Thursday, November 03, 2011

Modernizing Eyewitness Identification Rules: The U.S. Supreme Court Oral Argument in the Eyewitness Identification Case of Perry v. New Hampshire: How do we Improve the Sight of the Citizens?


Will the Supreme Court "modernize" the rules applicable to eyewitness identification? That is definitely to be expected, for the reasons stated at Logarchism, Governing through Reason in Supreme Court Watch: Perry v. New Hampshire.

However, that modernization is not likely to help the petitioner in a case upon which the U.S. Supreme Court held oral argument yesterday and about which we posted previously at Eyewitness Identification to be Reviewed by the U.S. Supreme Court for the First Time in 34 Years in the case of Perry v. New Hampshire, No. 10-8974.

James Doyle has a nice "warm up" to the oral argument at The Crime Report in Less Than Meets the Eye: Eyewitness Evidence and the Courts.

Numerous reports have commentary on yesterday's oral arguments, e.g. Mike Sacks at the Huffington Post in Supreme Court Looks At Unreliable Eyewitness IDs And Appears To Blink.

Petitioner Perry is trying to get eyewitness evidence excluded which was obtained in a suggestive situation that was not "orchestrated" by police. As Sacks writes:
"Justices Antonin Scalia and Elena Kagan wondered what made suggestive eyewitness testimony so suspect as to require a constitutional safeguard above and beyond the tools used to prevent other unreliable evidence from reaching the jury.

"I understand you have very good empirical evidence which should lead us all to wonder about the reliability of eyewitness testimony," Kagan said. "I'm just suggesting that eyewitness testimony is not the only kind of testimony which people can do studies on and find that it's more unreliable than you would think."
At the root of the legal issue in this case is that human observation is more fallible than people think, so that protections have to be instituted in the laws to take account of that.

In the instant case involving theft of a stereo from an automobile in a parking lot, the eyewitness -- from her apartment window -- identified the suspect in that parking lot, as he stood handcuffed next to a police officer after the arrest, as the man she had seen taking things out of a car, but was unable to identify him later in a lineup, though her husband could. Eliciting a "that's him!" reaction in that kind of a suggestive situation is expected, reducing the probative value of the eyewitness identification as evidence.

The situation of a handcuffed man in a parking lot was obviously "suggestive" and should have been pointed out by the trial judge, but that surely does not warrant a Constitutional law ruling of exclusion of the evidence. As the Supreme Court Justices indicated during oral argument, there are many safeguards available at trial to handle this specific problem. You can not exclude eyewitness identifications that take place in the normal course of things, regardless of whether situations were suggestive or not.

There is very little doubt that Perry was guilty of the crime for which he was convicted.  As stated at Logarchism, Governing through Reason in Supreme Court Watch: Perry v. New Hampshire:
"The police offi­cer, Nicole Clay, arrived to find Bar­ion Perry hold­ing stereo ampli­fiers, which he claimed he had found on the ground in the park­ing lot and was mov­ing out of the way."
In terms of legal standards, we could venture the humor that this fact situation was "suggestive" that he had committed the stereo theft, especially when corroborated by eyewitness identification, even if that too was "suggestive" by nature.

We have more trouble in this case with the severity of the draconian sentencing. Perry was given a 3-​​to-​​10 year prison sen­tence. For stealing a stereo? What is the sense of that?

Recall that the United States has more people in jails and prisons than any other country in the world except "Stalinist" North Korea.

The logical conclusions from that fact are that: either 1) American economic, educational and socialization processes have widely failed, and/or 2) American concepts of crime and punishment have widely failed.

Both conclusions are probably correct.

The city of Detroit is an oft-cited example for colossal failure in America on many fronts, although I was in Detroit recently, was favorably surprised by the large modern international airport, and found Detroit to be a city of many extremely friendly people. You have to tap those resources, not by force, but by consent.

Jail and prison sentences are not adequate long-term solutions for economic, social or legal problems. Incarceration does not cure educational deficits, job shortages or unemployment, poverty or the lack of funds.

In previous eras, debtor's prisons used to be full of people who had no money to pay their debts and jail was hardly the place to rise out of indebtedness. Beware in fact that debtor's prisons do not arise again in modern America -- Ashby Jones reports at the Law Blog at the Wall Street Journal blogs in On the Rise of Debtor’s Prison: 'The Scariest Thing That Ever Happened to Me'.

Economic crime and debt have never been "cured" by jails or prisons but rather by a sound economy that provides employment at sensible wages so that people have money in their pockets to pay off their debts and to buy the goods and services that society provides, making theft and economic crimes much less tempting.

I am not excusing economic crime here, but as income inequality and wealth inequality in America increase, such crime will remain an ever-present problem and probably get worse before it gets better. Those who prefer income inequality have to take the costs into account - and one of those costs is a society of desperation among the economically needy, with all of its dangers.

In order for improvement to occur, the "sight" of the citizens, just as in eyewitness identification, has to get "a lot better", and the U.S. Supreme Court will have to improve its judging on basic societal questions such as patents and copyrights, so that billions in windfall profits do not land in the pockets of the few (or their successors), but are more equally distributed.

Some of the blame for wealth and income inequality in the United States can surely thus be laid at the foot of the Supremes, whose decisions have helped to enable great rewards to be granted to people on the basis of their blood line (idiotically long copyright protection, for example, benefitting progeny) rather than rewarding actual performance or contribution to society.

It is fine to reward inventors and authors, but the laws currently create such unnecessarily pervasive monopolies via intellectual property law, that generations of unproductive progeny collect larger and larger sums of money, while society decays. The warning signs are clear. You get what you create.

Rather than full employment and a blossoming economy, you have thousands of patent inspectors working daily to grant ever-increasing numbers of monopolies to monopolistic patent trolls and monopolistic companies who do not pay their fair share of taxes and manufacture their products abroad via child and cheap labor. That is not the way we read the "original" U.S. Constitution. The intent of the founders was to create "a better world".

Justice Scalia, are you listening?

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