Perry v. New Hampshire
565 US ___ (2012)

Annotate this Case



No. 10–8974



on writ of certiorari to the supreme court of new hampshire

[January 11, 2012]

     Justice Sotomayor, dissenting.

     This Court has long recognized that eyewitness identifications’ unique confluence of features—their unreliability, susceptibility to suggestion, powerful impact on the jury, and resistance to the ordinary tests of the adversarial process—can undermine the fairness of a trial. Our cases thus establish a clear rule: The admission at trial of out-of-court eyewitness identifications derived from imper-missibly suggestive circumstances that pose a very substan- tial likelihood of misidentification violates due process. The Court today announces that that rule does not even “com[e] into play” unless the suggestive circumstances are improperly “police-arranged.” Ante, at 2, 11.

     Our due process concern, however, arises not from the act of suggestion, but rather from the corrosive effects of suggestion on the reliability of the resulting identification. By rendering protection contingent on improper police arrangement of the suggestive circumstances, the Court effectively grafts a mens rea inquiry onto our rule. The Court’s holding enshrines a murky distinction—between suggestive confrontations intentionally orchestrated by the police and, as here, those inadvertently caused by police actions—that will sow confusion. It ignores our precedents’ acute sensitivity to the hazards of intentional and unintentional suggestion alike and unmoors our rule from the very interest it protects, inviting arbitrary results. And it recasts the driving force of our decisions as an interest in police deterrence, rather than reliability. Because I see no warrant for declining to assess the circumstances of this case under our ordinary approach, I respectfully dissent. [ 1 ]


     The “driving force” behind United States v. Wade, 388 U. S. 218 (1967) , Gilbert v. California, 388 U. S. 263 (1967) , and Stovall v. Denno, 388 U. S. 293 (1967) , was “the Court’s concern with the problems of eyewitness identification”—specifically, “the concern that the jury not hear eyewitness testimony unless that evidence has aspects of reliability.” Manson v. Brathwaite, 432 U. S. 98 –112 (1977). We have pointed to the “ ‘formidable’ ” number of “miscarriage[s] of justice from mistaken identification” in the annals of criminal law. Wade, 388 U. S., at 228. We have warned of the “vagaries” and “ ‘proverbi- ally untrustworthy’ ” nature of eyewitness identifications. Ibid. And we have singled out a “major factor contributing” to that proverbial unreliability: “the suggestibility inherent in the context of the pretrial identification.” Id., at 228, 235.

     Our precedents make no distinction between intentional and unintentional suggestion. To the contrary, they explicitly state that “[s]uggestion can be created intentionally or unintentionally in many subtle ways.” Id., at 229. Rather than equate suggestive conduct with misconduct, we specifically have disavowed the assumption that suggestive influences may only be “the result of police procedures intentionally designed to prejudice an accused.” Id., at 235; see also id., at 236 (noting “grave potential for prejudice, intentional or not, in the pretrial lineup”); id., at 239 (describing lack of lineup regulations addressing “risks of abuse and unintentional suggestion”). “Persons who conduct the identification procedure may suggest, intentionally or unintentionally, that they expect the witness to identify the accused.” Moore v. Illinois, 434 U. S. 220, 224 (1977) . The implication is that even police acting with the best of intentions can inadvertently signal “ ‘that’s the man.’ ” Wade, 388 U. S., at 236; see also Kirby v. Illinois, 406 U. S. 682 –691 (1972) (“[I]t is always necessary to ‘scrutinize any pretrial confrontation . . .’ ”). [ 2 ]

     In Wade itself, we noted that the “potential for improper influence [in pretrial confrontations] is illustrated by the circumstances . . . [i]n the present case.” 388 U. S., at 233–234. We then highlighted not the lineup procedure, but rather a preprocedure encounter: The two witnesses who later identified Wade in the lineup had seen Wade outside while “await[ing] assembly of the lineup.” Id., at 234. Wade had been standing in the hallway, which happened to be “observable to the witnesses through an open door.” Ibid. One witness saw Wade “within sight of an FBI agent”; the other saw him “in the custody of the agent.” Ibid. In underscoring the hazards of these circumstances, we made no mention of whether the encounter had been arranged; indeed, the facts suggest that it was not.

