Vol. LIV No. 3

The Dangers of Eyewitness Identification: A Call for Greater State Involvement to Ensure Fundamental Fairness

Abstract: In 2012, the U.S. Supreme Court decided Perry v. New Hampshire, the Court’s first case on the admissibility of eyewitness identifications in thirty-five years. The Court held that the Due Process Clause does not require a preliminary judicial assessment of the reliability of an eyewitness identification that was not procured under unnecessarily suggestive circumstances orchestrated by law enforcement. The Court retained factors for assessing reliability when police misconduct is involved that were adopted in the 1970s, despite the emergence of new data highlighting the inherent unreliability of eyewitness identification. This Note argues that the Supreme Court did not go far enough in Perry to ensure fundamental fairness, and that state courts should interpret their own constitutions to provide greater protections for defendants. New Jersey adopted a comprehensive model in 2011 that more adequately accounts for the unreliability of eyewitness identification. Other states should follow New Jersey’s lead and adopt a similar approach.

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