Great Brady Decision from SCOTUS

The Supreme Court has declined to extend constitutional safeguards against the use of some eyewitness testimony at criminal trials, ruling against a New Hampshire man who was convicted of theft. Perry v. New Hampshire, 10-8974.

The court voted 8-1 Wednesday to turn away Barion Perry's claim that courts should be able to exclude eyewitness testimony when identifications are made under suggestive circumstances, even when there is no evidence of manipulation by the police. Judges can already can bar testimony when the police do something to influence a witness to identify a suspect.

Justice Ruth Bader Ginsburg said in her opinion for the court that in cases with no police misconduct, juries can weigh the reliability of eyewitness testimony. Justice Sonia Sotomayor wrote a dissenting opinion. The decision may not be as awful as many members of the criminal bar first thought. While the Court refuses to move the due process clause to follow the science of bad eye witness identification, it does so only based on the notion of the lack of state action in that case. In cases involving state actors there is a little more hope. On p. 9, n. 5, the majority restates the 20 year old Neil/Manson factors. The good news is that it lists the five factors is non-exclusive. The Court makes it clear that the five traditional factors are among the 'factors to be considered.’” This seems to suggests that could could ask a Court to consider many more factors, such as the laundry list stated by other courts, particularly the recent decision of the New Jersey Supreme Court. The bad news is that the Court fails to address the scientific criticisms of the Manson factors, which the State is likely to read as implicitly reaffirming them. This was a lost opportunity to fix binding federal precedent which is unarguably scientifically flawed -- the states can follow Henderson and ditch the test as a matter of state constitutional law. Still, the Court ignored forty-five years of scientific research on the subject and that is troubling.