     More generally, our precedents focus not on the act of suggestion, but on suggestion’s “corrupting effect” on reliability. Brathwaite, 432 U. S., at 114. Eyewitness evidence derived from suggestive circumstances, we have explained, is uniquely resistant to the ordinary tests of the adversary process. An eyewitness who has made an identification often becomes convinced of its accuracy. “Regardless of how the initial misidentification comes about, the witness thereafter is apt to retain in his memory the image of the photograph rather than of the person actually seen, reducing the trustworthiness of subsequent . . . courtroom identification.” Simmons v. United States, 390 U. S. 377 –384 (1968) (emphasis added); see also Wade, 388 U. S., at 229 (witness is “not likely” to recant). Suggestion bolsters that confidence.

     At trial, an eyewitness’ artificially inflated confidence in an identification’s accuracy complicates the jury’s task of assessing witness credibility and reliability. It also impairs the defendant’s ability to attack the eyewitness’ credibility. Stovall, 388 U. S., at 298. That in turn jeopardizes the defendant’s basic right to subject his accuser to meaningful cross-examination. See Wade, 388 U. S., at 235 (“[C]ross-examination . . . cannot be viewed as an absolute assurance of accuracy and reliability . . . where so many variables and pitfalls exist”). The end result of suggestion, whether intentional or unintentional, is to fortify testimony bearing directly on guilt that juries find extremely convincing and are hesitant to discredit. See id., at 224 (“[A]t pretrial proceedings . . . the results might well settle the accused’s fate and reduce the trial itself to a mere formality”); Gilbert, 388 U. S., at 273 (“[T]he witness’ testimony of his lineup identification will enhance the impact of his in-court identification on the jury”).

     Consistent with our focus on reliability, we have declined to adopt a per se rule excluding all suggestive identifications. Instead, “reliability is the linchpin” in deciding admissibility. Brathwaite, 432 U. S., at 114. We have explained that a suggestive identification procedure “does not in itself intrude upon a constitutionally protected in-terest.” Id., at 113, n. 13; see also Neil v. Biggers, 409 U. S. 188 –199 (1972) (rejecting the proposition that “unnecessary suggestiveness alone requires the exclusion of evidence”). “Suggestive confrontations are disapproved because they increase the likelihood of misidentification”—and “[i]t is the likelihood of misidentification which violates a defendant’s right to due process.” Id., at 198; see also United States ex rel. Kirby v. Sturges, 510 F. 2d 397, 406 (CA7 1975) (Stevens, J.) (“The due process clause applies only to proceedings which result in a deprivation of life, liberty or property. . . . [I]f a constitutional violation results from a showup, it occurs in the courtroom, not in the police station”). In short, “ ‘what the Stovall due process right protects is an evidentiary interest.’ ” Brathwaite, 432 U. S., at 113, n. 14.

     To protect that evidentiary interest, we have applied a two-step inquiry: First, the defendant has the burden of showing that the eyewitness identification was derived through “impermissibly suggestive” means. [ 3 ] Simmons, 390 U. S., at 384. Second, if the defendant meets that burden, courts consider whether the identification was reliable under the totality of the circumstances. That step entails considering the witness’ opportunity to view the perpetrator, degree of attention, accuracy of description, level of certainty, and the time between the crime and pretrial confrontation, then weighing such factors against the “corrupting effect of the suggestive identification.” Brathwaite, 432 U. S., at 108, 114. Most identifications will be admissible. The standard of “fairness as required by the Due Process Clause,” id., at 113, however, demands that a subset of the most unreliable identifications—those carrying a “ ‘very substantial likelihood of . . . misidentification’ ”—will be excluded. Biggers, 409 U. S., at 198.



     The majority today creates a novel and significant limitation on our longstanding rule: Eyewitness identifications so impermissibly suggestive that they pose a very substantial likelihood of an unreliable identification will be deemed inadmissible at trial only if the suggestive circumstances were “police-arranged.” Ante, at 2. Absent “improper police arrangement,” “improper police conduct,” or “rigging,” the majority holds, our two-step inquiry does not even “com[e] into play.” Ante, at 2, 11. I cannot agree.

