Tied to the Hitching Post
Hope v. Pelzer at Trial

Time to Revisit Neil v. Biggers

Just last week, a petition for certiorari was filed in the case of United States of America v. Jose Antonio Perez. The petition asks the Supreme Court to reconsider whether the certainty of an eyewitness identification ought to be a factor a court considers when determining whether a suggestive identification is nonetheless sufficiently reliable to satsify the requirements of due process.

Mr. Perez was convicted of a number of federal offenses arising from the contract-murder of a rival drug dealer. The Perez brothers operated a narcotics operation in Hartford, Connecticut. When things got hot with a member of the Savage Nomads, another gang, hitmen were recruited from the Bronx. The hitmen succeeded, and the case went unsolved for some time. (In the interest of full disclosure, I represented Mr. Perez at trial.) Then rats started nibbling at federal cheese.

Prior to trial, the defendant moved to suppress his identification by one of the triggerman's crew on the grounds that it was unduly suggestive. Mr. Perez's mug shot in a photo array was much darker than all the other photographs. The trial court agreed that the identification procedure was unduly suggestinve but, apllying Neil v. Biggers, 409 U.S. 188 (1972), held that the identification was nonetheless reliable because, in part, the witness was certain and had an adequate opportunity to view the defendant. The witness making the identification had been spared the death penalty in exchange for his testimony.

Biggers established a five-part test for assessing reliability of identifications. One factor requires a court to assess a witness' certainty in making an identification.

On appeal, the United States Court of Appeals for the Second Circuit noted it lacked the authority to overturn Biggers, all but inviting a run at certiorari. Diane Polan, co-counsel at trial and appellate counsel in the Perez case, wrote to the Innocence Project and asked them to take the petition. It did so.

The petition was prepared by Mayer, Brown, Rowe & Maw, LLP. Although the petition notes no split in the circuits justifying certiorari, it does note that the state courts are distancing themselves from Biggers in the wake of scientific evidence that eyewitness evidence is not always reliable.  The Utah Supreme Court has held that Biggers is insufficient to guarantee due process under the Utah constitution. State v. Ramirez, 817 P.2d 774 (Utah 1991). Massachusetts has adopted a per se rule excluding suggestive identifications. Commonwealth v. Johnson, 650 N.E. 1257 (Mass. 1995). Wisconsin recently distanced itself from the Biggers in State v. Dubose, 699 N.W.2d 582 (Wis. 2005). Both Georgia and Connecticut have recently changed jury instructions to avoid the placing too much weight on eyewitness identification. Brodes v. State, 614 S.E. 776 (Ga. 2005); State v. Ledbetter, 275 Conn. 534 (Ct. 2005).

Evidence about the unreliability of eyewitness identification is persuasive. The use of DNA has led to the exoneration of dozens of defendants, some of them formerly on death row, whose convictions relied in whole or in part on eyewitness identifications. I hope the Perez case will serve as the occasion for the Supreme Court to revisit Biggers. The growing gap in our law between state Supreme Court holdings and federal Supreme Court holdings on this topic could well yield the most unseemly of forum shopping: got a shaky identification as a matter of state constitutional law? Fine, then cook up a federal offense -- stretch the commerce clause once again until it snaps -- so that federal law will yield a greater likelihood of conviction.

Cleaning up Biggers would avoid that problem.