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Should eye witnesses have to pass a test? Supreme Court to decide.

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Lawyers with the New Hampshire Attorney General’s office counter that the witness was properly allowed to present her observations to the jury. With the aid of cross-examination, a jury is perfectly able to assess the reliability of a witness’s information, they say.

“There is no specific constitutional right that requires evidence to be deemed reliable before it is admissible in a criminal trial,” Stephen Fuller, senior assistant attorney general, wrote in his brief to the court.

Mr. Fuller added that since 1967, the Supreme Court has established an exception to that general rule. The high court has held that witness reliability must be tested in cases in which law enforcement officials used suggestive techniques that may have manipulated, influenced, or enhanced a witness’s ability to identify an alleged criminal suspect.

Because there was no evidence that the police engaged in suggestive techniques in Perry’s case, the judge acted properly in allowing the witness to testify, Fuller said.

Perry’s lawyers disagreed. Public Defender Richard Guerriero wrote in his brief that the New Hampshire courts were wrong to allow the eye witness to testify against Perry.

Mr. Guerriero said pre-trial examination of eye-witness reliability should not be confined to cases involving suggestive tactics by law enforcement. In cases like Perry’s, judges should determine before the trial whether an eye witness’s testimony will be accurate and reliable, he said.

A coalition of lawyers running Innocence Projects across the country filed a friend of the court brief urging the justices to reverse Perry’s conviction and establish a broader judicial rule for testing witness reliability.

“This court should now make clear what has long been implicit from its decisions and what two decades of exonerations have conclusively proven: that the admission at trial of a suggestive identification can amount to a due process violation even if the suggestive circumstances are not orchestrated by law enforcement,” wrote Timothy O’Toole in a brief on behalf of the Innocence Network, a coalition of 63 lawyer-run projects established to identify and free innocent convicts.

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