     The majority does not simply hold that an eyewitness identification must be the product of police action to trigger our ordinary two-step inquiry. Rather, the majority maintains that the suggestive circumstances giving rise to the identification must be “police-arranged,” “police rigg[ed],” “police-designed,” or “police-organized.” Ante, at 2, 12–13. Those terms connote a degree of intentional orchestration or manipulation. See Brief for Respondent 19 (no indication that police “deliberately tried to manipulate any evidence”); Brief for United States as Amicus Curiae 18 (“[N]o one deliberately arranged the circumstances to obtain an identification”). The majority cate-gorically exempts all eyewitness identifications derived from suggestive circumstances that were not police-manipulated—however suggestive, and however unreliable—from our due process check. The majority thus appears to graft a mens rea requirement onto our existing rule. [ 4 ]

     As this case illustrates, police intent is now paramount. As the Court acknowledges, Perry alleges an “accidental showup.” Brief for Petitioner 34 (emphasis added); see ante, at 4. He was the only African-American at the scene of the crime standing next to a police officer. For the majority, the fact that the police did not intend that showup, even if they inadvertently caused it in the course of a police procedure, ends the inquiry. The police were questioning the eyewitness, Blandon, about the perpetrator’s identity, and were intentionally detaining Perry in the parking lot—but had not intended for Blandon to identify the perpetrator from her window. Presumably, in the majority’s view, had the police asked Blandon to move to the window to identify the perpetrator, that could have made all the difference. See Tr. of Oral Arg. 32, 37.

     I note, however, that the majority leaves what is required by its arrangement-focused inquiry less than clear. In parts, the opinion suggests that the police must arrange an identification “procedure,” regardless of whether they “inten[d] the arranged procedure to be suggestive.” Ante, at 2, n. 1; see also ante, at 7–8. Elsewhere, it indicates that the police must arrange the “suggestive circum-stances” that lead the witness to identify the accused. See ante, at 1–2, 10–11, 18–19. Still elsewhere it refers to “im-proper” police conduct, ante, at 1–2, 9–12, connoting bad faith. Does police “arrangement” relate to the procedure, the suggestiveness, or both? If it relates to the procedure, do suggestive preprocedure encounters no longer raise the same concerns? If the police need not “inten[d] the arranged procedure to be suggestive,” ante, at 2, n. 1, what makes the police action “improper”? And does that mean that good-faith, unintentional police suggestiveness in a police-arranged lineup can be “impermissibly sugges- tive”? If no, the majority runs headlong into Wade. If yes, on what basis—if not deterrence—does it distinguish unintentional police suggestiveness in an accidental confrontation?

     The arrangement-focused inquiry will sow needless con-fusion. If the police had called Perry and Blandon to the police station for interviews, and Blandon saw Perry being questioned, would that be sufficiently “improper police arrangement”? If Perry had voluntarily come to the police station, would that change the result? Today’s opinion renders the applicability of our ordinary inquiry contingent on a murky line-drawing exercise. Whereas our two-step inquiry focuses on overall reliability—and could account for the spontaneity of the witness’ identification and degree of police manipulation under the total-ity of the circumstances—today’s opinion forecloses that assessment by establishing a new and inflexible step zero.


     The majority regards its limitation on our two-step rule as compelled by precedent. Its chief rationale, ante, at 7–13, is that none of our prior cases involved situations where the police “did not arrange the suggestive circumstances.” Ante, at 10; see also ante, at 2, n. 1. That is not necessarily true, given the seemingly unintentional encounter highlighted in Wade. But even if it were true, it is unsurprising. The vast majority of eyewitness identifications that the State uses in criminal prosecutions are obtained in lineup, showup, and photograph displays arranged by the police. Our precedents reflect that practical reality.

     It is also beside the point. Our due process concerns were not predicated on the source of suggestiveness. Rather, “[i]t is the likelihood of misidentification which violates a defendant’s right to due process,” Biggers, 409 U. S., at 198, and we are concerned with suggestion in-sofar as it has “corrupting effect[s]” on the identification’s reliability. Brathwaite, 432 U. S., at 114. Accordingly, whether the police have created the suggestive circumstances intentionally or inadvertently, the resulting identification raises the same due process concerns. It is no more or less likely to misidentify the perpetrator. It is no more or less powerful to the jury. And the defendant is no more or less equipped to challenge the identifica- tion through cross-examination or prejudiced at trial. The arrangement-focused inquiry thus untethers our doctrine from the very “ ‘evidentiary interest’ ” it was designed to protect, inviting arbitrary results. Id., at 113, n. 14.

