A witness saw a person she could only describe as a black male breaking into cars outside of her apartment building. She called the police. When the police arrived, they found Perry in a parking lot with a car with a smashed window, standing next to a baseball bat, holding two car stereos. Perry claimed he found the stereos lying on the ground.
The witness then came outside to check her car. She identified herself to police as the caller, and was asked for a description of the person she had seen. Instead, she pointed to Perry. Months later, however, she was unable to pick him out of a photo-array.
Prior to his trial, Perry moved to suppress the witness' identification, arguing that the show-up in the parking lot was improperly suggestive. The trial court denied the motion and, based on the the strength of the ID by the witness, as well as the circumstantial evidence discovered by police, Perry was convicted. He appealed unsuccessfully and, ultimately, was granted certiorari to the Supreme Court of the United States.
Justice Ginsburg, writing for a seven justice majority, noted that prior Supreme Court precedent required a two-step analysis: first, the Court considers whether the police manufactured an unnecessarily suggestive identification procedure; if so, the Court next considers whether the improper procedure so tainted the identification as to make it unreliable, and therefore inadmissible.
Here, the majority held, the initial identification was not manufactured by the police at all. Instead, the witness left her building and saw defendant being held at the scene of the crime without being asked to do so. Having decided the police conduct was not improper, there is no need to reach the second inquiry.
This does not, the majority stressed, leave the defendant without a remedy. On the contrary: the proper mechanism for defendants to challenge an unreliable, but not improper, identification, is vigorous cross-examination.
Justice Thomas concurred in the decision, but would have held that the two-step analysis itself was unnecessary. Justice Sotomayor dissented, and would have held that unreliable eyewitness testimony, regardless of the cause of the unreliability, is itself a violation of due process.
