__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 unreliability for at least three reasons. First, witnesses who make identifications under suggestive circumstances 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 did not follow due process requirements. This happened when they refused to consider if a suggestive identification before a trial made it very likely that the wrong person was identified. Their refusal was based only on whether the state acted improperly. Due process is about making sure court proceedings are fair. It requires special attention in cases where there is a high risk of convicting the wrong person. Suggestive identifications are one such case, regardless of what made them suggestive. Experience shows these situations pose a serious risk of an unfair trial.

In these cases, a rule that prevents judges from reviewing the risk of a wrong identification—just because the state did or did not act improperly—does not align with due process. The law requires looking at all the circumstances, not just one factor. Whether the state acted improperly does not necessarily affect how reliable an identification is more than other factors. The key factor in deciding if identification testimony can be used is its reliability.

As explained, an identification can be unreliable due to suggestiveness, regardless of whether it came from improper state action or another source. A suggestive identification happens when the circumstances make the witness think, "This is the person" who committed the crime. Such identifications are more likely to be unreliable for several reasons. First, witnesses may remember the face they see during the identification as the criminal's face. Second, they might become very sure they identified the right person, and their certainty could grow. Third, this makes it hard to question them effectively and uncover how the suggestiveness influenced them. The court's rule for examining suggestive identifications aims to prevent unreliable identifications from reaching the jury and making the trial unfair.

Due process aims to prevent wrongful loss of life and freedom during a trial. It does not primarily regulate what the state does outside the courtroom before a trial. Therefore, the New Hampshire Supreme Court's rule does not effectively achieve this goal. Suggestive identifications caused by accidental state action, or by other factors like media or private investigators, can be just as or even more suggestive than those caused by improper state action. These situations create the same risks to the fairness of the trial. While this type of analysis first developed in cases where law enforcement deliberately or unnecessarily caused the suggestiveness, that factor should not be the only thing considered when deciding how reliable an identification is.

Suggestive identifications are one of many situations where conditions present a higher risk of incorrect findings during a trial. In these situations, due process requires steps to protect the fairness of the process. Other examples include cases with significant negative publicity about the defendant before trial, or cases where jurors are contacted outside the courtroom about the trial's subject. In such cases, the question is whether jurors can make their decision based only on the evidence and arguments presented in court. Due process requires protecting jurors from outside influences that might harm their ability to do this, regardless of who caused those influences. The same considerations should apply to suggestive identifications.

Summary of Argument

The New Hampshire courts denied the Petitioner due process. This occurred when they refused to consider if the suggestive conditions of the pre-trial identification likely led to a mistaken identification. The courts based this refusal solely on the absence of improper state action. Due process focuses on fair and honest court proceedings. It requires special attention to certain types of cases where there is a high risk of incorrect convictions. Suggestive identifications are one such type, regardless of what caused the suggestion. Experience shows these situations pose a serious danger of an unfair trial.

When judicial review of misidentification risk is blocked before identification evidence is allowed, due process is not met. This is especially true if the decision is based only on the presence or absence of improper state action, rather than a full review of all circumstances. Improper state action does not always have a greater effect on identification reliability than other factors. The reliability of identification testimony is the key factor in deciding if it can be admitted as evidence.

Suggestiveness can threaten the reliability of an identification, whether it comes from improper state action or another source. A suggestive identification happens when the circumstances lead a witness to believe the person being viewed is the one who committed the crime. Such identifications carry a higher risk of being unreliable for several reasons. First, witnesses often remember the face they see during the identification as the offender's face. Second, their belief in their identification may strengthen, making them more certain. Third, this makes it hard to effectively question these witnesses and reveal the subtle effects of suggestiveness. The rule developed by this Court, which requires examining suggestive identifications for reliability, aims to prevent unreliable identifications from reaching a jury and undermining a fair trial.

The main goal of due process is to prevent wrongful loss of life and liberty at trial, not to control state actions outside the courtroom or before trial. Therefore, the New Hampshire Supreme Court's rule does not effectively serve this purpose. Suggestive identifications caused by accidental state action, or by other factors like media or private investigators, can be just as or even more suggestive than those caused by improper state action. They create the same risks to the accuracy of evidence gathering. While this analysis first developed in cases where law enforcement, who are usually responsible for identifying offenders, made deliberate or unnecessary choices leading to suggestiveness, that factor should not be the only thing considered in the reliability analysis.

