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No need for new eye witness rule, Supreme Court justices suggest at hearing

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Short of evidence of police misconduct, the justices have never before found that due process protections in the Constitution require a judge to assess a witness’s reliability. Instead, that determination is usually left to members of the jury at trial during direct and cross examination.

The case is being closely followed because it marks the first time since 1977 that the Supreme Court has considered the issue of witness reliability. In the 34 years since, a substantial body of research has established the acute danger posed by unreliable eyewitnesses.

Part of the danger lies in jurors’ desire to assign substantial weight to the observations of an eyewitness. But research has shown that eyewitness observations are often not as accurate as many believe – including the witness.

One study found that eyewitness misidentifications contributed to the wrongful convictions of 76 percent of the first 250 individuals who were exonerated by DNA testing since 1989.

Wednesday’s debate at the high court stems from the case against Perry for theft.

At 2:53 a.m. on Aug. 15, 2008, Nashua, N.H., police received a report that a black man was trying to gain entry into vehicles in an apartment building parking lot. The responding officer heard the sound of an aluminum bat falling to the pavement and discovered Perry in the lot between parked cars. He was carrying two sound system amplifiers.

Perry said he found the items and that two kids had been in the parking lot. The officer, Nicole Clay, was unable to locate any other suspects.

When a backup police officer arrived, Ms. Clay instructed Perry to remain with that officer in the parking lot.

She then entered the apartment building to question a witness, Nubia Blandon. Ms. Blandon spoke Spanish. A neighbor translated the questions and answers. Blandon told the officer that she had seen a tall, black man walk through the parking lot, looking into the cars, circle her neighbor’s car, open the trunk, and remove a large box. She said the man was carrying a baseball bat.

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