Perry v. New Hampshire

Brief Filed: 8/11
Court: U.S. Supreme Court
Year of Decision: 2012

Read full-text amicus brief (PDF, 123KB)


Expert testimony regarding the reliability of eyewitness identification

Index Topic

Eyewitness Identification


This case before the U.S. Supreme Court involves the same research as presented in Commonwealth v. Walker but involves a different legal issue. In this case, Mr. Perry is in prison for breaking into a car in 2008. A witness told Nashua, N.H. police that she observed Perry from her apartment window taking things out of a parked car. She made the identification only after police had him in handcuffs and later could not pick him out of a photo lineup or describe him to police. Perry filed a motion to suppress the photo identification because it was "unnecessarily suggestive" that he was a criminal because he was in handcuffs. The New Hampshire Supreme Court upheld his conviction. The Court accepted the case to address the following question: “Do the due process protections against unreliable identification evidence apply to all identifications made under suggestive circumstances, as held by the First Circuit Court of Appeal and other federal courts of appeal, or only when the suggestive circumstances were orchestrated by the police, as held by the New Hampshire Supreme Court and other courts?”

APA's Position

On Aug. 5, 2011, APA filed an amicus brief providing the Court with an overview of the strong body of research showing the variables that affect accuracy of eyewitness identification, specifically addressing the point that suggestive circumstances that will affect eyewitness identification can occur without police action. Thus limiting due process protections to only those faulty eyewitness identification procedures that are caused by state actors is too narrow a band of protection.


On Jan. 11, 2012, in an 8-1 opinion, the Court affirmed the decision of the New Hampshire Supreme Court, and held that the Due Process Clause does not require a preliminary judicial inquiry into the reliability of an eyewitness identification when the identification was not procured under unnecessarily suggestive circumstances arranged by law enforcement. Justice Sotomayor filed a dissenting opinion. APA’s brief is cited in both the majority and dissent opinions.