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Bar News - February 17, 2012

SCOTUS Sides with Police in NH Witness ID Case

On January 11, 2012, the US Supreme Court issued an 8-1 decision in Perry v. New Hampshire, rejecting the defendant’s challenge of an eyewitness identification of him at the crime scene. The high court, in its first New Hampshire criminal case since the 1971 Coolidge case, affirmed Perry’s conviction for breaking into a car on August 15, 2008.

With Justice Sonia Sotomayor dissenting, the Court rejected the defendant’s argument, made by Richard Guerriero of the NH Public Defender, that a trial court should have made a preliminary assessment of the reliability of the eyewitness identification because the circumstances surrounding it were suggestive. Among other things, the eyewitness had identified Perry while he was standing next to a police officer in the parking lot.

Perry further alleged that the New Hampshire courts denied him due process of law under the United States Constitution by not conducting a court evaluation of the reliability of the eyewitness evidence before allowing the jury to weigh the reliability of the evidence during trial. The US Supreme Court decision issued earlier this week affirms the prior ruling of the New Hampshire Supreme Court, upholding Perry’s conviction after trial in the Hillsborough South Superior Court.

The US Supreme Court stated that it accepted this appeal to resolve a division of opinion by federal and state courts across the nation on the issue of whether the Due Process Clause requires a trial judge to conduct a preliminary assessment of the reliability of an eyewitness identification made under suggestive circumstances not arranged by the police.

The US Supreme Court heard oral argument in the case on November 2, 2011. Attorney General Michael Delaney argued the case on behalf of the State of New Hampshire. New Hampshire Public Defender Richard Guerriero argued the case on behalf of Barion Perry.

Many organizations filed briefs in support of the State of New Hampshire, including the Solicitor General of the United States of America, 30 Attorneys General, the National District Attorneys Association and the Criminal Justice Legal Foundation. Many groups filed briefs in support of Mr. Perry, including the American Psychological Association, the Innocence Network, the National Association of Criminal Defense Lawyers, and a group of exonorees wrongfully convicted based on mistaken eyewitness identifications.

Attorney General Delaney stated: "It was a privilege for me to represent the State of New Hampshire before the highest court in the land. I am pleased that the US Supreme Court affirmed the ruling of the New Hampshire Supreme Court and upheld the conviction of Barion Perry. This is an important decision with national implications that resolves a growing conflict among courts regarding the admissibility of eyewitness identifications at trial. The decision confirms that New Hampshire provided Mr. Perry with a fundamentally fair trial and that justice has been served by his conviction."

Find the opinion at

Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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