Decision below: New Hampshire Supreme Court, No. 2009-0590, 11/18/2010 (summary order); Perry’s brief below; New Hampshire’s brief below
When a witness in a criminal case identifies a suspect out-of-court, under suggestive circumstances which give rise to a substantial likelihood of later misidentification, due process requires the trial judge to determine whether the out-ofcourt identification and any subsequent in-court identification are reliable before either may be admitted into evidence. 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?
The challenged ID was what might be called an inadvertent showup. An officer was standing next to Perry at the scene, when a witness viewed them from inside her apartment, without police involvement. (“As the trial court found, the witness pointed out the defendant from her apartment window without any inducement from the police, Summary Order, p. 1.) There is a split of lower court authority as to whether state invovlement is required before an ID may be suppressed; that split no doubt accounts for the cert grant. See cert petition for specifics – the petition argues that the basis for suppression is “reliability” of the ID, not “state action” in bringing it about.
A showup (or, 1-person lineup) is “suggestive,” for the obvious reason that having only one person to view suggests to the witness that the person is indeed the perpetrator. The question is whether this procedure is “necessary.” See generally, State v. Dubose, 2005 WI 126, ¶2 (“We hold that evidence obtained from such a showup will not be admissible unless, based on the totality of the circumstances, the showup was necessary.”). If the procedure is deemed unnecessarily suggestive, the identification is suppressed. Id., ¶33 (an in-court ID might nonetheless be admissible, if proven untainted by the showup). But what kind of analysis applies if the showup was inadvertent? Necessity is simply irrelevant in that instance, and Wisconsin authority indicates that suppressibility isn’t presently available, although the court has expressed interest in revisiting the question, State v. Hibl, 2006 WI 52, ¶¶45-47, 290 Wis.2d 595, 714 N.W.2d 194 (2006). It appears that the question will be answered soon enough, if not by our supreme court.