happens when the way an identification is made leads a witness to believe a certain person is the one who committed the crime. This kind of identification increases the risk of error for several reasons. First, witnesses may remember the face they saw during the identification as the face of the criminal. Second, they might become more confident in their choice, even if it's wrong. Third, it becomes difficult to question these witnesses effectively in court to show how the suggestion influenced them. The legal rules for examining suggestive identifications are meant to prevent unreliable evidence from reaching a jury and undermining a fair trial.

The main purpose of fair legal procedures is to prevent incorrect convictions, not to control what the state does outside of court. Therefore, the New Hampshire Supreme Court's rule does not serve this purpose well. Suggestive identifications can happen due to accidental state action or other factors like media reports. These can be just as misleading as those caused by improper state action and create the same risks to finding the truth. While these rules were first developed for cases where law enforcement made deliberate choices that led to suggestive identifications, that factor alone should not decide how reliable the identification is.

Suggestive identifications are one of many situations where there is a higher risk of incorrect findings during a trial. In such cases, fair legal procedures require steps to protect the integrity of the process. Other examples include trials with a lot of negative pre-trial publicity or when jurors are contacted outside of court about the trial. The goal in these situations is to ensure that jurors make their decisions based only on the evidence and arguments presented in court. Fair legal procedures require protecting jurors from outside influences, no matter who is responsible for them. The same principles should apply to suggestive identifications.

Summary

The courts in New Hampshire did not give a person a fair legal process. This was because they did not look at how a suggestive lineup before the trial might make it very likely that the wrong person was identified. They only looked at whether the police did anything wrong.

A fair legal process means that court cases are just. It means special attention is paid when there is a high chance of convicting the wrong person. Suggestive identifications are one of these special cases. This means when the way a person is shown to a witness makes the witness think "this is the person." This can lead to an unfair trial.

It does not matter if the police meant to be suggestive or not. The law says courts must look at all the facts to decide if an identification is trustworthy. What the police did or did not do should not be the only thing that matters. The most important thing is if the identification can be trusted.

When an identification is suggestive, it can make it hard to trust for a few reasons. First, witnesses might remember the face they saw in the lineup as the face of the person who committed the crime. Second, they might become very sure they picked the right person, even if they are wrong. Third, it becomes hard for lawyers to question these witnesses well. This means an untrustworthy identification could reach the jury and make the trial unfair.

The main goal of a fair legal process is to stop innocent people from losing their freedom. It is not just about telling police what to do outside of court. Suggestive identifications can happen even if the police did not mean for them to. For example, the news or a private investigator could cause it. These kinds of suggestive identifications can be just as risky for a fair trial as those caused by police.

There are other times when there is a high chance of mistakes in a trial. For example, if there is a lot of news about the case before the trial that is bad for the person accused. Or if people talk to jurors outside of court about the trial. In these cases, it is important to make sure the jury can make a decision only based on the evidence shown in court. Juries need to be protected from things outside the courtroom that could change their minds. It does not matter who caused these outside influences. The same idea should apply to suggestive identifications.