ASKED & ANSWERED: J. Richard Broughton

By Steve Thorpe Legal News On January 11, the U.S. Supreme Court ruled that the Constitution doesn't require special judicial inquiry into the reliability of eyewitness evidence when there has been no police misconduct. In a near-unanimous 8-1 decision, the court sided with the state of New Hampshire and Obama administration attorneys who argued that no additional safeguards were needed to prevent faulty eyewitness testimony. The ruling comes at a time of renewed debate about the reliability of eyewitnesses. J. Richard Broughton is an assistant professor of law, and teaches Criminal Law, Criminal Procedure, Fourteenth Amendment, and the Death Penalty in America. He was a visiting professor at UDM in the 2009-10 academic year. Previously, he served as visiting assistant professor of law at Wayne State University, where he was named both the First-Year Professor of the Year and Upperclass Professor of the Year for 2008-09. He also has taught on the law school faculties at Stetson University and Texas Wesleyan University (where he also won two teaching awards), and as a lecturer in Government at Johns Hopkins University. Thorpe: A book by a University of Virginia law professor says that 190 of the first 250 persons exonerated by DNA evidence had been convicted by mistaken eyewitness testimony. How big do you believe the problem really is? Broughton: The extensive research and literature on the issue suggest that it is a widespread problem. But, it's not a new one. We have known for a long time about the frailties of human observation and memory in the crime-witness context. And we have adopted constitutional rules under both the Sixth Amendment and due process, as well as evidentiary rules and courtroom strategies, to address the problem. In fact, some states, like New Jersey, have already instituted new procedural rules to limit eyewitness testimony. But even without new constitutional or evidentiary rules, the existing literature and cases like Perry offer the criminal justice system an opportunity to reflect on how to deal with the problem. Defense lawyers should always be rigorous in testing the strength of a state's witnesses. And prosecutors should be equally rigorous in testing the reliability of their eyewitnesses before introducing identifications. Still, it's worth noting that not all eyewitnesses get it wrong, and there are some cases in which, even if an eyewitness gets it wrong, other evidence against the defendant is sufficient to convict. Thorpe: A host of factors can lead to mistaken eyewitness identifications, but critics contend that most errors are the result of police manipulation. How valid is this argument? Broughton: It's probably hard to know for sure. After all, police are unlikely to admit every time they try to manipulate an eyewitness. Still, the contention is probably not as valid as the critics would like to believe. It is certainly true that police-created suggestiveness occurs, but there is also constitutional regulation of police manipulation. And again, if this criticism is accurate, it offers an opportunity for enhanced education and training in police departments and for prosecutors to ferret out such manipulation prior to using the eyewitness. Thorpe: The 8-1 vote crosses ideological lines. Why the near unanimity by the court? Broughton: I think the Court was genuinely concerned that a holding in Perry's favor would have kept a very wide door open and possibly undermined the function of criminal juries. We saw this at the oral argument, where many of the Justices, even those not firmly on the Court's Right, expressed some frustration that they were being asked to adopt a rule that would make trial judges the ultimate arbiters of the facts in criminal jury trials. Many pieces of a State's case can be of questionable reliability or credibility, and the Justices on both sides of the Court's ideological divide seemed to think that these are ultimately issues that juries have to be trusted to resolve, particularly where state actors are not responsible for manipulating the witness. That's the nature of a jury trial in an adversarial system. Thorpe: What eyewitness evidence issues did the decision leave unresolved? Broughton: One issue that divided Justice Ginsburg and Justice Sotomayor was whether the police have to act intentionally in setting up an identification in order for there to be judicial screening of an unreliability claim. Justice Ginsburg's opinion claims it does not go so far as to require intentional police misconduct, but Justice Sotomayor said that she read the majority opinion as adopting that kind of new standard. So perhaps this issue will arise in the future. Also, Justice Kagan raised a couple of interesting questions at oral argument concerning whether due process would prohibit the knowing introduction of an unreliable eyewitness (as opposed to knowing introduction of false testimony), and whether due process would forbid introduction of identification testimony obtained where the witness was tortured by a non-state actor. Thorpe: In her lone dissent, Justice Sonia Sotomayor focused more on the potential reliability of eyewitnesses rather than on police conduct. Why didn't her argument resonate more with her colleagues? Broughton: Unlike the majority opinion, the Sotomayor dissent is not concerned with the distinction between state-created suggestiveness and suggestiveness arising merely from circumstances. She cares primarily about reliability regardless of the nature of its creation, and her underlying point about reliability is certainly a valid one. But the majority thought the absence of state-initiated manipulation here was important. After all, if the purpose of creating constitutional rules in this area is to deter police misconduct, those purposes are not served by a rule that does not distinguish police-created suggestiveness from other suggestiveness. Also, again, Justice Sotomayor's colleagues in the majority seemed to feel that her argument proves too much. After all, a good deal of evidence may be unreliable. The state does not violate the Constitution merely because it places before the fact-finder evidence that might be unreliable. We have other mechanisms -- the rules of evidence, rigorous cross-examination by defense lawyers, and the use of neutral fact-finders -- that are safeguards against this problem without requiring trial judges, as a matter of constitutional right, to pass on whether every piece of evidence is reliable enough to go before the jury. In short, in the absence of state-created suggestiveness, I think the majority was simply more willing to allow the jury and the ordinary adversary process to deal with unreliable eyewitnesses. Published: Thu, Feb 9, 2012

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