Perry v. New Hampshire

Whether a defendant may exclude eyewitness identification stemming from impermissibly suggestive circumstances, regardless of improper state conduct related to that identification, based on the protections of due process.

Two witnesses were asked who they saw breaking into a car and both identified Perry saying, “The man talking outside to the police officer”. These identifications were admitted at trial and Perry was convicted by a jury. New Hampshire’s Supreme Court sustained the conviction, holding that state action is necessary to have the due process protections apply and thus render eye witness testimony inadmissible when that identification results from impermissibly suggestive circumstances.

Perry argues that Due Process requires these identifications be suppressed because the identification process was unnecessarily suggestive. Perry further argues the U.S. Supreme Court has never required that impermissibly suggestive conduct be orchestrated by police in order for Due Process protections to apply. Perry notes that though the State contends that a minority of courts have found the protections apply regardless of state action, this “minority” of states is predominately federal circuit courts and not a minority at all. The state argues there are already sufficient procedures in place for assessing the reliability or unfair suggestive circumstances surrounding eyewitness testimony; for example, the Confrontation Clause requires the defendant be given an opportunity to confront and cross-examine the eyewitness.