Suggestive identifications are one of several situations where there is a high risk of incorrect findings at trial. In these cases, due process requires steps to protect the fairness of the process. Other examples include cases with significant negative pre-trial publicity against the defendant, or cases where jurors have outside communications about the trial. In such situations, the question is whether jurors can reach a verdict based only on the proper evidence and arguments presented in court. Due process requires protecting jurors from outside influences that might harm their ability to do this, regardless of whether private or public individuals are responsible for those influences. The same considerations should apply here.

Summary

The New Hampshire courts did not follow due process when they refused to consider if a suggested identification made before a trial was likely to be wrong. This refusal was based only on whether the state acted improperly. Due process focuses on fairness in court cases. It requires special attention in cases where there is a high risk of a wrong conviction. Suggested identifications are one of these cases. Experience shows they can lead to unfair trials.

In such cases, a rule that stops courts from looking into the risk of a wrong identification before evidence is used, based only on whether the state acted improperly, does not meet due process. The rule should look at all the circumstances, not just one. Improper state action does not always affect how reliable an identification is more than other factors. The most important thing for deciding if identification testimony can be used is its reliability.

As discussed, an identification can be unreliable due to suggestive circumstances, no matter the cause. A suggested identification happens when the situation makes a witness believe that the person they are seeing is the one who committed the crime. Such identifications are more likely to be wrong for a few reasons. First, witnesses may remember the face they saw during the identification as the face of the criminal. Second, their belief that they identified the right person may grow stronger. Third, it becomes hard to question these witnesses effectively to show how the suggestion influenced them. The court's rule for examining suggested identifications for reliability aims to prevent unreliable identifications from reaching a jury and making a trial unfair.

The main goal of due process is to prevent wrong convictions, not to control state actions outside of court. Because of this, the New Hampshire Supreme Court's rule does not effectively meet this goal. Suggested identifications caused by accidental state actions, or by other factors like the media, can be just as or even more suggestive than those caused by improper state actions. They create the same risks to the fairness of finding facts. While courts first used this analysis in cases where law enforcement caused the suggestion, that factor should not be the only one for determining reliability.

As shown, suggested identifications are one of many situations where there is a higher risk of wrong facts being found at trial. In these situations, due process requires steps to protect the fairness of the process. Other examples include cases with significant negative publicity before trial or out-of-court communications with jurors about the trial. In such cases, the question is whether jurors can make a decision only based on the evidence and arguments presented in court. Due process requires protecting jurors from outside influences that might affect their ability, regardless of who caused those influences. The same ideas should apply to suggested identifications.

Summary

The courts in New Hampshire did not give the person who asked for this review a fair chance. This happened because the courts would not look at whether the way the person was identified before the trial was likely to be wrong. This was only because the government did not do anything wrong on purpose.

Fairness in court means paying close attention to certain types of cases. These are cases where there is a very high chance of making a mistake and sending an innocent person to prison. When someone is identified in a way that makes it seem obvious who the person is, it can lead to mistakes. This is true no matter why it happened. Such situations greatly increase the risk of an unfair trial.

When an identification seems to point to someone, the court should always check if it can be trusted. The court should look at all the facts, not just if the government did something wrong on purpose. How reliable an identification is depends on all the facts, not just one.

As explained before, an identification can be unreliable even if the government did not do anything wrong. A "suggestive identification" means the way a witness sees someone makes them think, "This is the person who did it."

There are three main reasons why these identifications are risky:

1. Witnesses might remember the face they saw during the identification as the face of the person who committed the crime.

2. They might become very sure they picked the right person, even if they were not at first.

3. Because of this, it is hard to question these witnesses well to show how the identification might have been misleading.

The rules are meant to stop identifications that cannot be trusted from being used in court. This helps keep trials fair.

The main goal of fair court rules is to prevent wrong decisions that take away someone's freedom. The New Hampshire court's rule does not help with this goal. Identifications that are suggestive because of a mistake, or because of things like the news, can be just as misleading as ones caused by purposeful government actions. They create the same risks to finding the truth.

The court's rules were first made for cases where the police made choices that led to a suggestive identification. But whether the police made a mistake or not should not be the only thing that matters when deciding if an identification can be trusted.

As also explained, suggestive identifications are one of many situations where there is a high risk of making a mistake in court. In such cases, fair court rules require steps to make sure the process is sound.

For example, if the news talks a lot about a case before trial in a bad way for the person on trial, or if people talk to jurors outside of court about the trial, these are also risky situations. In these cases, the question is whether the jurors can decide based only on what is shown in court. Fair court rules say that jurors must be protected from outside influences. This is true no matter who caused the influence. The same idea should apply to suggestive identifications.