     Indeed, it is the majority’s approach that lies in tension with our precedents. Whereas we previously disclaimed the crabbed view of suggestiveness as “the result of po- lice procedures intentionally designed to prejudice an ac-cused,” Wade, 388 U. S., at 235, the majority’s focus on police rigging and improper conduct will revive it. Whereas our precedents were sensitive to intentional and unintentional suggestiveness alike, see supra, at 2–3, today’s decision narrows our concern to intentionally orchestrated suggestive confrontations. We once described the “pri-mary evil to be avoided” as the likelihood of misidentification. Biggers, 409 U. S., at 198. Today’s decision, however, means that even if that primary evil is at its apex, we need not avoid it at all so long as the suggestive circumstances do not stem from improper police arrangement.


     The majority gives several additional reasons for why applying our due process rule beyond improperly police-arranged circumstances is unwarranted. In my view, none withstands close inspection.

     First, the majority insists that our precedents “aim to deter police from rigging identification procedures,” so our rule should be limited to applications that advance that “primary aim” and “key premise.” Ante, at 2, 11 (citing Brathwaite, 432 U. S., at 112). That mischaracterizes our cases. We discussed deterrence in Brathwaite because Brathwaite challenged our two-step inquiry as lacking deterrence value. Brathwaite argued that deterrence de-manded a per se rule excluding all suggestive identifications. He said that our rule, which probes the reliability of suggestive identifications under the totality of the circumstances, “cannot be expected to have a significant deterrent impact.” Id., at 111.

     We rebutted Brathwaite’s criticism in language the majority now wrenches from context: Upon summarizing Brathwaite’s argument, we acknowledged “several interests to be considered.” Ibid. We then compared the two rules under each interest: First, we noted the “driving force” behind Wade and its companion cases—“the concern that the jury not hear eyewitness testimony unless that evidence has aspects of reliability”—and found both approaches “responsive to this concern,” but the per se rule to go “too far” in suppressing reliable evidence. 432 U. S., at 111–112. We noted a “second factor”—deterrence—conceding that the per se rule had “more significant deterrent effect,” but noting that our rule “also has an influence on police behavior.” Id., at 112. Finally, we noted a “third factor”—“the effect on the administration of justice”—describing the per se rule as having serious drawbacks on this front. Ibid. That was no list of “primary aim[s].” Nor was it a ringing endorsement of the primacy of deterrence. We simply underscored, in responding to Brathwaite, that our rule was not without deterrence benefits. To the contrary, we clarified that deterrence was a subsidiary concern to reliability, the “driving force” of our doctrine. It is a stretch to claim that our rule cannot apply wherever “[t]his deterrence rationale is inapposite.” Ante, at 11.

     Second, the majority states that Coleman v. Alabama, 399 U. S. 1 (1970) , held that “[n]o due process violation occurred . . . because nothing ‘the police said or did prompted’ ” the identification and shows that our rule is linked “only to improper police arrangement.” Ante, at 11–12. That misreads the decision. In Coleman, the petitioners challenged a witness’ in-court identification of them at trial on grounds that it had been tainted by a suggestive pretrial lineup. We held that no due process violation occurred because the in-court identification ap-peared to be “entirely based upon observations at the time of the assault and not at all induced by the conduct of the lineup,” and thus could not be said to stem from an identification procedure “ ‘so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.’ ” 399 U. S., at 5–6 (plurality opinion). We then dismissed each of the asserted suggestive influences as having had no bearing on the identification at all: The petitioners claimed that the police intimated to the witness that his attackers were in the lineup; we found the record “devoid of evidence that anything the police said or did” induced the identification. Id., at 6. The petitioners claimed that they alone were made to say certain words; we found that the witness identified petitioners before either said anything. One petitioner claimed he was singled out to wear a hat; we found that the witness’ identification “d[id] not appear . . . based on the fact that he remembered that [the attacker] had worn a hat.” Ibid. Thus, far from indicating that improper police conduct is a prerequisite, Coleman merely held that there had been no influence on the witness. In fact, in concluding that the lineup was not “ ‘so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification,’ ” Coleman indicates that the two-step inquiry is not truncated at the threshold by the absence of police misconduct.

