Last fall, there were a series of events that held promise that the criminal justice system was about to see major re-thinking about how courts deal with eyewitness identification.  The New Jersey Supreme Court issued an extensive order which outlined in detail the problem with eyewitness identification. http://www.courts.state.nh.us/supreme/orders/StatevPerry.pdf   The American Judicature Society issued a report on eyewitness identification.  http://www.ajs.org/ajs/ajs_editorial-template.asp?content_id=1000   The United States Supreme Court accepted cert on an eyewitness identification case.  Among the amicus briefs filed with the Supreme Court was one filed by the American Psychological Association. http://www.americanbar.org/content/dam/aba/publishing/previewbriefs/Other_Brief_Updates/10-8974_petitioneramcuapa.authcheckdam.pdf  The Supreme Court, with only one dissent, refused to require a new screening procedure in situations where police have not actually manipulated the identification. Perry v. New Hampshire (docket 10-8974) http://www.scotusblog.com/case-files/cases/perry-v-new-hampshire/?wpmp_switcher=desktop 

Justice Ruth Bader Ginsburg’s opinion that the practice of allowing jurors, not judges, in a mid-trial screening process, to decide whether to believe eyewitness testimony was all that was constitutionally required.  Justice Sonia Sotomayor, the lone dissenter, would have required a screening procedure by the judge any time an identification had been made in a “suggestive” setting.

The courts have been split on this issue.  One court had ruled that federal judges must scrutinize all suggestive ID procedures, not just those orchestrated by police.  The New Hampshire Supreme Court and others have taken the opposite view.  In Perry v. New Hampshire, the witness, who had called police to check on a black man allegedly breaking into autos in the parking lot of her apartment complex, was questioned by a police officer in the building.  She then went to the kitchen window of her apartment, looked out, and identified a suspect in the parking lot—the only black person standing next to a police officer who had come to investigate.  About a month later, though, that witness could not pick out the same person from an array of photos shown to her by police.