     Third, the majority emphasizes that we should rely on the jury to determine the reliability of evidence. See ante, at 15–16. But our cases are rooted in the assumption that eyewitness identifications upend the ordinary expectation that it is “the province of the jury to weigh the credibility of competing witnesses.” Kansas v. Ventris, 556 U. S. 586 , n. (2009). As noted, jurors find eyewitness evidence unusually powerful and their ability to assess credibility is hindered by a witness’ false confidence in the accuracy of his or her identification. That disability in no way de-pends on the intent behind the suggestive circumstances.

     The majority’s appeals to protecting the jury’s domain, moreover, appeared in dissent after dissent from our de-cisions. See Foster v. California, 394 U. S. 440, 447 (1969) (Black, J., dissenting) (“[T]he jury is the sole tribunal to weigh and determine facts” and “must . . . be allowed to hear eyewitnesses and decide for itself whether it can recognize the truth”); Simmons, 390 U. S., at 395 (Black, J., concurring in part and dissenting in part) (“The weight of the evidence . . . is not a question for the Court but for the jury”). So too does the majority’s assurance that other constitutional protections like the Sixth Amendment rights to compulsory process and confrontation can suffice to expose unreliable identifications. Compare ante, at 6, with Foster, 394 U. S., at 448–449 (Black, J., dissenting) (“The Constitution sets up its own standards of unfairness in criminal trials,” including the Sixth Amendment “right to compulsory process” and “right to confront . . . witnesses”). So too does the majority’s appeal to leave reliability to the rules of evidence. Compare ante, at 17, with Foster, 394 U. S., at 448 (Black, J., dissenting) (“ ‘Rules of evidence are designed in the interests of fair trials’ ”), and Stovall, 388 U. S., at 306 (Black, J., dissenting) (“[T]he result . . . is to put into a constitutional mould a rule of evidence”). Those arguments did not prevail then; they should not prevail here.

     Fourth, the majority suggests that applying our rule beyond police-arranged suggestive circumstances would entail a heavy practical burden, requiring courts to engage in “preliminary judicial inquiry” into “most, if not all, eyewitness identifications.” Ante, at 13, 18. But that is inaccurate. The burden of showing “impermissibly suggestive” circumstances is the defendant’s, so the objection falls to the defendant to raise. And as is implicit in the majority’s reassurance that Perry may resort to the rules of evidence in lieu of our due process precedents, trial courts will be entertaining defendants’ objections, pretrial or at trial, to unreliable eyewitness evidence in any event. The relevant question, then, is what the standard of admissibility governing such objections should be. I see no reason to water down the standard for an equally suggestive and unreliable identification simply because the suggestive confrontation was unplanned.

     It bears reminding, moreover, that we set a high bar for suppression. The vast majority of eyewitnesses proceed to testify before a jury. To date, Foster is the only case in which we have found a due process violation. 394 U. S., at 443. There has been no flood of claims in the four Federal Circuits that, having seen no basis for an arrangement-based distinction in our precedents, have long indicated that due process scrutiny applies to all suggestive identification procedures. See Dunnigan v. Keane, 137 F. 3d 117, 128 (CA2 1998); United States v. Bouthot, 878 F. 2d 1506, 1516 (CA1 1989); Thigpen v. Cory, 804 F. 2d 893, 895 (CA6 1986); see also Green v. Loggins, 614 F. 2d 219, 223 (CA9 1980). Today’s decision nonetheless precludes even the possibility that an unintended confrontation will meet that bar, mandating summary dismissal of every such claim at the threshold.

     Finally, the majority questions how to “rationally distinguish suggestiveness from other factors bearing on the reliability of eyewitness evidence,” such as “poor vision” or a prior “grudge,” ante, at 13–14, and more broadly, how to distinguish eyewitness evidence from other kinds of arguably unreliable evidence. Ante, at 14–15. Our precedents, however, did just that. We emphasized the “ ‘formidable number of instances in the records of English and Amer-ican trials’ ” of “miscarriage[s] of justice from mistaken identification.” Wade, 388 U. S., at 228. We then observed that “ ‘the influence of improper suggestion upon identifying witnesses probably accounts for more miscarriages of justice than any other single factor.’ ” Id., at 229. More-over, the majority points to no other type of evidence that shares the rare confluence of characteristics that makes eyewitness evidence a unique threat to the fairness of trial. Jailhouse informants, cf. ante, at 15, unreliable as they may be, are not similarly resistant to the traditional tools of the adversarial process and, if anything, are met with particular skepticism by juries.

     It would be one thing if the passage of time had cast doubt on the empirical premises of our precedents. But just the opposite has happened. A vast body of scientific literature has reinforced every concern our precedents articulated nearly a half-century ago, though it merits barely a parenthetical mention in the majority opinion. Ante, at 14. Over the past three decades, more than two thousand studies related to eyewitness identification have been published. One state supreme court recently appointed a special master to conduct an exhaustive survey of the current state of the scientific evidence and concluded that “[t]he research . . . is not only extensive,” but “it represents the ‘gold standard in terms of the applicability of social science research to law.’ ” State v. Henderson, 208 N. J. 208, 283, 27 A. 3d 872, 916 (2011). “Experimental methods and findings have been tested and retested, subjected to scientific scrutiny through peer-reviewed journals, evaluated through the lens of meta-analyses, and replicated at times in real-world settings.” Ibid.; see also Schmechel, O’Toole, Easterly, & Loftus, Beyond the Ken? Testing Jurors’ Understanding of Eyewitness Reliability Evidence, 46 Jurimetrics 177, 180 (2006) (noting “nearly unanimous consensus among researchers about the [eyewitness reliability] field’s core findings”).

     The empirical evidence demonstrates that eyewitness misidentification is “ ‘the single greatest cause of wrongful convictions in this country.’ ” [ 5 ] Researchers have found that a staggering 76% of the first 250 convictions overturned due to DNA evidence since 1989 involved eyewitness misidentification. [ 6 ] Study after study demonstrates that eyewitness recollections are highly susceptible to distortion by postevent information or social cues; [ 7 ] that jurors routinely overestimate the accuracy of eyewitness identifications; [ 8 ] that jurors place the greatest weight on eyewitness confidence in assessing identifications [ 9 ] even though confidence is a poor gauge of accuracy; [ 10 ] and that suggestiveness can stem from sources beyond police-orchestrated procedures. [ 11 ] The majority today never-theless adopts an artificially narrow conception of the dangers of suggestive identifications at a time when our concerns should have deepened.


     There are many reasons why Perry’s particular situation might not violate due process. The trial court found that the circumstances surrounding Blandon’s identification did not rise to an impermissibly suggestive level. It is not at all clear, moreover, that there was a very substantial likelihood of misidentification, given Blandon’s lack of equivocation on the scene, the short time between crime and confrontation, and the “fairly well lit” parking lot. App. 56. The New Hampshire Supreme Court, however, never made findings on either point and, under the majority’s decision today, never will.

*  *  *

     The Court’s opinion today renders the defendant’s due process protection contingent on whether the suggestive circumstances giving rise to the eyewitness identification stem from improper police arrangement. That view lies in tension with our precedents’ more holistic conception of the dangers of suggestion and is untethered from the evidentiary interest the due process right protects. In my view, the ordinary two-step inquiry should apply, whether the police created the suggestive circumstances intentionally or inadvertently. Because the New Hampshire Supreme Court truncated its inquiry at the threshold, I would vacate the judgment and remand for a proper analysis. I respectfully dissent.


1  Because the facts of this case involve police action, I do not reach the question whether due process is triggered in situations involving no police action whatsoever.
2  Wade held that the dangers of pretrial identification procedures necessitated a right to counsel; that same day, Stovall held that a defendant ineligible for the Wade rule was still entitled to challenge the confrontation as a due process violation. Because the two were companion cases advancing interrelated rules to avoid unfairness at trial resulting from suggestive pretrial confrontations, Wade’s exposition of the dangers of suggestiveness informs both contexts. See Manson v. Brathwaite, (“Wade and its companion cases reflect the concern that the jury not hear eyewitness testimony unless that evidence has aspects of reliability”).
3  Our precedents refer to “impermissibly,” “unnecessarily,” and “unduly” suggestive circumstances interchangeably. See, e.g., Brathwaite, 432 U. S., at 105, n. 8, 107–108, 110, 112–113 (“impermissibly” and “unnecessarily”); Neil v. Biggers, –199 (1972) (“impermissibly” and “unnecessarily”); Coleman v. Alabama, –5 (1970) (“unduly” and “impermissibly”); Simmons v. United States, –384 (1968) (“unduly” and “impermissibly”). The Circuits have followed suit. E.g., Thigpen v. Cory, 804 F. 2d 893, 895 (CA6 1986) (“unduly”); Green v. Loggins, 614 F. 2d 219, 223 (CA9 1980) (“unnecessarily or impermissibly”). All reinforce our focus not on the act of suggestion, but on whether the suggestiveness rises to such a level that it undermines reliability. Police machinations can heighten the likelihood of misidentification, but they are no prerequisite to finding a confrontation “so impermissibly suggestive as to give rise to a very substantial likelihood of . . . misidentification.” Simmons, 390 U. S., at 384.
4  The majority denies that it has imposed a mens rea requirement, see ante, at 2, n. 1, but by confining our due process concerns to police-arranged identification procedures, that is just what it has done. The majority acknowledges that “whether or not [the police] intended the arranged procedure to be suggestive” is irrelevant under our precedents, ibid., but still places dispositive weight on whether or not the police intended the procedure itself.
5  State v. Henderson, 208 N. J. 208, 231, 27 A. 3d 872, 885 (2011); see also, e.g., Benn v. United States, 978 A. 2d 1257, 1266 (D. C. 2009); State v. Dubose, 285 Wis. 2d 143, 162, 699 N. W. 2d 582, 592 (2005); Dept. of Justice, Office of Justice Programs, E. Connors, T. Lundregan, N. Miller, & T. McEwen, Convicted by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence After Trial 24 (1996); B. Cutler & S. Penrod, Mistaken Identification: The Eyewitness, Psychology, and the Law 8 (1995); Wells, “Good, You Identified the Suspect”: Feedback to Eyewitnesses Distorts their Reports of the Witnessing Experience, 83 J. of Applied Psychology No. 3 360 (1998).
6  B. Garrett, Convicting the Innocent: Where Criminal Prosecutions Go Wrong 9, 48, 279 (2011); see also, e.g., Innocence Project, Facts on Post-Conviction DNA Exonerations (75% of postconviction DNA exoneration cases in the U. S. involved eyewitness misidentification), (as visited Jan. 11, 2012, and available in Clerk of Court’s case file); Dept. of Justice, National Institute of Justice, Eyewitness Evidence: A Guide for Law Enforcement iii (1999) (85% of 28 felony convictions overturned on DNA evidence involved eyewitness misidentification).
7  See, e.g., Gabbert, Memon, Allan, & Wright, Say it to My Face: Examining the Effects of Socially Encountered Misinformation, 9 Legal & Criminological Psychol. 215 (2004); Douglass & Steblay, Memory Distortion in Eyewitnesses: A Meta-Analysis of the Post-Identification Feedback Effect, 20 Applied Cognitive Psychol. 859, 864–865 (2006).
8  See Brigham & Bothwell, The Ability of Prospective Jurors to Estimate the Accuracy of Eyewitness Identifications, 7 Law & Hum. Behav. 19, 22–24, 28 (1983) (nearly 84% of study respondents overestimated accuracy rates of identifications); see also, e.g., Sigler & Couch, Eyewitness Testimony and the Jury Verdict, 4 N. Am. J. Psychol. 143, 146 (2002).
9  See Cutler & Penrod, Mistaken Identification, at 181–209; Lindsay, Wells, & Rumpel, Can People Detect Eyewitness-Identification Accuracy Within and Across Situations? 66 J. Applied Psychol. 79, 83 (1981).
10  See Brewer, Feast, & Rishworth, The Confidence-Accuracy Re-lationship in Eyewitness Identification, 8 J. Experimental Psychol. Applied 44, 44–45 (2002) (“average confidence-accuracy correlations generally estimated between little more than 0 and .29”); see also, e.g., Sporer, Penrod, Read, & Cutler, Choosing, Confidence, and Accuracy: A Meta-Analysis of the Confidence-Accuracy Relation in Eyewitness Identification Studies, 118 Psychol. Bull. 315 (1995).
11  See Brief for Wilton Dedge et al. as Amici Curiae 8, n. 13.
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